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Judgment
This Civil Revision has been filed under Section 115 of Code of Civil Procedure against the order dated 02.03.2017 passed by the 1st Civil Judge Class-I, Rajgarh in Civil Suit No.1A/2016, whereby learned Civil Judge rejected the applicant''s application filed under Order 7 Rule 11 of CPC.
Brief facts of the case which are relevant for the disposal of this Revision are that non-applicants No.1 & 2/plaintiff filed a Civil Suit No.1A/2016 before the 1st Civil Judge Class-I, Rajgarh for claiming relief of declaration of title, partition and possession over the agricultural land with total area 45.452 hectare situated at Village Rajgarh Khas
and Village Baradhari, Tehsil & District Rajgarh and also for one constructed house admeasuring 10,000 sq.ft. averring that suit property belonged to Heeralal, who died on 09.12.1988. Non-applicants No.1 & 2/plaintiffs are the daughters of Heeralal and applicant/defendant Devisingh is son of Heeralal. The suit property was earlier owned by Heeralal, so non-applicants/plaintiffs and applicant are the co-owners of that property. After death of Heeralal non- applicants/plaintiff and applicant/defendant have equal share in the suit property but applicant/defendant wrongly mutated disputed property in his name in revenue record. So it be declared that non-applicants/plaintiffs have 1/3 share each in the suit property and after partition of their share possession of that property also be delivered to the non- applicant/plaintiffs. During trial of the suit applicant filed an application under Order 7 Rule 11 of CPC averring that non- applicants No.1 & 2/plaintiffs filed civil suit for declaring them owner of the suit land on the ground that they are the daughters of Heeralal while according to Hindu Succession Act, 1956 before 2005 daughters had no share in the ancestral property, so suit is not maintainable.
In reply non-applicant/plaintiff opposed the prayer.
Learned Trial Judge by order dated 02.03.2017 rejected the applicant''s application observing that non- applicants/plaintiffs filed a civil suit on the basis that they are the daughters of deceased Heeralal and so they have share in the suit property, which earlier belonged to deceased Heeralal. In these circumstances, provisions of Section 8 of
Hindu Succession Act, 1956 apply on suit property and non- applicants/plaintiffs have share in the suit property. Being aggrieved from that order applicant filed this Civil Revision.
Learned counsel for the applicant submitted that non-applicants/plaintiffs filed Civil Suit averring that they are the daughters of Heera Lal''s second wife. Heeralal married Basanti Bai, mother of non-applicants/plaintiffs in the life time of his first wife Smt. Bhoor Kunwar, so non- applicants have no share in the suit property as heir of Heeralal. Even otherwise the amendment incorporated in Hindu Succession Act in the year 2005 has no retrospective effect while Heeralal died on 09.12.1988 before the amendment. So this way also non-applicants, who are daughters of deceased Heeralal have no share in the suit property.
Learned counsel for the non-applicant submitted that suit property originally belonged to Hiralal. Applicant and non-applicants are heirs of deceased Hiralal. Hiralal died intestate, so after the death of Hiralal, applicant and non- applicants have equal share in the suit property. So learned trial court did not commit any mistake in rejecting applicant''s application.
This court has gone through the record and arguments put forth by the learned counsel for both the parties. It is settled that for the purpose of deciding an application under Rule 11 (a) and (d) of Order 7 CPC, only averments of the plaint should seen assuming to be correct and the trial court can exercise that power at any stage of the suit as held by Apex Court in the case of Saleem Bhai and
others V/s. State of Maharashtra and others reported in (2003) 1 SCC 557, Sopan Sukhdeo Sable and others V/s. Assistant Charity Commissioner and others reported in (2004) 3 SCC 137 produced by the learned counsel of the applicant.
Learned counsel of the applicant further submitted that the amendment incorporated in Hindu Succession Act in the year 2005 has no retrospective effect while Heeralal died on 09.12.1988 before the amendment, so non-applicants, who are daughters of deceased Heeralal have no share in the suit property. In this regard, he also placed reliance on the Apex Court''s judgment passed in G.Sekar V/ s. Geetha and others reported in (2009) 6 SCC 99 and Uttam V/s. Saubhag Singh and others reported in (2016) 4 SCC 68.
But above mentioned decision of Apex Court does not much help the applicant.
Although Under the traditional law, on the death of a coparcener, his interest in the family property is immediately taken by those coparceners who survive him and thus he leaves nothing behind out of his interest in the coparcenary property for his female dependents. But after the commencement of Hindu Succession Act, 1956 (hereinafter called the HSA). the devolution of the interest of a male Hindu in coparcenary property died intestate govern by the section 6 Section of HSA. The relevant part of Section 6 of the Act is as follows:
"6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class 1 of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before this death, irrespective of whether he was entitled to claim partition or not."
Which shows that if a male Hindu dies intestate leaving behind his share in Mitakshara Co-parcenary property after commencement of HSA, such property will pass on to his son, grandson and great grandson by survivorship, on surviving members. In case there are female relatives like daughter, widow, mother, daughter of predeceased son, daughter of predeceased daughter, widow of predeceased son, widow of predeceased son of a predeceased son, then the interest of the deceased co- parcenary will pass on to his heirs by succession and not by survivorship.
The Supreme Court in Gurupad V/s. Heerabai reported in AIR 1978 SC 1239 and in Shyama Devi V/s. Manju Shukla reported in (1994) 6 SCC 342 held that,
"The proviso to Section 6 gives the formula for fixing the share of the claimant and the share is to be determined in accordance with Explanation-I by deeming that a partition had taken place a little before
his death."
Apex Court in the case of Anar Devi and Others V/s. Parmeshwari Devi and Others reported in AIR 2006 SC 3332 also held that,
"Thus we hold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession."
Which shows that even if we assume that suit property is coparcenary property still non applicants have share in it. While It appears from the plaint that non applicant did not clearly aver that suit property is coparcenary property. They simply said that suit property belong to their father Hiralal so after his death they are the joint owners of suit property along with applicant. So it is also the matter of evidence that whether the suit property is coparcenary property or the self acquired property of deceased Hiralal. In latter case the provisions of section 8 of HSA will apply. So suit is not barred by law in both the cases. Hence the petition is dismissed with the observation that petitioners are free to raise their objection in their written statement which will be decided by the trial Court after recording of the evidence according to law without being influenced by the impugned order.