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Judgment
Instant first appeal u/Sec. 96 CPC is directed against the
judgment and decree dt.02.11.1998 whereby the suit for partition
and injunction filed by the plaintiff-appellant was dismissed upon a
preliminary issue which was framed as issue No.3 in a suit which
reads as under:-
"VERNACULAR MATTER OMITTED"
Learned Trial Court after holding that such issue needs to be
decided as a preliminary issue, having heard the parties held that
since the plaintiff was daughter of the defendant No.1, was not a
coparcener in the suit property and thus not entitled to bring the
suit for partition. The Trial Court further opined that for the sake
of arguments even, if it is presumed that the suit property was
personal property of defendant No.1 plaintiff''s daughter, even then
the plaintiff had no right in the suit property during the life time of
the defendant No.1. Thus, the Trial Court holding that the suit was
premature at this stage, dismissed the suit.
Learned counsel for the appellant contended that the
impugned judgment and decree is bad in law deserves to be
reversed and set aside for the reason that though number of
issues were raised but the Trial Court took up only issue No.3 and
held that the appellant had no right in the property of a father.
Counsel contends that the father of the appellant though alive,
the suit was filed but he expired lateron and plaintiff being his
daughter was entitled to inherit the same.
Per-contra, ld. counsel for the respondent vehemently
contended that the order passed by the Trial Court was just and
proper and since the father was alive, therefore, the facts
emerging at the time when the suit was taken up and there was
no case of the plaintiff-appellant, had rightly been dismissed by
the Trial Court. Counsel contends that if the Trial Court is satisfied
on a particular issue, the other issues are not required to be
considered.
I have heard learned counsel for the parties and have
perused the material available on record as well as the impugned
judgment and decree in the light of the rival contentions raised at
the bar.
It would be appropriate to quote para 4 of the plaint which
reads as under:-
"VERNACULAR MATTER OMITTED"
It would also be appropriate to quote a few paragraphs of
the written statements filed on behalf of the defendant No.1
"father of the plaintiff" which reads as under :-
"VERNACULAR MATTER OMITTED"
The Trial Court in exercise of power conferred under Order 7
Rule 7 along with Order 14 Rule 2 of CPC proceeded to decide the
issue No.3 on facts admitted by the plaintiff-appellant in the plaint
and the Trial Court held as under:-
"VERNACULAR MATTER OMITTED"
It is clear on perusal of the above that the suit was instituted
by the plaintiff in the year 1996 and at that relevant time, the
plaintiff being a daughter was not a coparcener as per Hindu law.
This fact has been noted by the ld. Trial Court and had
categorically observed that the suit was premature at that
relevant time.
The plaintiff-appellant admits and claimed that she is the
only heir being a daughter of defendant No.1 father of the
plaintiff. It is clear on facts admitted in the plaint that the property
upon partition had come into the share of the defendant No.1 and
since he had no son, he held the property as his self acquired
individual property and since the plaintiff being daughter of the
defendant No.1, was not coparcener in the family of defendant
No.1. Hence could not have claimed any right in the property or its
partition.
In my view, when the plaintiff herself claims that she is the
only issue of defendant No.1 (Para-4 of the plaint quoted herein
above) and hence in the absence of any male issue, the property
acquired by him (father) in partition of ancestral property would
be the separate property. The plaintiff therefore cannot claime
"partition of the said property" which was the separate property of
a father during his life time.
The defendant No.1 has admittedly executed the Registered
gift deed dt.12.02.1995 of portion of the property received by him
in partition. It has been fully supported by him to have been
executed by him and defendant No.1 also filed a written statement
admitting the said facts quoted supra. Thus, the property being a
separate property, therefore, he was fully competent to execute
the gift deed in favour of the respondent No.4.
In my view, the judgment of the Apex Court in the case of
Prakash & Others Vs. Phoolvati & Others (2016) 2 SCC 36 is
prospective in nature and would apply in a case where both the
male coparcener and the daughter were living as on 09.09.2005.
it would be appropriate to quote para 23 of the said judgment
which reads as under:-
"Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 09.09.2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20.12.2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation."
Admittedly, Pandit Prem Vallabh @ Manohar defendant No.1
was alive when the suit was filed and he died on 18.11.2004
during the pendency of the appeal before this Court. Thus, on the
day when the 2005 amendment Act under Hindu Succession
(Amendment) Act, 2005 came into force on 09.09.2005, the
defendant No.1 Pandit Prem Vallabh Sharma @ Mahohar was not
alive and the said amendment of 2005 is not applicable in the
present case.
In view of what has been observed herein above, the present
appeal being devoid of merit, is hereby dismissed with no order as
to cost.