AI Structured Summary
Not yet generated for this judgment
Judgment
Rakesh Kainthla, Judge
The present appeal is directed against the judgment and decree dated 31.03.2012, passed by the learned Additional District Judge, Fast Track Court, Una, (learned Appellate Court) vide which the judgment and decree dated 30.12.2008, passed by the learned Civil Judge, Junior Division, Court No.4, Una, HP (learned Trial Court) were set aside. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit for a declaration that they and the defendants are owners in possession of the suit land mentioned in the head note of the plaint and Mutation No. 69 and 115 are wrong, which do not bind the rights of the plaintiffs. A permanent prohibitory injunction for restraining the defendants from ousting the plaintiffs from joint possession of the suit land was also sought. It was asserted that Kartar Chand, the father of the plaintiffs and defendant No. 1 and husband of defendant No.2, owned the suit land. He died intestate, and the parties inherited his estate in equal shares. The defendant No.1 got Mutation Nos. 69 and 115 sanctioned in his favour in connivance with the revenue staff. He threatened to oust the plaintiffs from the possession of the suit land. Hence, the suit was filed for seeking the relief mentioned above.
The suit was opposed by filing a written statement, taking preliminary objection regarding the suit being barred by the principle of res judicata, the plaintiffs having not come to the Court with clean hands, the plaintiffs being estopped from filing the present suit, the suit being barred by limitation and lack of cause of action. The contents of the plaint were denied on the merits. It was asserted that the suit land was ancestral property of plaintiff No.1, defendant No.1 and Kartar Chand. A partition took place between the coparceners before sowing the crop of Khareef in the year 1985. Land described in para ‘A’ of the head note was allotted to plaintiff No. 1. Land described in para ‘B’ of the head note was allotted to defendant No.1 in the partition. A memorandum of partition dated 28.11.1985 was also prepared. Kartar Chand filed Civil Suit No. 104 of 1987, which was dismissed. An appeal was filed, which was dismissed by the learned District Judge, Una. Mutation No. 69 and 115 were sanctioned as per the judgments and decrees passed by the Court. The plaintiffs concealed all these facts from the Court. The plaintiffs had also filed a review petition against the mutation order, which was pending. Therefore, it was prayed that the present suit be dismissed.
No replication was filed.
Learned Trial Court framed the following issues on 10.09.2003: -
(i)Whether the plaintiffs and defendants are owners in possession in equal share of the suit land as alleged? OPP.
(ii)Whether the suit is hit by the principle of res judicata? OPD.
(iii)Whether the suit of the plaintiffs is not maintainable in the present form? OPD.
(iv)Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD.
(v)Whether the suit is barred by the Limitation Act? OPD.
(vi)Whether the plaintiff has no cause of action to file the present suit? OPD.
(vii)Relief.
The parties were called upon to produce the evidence, and plaintiff No.1 examined himself (PW1). The defendants examined Prem Kumar (DW1), Joginder Singh (DW2), Defendant No.1 Roshan Lal (DW3) and Karam Chand (DW4).
Learned Trial Court held that the parties were claiming rights through Kartar Chand. He had filed a Civil Suit No.104 of 87, which was dismissed. An Appeal No.113 of 89 was filed. The parties are bound by the judgments and decrees passed in the previous litigation. It was held by the Court in the previous judgment (Ex. P1) that the suit land was Joint Hindu Family 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 2/7th share each, whereas plaintiffs No. 2 to 5 will have 1/20th 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 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:
(i)Once an issue has been adjudicated upon between the parties in an earlier suit, such decision would operate as res judicata in the subsequent suit between the same parties; the contrary findings are thus erroneous and illegal?
(ii)In the face of judicial adjudication vide judgments (Ex. D1 and Ex. D10) wherein it has been held that Kartar Chand was a Karta of the joint Hindu family consisting of himself and two sons, subsequent contrary findings in another suit between the same parties are hit by the principle of res judicata?
(iii)Whether the findings of the learned Courts below are illegal and erroneous in view of the bare reading of Section 6 of the Hindu Succession Act wherein it has been amended that on or from 9.9.2005 daughter would be entitled to have a share in the ancestral property as if she had been a son such amendment would be prospective, the contrary findings recorded by the learned lower Appellate Court below is thus erroneous, hence unsustainable?
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 1/3rd 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:
68.Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as that of a son. The expression used in Section 6 is that she becomes a coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of Sections 6(1)(a) and 6(1)(b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered, which is recognised in Section 6(1), it is not necessary that there should be a living coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, a daughter born before can claim these rights only with effect from the date of the amendment, i.e. 9-9-2005, with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).
69.The effect of the amendment is that a daughter is made a coparcener, with effect from the date of amendment, and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9-9-2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case a living coparcener dies after 9-9-2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3).
The conclusions of the Hon'ble Supreme Court were outlined as under at page 90: -
137.Resultantly, we answer the reference as under:
137.1.The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as a son with same rights and liabilities.
137.2.The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.
137.3.Since the right in coparcenary is by birth, it is not necessary that the father coparcener should be living as on 9-9-2005.
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.