2019

SUPREME COURT

1. Ajit Kaur @ Surjit Kaur v. Darshan Singh (Dead).

Relevant Facts-

Moti

Bhana- Bhago Bhana- Banti

Ajit Kaur

Darshan Singh Gurdev Kaur Amriti Udhi

In this case, the petitioner appealed against the judgement of the High Court of Punjab and
Haryana. The defendants filed a suit for possession of the subject land in dispute whose real
owner was Bhana (father of defendants). The defendants were the children of Bhana from his
first wife Bhago and after her death, he was remarried to Banti and had a daughter, Ajit Kaur
from the relationship with Banti. Smt. Banti started living separately from Mr. Bhana and to
settle the dispute between them, Bhana parted the suit land to Smt. Banti by way of gift for
her maintenance in the year 1950. The gift was challenged by the present defendant in the
trial court and he claimed that the gift was of the ancestral property and it would not affect
the reversionary rights of Darshan Singh. It was held that the gift would not affect the
reversionary rights of the Darshan Singh and would operate only during the lifetime of
Bhana. After that, Smt. Banti filed a civil appeal against the trial court’s judgement first under
the District Court and then under the High Court. Both the appeals were dismissed. Mr.
Bhana died in 1973 and before his death, he had executed a will in which he bequeathed his
estate in favour of children of his first wife and excluded Smt. Banti and Ajit Kaur. now, the
ajit kaur (plaintiff) filed a suit and claimed that banti was the absolute owner of the property
and she denied the earlier litigation between the parties in which 3 reversionary rights of
respondent came to be upheld. The will was also contested by the plaintiff.

Contentions
Plaintiff

 Smt. Banti was the widow of Bhana and formed a coparcenery so, she was entitled to
1/3rd share after the enforcement of the Act, 1956. If plainly the succession stood
opened after the enforcement of Act, 1956 then one son and three daughters from first
wife would get 2/3rd of the property and widow and one daughter from second
marriage would get 1/3rd property.
 The validity of the will executed by Bhana could not be effecting the right of the
successor after the enforcement of the Hindu Succession Act. Further, the property
gifted to Smt. Banti before the enforcement of the Act, 1956 for maintenance of the
separated wife now widow would hold the absolute right over the property after the
Act, 1956 has come into force.
 No will could be executed by Bhana regarding the aforesaid ancestral property to his
issue since the subject property was in possession of Banti, in view of maintenance
and irrespective of the nature of document/statement made by Bhana, the property
would become absolute property of Banti on enforcement of Act, 1956. The
reversionary rights of the respondent is only to be effective if the reversionary rights
existed when the succession opened on the death of Bhana, the Karta and coparcener.

Respondent

 The subject land in dispute was mutated in the name of Smt. Banti on the basis of the
oral gift and the suit which was filed by the plaintiff for mutation would not bind their
reversionary rights and it has been held by all the courts that the alleged oral gift has
not been proved.
 In the aforesaid will, late Bhana (testator) also mentioned that Smt. Banti was living
in adultery and separate from him for more than 20 years and merely being in
possession of the suit land will not make her an absolute owner of the property on
coming in effect of the Act, 1956 and s.14(1) of the Hindu Succession Act, 1956
makes it clear that in order to avail the benefit of the mandate of law, the women must
come in possession of the land under one of the devise mentioned therein.
 The plaintiff has no legitimate right to claim possession by way of succession under
the Act, 1956 and no error was committed in restoration of reversionary rights of the
respondents under the impugned judgment.

Judgement
In the instant case, it was held that the appellant would not confer preexisting right of
possession under s. 14(1) of the Hindu Succession Act, 1956 over the subject property and
shall not claim full ownership rights after the Act, 1956 came into force by operation of law.

Analysis

 s.14(2) is in the nature of a proviso and is independent of s. 14(1) and it should not be
wholly inconsistent with the main provision so that it destroys the effect of the main
provision or the protection granted by Section 14(1).
 The words ‘possessed by’ used in Section 14(1) are widest in nature and it include the
state of owning a property in spite of the owner is having actual or physical
possession of the same.
 Where a widow gets a share in the property under a preliminary decree before or at
the time when the 1956 Act had been passed but had not been given actual possession
under a final decree, the property would be deemed to be possessed by her and by
force of Section 14(1) she would get absolute interest in the property.
 As given under s. 14(1), the words ‘restricted estate’ used in s.14(2) are wider than
‘limited interest’ as restricted estate include not only limited interest, but also any
other kind of limitation that may be placed on the transferee.

2. Radhamma & Ors. v. H.N. Muddukrishna & Ors., (2019) 3 SCC 611: 2019 SCC
OnLine SC 64.

Relevant facts-

The instant appeal is directed against the judgement of the High court of Karnataka in which
it was held that the appellants are not entitled to claim any share in the joint family properties.

The plaintiffs filed a suit for partition on 16-01-1976 for claiming 1/10 th share in the suit
properties given in the schedule to the plaint ‘A’ to ‘H’. It was held by the trial court that the
2nd plaintiff, Smt. Nagamma, who is the daughter of 1st plaintiff (1st plaintiff died on 07-07-
1978) is entitled for 1/10th share of joint family properties in the plaint ‘A’ to ‘E’ and the
properties under the plaint ‘F’ and ‘G’ were held to be self-acquired properties and property
‘H’ was declared as the exclusive property of Smt K.C. Saroja.

The judgement of the trial court was challenged before the High Court by the present
appellants. The High Court held that a coparcener is having a right to dispose of his
undivided share in Hindu joint family governed by Mitakshara law by making a “will” or any
testamentary disposition and therefore, 1/10th share of 2nd plaintiff in the undivided share of
the testator in the joint family properties schedule ‘A’ to ‘E’ came under s. 30 of the Hindu
Succession Act, 1956.

Contentions

Appellants

Mr. Girish Ananthamurthy, counsel for appellant had said that the independent share of the
plaintiff as a member of the joint family could not have been divested, even if the testator
could have bequeathed his share through a will and there is an error committed by the High
Court while delivering the judgement.

Reasoning

The court is unable to accept the contention of the plaintiff regarding 1/10 th share in the joint
family properties as the will was executed on 16-06-1962 and the testator died on 06-02-
1965, this means the testator died subsequent to the coming into force of the Hindu
Succession Act, 1956. It is clear that prior to commencement of Hindu Succession Act, 1956,
no coparcener could dispose of his interest in undivided coparcenary interest by will.

Decision

The appellant has no independent share in the joint family properties and their share could be
devolved in the undivided share of the testator in the joint family properties. The Supreme
Court found no error in the judgement of the High Court and hence the appeals fail and will
be dismissed.

HIGH COURT

HIGH COURT OF BOMBAY

3. Yamunabai Shankarrao Budhwant v. Satyabhamabai Eknathrao Bangar & Ors.,

2019 SCC OnLine Bom 728.
 Shankarrao Budhwant-
Yamuna Bai (Plantiff)

Defendant 3

Defendant 1 Defendant 2

Relevant facts-

The deceased Shankarrao was the owner of agricultural lands along with farm houses situated
in village Nandur Vihire in Ahmednagar district. He was having one house property in his
name of area 20ft.* 10 ft. and also some immovable properties like, car, tractor, bullocks, gun
and gold. He died intestate on 23-08-2010. The plaintiff is the wife of Shankarrao and
defendants no.1 & 2 are his daughters.

The plantiff was married to the deceased in 1942. After that, deceased married to defendant 3
but that marriage is void ab intio. The deceased was suffering from severe disease and
therefore he was totally dependent on defendant no. 3 to 5. Further, the defendant no. 3 to 5
mischievously mutated some of the properties in their name. but the application was never
signed by the deceased, so, the mutation had not given any right or title to them. Further, a
land was given illegally to defendant no. 3 by partition and the some of the lands was
transferred in the name of defendant no. 4 & 5 by the deceased by registered sale deed for Rs.
25000/-. The transaction is not binding on the plaintiff as it is illegal, without legal necessity
and consideration. The illegal transaction is also hit by the provisions of Prevention of
Fragmentation & Consolidation of Holdings Act. The plaintiff and defendant no. 1 & 2 orally
prayed for partition, when they came to know about the mischief from the revenue records.

The trial court declared the mutation as illegal and gave plaintiff and defendant no. 1 & 2
1/3rd share in the properties. However, the prayer with respect to mesne profit was not
granted. The judgement of trial court was challenged by defendant no. 3 before District
Court, Ahmednagar and the separate appeal was filed by the original plaintiff for mesne
profits. In the judgement of District Court, the mutation was declared legal, and having
binding effect on plaintiffs.

Contentions
Plaintiff

 The defendant no. 3 has not produced any documentary evidence of her marriage
performed prior to 1956. So, she is not entitled to get any share in the properties left
by Shankarrao and also, she failed to prove that she is a legally wedded wife of
Shankarrao.
 The defendant no. 3 claimed that the deceased has transfer some of the properties in
lieu of maintenance but in the year 1973, there was no such situation which could
have demanded maintenance to the second wife and also, Shankarao had dide in 2010.
Therefore, there was no need for him to transfer the property to defendant no. 3 in
1973.
 Mutation entries are made for fiscal purposes and therefore it will not give any right
or title to the defendant no. 3 and also, she cannot claim ownership.

Respondent

 There is no evidence led by plaintiff to prove illegality in the transaction entered by

the deceased.
 The mutation was passed as per order dated on 10-07-1973 and it is a quasi-judicial
order and therefore, it must be challenged by the plaintiff.

