Balaram vs State of M.P. and Others

Hon''ble Shri Justice S.K. Seth

This appeal is by the plaintiff against the judgment and decree dated 30.1.1997 passed by the 6th Additional District Judge, Ujjain in Civil Appeal No. 31A/1995. Briefly stated, material facts leading to this appeal are as under.

Plaintiff Balaram filed a suit for declaration of title and permanent injunction that he was the owner of suit land as referred to in plaint and respondents has authority to disturb his possession over the suit land. He claimed the aforesaid relief on allegations that suit land was recorded in Revenue Records in the name of Vishnu Vinayak Nirkhiwale as "Pukhta recorded in the name of hagwanti Bai filed a suit against her husband (Anar Singh);his concubine (Tejubai); and their offspring (Omsingh) claiming her share in the family lands as mentioned in the plaint. It was alleged that in the earlier partition between Anar Singh and Omsingh she was not given any share in the family properties therefore, she was entitled to reopen the earlier partition and claim 1/2 share in the suit properties.

In the written statement it was admitted that plaintiff was the first wife of Anar Singh. Since no male child was born to them, therefore, as per custom and with the consent of the plaintiff, Anar Singh took Tejubai as his second wife and Om singh was born out of the said wedlock. It was claimed that suit properties were self acquired properties of Anar Singh and plaintiff had no share in such self acquired properties. It was denied that earlier there was partition between Anar Singh and Om singh. With theses pleadings parties went to the trial.

On consideration of evidence brought on record, trial Court decreed the suit vide its Judgment and decree dated 20.3.1998. The judgment and decree of the trial Court was challenged in First Appeal by Anar Singh and Teju Bai. Om singh did not prefer any appeal. Bythe impugned judgment and decree, lower appellate Court dismissed the appeal. Hence this second appeal.

After hearing learned counsel for appellant at length and going through the evidence on record we find that there is no substance and merit in this appeal.

It is well settled that in an undivided family, a wife cannot herself demand partition so long as the family remains undivided in estate; but if a partition take place between the her husband and his sons she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately. The right the wife is a right to participate in the property of her husband, and it is a latent or an inchoate right of participation which becomes effective when separation takes place between her husband and his sons. It is equally well settled that where at partition, wife was not allotted a share she is not bound by such partition and she entitled to reopen the partition and claim her share in the property.

Courts below on proper appreciation of evidence have recorded clear findings of fact that earlier there was a partition between Om singh and his putative father Anar Singh and in that partition, no share was given to her. In view of this, Courts below rightly decreed the suit. No perversity is attached to those findings. They do give rise to any question of law much less any substantial question of law which is asine qua non before interfering in a second appeal with findings of fact. In the considered opinion of this Court, the questions formulated at the time of admissions are not the substantial questions of law.

Consequently, the appeal fails therefore it is hereby dismissed with cost throughout. Counsel''s fee Rs. 1000/-. Ordered accordingly.