R.S.A. No. 252 of 2006 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 252 of 2006 (O&M)
Date of decision: 29.1.2009
Smt. Ram Wati
....Appellant
Versus
Viney Deep and others
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. I.P.S. Doabia, Advocate,
for the appellant.
*****
VINOD K. SHARMA, J (ORAL)
This order shall dispose of R.S.A. No. 252 of 2006 titled Smt.
Ram Wati Vs. Viney Deep and others and R.S.A. No. 254 of 2006 titled
Smt. Ram Wati Vs. Viney Deep and others, as common questions of law
and fact are involved.
For the sake of brevity, facts are being taken from R.S.A. No.
252 fo 2006 titled Smt. Ram Wati Vs. Viney Deep and others.
This regular second appeal is directed against the judgment
and decree dated 30.9.2005 passed by the learned lower appellate Court
dismissing the suit filed by the plaintiff/appellant to challenge the
alienation made by Vijay Bahadur, husband and father of the plaintiffs,
in favour of Viney Deep by way of consent decree.
R.S.A. No. 252 of 2006 (O&M)
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The alienation of property by Vijay Bahadur, who was
registered owner of the property, was challenged on the ground that the
property in hand of Vijay Bahadur was coparcenary Joint Hindu Family
Property, in which the plaintiff/appellant had interest and, therefore, had
right to challenge.
The learned trial Court placed reliance on the judgment of the
Hon’ble Supreme Court in Gurupad Khandappa Magdum Vs. Hirabai
Khandappa Magdum and others AIR 1976 Supreme Court 1239 to
decree the suit.
The Hon’ble Supreme Court while interpreting Section 6 of the
Hindu Succession Act has been pleased to lay down as under: –
“Another Division Bench of the Bombay High
Court in Rangubai Lalji V. Laxman Lalji, 68
Bom LR 74: (AIR 1966 Bom 169) had already
reconsidered and dissented from the earlier
Division Bench judgment in Shiramabai
Bhimgonda, (AIR 1964 Bom 263). In these two
cases, the judgment of the Bench was delivered
by the same learned Judge, Patel J. On further
consideration the learned Judge felt that
Shiramabai was not fully argued and was
incorrectly decided and that on a true view of
law, the widow’s share must be ascertained by
adding the share to which she is entitled at a
notional partition during her husband’s lifetime
and the share which she would get in her
husband’s interest upon his death. In the
judgment under appeal the High Court has
based itself on the judgment in Rangubai Lalji
endorsing indirectly the view that Shiramabai
was incorrectly decided.”
In appeal, the judgment and decree passed by the learned trial
Court stands reversed by the learned lower appellate Court by placing
reliance on judgment of the Hon’ble Allahabad High Court in Mt. Ram
Dei Vs. Mt. Gyorsi and others AIR (37) 1950 Allahabad 76, wherein the
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Hon’ble Allahabad High Court has been pleased to lay down as under: –
“The learned counsel for the appellant, however,
now seeks further to challenge the sale made by
Ram Kumar in 1940 in favour of plaintiffs 1 and
2 on the ground that it was not supported by
legal necessity or by any antecedent debt. We
are somewhat disinclined to permit fresh
contentions being raised at this stage of the case.
We prefer, however, to overrule the plea on
another ground. It would be remembered that
Mt. Ram Dei claimed possession of the property
only for purpose of residence and in the right of
a person entitled to maintenance. It has already
been held that she does not possess these rights
any longer in view of her relinquishment. There
can be no doubt that Mt. Ram Dei is outside the
coparcenary body. In view of the settled law
that an alienation can be impeached only by a
coparcener or by a transferee who has acquired
the interest of the entire joint family in the
property alienated. The defendant-appellant is
out of Court: she has no power of avoidance of
the transfer and is therefore not entitled to raise
a plea in that behalf. See in this connection
Madan Lal V. Gajendrapal Singh, 51 ALL
575 :(A.I.R. (16) 1929 ALL. 243) and Madan
Lal V. Chiddu, 53 ALL. 21 : (A.I.R. (17) 1930
All. 852).”
The reliance was also placed on Commentary of Mullah on
Hindu Law stating therein that female cannot be coparceners. (Para 217
of Commentary of Mullah on Hindu Law reads as under: -)
“No female can be a coparcener under
Mitakshara Law. Even a wife, though she is
entitled to maintenance out of her husband’s
property, and has to that extent an interest in his
property, is not her husband’s coparcener. Nor
is a mother a coparcener with her sons, neither a
mother-in-law with her daughter-in-law. There
can be no coparcenary between a mother and
daughter among devadasis. Nor could a widow
succeeding under the Hindu Women’s Right to
Property Act to her husband’s share in a joint
family be a coparcener. Also, see Section 6 of
the Hindu Succession Act, 1956.”
The learned counsel for the appellant contends that this appeal
R.S.A. No. 252 of 2006 (O&M)
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raises the following substantial questions of law: –
“1. Whether the learned lower appellate Court could
reverse the well reasoned judgment and decree
by placing reliance on the judgment of Hon’ble
High Court in preference to Hon’ble Supreme
Court?
2. Whether the provisions of Hindu Women’s Right
to Property Act, 1973 and Section 6 of the Hindu
Succession Act, 1956 could be ignored?”
The learned counsel for the appellant, besides placing relaince
on the judgment of the Hon’ble Supreme Court in Gurupad Khandappa
Magdum Vs. Hirabai Khandappa Magdum and others (supra) also
placed reliance on the judgment of the Hon’ble Supreme Court in Raj
Rani Vs. The Chief Settlement Commissioner, Delhi and others, AIR
1984 Supreme Court 1234 to contend that in view of the provisions of
Section 6 of the Hindu Succession Act and explanation added thereto,
the learned lower appellate Court was in error in reversing the well
reasoned judgment of the learned trial Court by holding that widow and
the daughter had no interest in the coparcenary property to challenge the
alienation.
The contention of the learned counsel for the appellant,
therefore, is that the finding recorded by the learned lower appellate
Court is perverse on the face of record and is outcome of mis-application
of settled law, as the Courts are bound to follow the law laid down by
Hon’ble Supreme Court, in preference to High Courts.
However, on consideration of matter, I find no force in the
contention raised by the learned counsel for the appellant. The Hon’ble
Supreme Court in Gurupad Khandappa Magdum Vs. Hirabai
Khandappa Magdum and others and Raj Rani Vs. The Chief
R.S.A. No. 252 of 2006 (O&M)
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Settlement Commissioner, Delhi and others (supra) has nowhere laid
down that a female i.e. widow and daughter can be coparcener in a Joint
Hindu Family.
The authorities referred to by the learned counsel for the
appellant, in fact, deal with right of succession and share on the death of
a male member qua property in his hand at the time of his death.
The judgment of the Hon’ble Allahabad High Court, and
Commentary of Mullah on Hindu Law clearly observe that females
cannot be member of coparcenery property.
It is otherwise well settled law that prior to amendment, the
females were not coparcener or members of Hindu Joint Family property,
and the right was only limited to maintenance. The amendment is not
retrospective, which could give right to female to challenge alienation.
The plaintiff/appellant, challenged the alienation said to have been made
by the Karta of the family, without legal necessity.
The learned lower appellate Court was right in coming to the
conclusion that the plaintiff/appellant had no locus standi to challenge
the sale.
The substantial questions of law as framed thus do not arise for
consideration.
No merit.
Dismissed.
(Vinod K. Sharma)
Judge
January 29, 2009
R.S.