Resoning

The trial court has given calculation taking into consideration the age of the defendant no. 3
and according to that, it was concluded that the marriage between the deceased and defendant
no. 3 would have been take place after the commencement of Hindu Marriage Act, 1955.
Therefore, there marriage will have to be held as void marriage as the deceased was already
married on the date of his second marriage.

Decision

All the properties of the deceased are his ancestral properties. Therefore, after his death, his
legally wedded and legitimate children are entitled to get share in the properties. The plantiff
is not entitled to get the mesne profits since 1973 as the mutation entry was carried out in
1973 and it is brought on record since 1973. The plantiff is entitled to get mesne profits only
from the date of the suit of partition till the actual partition after the death of shankarrao.

HIGH COURT OF DELHI

4. Nikhil Batra v. Diwakar Batra & Ors., 2019 SCC OnLine Del 8253.
 B.D.Batra

K.N. Batra- Kanta S.K. Batra

Batra

Diwakar Ratnakar Batra

Batra -jaishree batra

Nikhil Batra

Relevant facts-

The plaintiff Nikhil batra has instituted this suit for partition of property in Janakpuri, New
Delhi.The property was acquired by her paternal grandmother, Kanta Batra. She received the
property from her husband, K.N.Batra for giving up his share in property situated in New
Rajinder Nagar, New Delhi. The property in New Rajinder Nagar was the property belonging
to Hindu Undivided Family (HUF) of B.D. Batra, who is the paternal great grandfather of the
plaintiff. B.D. Batra has two sons, K.N.Batra and S.K.Batra. They all migrated from Pakistan
and received the property in New Rajinder Nagar, New Delhi in place of the properties left in
Pakistan. B.D. Batra died on 03-06-1955leaving behind his two sons and a property whuich
belonged to HUF of his two sons. There is a mutual settlement between the two sons, K.N.
Batra in place of his share in the HUF property took money from S.K. Batra and purchased
another property in janakpuri. The property he bought was in the name of his wife, Kanta
Batra. Kanta Batra died on 22nd March, 2015 leaving behind her son (defendant no. 1 to 3)
and her grandchildren (defendant no. 4 & 5). The plaintiff pleads that he has a share in the
property situated in janakpuri by birth as the property has been brought from the funds
received on partion of HUF.

Reasoning

The property situated in Janakpuri, New Delhi in the name of paternal grandmother of the
plaintiff, was acquired by her from the government authorities in the year 1971. Therefore, it
cannot be considered as a property of the HUF of her husband K.N. Batra As far as the
argument, of Kanta Batra being a housewife and being a benami owner of the property, is
concerned, the same is barred by the provisions of Benami Transactions (Prohibition) Act,
1988.
s.4 of the Benami Transactions (Prohibition) Act, 1988 bars an action to enforce any right in
respect of any property held benami against the person in whose name the property is held.
However according to, s.4(3) does not apply to the person who is a coparcener in the family
and the property is in the same person’s name and the property is held for the benefit of
coparceners in the family or where the person in whose name the property is held is a trustee
or otherwise standing in a fiduciary capacity and who holds the property for the benefit of
any other person for whom he is a trustee or for whom he stands in such capacity. However,
the said exceptions would not be attracted inasmuch as neither can a Hindu female be a
coparcener nor is Kanta Batra said to be standing or stood in law in a fiduciary capacity as
her husband or as the alleged HUF.

Decision

The property in dispute cannot be the property of the HUF in the eyes of law, therefore, the
question of the plaintiff having any share in the property would not arise. Hence, after the
death of Kanta Batra, in the absence of any Will, the property would devolve on her heirs in
accordance with s.15 of the Hindu Succession Act, 1956. The plaintiff is a grandson of Kanta
Batra. So, he is not entitled to get any share in the property. The court has dismissed the suit
and ordered the plaintiff to pay the defendants no. 1, 2 & 4 of Rs. 30,000/-.
 2018

SUPREME COURT

5. Danamma @ Suman Surpur & Anr v. Amar & Ors., (2018) 3 SCC 343 : 2018 SCC
OnLine SC 63.

Relevant facts-

Guralingappa-
Sumitra

Mahandanda Arun Kumar Danamma

(Dead)- Sarojini Vijay

Sheetal Amar

Triveni

Gurulingappa Savadi was head of a Joint Hindu Family, who died in year 2001 leaving
behind his two daughters viz. Danamma and Mahandanda, two sons viz. Arunkumar and
Vijay and a widow, Sumitra. Amar, S/o ArunKumar, filed suit for partition of property on July
1, 2002 claiming 1/15th of the property. The appellants i.e. two daughters of Savadi, were not
the coparceners to the joint property of their family as they were born prior to the enactment
of Hindu Succession Act, 1956. The trial court in its decision on August 9, 2007 refused to
hold the appellant as coparceners as they were born prior to the enactment of the Act. The
decision of the trial court was challenged in the High Court in 2008. The High Court agreed
with the view of trial court and upheld the decision. A review petition was also filed on
March 4, 2012, but the result remained the same and once again trial court’s decision was
upheld. Aggrieved by this decree, the Appellant filed a Special Leave Petition before
Supreme Court of India under Article 136 of the Constitution of India.

Issues
Whether, with the passing of the Hindu Succession (Amendment) Act, 2005, the Appellants
would become coparcener ‘by birth’ in their ‘own right in the same manner as the son’ and
are, therefore, entitled to equal share as that of a son?

Contentions

Petitioner

On the other hand, Appellants contented that they were also entitled to share in the joint
property of the family, being the daughter of Savadi and for the reason that he had died after
the Act of 1950 came into force.

Respondent

It was argued by the Respondent that only the two sons and widow of Gurulingappa Savadi
were in joint possession of the properties as coparceners and some other properties mentioned
in the plaint which was acquired out of the joint family nucleus.

Judgement

The court first analyzed the section 6 of the Act before and after the amendment of 2005. As
per section 6 of the Act before the amendment of 2005, daughters were not considered
coparceners in Joint Hindu Family. In other words when male Hindu coparcener died the
interest of his coparcenary used to devolve by survivorship upon other male surviving
members of coparcenary. However, if the deceased coparcener had left any female relative
behind specified in Class I of the Schedule, then interest used to devolve by testamentary or
intestate succession and not by survivorship. The undivided interest of a deceased coparcener
was ascertained by assumption notional partition. According to notional partition the interest
of deceased is considered as share in the property that would have been allotted to him if the
partition of the property had taken place immediately before his death. The Amendment of
2005 in the Act confers upon the daughter of the coparcener as well the status of coparcener
in her own right in the same manner as the son. It also gives same rights and liabilities to
daughters in the coparcener properties as she would have had if it had been son.

After analyzing the Act, the main question before court came as whether the amended right of
daughters would be coffered only upon the daughters who are born after September 9, 2005
when the Act came into force or even to those daughters who were born earlier. The Hon’ble
court concluded that though suit was filed in year 2002 but during the pendency of the suit
section 6 of the Act was amended and thus the rights of appellant got crystallized in year
2005. The final decree of trial court was given in 2007 and apex court was of view that trial
court and high court should have considered amendment while passing the decree as
women’s rights were crystallized in year 2005 itself.

Reasoning

The court was of view that the amendment was passed in the interest of gender equality under
the law, and daughters now have the same rights as sons with respect to commonly owned
property partitioned after the amendment to the Act, regardless of when they were born.
Court held that share of Gurulingappa Savadi will devolve upon his daughters as well. Since,
Savadi died leaving behind two sons, two daughters and a widow, both the daughters were
entitled to receive 1/5th share of their father’s coparcenary property.

6. Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646: AIR 2018 SC 3152.

Relevant facts-

Gopalji Prasad

Shyam Narayan Ayodhya Onkarnath Suresh Kumar

Laxmi Prasad Prasad Prasad
Prasad

Krishna Prasad

The Plaintiffs filed the suit against the Defendants for a declaration that the document dated
30.1.1990 executed between Defendant Nos.1 and 2 is invalid and for certain other reliefs.

The family property was partitioned on 31.7.1987 between Gopalji and his five sons, namely,
Laxmi Prasad, Ayodhya Prasad, Shyam Narayan Prasad, Dr. Onkarnath Gupta and Suresh
Kumar. In the partition Gopalji has retained some of the properties for his personal use till his
death. Laxmi Prasad got his share of property along with half portion of existing two-storey,
RCC building situated at Singtam Bazar, East Sikkim, wherein presently a liquor shop is
being run. Shyam Narayan Prasad was allotted a shoe shop at Manihari which is run on a
rented premises owned by Gouri Shankar Prasad. He was also allotted other properties in the
partition.
After the partition, the sons of Gopalji were put in possession of their share of the properties.
However, Laxmi Prasad (Defendant No. 2) in collusion with his brother Shyam Narayan
Prasad (Defendant No. 1) executed an agreement dated 30.1.1990 exchanging the liquor shop
at Singtam Bazar, East Sikkim with the shoe shop at Manihari. The plaintiff contented that
since the property is an ancestral property, they also have a share in the property of defendant
no. 2 and therefore, he has no legal right to exchange the property with defendant no. 1. It
was also contended that the deed of exchange was not registered, therefore, it has no legal
effect.

The trial court had come to the conclusion that the property in question is an ancestral
property and that the Plaintiffs being the sons and grandson of Defendant No. 2, they have
also equal share in the property allotted to him in the partition. The suit was accordingly
decreed.

The first Defendant challenged the said judgment and decree by filing an Appeal before the
District Judge, Sub-Division-II, Sikkim at Gangtok. The District Judge allowed the appeal
and set aside the judgment and decree of the trial court and dismissed the suit. The Plaintiffs
filed a Second Appeal challenging the judgment and decree of the District Judge before the
High Court. The High Court has set aside the judgment and decree of the District Judge and
restored the judgment and decree of the trial court.

