Roshan Lal (Deceased) Through LRs vs Birbal And Others

Coparcenary Property and a partition had taken place between the parties. Learned Appellate Court reversed the findings of the learned Trial Court in its judgment (Ex. D10) and held that partition had not taken place. However, defendant No.1 was found in possession, and no decree of injunction was passed. The share of the parties was not ascertained in the previous civil suit, and the judgments and decrees do not constitute res judicata in the present proceedings. All the parties inherited the property of Kartar Chand. Hence, plaintiffs, defendants No.1 and 2 would have 2/7 share each, whereas plaintiffs No. 2 to 5 will have 1/20 share each. The suit was within limitation, and plaintiffs had a cause of action to file the suit. Hence, learned Trial Court answered Issue No.1 partly in the affirmative, Issue Nos. 2 to 6 in negative and partly decreed the suit.

Being aggrieved by the judgment and decree passed High Court of H.P.^{by the learned Trial Court, the plaintiffs filed an appeal which} was decided by the learned Additional District Judge, Fast Track Court, Una (learned Appellate Court). The learned Appellate Court held in the judgment (Ex. D1) that the suit land was not proved to have been partitioned and the compromise could not be read as a valid Partition Deed. However, the possession was delivered to the defendant who was cultivating the land. Therefore, the plaintiffs were not entitled to an injunction. The Mutation No.69 and 115 were sanctioned after the passing of the judgment and decree by the learned Civil Court. However, the judgment of the learned Appellate Court was not brought to the notice of the revenue authorities, and they erred in sanctioning the mutation. Hence, the judgment and decree passed by the learned Trial Court were set aside.

Being aggrieved by the judgment and decree passed by the learned Appellate Court, the defendant No.1 filed the present appeal which was admitted on the following substantial questions of law on 26.06.2012:

High Court of H.P.^{(ii) In the face of judicial adjudication vide judgments}

I have heard Mr N.K. Thakur, learned Senior Advocate, assisted by Mr Karan Sadyal, learned counsel for the appellants and Mr Tara Singh Chauhan, learned Senior Advocate, assisted by Mr Surya Chauhan, learned counsel for the respondents.

Mr N.K. Thakur, learned Senior Advocate for the appellants submitted that the Civil Court had found in the earlier proceedings that the suit land was coparcenary property. This finding would constitute res judicata in the present proceedings. A daughter is not entitled to inherit the coparcenary property because Section 6 of the Hindu Succession Amendment Act, 2005 is prospective in nature. Therefore, he prayed that the present appeal be allowed, and the judgment and decree passed by the learned Appellate Court be set aside.

Mr Tara Singh Chauhan, learned Senior Advocate, for the respondents submitted that the plea taken by defendant No.1 that the property was divided by Kartar Chand during his lifetime was not accepted by the learned Appellate Court in the previous proceedings and this plea cannot be adjudicated in the present proceedings. The provisions of Section 6 of the Hindu Succession Amendment Act have been held to be retrospective by the Hon'ble Supreme Court. There is no infirmity in the judgment and decree passed by the learned Appellate Court. Therefore, it was prayed that the present appeal be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully. Substantial Questions of Law No.1 and 2:

These substantial questions of law are interconnected and are being taken up together for convenience.

Kartar Chand, the predecessor in interest of the parties, had filed a Civil Suit which was dismissed by the learned Sub Judge-II, Una, H.P. vide judgment and decree dated 29.04.1989 (Ex.D2). Kartar Chand filed an appeal which was decided by the learned District Judge, Una, H.P. vide judgment and decree dated 8.12.1994 (Ex. D10). The learned Appellate Court held that the compromise set up by the present defendant No. 1, Roshan Lal, was compulsorily required to be registered and could not be read as a valid Partition Deed. However, the possession was delivered to the defendant No.1 and the plaintiff was not entitled to possession.

Therefore, the plea taken by defendant No.1 in the present proceeding that a partition had taken place between the parties and he was allotted 1/3 share in the suit land was barred by the principle of res judicata as it was taken in the previous proceeding and was specifically negated by the learned Appellate Court.

Both the learned Courts below have not disturbed the findings recorded by the learned Courts in the previous proceedings that the suit land was Joint Hindu Coparcenary Property. The learned Trial Court determined the shares of the parties and the learned Appellate Court held that the shares were not required to be determined. Therefore, it cannot be said that the learned Courts had acted contrary to the findings recorded in the previous proceedings. Hence, these substantial questions of law are answered accordingly. Substantial Question No.3:

It was submitted that the provisions of the Hindu Succession Amendment Act, 2005 were prospective and could not have been applied to the present case. This submission cannot be accepted. A three-Judge Bench of the Hon'ble Supreme Court held in Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1: 2020 SCC OnLine SC 641 that the daughter has been made coparcenar by way of her birth and it is not necessary that the father of the daughter should be living on the date of the amendment. Hence, a daughter born before the date of amendment, could also seek coparcenary right over it. It was observed at page 56:

High Court of H.P.^{Section 6 is that she becomes a coparcener in the same}

The conclusions of the Hon'ble Supreme Court were outlined as under at page 90: -High Court of H.P.^{137. Resultantly, we answer the reference as under:}

Therefore, the plea taken by the defendant that a daughter born before the date of amendment would not acquire a right in the coparcenary property is not correct. Hence, this substantial question of law is answered accordingly. Final Order:

In view of the above, there is no infirmity in the judgment and decree passed by the learned Appellate Court.

Hence, the present appeal fails, and it is dismissed.

Pending application(s), if any, also stand(s) disposed of.

Records of the learned Courts below be sent down forthwith. (Rakesh Kainthla) Judge