Siddhanath vs Ramkaniyabai and Others

Hon''ble Shri N.K. Mody, J.—Being aggrieved by the judgment dated 28.8.2009 passed by 1st Addl. District Judge, Shajapur in Civil Appeal No. 10-A/2009, whereby judgment and decree dated 29.11.2008 passed by Civil Judge Class I, Shajapur in Civil Suit No. 69-A/2008, whereby suit filed by the appellant was dismissed, was maintained, present appeal has been filed.

This appeal is admitted for final hearing on the following substantial questions of law :-

i) Whether the learned Courts below were justified in dismissing the suit filed by the appellant for partition, whereby appellant was claiming one half share in the ancestral property during the life time of his father ?"

Short facts of the case are that appellant filed a suit before learned Court below on 15.6.2004 for partition and possession alleging that appellant is the son of Mathuralal. Respondents No. 1 and 2 are the real brothers of appellant. It was alleged that land bearing various survey numbers mentioned in para 4 and 5 of the plaint situated at village Mohan Badodiya is the ancestral property. In the suit it was alleged that out of the suit property deceased Mathuralal has sold the land to the respondents No. 2 to 9 vide various sale deeds measuring 1.845 Hectares. It was alleged that since the nature of the suit property is ancestral, therefore, appellant is having one half share in the suit property. It was prayed that decree of partition be passed holding that appellant is having one half share in the suit property. The suit was contested by deceased Mathuralal and also by the respondents No. 1 and 2 on various grounds. After framing of issues and recording of evidence learned trial Court dismissed the suit on the ground that appellant is not entitled for the partition in the life time of his father against which an appeal was filed, which was dismissed, hence this appeal.

Learned counsel for appellant argued at length and submits that impugned judgment are illegal, incorrect and deserve to be set aside. It is submitted that since the suit property was the ancestral property, therefore, appellant was having one half share in the suit property by birth and the suit could not have been dismissed only on the ground that since father of the appellant is alive, therefore, appellant is not entitled for partition. It is submitted that during pendency of the first appeal Mathuralal died, therefore, the learned appellate Court ought to have passed the decree in the changed circumstances and ought to have directed the trial Court to pass decree of partition. It is submitted that in the facts and circumstances of the case appeal filed by the appellant be allowed and the impugned judgment be set aside.

Smt.Mamta Shandilya, learned counsel for respondents No. 1 and 2, submits that since the suit was filed in the life time of Mathuralal, therefore, learned Courts below committed No. error in dismissing the suit. Learned counsel submits that respondent No. 2 has also purchased the land from deceased Mathuralal, therefore, respondent No. 2 is having rights on the basis of sale deed in addition to being a daughter of deceased Mathuralal. It is submitted that appeal has No. merits and the same be dismissed.

From perusal of the record it is evident that Mathuralal was father of appellant and respondents No. 1 & 2. The suit property was ancestral in nature. Mathuralal executed the sale deed in favour of rest of the respondents from time-to-time. Since Mathuralal is no more, therefore, this question is not before this Court whether appellant is entitled for partition in his life time or not. Appellant is having share in the suit property. Since the suit property was ancestral, therefore, deceased Mathuralal and appellant are having one half share in the property. After the death of deceased Mathuralal, appellant, respondents No. 1 and 2 are entitled for 1/3rd, 1/3rd share in the property left by deceased Mathuralal. In view of this appeal filed by the appellant is allowed and impugned judgment are set aside with the following directions:

i) Appellant is having half share in the suit property mentioned in para 4 and 5 of the plaint being son of deceased Mathuralal.

ii) Appellant, respondents No. 1 and 2 are having 1/3rd, 1/3rd share in the suit property in the share of deceased Mathuralal while giving 1/3rd, 1/3rd share to appellant, respondent No. 1 and respondent No. 2, learned Court below shall reduce the property, which has already been sold by deceased Mathuralal in his life time. Appellant shall be entitled for partition and possession in meets and bounds.

With the aforesaid observations appeal stands disposed of.