Issues

1. Whether the property allotted to Defendant No. 2 in the partition retained the
character of a coparcenary property?
2. Whether the exchange deed is admissible in evidence or not?

Contentions

Petitioner

 The Counsel for the Appellant contended that the entire property of Gopalji was the
self-acquired property and he has divided the property amongst his five sons by a
deed of partition.
 According to the deed of settlement between Defendant Nos. 1 and 2, only the
businesses were transferred and not the buildings. Therefore, the sons and the
grandson of Defendant No. 2 have no right to seek cancellation of the said deed.
 There is no exchange of immovable property as contended by the Plaintiffs.
Therefore, the settlement deed does not require registration. In the circumstances,
 possession of the Appellant is protected Under Section 53A of the Transfer of
Property Act, 1882.

Respondent

 The counsel for respondents submits that the subject matter of the deed of settlement
is a joint family property. The Plaintiffs, being the lineal descendants of Defendant
No. 2, are the members of the coparcenary. So, they have a right and interest over the
property in question.
 The settlement deed has not been registered. Hence, it is inadmissible in evidence.
 Defendant No. 1 has not pleaded in his written statement that he has taken the
possession of the property in part performance of the contract. Therefore, it is not
open for him to claim the benefit of Section 53A of the T.P. Act.

Judgement

Since, Gopalji Prasad retained certain properties in the partition. Certain properties had fallen
to the share of Defendant No. 2 who is the father of Plaintiff Nos. 1 to 3 and grandfather of
Plaintiff No. 4.

It is settled that the property inherited by a male Hindu from his father, father's father or
father's father's father is an ancestral property. The essential feature of ancestral property,
according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person
who inherits it, acquire an interest and the rights attached to such property at the moment of
their birth. The share which a coparcener obtains on partition of ancestral property is
ancestral property as regards his male issue. After partition, the property in the hands of the
son will continue to be the ancestral property and the natural or adopted son of that son will
take interest in it and is entitled to it by survivorship.

Therefore, the properties acquired by Defendant No. 2 in the partition although are separate
property but it is a coparcenary property insofar as his sons and grandsons are concerned. In
the instant case, there is a clear finding by the trial court that the properties are ancestral
properties which have been divided as per the deed of partition. The property which had
fallen to the share of Defendant No. 2 retained the character of a coparcenary property and
the Plaintiffs being his sons and grandson have a right in the said property.

With regard to the transfer of ownership of the respective properties by Defendant Nos. 1 and
2, it was contended by Defendant No. 1 that the exchange was only of the businesses.
However, it clearly shows that the RCC building is also a subject matter of the deed of
exchange. So, it comes under a. 118 of the Transfer of Property Act, 1882.

It is clear from this provision that where either of the properties in exchange are immovable
or one of them is immovable and the value of anyone is Rs. 100/- or more, the provision of
Section 54 of the TP Act relating to sale of immovable property would apply. It is thus clear
that in the case of exchange of property of value of Rs. 100/- and above, it can be made only
by a registered instrument. In the instant case, the exchange deed at Exhibit P2 has not been
registered. Since the deed of exchange has not been registered, it cannot be taken into account
to the extent of the transfer of an immovable property.

HIGH COURT

HIGH COURT OF DELHI

7. Sunil Gupta v. Nargis Khanna, 2018 SCC OnLine Del 9082.

Relevant facts

Jagan Gopal
Dewan- Amrit
Kala Dewan

Prem Kumar
Nargis Khanna
Dewan

The plaintiff has filed the suit for partition of property situated in Panchsheel Park, New
Delhi and also for rendition of accounts and mesne profits.

The plaintiff has purchased 50% of the undivided unspecified share in the property from
Prem Kumar Dewan, who is the brother of the defendant, by way of a registered agreement to
sell. The plaintiff is also in actual, physical possession of the entire second floor and the
terrace and he is also in symbolic and proprietary possession of the remaining portion of the
property.

The original owner of the property is the defendant, Nargis Khanna and Jagan Gopal Dewan
(Prem Kumar Dewan’s father). He died on 27-04-2001, leaving a validly executed will dated
09-12-1972, in which he bequeathed the said property to his wife Amrit Kala Dewan, who
also died on 12-01-2005, leaving a registered will dates 06-10-2004. Under the will, she
bequeathed the property in favour of her son Prem Kumar Dewan and her daughter, Nargis
Khanna.

After that, Prem Kumar Dewan and Nargis Khanna decided to evict the tenants in the
property and to jointly settled the property. They made a family settlement on 24-11-2005 and
agreed that each of them would be the absolute owner of the half undivided share in the
property. The defendant did not cooperate with her brother, who took possession of second
floor and sold his 50% undivided share to the plaintiff. Immediately after purchasing the
property, plaintiff informed the defendant of the same and they had a talk about the partition
of the property, but the defendant instituted a suit under s.44 of the Transfer of Property Act,
1882 against the plaintiff.

The defendant filed a suit in which she pleads that she and her brother got the share in the
property of her mother under the will and they became co-owners of the property and the
property is indivisible, undivided and jointly possessed by both of them. She further claims
that the plaintiff has no right to joint possession and enjoyment of the property with the
defendant. Further, the plaintiff has not acquired any ownership rights and only has an
agreement to sell which does not constitute title to the property.

Contentions

Petitioner

 The plaintiff contended that s.44 was not applicable here as there was no joint family
and the property was not a dwelling house belonging to an HUF and the defendant
and her brother got the property not as a member of joint family but they got the share
in the property under the will of their mother.


Respondent

 The plaintiff is debarred by s.44 of the Transfer of Property Act, 1882 from joint
possession and ownership of the property and therefore, he is in illegal possession of
the second floor of the property.
 The lease of the land underneath the property prohibits sale/transfer of land, without
permission in writing of the lessor i.e. Government of India but neither Prem Kumar
Dewan having only 50% undivided share therein nor the plaintiff as agreement
 purchaser of the rights of Prem Kumar Dewan, could alone, without the defendant,
being the owner of remaining 50% rights, apply for such permission.
 Thus, non-execution of the Sale Deed in pursuance to the Agreement to Sell in favour
of the plaintiff is also attributable to the defendant.

Reasoning

According to Section 22(1)(a) of the Specific Relief Act which entitles any person suing for
specific performance of a contract for the transfer of immoveable property to ask for partition
and separate possession, again indicating that there is no bar to an agreement purchaser of a
share in immoveable property seeking the relief of partition. If, till Sale Deed is executed,
there was any bar from seeking partition from others having share in such immoveable
property, Section 22 would not have so provided. In the present case, Prem Kumar Dewan,
with whom plaintiff has an agreement to purchase, is not disputing or denying performance
thereof. There is thus no need for the plaintiff to seek the relief of specific performance
against him. At the same time, the plaintiff, in pursuance to Agreement to Sell with Prem
Kumar Dewan, cannot have title, owing to defendant, being the other co-owner with Prem
Kumar Dewan, not cooperating. However, the plaintiff is certainly entitled to seek partition.

Decision

A preliminary decree for partition is passed declaring the plaintiff and the defendant to be
having 50% undivided share in the property.

The property can be partitioned only by sale i.e. either by inter se bidding between the parties
or by sale to third parties for the benefit of both the parties. It is also felt that such sale should
be carried out after getting the leasehold rights of the land underneath the property converted
to freehold since the costs thereof is far less than the costs of obtaining permission for sale of
leasehold rights.

Accordingly, a final decree for partition is also passed, of partition of property situated in
Panchsheel Park, New Delhi of sale and of distribution of net sale proceeds between the
parties as per their share under the preliminary decree for partition.

HIGH COURT OF CALCUTTA

8. Sri. Soumen Mullick & Anr. v. Sri. Somenath Mullick & Ors., 2018 SCC OnLine Cal
6410.
Relevant facts-

Kristo Mohan
Mullick- Gouri
Bala Mullick
Kedarnath-
Dwarkanath-
Jogomaya Kashinath Lokenath Somnath
parbati
Mullick

Durga Souren Sabita Jamuna

Mullick Mullick Mullick
Bani
Mullick

Jyotsana Sri. Soumen

Mullick Kaberi Mullick

The appeal is from a judgement and decree dated 5th July 2017 on an application filed by the
Sri Somenath Mullick for final decree in a partition suit. The partition suit was file on 14 th
September 1973 for six immovable properties located in Calcutta.

The properties belonged to late Kristo Mohon Mullick, who died intestate on 5 th April 1936
leaving behind his wife, Goribala Mullick and five sons, each having a share in the
properties.

The High Court of Calcutta defined each one share as:

1. Shri. Kedar Nath Mullick- 1/6th Share

2. Shri. Kashi Nath Mullick- 1/6th Share

3. Shri. Loke Nath Mullick- 1/6th Share

4. Smt. Parbati Mullick- 2/15th Share

5. Shri. Som Nath Mullick- 1/6th Share

6. Smt. Gouri Bala Mullick- 1/5th Share

Some of the parties died, so their respective heirs as legal heirs take their share and interest as
in August, 2009. Smt. Durga mallick inherited from kedarnath mullick and jogomaya
mullick, 5/30th share. After the death of jogmaya mullick in 2007, durga mullck get 1/6 th share
of late kedarnath mullick. Smt. Jamuna mullick, smt. Bani, smt. Kaberi and sri. Soumen
mullick they all are entitled to get 1/6 th share jointly from kashinath mullick. Sri lokenath
mullick inherited from kristo mohon mullick, 5/30th share. Sri souren mullick, sabit mulick
and jyotsana mullick jointly inherited 4/30th share from dwarikanath mullick & parbati
mullick. Sri somnath mullick inherited 11/30 th share from kristomohan mullick & gouribala
mullick.

