Sunder Bai vs Joint Hindu Family

Pratap Krishna Lohra, J—Appellant Judgment-debtor has laid this second appeal under Section 100 of the Code of Civil Procedure (for short, ''CPC'') against the judgment passed by learned Addl. District Judge, Banswara in Civil Appeal (Execution) Case No. 3/2015, whereby appeal preferred by appellant judgment-debtor under Order 21 Rule 99, 100 and 103 CPC was rejected and order dated 06.01.2015 passed by Addl. Civil Judge (Sr. Div.)) Banswara in Execution Case No. 1/2008 rejecting the objections preferred by appellant under section 47 CPC read with Section 6(1)(a) of the Hindu Succession Act was affirmed.

The facts in brief are that Late Gebi Lal, who was having certain immovable properties in Banswara and breathed his last without any male issue, had taken one Daya Lal in adoption. Late Smt. Sunder Bai, the appellant herein, was daughter of Late Gebi Lal and Smt. Reva Bai (third wedded wife of Gebi Lal). According to appellant, who is represented through her legal representative son Chandra Shekhar Sharma, the property of Late Gebi Lal was ancestral as such it was coparceneral, hence after commencement of amendment in the Hindu Succession Act, appellant Smt. Sunder Bai became coparcener of the property of Late Gebi Lal. It is the case of appellant that Daya Lal, who was taken in adoption by Gebi Lal, got a gift deed executed in his favour for the entire property of Gebi Lal for which Gebi Lal was not authorized and in order to oust appellant Smt. Sunder Bai, Daya Lal filed a suit for easmentary rights however the same was rejected by the learned trial Court in the year 1997 on 3rd February, 1997 by the learned Additional Civil judge (Sr. Div.) Banswara against which subsequently an appeal was preferred by Gebi Lal as Karta of Joint Hindu Family, which came to be allowed on 4th July, 2006 and the Joint Hindu Family, i.e., the respondent/decree-holder was found entitled to get the possession of the property which was in possession of Late Smt. Sunder Bai at the relevant time and at present with the present appellant Shri Chandra Shekhar Sharma ordering payment of mesne profit at Rs. 50/- per month. The judgment and decree rendered by learned Lower Appellate Court on 4th July, 2006 was upheld by this Court in second appeal and thereafter by Hon''ble Apex Court on dismissal of leave to appeal and review petition filed by Sunder Bai.

After the judgment and decree rendered by learned lower appellate Court attained finality, the respondent decree-holder submitted Execution Application for getting the judgment and decree executed before the learned Executing Court at the first instance against Late Smt. Sunder Bai but as Sunder Bai breathed her last in the year 2011 during the pendency of the execution proceedings, the decree-holder submitted an amended execution application before the learned executing Court. The Legal Representative of appellant Chandra Shekhar submitted an application/objection before the learned executing Court at Banswara under Section 47 CPC read with section 6(1)(a) of the Hindu Succession Act on the ground that during currency of the litigation an amendment came into existence in the Hindu Succession Act, whereby daughters have been given equal right in ancestral property as coparcener in nature, which bestows absolute right to daughters equal to a son and Late Smt. Sunder Bai being daughter of Late Gebi Lal was equally entitled to share in the holdings of Late Shri Gebi Lal as well as in his ancestral properties. The objection raised by appellant was replied by decree-holder respondent and the learned executing Court after considering the objection rejected the same by order dated 6th January, 2015 on the basis that the grounds raised in the application/objection were not raised at the relevant time when the matter was pending consideration.

Against order dated 6th January, 2015, appellant filed a regular execution appeal before the learned lower appellate Court and the learned lower appellate Court in turn upholding order dated 6th January, 2015 rejected the appeal filed by appellant and held that the amendment incorporated in the Hindu Succession Act is not retrospective as such the objections raised are not maintainable by order dated 01.05.2015, hence this second appeal.

Learned Counsel for appellant Mr. C.S. Kotwani has vehemently argued that the learned Courts below have not examined the matter in right perspective and arrived at the findings on the basis of conjectures and surmises. Learned Counsel submits that it is settled proposition of law that in a coparcenary property the right of a daughter is created as soon as daughter is born and Late Smt. Sunder Bai got her right in the property of Late Gebi Lal as a coparcener as soon as the amendment in the Hindu Succession Act came into force. Elaborating his submissions, learned Counsel contends that as Late Smt. Sunder Bai was coparcener in the ancestral property her Legal Representative cannot be dispossessed from that property by the alleged successor of Gebi Lal in execution of decree and therefore the impugned judgments are liable to be reversed and execution proceedings pending before the learned executing Court Addl. Civil Judge (Sr. Div.) be set at naught. In support of his contentions, learned Counsel has placed reliance on following decisions:

"� Sabitri Dei and Others Vs. Sarat Chandra Rout and Others, (1996) 2 AD 73 : (1996) 2 JT 1 : (1996) 1 SCALE 714 : (1996) 3 SCC 301 : (1996) 1 SCR 1168 : (1996) 1 UJ 586(1)

� Rohit Chauhan Vs. Surinder Singh and Others, (2013) 5 ABR 910 : (2013) 7 AD 611 : AIR 2013 SC 3525 : (2013) 4 CTC 539 : (2013) 4 PLR 662 : (2013) 4 RCR(Civil) 40 : (2013) 9 SCALE 433 : (2013) 9 SCC 419

� Haji Sk. Subhan Vs. Madhorao, AIR 1962 SC 1230 : (1962) 1 SCR 123 Supp ."

On the other hand, learned Counsel for respondent decree-holder, Mr. Mahendra Trivedi, has urged that the controversy in issue stands settled upto the Apex Court as even the SLP as well as Review petition before Hon''ble Supreme Court has been dismissed, therefore, no interference in the matter is called for. Learned Counsel submits that the appellant judgment-debtor only with a view to deprive the decree-holder to enjoy the fruits of the decree passed in its favour after having fought long battle of litigations during last about three decades has virtually started a second round of litigation in respect of a matter which has already attained finality. He would contend that in view of concurrent finding of fact recorded by both the Courts below and the second appeal being bereft of any substantial question of law no interference is warranted in the second appeal under Section 100 CPC. To support his arguments, the learned Counsel has placed on record copies of judgments and decrees of Courts below, order of this Court in second appeal as well as orders passed in SLP and review petition by the Hon''ble Apex Court.

I have heard learned Counsel for the parties and perused the impugned judgments and decrees passed by both the Courts below.

Upon perusal of the impugned judgment and decree passed by learned Addl. District Judge, Banswara in Civil Appeal (Execution) Case, whereby appeal preferred by appellant judgment-debtor under Order 21 Rule 99, 100 and 103 CPC was rejected and order dated 06.01.2015 passed by Addl. Civil Judge (Sr. Div.) Banswara in Execution Case rejecting the objection preferred by appellant under section 47 CPC read with Section 6(1)(a) of the Hindu Succession Act was affirmed, in my opinion, now nothing remains to be decided in this second appeal which is without any merit in view of the fact that the appellant decree-holder has failed to raise the issue about amendment in Succession Act upto the stage of Hon''ble Apex Court while he had ample opportunities available to raise the same. The appellant having failed in doing so, now after the matter has attained finality by the decision of Hon''ble Apex Court, the rights of the parties have crystallized and appellant cannot be permitted to raise the issue of amendment first time in the execution proceedings before the executing Court at the stage when after prolonged litigation of about thirty years the decree holder has been able to get the execution of decree in its favour. As such, in the circumstances, obviously it was not within the jurisdiction of the Executing Court to allow objections of the judgment-debtor and the Executing Court rightly rejected the same which was rightly affirmed by the first appellate Court. Furthermore, the transaction of gift deed in favour of Daya Lal, Karta of Joint Hindu Family, took place prior to the amendment came into force in the Hindu Succession Act, therefore also the plea of the appellant that during the pendency of litigation amendment was incorporated in the Hindu Succession Act which gives absolute right to daughter equal to son is of no avail as the amendment not being retrospective. The learned lower appellate Court has thus rightly upheld the order of the executing Court while observing that amendment is prospective. That apart, this Court has very limited scope in execution second appeal and no substantial question of law is involved in second appeal, as such this Court cannot reverse the judgment of the lower appellate Court even if the same is erroneous or other view is possible. Neither it is evident from perusal of the record that there is any substantial question of law involved in this appeal nor it is a case of misconstruction of evidence or perverse approach in appreciation of evidence so as to exercise second appellate jurisdiction. The so called substantial question of law proposed by the plaintiff are satisfying the requirements enumerated in Section 100 CPC. The decisions referred to by the learned Counsel for the appellant judgment-debtor in the facts and circumstances of the case are clearly distinguishable and are also of no assistance to him. In view of affirmation of the decree by Hon''ble Apex Court which is subject matter of execution, there is hardly any scope of interference in the matter at the stage of execution second appeal. I am constrained to observe that laying this second appeal at the behest of judgment debtor is a glaring example of subversion/abuse of judicial process. Consequently, I am not persuaded to interfere in the matter.

Resultantly, the present second appeal fails and same is hereby dismissed. As the appeal itself has been dismissed, the interim order stands vacated.