Moti Lal vs Smt. Vidya and Others

Rakesh Kumar Jain J.

CM No. 884-C-2010

For the reasons mentioned in the application, delay of 9 days in filing of the appeal is hereby condoned.

CM stands disposed of.

RSA No. 316 of 2010

This appeal is at the instance of Defendant No. 2 assailing the judgment and decree of both the Courts below by which suit filed by the Plaintiff u/s 22 of the Hindu Succession Act, 1956 for pre-empting the sale executed by Defendant No. 1 in favour of Defendant No. 2, has been dismissed. Although, the suit filed by the Plaintiff has been dismissed yet Defendant No. 2 has come up in second appeal in order to assail the finding recorded by the Court below on issue No. 4.

It is submitted by learned Counsel for the Appellant that there was no occasion for the learned Court below to opine about the share of the parties in the property in dispute. However, I have found from issue No. 4 that it was specifically framed on the pleadings of the Plaintiff to the effect that "Whether the sale made by Defendant No. 1 vide sale deed dated 12.10.97 is in excess of his share as alleged? If so to what effect? OPP". Learned First Appellate Court has recorded a firm finding of fact in para Nos. 15, 16, 17 and 18 which are reproduced as under :

The Plaintiffs son Raj Kumar appeared into the witness box as PW1 and stated on oath that the house in dispute was joint and the Defendant No. 1 had sold the portion measuring 50 sq. yards to the Defendant No. 2 for Rs. 40,000/-vide sale deed Ex.P2. He admitted that Munshi Ram had purchased the entire house vide sale deed Ex.D1.

The Defendant No. 1 Mahender Singh appeared as DW1 and stated about his version that the plot in question was partitioned 20 years back in four shares and one share each came to each of the four brothers. The Defendant No. 1 admitted that after the death of his father, brothers and sisters became legal representatives and inherited the house in question. He also admitted that there was never any partition in respect of the house in question with their sisters Smt. Goma Devi and Smt. Lacchhmi Devi. He also stated that a writing was executed regarding private partition amongst the four brothers.

The Defendants have also examined a few other witnesses but those are not relevant, when the Defendant No. 1 has admitted in the cross-examination that there was never any partition with the sisters Smt. Goma Devi and Smt. Lachhmi Devi. If we take the case of the Defendant No. 1 stated by him in the cross-examination as correct i.e. there was a private partition amongst the four brothers without joining two sisters, it was no private partition at all. When admittedly after the death of Munshi Ram and his wife, all the six children had become owner of 1/6 share each, therefore, any private partition should have been amongst all the six and not amongst the four brothers. Therefore, the alleged private partition in the absence of two sisters is no private partition in the eyes of law.

Even otherwise, there is no writing on the record to show that the private partition had taken place amongst the four brothers. There is a writing Mark - A on record but this writing has not been proved in accordance with law and as such it cannot be said that there had been any private partition amongst the four brothers. Therefore, the learned lower court had rightly held that no partition had taken place amongst six co-sharers i.e. the six children of the deceased Munshi Ram and as such the Defendant No. 1 could not have sold more than his 1/6 share in the house in question and the finding of the learned lower Court on issue No. 4 appears to be correct.

In view thereof, I do not find any merit in the present appeal as it is admitted by learned Counsel for the Appellant that both the sisters namely, Goma Devi and Lachhmi Devi were not involved by four brothers after the death of their father in the partition of their property in dispute. Therefore, the said partition is patently illegal. Thus, the finding recorded by the First Appellate Court on issue No. 4 does not call for any interference nor any question of law much less substantial is involved in this appeal as envisaged u/s 100 of the Code of Civil Procedure, 1908 and as such the same is hereby dismissed. No costs.