Dwarkanath Mullick died intestate in August 1957; his wife Parbati Mullick passed away
leaving her son Souren Mullick and two daughters Sabita Mullick and Jyotsna Dutta. As a
result, 1/6th share of late Dwarkanath Mullick devolved unto Parbati Mullick (since
deceased), Souren Mullick, Jyotsna Dutta, Sabita Mullick and Gouribala Mullick (mother of
Dwarkanath Mullick) in equal shares each having 1/38th share in the estate. After Parbati
Mullick died, her share devolved unto Souren Mullick, Jyotsna Dutta and Sabita Mullick in
equal shares as a result of which they held 2/15th share of the estate.

Kashinath Mullick sold his undivided share. Lokenath Mullick inherited 1/6th share in the
estate of Kristo Mohon Mullick. Somnath Mullick became entitled to 1/6th share in the estate
of Kristo Mohon Mullick. On the death of Gouribala Mullick, his mother who, on the date of
her death in December 1982, held 1/6th share from her husband and another 1/30th share
inherited on the death of her son, Dwarkanath Mullick, and therefore held 1/5th of the total
share in the estate.

By consent to the parties, a preliminary decree was passed in the suit in September, 1973
declaring the shares of the parties as follows:

1. Kedarnath Mullick- 1/6th Share

2. Kashinath Mullick- 1/6th Share

3. Lokenath Mullick- 1/6th Share

4. Souren Mullick- 2/30th = 1/15th Share

5. Somnath Mullick-1/6th Share

6. Kumari Jyotsna Mullick- 1/30th Share

7. Smt. Sabita Mullick- 1/30th Share

8. Smt. Gouribal Mullick- 1/30th Share approximately

9. Smt. Gouribala Mullick- 1/6th Share having a life interest only as a Hindu mother.

10. Harihar Mullick- 1/5th Share in the premises no. 245-B Manicktalla Main Road
After the preliminary decree was passed, by a Will dated 19th January, 1980, Gouribala
Mullick bequeathed all her properties to Somnath Mullick, as a result of which Somnath
Mullick became entitled to 11/30th shares in the estate. On 6th May 1979, after the consent
decree was passed in the suit, the plaintiffs and the defendants with their representatives
allotted the properties set out in paragraph 3 of the plaint by way of a family settlement, one
of the terms of which was that a portion of the premises sitaued in Manicktalla Main Road,
Calcutta-would be allotted to Gouri Bala Mullick, the mother of Somnath Mullick. It was
specifically recorded in the family settlement (Clause 5 thereof) that the other owners have no
objection and have also agreed to partition between themselves. By this family settlement
Somenath Mullick was also allotted 4 cottahs of land situated in Manicktalla Main Road,
Calcutta.

A second family settlement was entered into between the parties on 2nd April, 1980 by which
it was agreed between the parties that each party shall enjoy the respective plot allotted to
him as absolute owner and shall have full power to transfer and deal with the same by letting
out on lease in any manner without consent of the others; and that no one shall obstruct or
cause hindrance to the same (Clause 1 of the family settlement). Clause 5 of this family
settlement provided that the dwelling house situated in Kolkata-700054 shall remain joint for
the time being and that Gouri Bala shall be allotted and shall accept a share therein in lieu of
her 1/6th shares in the property.

After the parties agreed to amicably partition the properties by way of the family settlements,
one of the co-sharers namely Jyotsna Dutt, sister of Sourendra Mullick filed an application
challenging the allotment made by the parties after the preliminary decree. This application
was dismissed by an order dated 22nd July, 2005. One of the reasons given for dismissing the
application was that it could be inequitable and unjust to upset the settlement that was arrived
at by and between the parties almost 25 years ago (from 22nd July, 2005, when the said
Judgment was passed) and that further the parties have themselves made a branch-wise
allotment of the properties and each branch continued to remain in exclusive possession of
the properties allotted to them. The appeal preferred by Jyotsna Mullick from the above
Judgment was disposed of by the Appeal Court by an order dated 14th August 2006 whereby
the Commissioner of Partition was directed to adjust the equities so that each party gets the
declared share in the joint family property.
Thereafter, owing to some of the plaintiffs having died as well as the death of the original
defendant namely, Gouribala Mullick, an application was moved on behalf of Somenath
Mullick for alteration of the shares in view of the fact that Gouri Bala Mullick died intestate
on 29th December, 1982 leaving her interest in the joint estate to Somenath Mullick. An order
was passed by which the share of Somenath Mullick was enhanced to 11/30th of the joint
properties and a Commissioner of Partition was appointed in place of the earlier
Commissioner of Partition with a direction on the new Commissioner to implement the
preliminary decree. The Commissioner of Partition has further held that Durga Mullick, heir
of Kedarnath Mullick is to pay an owelty money of Rs. 17,00,495.00. Similarly the heirs of
Kashinath Mullick being Jamuna Mullick, Soumen Mullick, Bani Mullick and Kaberi Boral
are to pay owelty money of Rs. 1,54,326.00. Lokenath Mullick is to pay of owelty money of
Rs. 2,72,294.00 and Sourendra Mullick, Jyotsna Dutta and Sabita Mullick, heirs of
Dwarkanath Mullick are to pay the owelty money of Rs. 5,94,439.00. Only Somnath Mullick
according to the report is entitled to an owelty money of Rs. 27,21,550.00 as indicated in the
report.

The impugned Judgment and decree dated 5th July 2017 from which the instant appeal arises,
notices an order passed by a Division Bench dated 18th February 2016. The Division Bench,
amongst other issues, notes that none of the parties filed any exception to the report of the
Commissioner and that it can be presumed that delaying tactics are being adopted so that the
final decree is not proceeded with.

By the impugned order the Judge also directed Lokenath Mullick, Durga Mullick, Soument
Mullcik, Jamuna Mullick and Sourendra Mullick to vacate the rooms in their respective
occupation in premises of Manicktalla Main Road and hand over the same to Somnath
Mullick.

Issues

Whether the appellant Nos. 1 and 2 having 1/18th and 2/45th respectively of the shares in the
properties can at all throw a challenge to the respondent No. 1 who admittedly holds 11/30th
of the family property?

Contentions

Plaintiff
The counsel for appellant argued that the application filed by respondent No. 1, a prayer has
been made for vacating the rooms occupied by Lokenath, Durga, Soumen, Jamuna and
Sourendra Mullick in the dwelling house. Despite the prayer sought for, there is no prayer in
the plaint for recovery of possession or for appointment of Commissioner of Partition for
affecting partition of the suit properties by metes and bounds. Counsel argues that in the
absence of any prayer for recovery of possession, no decree to such effect could have been
granted by the learned Single Judge.

Respondent

Mr. A.C. Kar, learned senior counsel for respondent submits that the shareholding of the
appellant no. 1 is 1/18th and that of the appellant No. 2 is 2/45th, which shows that both the
appellants have miniscule shares in the joint property and that the only relief sought for by
them was a right of residence in the portion of the property which has been allotted to the
respondent No. 1 on payment of the value in accordance with the Valuation Report.

He further submits that the appellants accepted their shares as stated in the Valuation Report
and the fact that they are willing to pay for the price of the excess area being held by them as
per the Valuation Report. Counsel submits that both the appellants have accepted the
Valuation Report as done by the Commissioner of Partition and have also accepted the
allotment stated therein.

Judgement

The court does not find any error in the reasoning of the First Court in confirming the stand
taken by the Commissioner of Partition and the Valuer. The latter family agreement
particularly Clause 5 makes it clear that the said property would remain joint only for the
time being, subject to other events taking place. It is an admitted fact that several orders have
been subsequently passed on applications filed by some of the co-sharers and also pursuant to
the deaths of some of the parties to the suit. The orders included appointment of a
Commissioner of Partition for adjusting the equities so that each party gets the declared share
in the joint family property. The fact that the respondent No. 1 has been allotted this portion
of the dwelling house upon payment of the value as indicated in the valuer's report is an
important factor. Secondly, the fact that the appellants have categorically stated that they are
willing to pay for the price of the area which they are holding in excess to that as stated in the
Valuation Report is also significant. For these reasons, the court uphold the judgment and
decree passed by the learned Single Judge and hold that the appeal is liable to be dismissed.
The surviving heirs of Lokenath Mullick and Jamuna Mullick including the appellants before
us are directed to vacate the rooms in their respective occupation within two months from the
date of communication of this judgment and order. The directions given by the learned Single
Judge in relation to the specific Lots in the Manicktalla Main Road premises shall remain
subject to the Commissioner complying with the said directions and remuneration being paid
to the Commissioner as directed by the First Court.

2017

SUPREME COURT

9. RAM NATH SAO v. GOBERDHAN SAO, (2017) 13 SCC 149.

Relevant Facts-

Fuchan mahto-
Puniya devi

Mithu Sao Ugni Devi

Temni (1st Bilaso Devi

wife) (2nd wife) Jagarnath

Ramnath kashinath Govardhan Jagdish Parasnath

Buchwa Baldeo Sarita Dharamnath

Fuchan Mahto was the common ancestor of the family and he died on 1940 leaving behind
his widow, a son and a daughter. The son had two wives and from his 1 st wife, he had 3
children, namely, Ramnath, Kashinath and Buchwa and from his 2 nd wife, he had 4 children,
i.e., Govardhan, Jagdish, Baldeo and Sarita. The Daughter had 3 children, Jagarnath,
Parasnath and Dharamnath. The son died in 1961, widow died in 1967, and the daughter died
on 1995. the children from the 1st wife are the defendants in the suit whereas children from
2nd wife and the 2nd wife itself are the plaintiff. At the time of partition, Mithu Sao’s 1 st wife
was also died.

According to the plaintiff, the plaintiff and defendant constituted a Hindu undivided family
governed by mitakshara law. They filed a suit for a decree of partition for the ancestral land
situated in the village Lapanga in the district of Hazariabagh. They also have several other
lands in different villages in the name of one or another member of the family whereas
defendant brought the suit on the ground that there was no unity of title and possession
between the parties. The difference arises in the family after the 2 nd marriage of Mithu Sao.
According to the defendant, after the death of Mithu Sao the children of his 1 st and 2nd wife
separated. so, there was no joint family in existence and they have only one ancestral land
available for partition, whose major portion had been acquired by the Government and
compensation paid by the government had been distributed amongst the parties according to
their respective shares. The other two items of the properties are self-acquired and are not
liable to be partitioned.

Issue

what are the shares of the respective parties in the joint family properties?

Decision

It was held that, after the death of Mithu Sao (in 1961), s. 6 of the Hindu Succession Act,
1956 will apply and notional partition will be presumed before the death of Mithu Sao.
Therefore, there will 8 shares in the joint family property and share of each one of them will
be 1/8.

Now, the share of Mithu Sao will be divided among the surviving members of the joint
family by intestate succession under s.6 of the Hindu Succession Act, 1956. Each of them
will get 1/8*9= 1/72. After the death of Fuchan Mahto in 1961, Puniya Devi being the widow
of him got 1/8th + 1/72th (total-10/72th) share in the joint family property. After Puniya devi’s
death in 1967, her daughter will be entitled to get one-half of her share, i.e., 10/144 th share.
and the remaining 10/144th share will be divided among the heirs of Mithu Sao. Thus, each
heir of Mithu SAao, i.e.,his widow and 7 children will each get share of 1/8 * 10/144 =
10/1152.

HIGH COURT
HIGH COURT OF BOMBAY

10. Leelavati Baburao Chaudhari v. Pitambar Shridhar Attarde & Ors., 2017 SCC
OnLine Bom 1805: (2017) 6 Mah LJ 469.

Relevant facts-

There was a partition of the property in 1978 which was inherited by the father. The partition
was held among father and three sons, under which there were four equal divisions, each
male member of coparcenery getting 1/4th share. After the partition, entries were taken in
revenue record and also, members of the family had been enjoying the partitioned properties,
as their separate properties. Subsequently, the father had executed a registered Will on 19th
November, 1990 bequeathing property received in partition to only two out of his three sons.

A suit was filed by the married daughter (present appellant) of deceased father seeking
partition and separate possession in respect of the property inherited by her deceased father.
The defendants, in written statement, resisted claims of the plaintiff. The trial court decided in
the negative against the plaintiff.

After that, a proceeding had been carried to district Court. The Appellate Court has
considered that no property had been left to be partitioned by deceased father of the plaintiff,
the Will executed by him, in respect of his one fourth share in the inherited property, to be
legal and had given negative findings about sale deeds executed by brothers of the plaintiff
being illegal and not binding and about entitlement of the plaintiff to partition and separate
possession of suit properties. The appeal, as such, came to be dismissed under judgment and
order dated 16th July, 2015.

Issues

1. Whether disposition of property received in partition among father and sons, by

father, by a will only between two sons, is possible while nature of property before
partition being coparcenary?
2. Whether the plaintiff is entitled to declaration of having one twenty fourth share in
suit properties?
3. Whether she is entitled to partition and separate possession and whether she is further
entitled to declaration that sale deeds executed by brothers in favour of third persons
to be illegal and void?
Whether there was any property left to be partitioned by deceased father of plaintiff?
 4. Whether Will executed by deceased father in respect of his share of partitioned
property was legal and whether sale deeds executed by defendants No. 1 to 3 were
illegal and not binding on the plaintiff and whether the plaintiff is entitled to partition?

Contentions

Plaintiff

 Both the Courts have committed grave error in absolutely declining claim of the
plaintiff for partition and separate possession and the same ought to have been
considered at least in respect of one fourth share taken by deceased father in partition
which had taken place in 1978.
 As the nature of the property is ancestral, so, it had been inherited by deceased father,
with respect to the amendments in Hindu Succession Act,1956, one in 1994 in
Maharashtra, and the other of section 6 in 2005, daughter being accorded status of a
coparcener, the Will executed by father would not affect rights accrued to the plaintiff
as a coparcener.

Judgement

The Father of the plaintiff died in 1991. Thereafter, the properties bequeathed were being
enjoyed by the two sons as their independent properties. That enjoyment had never been
questioned by the third son. The Maharashtra amendment to Hindu Succession Act had been
effective since 1994 and amendment to section 6 to Hindu Succession Act had been made
effective from 2005. Disposition of the property by the father of the plaintiff, as such,
obviously has been before 20th day of December, 2004. On partition, the property had
become separate property of father and as such, he had an absolute right to deal with the same
and which he did by executing a registered Will. Coparcenery nature of the property had
ceased to continue upon partition of the properties among the partitioning members of the
coparcenery, since 1978. Father admittedly had executed Will of his partitioned separate
share in 1990 and in 1991, he has expired. Disposition of suit property among coparceners
then had taken place before Maharashtra Amendment of 1994 to Hindu Succession Act, 1956.
Even if it is assumed that amendment to section 6 of the Hindu Succession Act, is retroactive,
the legislature has already made its intention clear that disposition of properties made before
20th December, 2004 would remain unaffected.

HIGH COURT OF DELHI

11. Lalsa Prasad Singh v. Chanderwala & Anr., 2017 SCC OnLine Del 10961.

Relevant facts

The property in dispute is plot situated in Village Dindarpur, Delhi. Plaintiff pleaded that
property was purchased by means of usual documentation by the means of the Agreement to
Sell, Power of Attorney, Will, possession letter, etc in the names of the wives of his nephews,
but it was the plaintiff who had paid the complete consideration amount from his own funds.
It was also pleaded that the plaintiff and respondents were members of a Joint Hindu Family
and therefore out of love and affection the documents were executed in the names of the
wives of the nephews of the plaintiff, who are the defendants in the suit. Accordingly, in the
suit reliefs of declaration, partition, permanent injunction, etc with respect to the suit property
were prayed.

The first appeal was filed by the plaintiff in the suit against the judgement of trial court by
which the trial court has dismissed the suit for being barred by the Benami Transactions
(Prohibition) Act, 1988. The trial court had dismissed the suit by placing reliance upon
Sections 3 and 4 of the Benami Act.

Reasoning

As per s.4(1) of Benami Transaction Act, no suit to enforce any right in respect of any
property held benami against the person in whose name the property is held or against any
other person shall lie on the plea that the property is held benami, with the exception that
where the person, in whose name the property is held, is a ‘coparcener’ in the Hindu
Undivided Family and the property is held for the benefit of the coparceners of the property
or where the person in whose name the property is held is a trustee or stands in a fiduciary
capacity to another. From Section 4 of the Act, it is obvious that for a valid claim raised by
the plaintiff, to bring the case in the exception provided in clause (a) of sub-Section (3) of
Section 4 of the Benami Transaction Act, following three requisites are essential to be
pleaded:

(i) Existence of a Hindu Undivided Family;

(ii) Defendants in whose name the suit property are held, are a coparceners of the said
Hindu Undivided Family; and
(iii) Suit property is held by the defendants for the benefit of the coparceners in the
family.
 In the instant case, the defendants are the wives of the nephew of the plaintiff and thus
they are not the coparceners under the definition of Hindu Undivided Family and thus
exception carved out by the Benami Transaction Act is not available to the plaintiff. It is
so, because coparceners are recognized by law to jointly by birth inherit rights in the joint
property of the family property and in the event such property stands in one of their
names for the benefit of others, the Benami Transaction Act is declared to not come in the
way. The plaintiff, being the brother of deceased father in law of the defendants is not a
coparcener in the Hindu Undivided Family of his deceased brother.

In view of the aforesaid settled law, the defendants in whose names the suit property
stands as per the pleadings of the plaintiff himself, they are absolute owners of the suit
property by virtue of section 14(1) of Hindu Succession Act, 1956. The plaintiff himself
has pleaded in his plaint that the suit property was purchased in the names of wives of his
nephew out of love and affection and if such fact is admitted in the plaint itself. Once the
plaintiff has admitted in his pleadings that the property had been purchased for the benefit
of the defendants, he cannot be turned around at this stage and file a suit claiming himself
as real owner/co-owner of the property in question.

Judgement

The court does not find an illegality in the judgment of the trial court. Hence, the suit was
barred by Benami Act. The appeal is dismissed.

HIGH COURT OF CALCUTTA

12. Sarmila Bose v. Smt. Krishna Bose & Anr., 2017 SCC OnLine Cal 328: (2017) 2 ICC
66.

Relevant facts

Sisir Kumar
Bose- Krishna
Bose

Sarmila Bose Defendant No. 2 Defendant No.3

The petitioner, Sarmila Bose is the daughter of Dr. Sisir Kumar Bose, since deceased while
the defendant no. 1 is her mother, the defendant nos. 2 and 3 are her two brothers. The
petitioner has filed the partition suit claiminga preliminary decree declaring the respective
shares of herself and the defendants in the estate of her said deceased father, including the
property at Sarat Bose Road, Kolkata. The petitioner has also claimed that if any of the
properties or portion of the property is found to impartible, to sell the said property and
distribute the amount amongst the parties, as per their shares.

The case of the petitioner is that her deceased father was the absolute owner of the said
property and after his father died intestate, leaving behind herself and the opposite parties as
his only heirs/heiress and legal representatives, they jointly inherited the entire estate
including the said property in equal shares as per the provisions of the Hindu Succession Act,
1956. According to the petitioner, she herself and the opposite parties are jointly the absolute
owners of the said property, each having undivided 1/4 th share therein and in spite of her
repeated demands, the opposite parties are not agreeable to partition the estate of her
deceased father. On these averments, the petitioner filed the partition suit against the opposite
parties. The opposite parties are contesting the suit and they have jointly filed their written
statement in the suit. In the written statement, the opposite parties have claimed that the area
of the said property is 6 cottahs and 9 chittaks and the petitioner's share in the said property
comes to 1181.25 square feet, the division of the said property according to their share by
metes and bounds will lead to diminution of its value which is their family dwelling house
and they are entitled to retain the same. The opposite parties have further alleged in the
written statement that they are not willing to sell their share in the said property which is one
of the well-known houses in India, that is, a house of considerable historical and national
significance. They further alleged that they will not sell their share in the said property at any
price, hence for justice equity and good conscience the petitioner should sell her share to
them at proper price.

The Court had rejected the contention raised by the opposite parties that the suit is not
maintainable and held that the defendants have admitted that the petitioner has one-fourth
share and they themselves jointly have three-fourth share in the said property, but the
defendants have not admitted the claim of the petitioner for making the partition of the said
property.

Contentions
Plaintiff

Mr. Saptangsu Basu, appearing for the plaintiff contended that in a partition suit, the
preliminary decree declares the shares of the respective parties to the suit and it is the final
decree which declares the final rights of parties in their respective shares in the suit property,
which is executable. He submitted that in this case, it is only after the passing of preliminary
decree in the suit declaring the shares of the respective parties to suit in the said property, the
question will arise, whether the petitioner is entitled to have partitioned her one-fourth share
in the said property by metes and bounds or the opposite parties will purchase her share. It
was contended that from a reading of paragraph 5 of the written statement filed in the suit, it
is evident that the opposite parties in clear, unambiguous and unequivocal terms admitted that
the petitioner plaintiff has one-fourth share in the said property.

Respondent

Mr. Malay Kumar Basu, representing the opposite parties contended that the power of a Court
to pass a judgment upon admission under Order XII Rule 6 of the Code is discretionary in
nature and in the present case, the discretion exercised by the learned Court below in
rejecting the application filed by the petitioner suffers from no infirmity calling for any
interference by this Court in exercise of revisional jurisdiction. He urged that in the partition
suit the opposite parties have already filed applications under the Partition Act, claiming to
purchase the share of the petitioner in the said property and in the written statement, the
opposite parties accepted the case of the petitioner claiming one-fourth share in the said
property, subject to their right to purchase her share. Thus, he contended that the averments
made by the opposite parties in their written statement to the effect that the petitioner has
one-fourth share in the said property and they are entitled to purchase the petitioner’s share in
the said property by no means can be construed to constitute an admission on their part,
giving any right to the petitioner to obtain a preliminary decree declaring her one-fourth share
in the said property.

Judgement

In a suit for partition it is the preliminary decree which declares the rights and liabilities of
the parties. In a suit for partition there are two decrees namely, the preliminary decree and the
final decree. A preliminary decree is one which declares shares of the respective parties in the
suit property leaving the actual result to be worked out in further proceedings. Then, as a
result of the further inquiries conducted pursuant the preliminary decree, the rights of the
parties are fully determined and a decree is passed in accordance with such determination
which is the final decree. It is the final decree which is executable.

In the instant case, the suit filed by the petitioner is the partition suit wherein she claims to
have inherited one-fourth share in the property of his deceased father, along with the opposite
parties also having one-fourth share each. In a partition suit it is the preliminary decree
passed by the Court which declares the shares of the respective parties to suit in the suit
properties. From the averments made by the opposite parties in their written statement, it is
clear that they have admitted the petitioner has one-fourth share in the said property, but they
claim that the petitioner should sell her said share in the said property to them at proper price.
The applications under Sections 2 and 3 of the Partition Act can only be filed by a party in a
suit for partition. It is well settled that passing of a preliminary decree does not bar to Section
3 of the Partition Act being attracted.

In the present case, when the opposite parties admitted that the petitioner has one-fourth share
and each of them have one-fourth share in the said property, there was no bar on the Court to
pass a preliminary decree declaring that the petitioner and the opposite parties have one-
fourth share each in the said property.

2016

SUPREME COURT

13. L. GOWRAMMA (DEAD) v. SUNANDA (DEAD), (2016) 3 SCC 356.

Relevant Facts
 Venkatsubbiah

Mahabalaiah- Thimmappa-
-wife Gowramma

Sunanda Daughter 2

Daughter 3

The common ancestor, Venkatasubbaiah had two sons Mahabalaiah and Thimappa. after the
death of Venkatasubbaiah, the sons and the wife of Mahabalaiah constituted a hindu joint
family and as Mahabalaiah was the elder between the two sons, so, he was the karta of the
family. The two sons partitioned and divide their joint family properties in the year 1940-41.
After that, Thimmappa died in 1952, leaving behind his widow and three daughters. The
widow has executed a will in 1990 and gave his share to only one daughter among the three
daughters. The widow and other two daughters are the defendants including the person to
whom the widow had sold the suit property during the pendency of the suit. Sunanda
(Daughter) filed a suit against all the defendants. After that, Civil Judge, Senior Division
decide that by s.10 (2)(g) of the 1933 Act the plaintiff would be entitled to a 1/4 th share of the
property.

After the decision the defendant filed first appeal in which the first Appellate Court agreed
upon the decision of the Civil Judge and dismissed the Appeal. After that, a review petition
was filed and that was also dismissed.

Issues

Whether the property left by the husband of the widow and father of the daughters on
partition was obtained by survivorship by the application of s. 8(1)(d) of the Hindu Women’s
Rights Act, 1933.

Contentions

Petitioner
The counsel on behalf of the petitioner, Shri R.S. Hegde, contended that the section which is
applicable in this case is s. 4 and not s.8 and 10, and therefore, the succession after the death
of male Hindu is such that the property goes to only his widow and no to his daughters.

Respondent

The counsel on behalf of the defendants, Shri S.N. Bhat, contended that all the females
mentioned in s. 8 would be entitled to a share in the property as the joint family property
passed to Thimmappa who was a single coparcener by survivorship and after his death his
widow and daughters had share in the property.

Reasoning

A partition of joint family property among brothers is done according to s. 8(1)(b). Therefore,
upon partition between Thimmappa and his older brother, it is only their mother, their
unmarried sisters and widows and unmarried daughters of their pre-deceased undivided
brothers who have left no male issue who get a share under the section. Unlike, sub-section
(a), unmarried daughters of Thimmappa do not get any share at the partition between
Thimmappa and his brother.

For applying s. 10(1)(g), the property should be ‘stridhana’ which is a property of every
description belonging to a Hindu female and does not include property acquired by law or
under the terms of an instrument only a limited estate. Under s.10(1)(g), only property
acquired by inheritance by a female from her husband is included in stridhana. Hence, it
would not include the unmarried daughter’s property acquired by inheritance from her father.

Hence, the succession to a Hindu male dying intestate will vest only in the widow under s.
4(1)(ii) to the exclusion of the daughters who are mentioned in clause (iii).

Decision

The appeals must be allowed and the judgements of the courts will be set aside.

14. Uttam v. Saubhag Singh & Ors., (2016) 4 SCC 68 : 2016 SCC OnLine SC 212.

Relevant facts

Appellant had filed a suit for partition against his father and three uncles (brothers of father),
claiming 1/8th share in the suit property on the foothold that the suit property was ancestral
property, and he being a coparcener has a right by birth as per the Mitakshara law. The trial
Court decided in favour of the appellant. However, first appellate court disentitled the
appellant on the ground that during the life time of the Class-I heir, i.e., his father, respondent
no.3, had no right to sue for partition and dismissed the suit. The second appellate court
upheld the order of the first appellate court. Hence he preferred an appeal to the Supreme
Court.

Issues

1. Whether in the event of death of karta, the joint family property which was
ancestral property in his hands and other coparceners, devolved by succession
under Section 8, ceased to be joint family property on the date of death and the
other coparceners and his widow held the property as tenants in common and not
as joint tenants?
2. Whether for the purpose of claiming succession rights in a joint Hindu family, the
provisions of Act exclude the son’s son, but include the son of a predeceased son?
3. Whether property which devolved on a Hindu under Section 8 would be Hindu
undivided family property in his hand with regard to his own son, or would it
amount to creation of two classes among the Class-I heirs: the male heirs in whose
hands it will be joint Hindu family property in relation to sons, and female heirs
with respect to whom no such concept could be applied?

Contentions

Petitioner

The foremost point that the appellant contended was that as Jagannath Singh’s widow was
alive in 1973 at the time of his death, the case would be governed by the proviso to Section 6
of the Hindu Succession Act, 1956, and therefore the interest of the deceased in the
Mitakshara coparcenary property would devolve by intestate succession under Section 8 of
the said Act.74 The appellant contended that “it is only the interest of the deceased in such
coparcenary property that would devolve by intestate succession, leaving the joint family
property otherwise intact.” Consequently, the appellant had every right to sue for partition
while his father was still alive, inasmuch as, being a coparcener and having a right of
partition in the joint family property. The appellant also contended that Section 8 of the Act
would not bar such a suit as it would apply only at the time of the death of Jagannath Singh,
i.e., the grandfather of the plaintiff in 1973 and not thereafter to non-suit the plaintiff.
Accordingly, “Section 6 and Section 8 have to be read harmoniously, as a result of which the
status of joint family property which is recognized under Section 6 cannot be said to be taken
away upon the application of Section 8 on the death of the plaintiff's grandfather in 1973.”

Respondent

The respondent contended that once Section 8 is applied by reason of the application of the
proviso to Section 6, the joint family property ceases to be so and thereafter can only be
succeeded to by the application of either Section 30 or Section 8; Section 30 applying in case
a will had been made and Section 8 applying in case a member of the joint family died
intestate. He thus contended that the appellant had no right to a partition of a property which
is no longer joint family property continuing to subsist in any member of the coparcenary.

Judgement

In the instant case, a two-judge bench of Justice Kurian Joseph and Justice R.F. Nariman of
the Supreme Court of India held that on death of one of the coparceners, the Mitakshara joint
family comes to an end for all its practical purposes. The Apex Court further held that on the
death of Jagannath Singh in 1973, the joint family property devolved by succession under
Section 8 of the Act and thus the ancestral property ceased to be joint family property on his
death and other coparceners and his widow held the property as tenants in common and not as
joint tenants. As such, appeal was held to be not maintainable. The first appellate court stated
that once Section 8 of the Hindu Succession Act, 1956 steps in, the joint family property has
to be divided in accordance with rules of intestacy and not by the doctrine of survivorship.
This being so, no joint family property remained to be divided when the suit for partition was
filed by the plaintiff, and that since the plaintiff had no right while his father was alive, the
father alone being a Class-I heir (and consequently the plaintiff not being a Class-I heir), the
plaintiff had no right to sue for partition, and therefore, the suit was allowed.

HIGH COURT

HIGH COURT OF BOMBAY

15. Sau. Kamal Tukaram Gawade & Ors. v. Shri Gyaneshwar Keru Ghule & Ors., 2016
SCC OnLine Bom 1852.

Relevant facts
 Keru Genu
Ghule-
Yamuna
Ghule

Kamal
Tukaram Appellant Appellant Gyaneshwar Respondent Respondent
Gawade no. 2 no. 3 Keru Ghule No. 2 No. 3

The Appellants are three real sisters of respondent nos. 1, 2 and 3 brothers. Respondent no. 6
is a purchaser of the suit property. Respondent nos. 8 and 9 are subsequent purchasers from
respondent no. 6. Appellants and respondents no. 1, 2 and 3 are the children of one Mr. Keru
Genu Ghule and Mrs. Yamuna Ghule. The family owned ancestral property which is the suit
property. In the said property the appellant nos. 1, 2 and 3 claimed their right.

It is the case of respondent nos. 1, 2 and 3 that Mr. Keru Genu Ghule, father of the appellants
and respondent nos. 1, 2 and 3 made application dated 17.3.1983 under section 85 of the
Land Revenue Code to Tahsildar Haveli District Pune for partition and by order dated 13th
April, 1983 the Tahisildar recorded statement of their father Mr. Kherba and partitioned the
suit property between Mr. Kherba and Mrs. Yamuna Ghule and three sons, that is respondent
nos. 1, 2 and 3. At that time appellant gave consent to the partition and therefore the appellant
has no case to demand partition.

Contentions

Plaintiff

The counsel on behalf of the appellant contented that after the death of Mr Ghule, Mrs. Ghule
& their 6 children each get 1/7th share in the property and the children have each 1/6th share in
the property of Mrs. Ghule.

Respondent

The counsel for respondent opposes the contention made by the plaintiff and submits that the
it was never argued before the court that the plaintiff has only limited right in the property of
parents. The entire argument was based on s.6 of the Hindu Succession Act, 1956 and
amendment act of 2005.
Reasoning

The land in the suit is an ancestral property and therefore, in the year 1983 a married daughter
did not have any right as the daughters were not consider as coparceners in the year 1983 and
therefore they did not have independent right to demand partition. However, married
daughter have right in the property of the share of her mother and father after their death.
Therefore, after the death of their father, the appellant and respondent both have equal shares
in the property.

Judgement

The court held that respondent shall not create any third party interest and also they shall not
dispose of or part with the property. They shall also not create any encumbrance in the
property. Further, the court ordered that plaintiffs are at liberty to file application for further
orders, if they wish to do so.

16. Suman Namdeo Jhinjurde v. Ramdas Sakharam Magar & Ors., 2016 SCC OnLine
Bom 1843.

Relevant facts

Sakharam
Magar

Suman Respondent
Ramdas
Namdeo No. 2
Firstly, the suit is filed for partition, separate possession and for injunction by the appellant in
the court of civil judge, senior division, Pune. The suit was also for restraining defendants
from creating third party rights in the suit property. The plaintiff also claims her right as a
coparcener of the ancestral properties. There were 4 properties A, B, C & D but the plaintiff
claim only property ‘D’ in the suit.

The suit property is an ancestral property. The appellant had also filed a suit earlier for her
share and demanded partition and separate possession but the suit was dismissed on the
ground that being a daughter, the plaintiff cannot seek partition during the lifetime of her
father. She claimed that her father died on 25-07-2010 and till then the property was not
partitioned. So, she is entitled to get the property due to amendment in s.6 of the Hindu
Succession Act, 1956.

The case depends upon the fact that, in July 2011 once the plaintiff visited the land which is
in dispute and after that she noticed that some unknown persons have started construction on
the land. She made an enquiry about that and she got to know that respondent no. 9 to 17 had
purchased the property illegally. She has challenged the power of attorney, registered
agreement and also the sale deed.

Issue

Whether at the time of enforcement of the amendment of 2005, the father’s right or interest in
the suit property was alive?

Judgement

Sakharam Magar, the father of Plaintiff/Appellant and Respondent Nos. 1 and 2 died on 25
July, 2010 i.e. after the enactment of the amended section 6 of the Hindu Succesion Act.
Thus, both the father and daughter were alive at the time of the effect of amendment. It was
held that there is neither express provision or giving retrospective effect to the amended
provision nor necessary enactment to that effect. Thus, the provision is held as prospective.

It has been observed that the property was alienated by agreement of sale or development
agreement for consideration in the year 1997, 1998, 2004 and subsequently in the year 2010
and the properties A and B were disposed of by a registered sale deed. Thus, prima facie the
property was alienated and no interest of Sakharam was left in the property and thus the relief
asked for by the Plaintiff cannot be granted.

Further it was held that on assuming the Power of Attorney is bogus, then it can be
considered that the Power of Attorney had never ever given by Sakharam Magar to execute
the sale deed in favour of Defendant No. 17 and therefore the edilice of further sale deeds to
collapse. However, the fact that Sakharam and other coparcener did not take any objection
since year 1997 to 2010 and so also other Defendants i.e. the brothers of the Appellant are not
raising any objection to this transaction.

Finally, the appeal is dismissed and disposed of with limited relief in favour of the appellant.

2015
SUPREME COURT

17. Shreya Vidhyarthi v. Ashok Vidhyarthi 7 Ors., (2015) 16 SCC 46: 2015 SCC OnLine
SC 1324.

Relevant facts

Rama Hari Shankar Savitri

Vidhyarthi Vidhyarthi Vidhyarthi

Shrilekha Madhulekha Ashok

Vidhyarthi Vidhyarthi Vidhyarthi

Shreya
Vidhyarthi

Earlier the suit was filed by the Ashok Vidhyarthi for permanent injunction and for the decree
of partition and separation of shares by metes and bounds. The suit was dismissed by the trial
court. After that an appeal was filed in the High Court in which the High Court reversed the
order of the trial court and ordered that the Ashok Vidhyarthi is entitled to get 3/4 th share in
the property, i.e., in the house situated in Kanpur whereas Shreya vidhyarthi is entitled to get
1/4th share in the property. Aggrieved by the judgement of the High Court, the appeal is filed
in the Supreme Court.

Hari Shankar Vidhyarthi had two wives, namely Savitri Vidhyarthi and Rama Vidhyarthi. The
first wife, Savitri Vidhyarthi is having a son, Ashok Vidhyarthi and the second wife have two
daughters, Srilekha Vidhyarthi and Madhulekha Vidhyarthi. The appellant Shreya Vidhyarthi
is the adopted daughter of Srilekha Vidhyarthi and she is also the beneficiary of a will left by
Madhulekha Vidhyarthi.

In the year 1968, a suit was instituted by savitri vidhyarthi contending that the property was
purchased from the joint family funds. So, a decree should be passed so that Rama
Vidhyarthi’s daughter could not interfere with her possession of the property. The suit was
dismissed. After that a suit was filed by the Ashok Vidhyarthi for the partition of the joint
family properties but this suit was also dismissed under the provisions of Order 7 Rule 11
CPC.
In the suit filed by Ashok Vidhyarthi, he pleaded that day to day affairs of the family was
managed by Rama Vidhyarthi and she was also the nominee of an insurance policy taken by
her husband and so she was receiving a monthly maintenance of Rs. 500 on behalf of the
family from ‘Pratap Press Trust, Kanpur’ of which her husband was the managing trustee.
Rama Vidhyarthi also received a sum of Rs. 33,000 out of the insurance policy and Rs.
15,000 from Pratap Press Trust as advance maintenance allowance. The plaintiff claimed that
the Rama Vidhyarthi purchased the property from the same amount and therefore, it was said
that the property was purchased from the joint family funds. He further claimed that he and
his mother were not permitted to enter the property and a suit of eviction was filed against the
first respondent by Rama Vidhyarthi. The trial court dismissed the suit.

Aggrieved by the judgement of trial court, the appeal was made in the High Court. In the
High court, it was held that there was a joint family in existence in which the Rama
Vidhyarthi had play an important role and also the property was purchased from the joint
family funds. On the division of shares, it was held that on the death of Hari Shankar
Vidhayrthi, the Ashok Vidhyarthi is entitled to get 50% share as he is the sole surviving male
coparcener and the remaining 50% share was to be divide between the two wives in equal
proportion. Daughters of Rama Vidhyarthi are entitled for 25% of the share. The order of
high court was attempted to be recalled by the plaintiff by filling an application but it was
also dismissed by the high court. The present appeal was filed to challenge both the orders of
high court.

Issues

1. Whether the property was purchased by the sale deed by Rama Vidhyarthi from the
joint family funds or out of her own personal funds?
2. Whether the High Court was correct in passing the order on the recall application filed
by the appellant?

Judgement

It was held that a Hindu widow is not a coparcener in the HUF of her husband, therefore, she
cannot act as a karta of the family. The property purchased by the rama vidhyarthi was on the
behalf of the joint family.

HIGH COURT

HIGH COURT OF BOMBAY

18. Sou. Yashoda Tuljaram Burudkar & Ors. v. Mrs. Shantabai Walchand Chavan &
Ors., 2015 SCC OnLine Bom 8047.

Relevant facts

The plaintiff had claimed certain undivided rights in respect of the suit property. The
defendant no. 1 has sold the suit property during his life time. The original plaintiffs have
filed a partition suit and challenged the sale effected by the defendant no. 1 on the ground that
there was no legal necessity to sell the suit property. The appellants claimed that they were
not parties to the said partition suit. The trial Court passed the judgment and decree and
declared that the plaintiffs had 6/125th share each in the suit land. The trial Court also
declared that the sale deed executed by the defendant nos. 1 to 6 and others in favour of the
defendant no. 14 is not binding on the plaintiffs share of 6/125th each.

After the judgement of trial court, the original defendant had filed an appeal before the
district court, Solapur. During the pendency of this appeal, defendant no. 14 entered into
further writing with appellant and filed an appeal in the district court. All the appeals were
dismissed by the court.

Judgement

It was held that the defendant no. 1 had failed to prove that he had sold the suit land to the
defendant no. 14 for the benefit of Hindu Undivided Family and the defendant no. 14 was a
bonafide purchaser for value without notice. It was also noticed that the sale transaction
between the defendant no. 1 and the defendant no. 14 had taken place during pendency of the
suit and therefore, the same transaction is hit by the principles of Lis-pendency as given in
Section 52 of the Transfer of Property Act.

19. Shri. Bapu Rama Patil & Ors. v. Shri. Ananda Dadoba Jadhav & Anr., 2015 SCC
OnLine Bom 4346.

Relevant facts

The appeal challenges the decree passed by the lower appellate court for partition and
separate possession by the family members.

Shri. Anand jadhav filed Regular Civil Suit against the for partition of Hindu joint family
property in his capacity as purchaser of a portion of the suit property. The plaintiff contended
that the suit properties are joint family properties of the defendants and one Rakhmabai
widow of Ambaji. On 27th May, 1982, Rakmabai sold her share to the plaintiff under
registered sale-deed for the consideration of Rs. 4,000/-. She also delivered joint possession
thereof to him. According to the plaintiff, he had undertaken the summer operations in respect
of the lands alongwith the defendants in the year 1983, but thereafter the defendants did not
allow him to sow any crop. Therefore, he filed the suit for partition by metes and bounds and
separate possession of the land purchased by him from Rakmabai. The plaintiff is the grand-
son of Rakmabai, being her daughter's son. Defendant no. 4 filed written statement and
admitted the claim of the plaintiff. According to the plaintiff, the husband of Rakmabai had
died 30 years back and as such in view of Section 14 of Hindu Succession Act, she had
become entitled to her husband’s share in the suit properties.

Defendants no. 1 to 3 contested the suit by filing common written statement. According to
them, Rakmabai had no right to the suit properties by inheritance or otherwise and hence
could not have sold the same to the plaintiff. According to them, rakmabai’s husband died 50
years back and as such they had inherited the suit properties by virtue of rule of survivorship.
They also alleged that Rakmabai had been residing with the father of the plaintiff since the
year 1960-61 till her death and as such she was not in cultivation of the suit lands. The
defendants challenged the sale deed alleging that the same is bogus and without
consideration. In the alternative, the defendants contended that they had become owners of
the suit properties by adverse possession since they were in possession for more than 12
years.

The trial court held that husband of Rakmabai had died 50 years back and hence she had no
share in the suit properties and the suit was dismissed. Hence, the sale-deed executed by her
in favour of the plaintiff was not valid. At the same time, the trial court negatived the
contention of the defendants that they had perfected the title to the suit properties by adverse
possession.

Aggrieved by the judgment and decree of the trial court, the plaintiff filed Regular Civil
Appeal to the District Court, Kolhapur. During the course of the hearing of the appeal, the
plaintiff filed application for leave to file additional evidence consisting of mutation entries in
respect of the suit properties. The defendants did not object to production of the documents.
Therefore, the application was allowed and the documents were allowed to be produced in
evidence.
The appellate court rejected the reasons given by the trial court for holding that Ambaji might
have died 50 years back. The appellate court concluded that Rakmabai was in possession of
the suit property prior to the date on which Hindu Succession Act came into force. By Section
14(1), Rakmabai was entitled to right, title and interest in the suit properties and she became
full owner of her share therein. Defendants no. 1 to 3, aggrieved by the decree file the present
appeal.

Judgement

Section 14 of Hindu Succession Act is wide in its amplitude and covers every kind of
acquisition of property by a female Hindu.so, it was held that Rakhamabai had become full
owner of the suit properties to the extent of her share therein. The court find the judgement of
trial court correct and so, the court dismissed the appeal.

HIGH COURT OF DELHI

20. Vinod Kumar Singh & Ors. v. Devraj Singh & Ors., 2015 SCC OnLine Del 10309.

Relevant facts
 Sh. Sheodan
Singh

Sh. Prithi Sh. Shivraj

Singh Singh

Sh Jal Pal Sh. Mahendra Sh. Ami

Sh. Ran Singh
Singh Singh Singh

Sh. Ravindra Sh. Ashok Sh. Vinod Sh. Anil Sh. Devraj Sh. Begraj Sh. Jagat Sh. Kanwar
Singh Singh Kumar Singh Kumar Singh Singh Singh Singh Singh

Sh. Sunil Sh. Narendra

Sh.Satis Singh Sh. Ajit Singh
Kumar Singh Singh

Sh. Chnadra
Pal Singh

Vinod Kumar Singh, Anil Kumar Singh and Sunil Kumar Singh all S/o Mahinder Pal; and
Ashok Kumar Singh S/o late Jai Pal filed a suit against Devraj, Begraj and Ajit Singh all S/o
late Ran Singh; and Jagat Singh, Kanwar Singh and Narendra Singh all S/o late Ami Singh;
Mahendra Pal Singh S/o late Prithi Singh and Ravindra Singh S/o late Jai Pal Singh seeking
partition, possession and permanent injunction in respect of the suit properties situated in
Village Rithala.

Two suits were filed, prior to the filing of the present suit. One was filed by Ran Singh and
Ami Singh, both S/o Shivraj Singh against Mahendra Pal Singh, Jai Pal Singh and Chandra
Pal Singh all S/o of Prithi Singh seeking a degree of permanent injunction, restraining the
defendants from interfering in the land in actual possession and ownership of Ran Singh and
Ami Singh and joint possession. An ex-parte decree was passed in favour of Ran Singh and
Ami Singh which was subsequently set aside. Since Ran Singh and Ami Singh died in the
year 1999 and 1996 respectively and their legal heirs did not file any application for
substitution. The appeal filed by the legal heirs of Ran Singh and Ami Singh was also
dismissed.

Thereafter, Mahendra Pal Singh, Jai Pal Singh and Chandra Pal Singh all S/o of Prithi Singh
filed a suit before the present Court against the three sons of Ran Singh i.e. Devraj Singh,
Begraj Singh and Ajit Singh and three S/o Ami Singh i.e. Jagat, Kanwar and Narender
seeking partition and possession in respect of suit properties. The suit was transferred to
District Court. In the said suit an application under Order VII Rule 11 CPC was filed by the
defendants therein pursuant to which the plaint was rejected on May 30, 2009. The reason for
rejection of the plaint was that there was no cause of action and that the suit was barred by
limitation.

After dismissal of Suit Vinod Kumar Singh, Anil Kumar Singh and Sunil Kumar Singh all
S/o Mahendra Pal Singh and Ashok Kumar Singh S/o late Jai Pal Singh filed the present suit
seeking partition and possession. In the present suit again an application under Order VII
Rule 11 CPC was filed by the defendants which as noted above was allowed and it was held
that the suit was liable to be rejected on the ground of resjudicata.

Judgement

It was held that the measurement of the land is not the only criteria to determine whether both
the parties have equal shares in the immovable properties. There are a number of factors
which govern the value and suitability of land, e.g. the location, condition of the land and for
what purpose it can be utilised etc. Thus by the mere allegations as averred in the plaint it
cannot be said that the partition was unfair to the plaintiffs/ who were minor at the time of the
partition and hence these issues having not been considered in the earlier decision, the present
suit was not barred by the principles of res-judicata.

The principle of res-judicata is not a technical principle but a fundamental doctrine aimed at
putting an end to litigation. By merely pleading fraud the applicability of the doctrine cannot
be done away with and the plaintiff is required to plead substantial facts to overcome the
doctrine of res-judicata. The doctrine of res-judicata is based on public interest and the object
to confer finality of a former decision arrived at by the competent Court between the same
parties.