SHAILNDRA KUMAR JAIN AND OTHERS versus MAYA PRAKASH JAIN AND OTHERS on 9 April 2019

[2019] 5 S.C.R. 631

SHAILNDRA KUMAR JAIN AND OTHERS

v.

MAYA PRAKASH JAIN AND OTHERS

(Civil Appeal No. 3587 of 2019)

APRIL 09, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Code of Civil Procedure, 1908 – Or.1, r.10 – Suit filed in1966 by one of the son against his parents, three brothers (defendantnos.1 to 5) and four sisters (defendant nos.6 to 9), seekingdeclaration that certain properties had fallen to his share afterpartition between the parents and three brothers – Suit decreed videorder dtd. 23.02.1966 – ‘MP’, defendant no.5 in the 1966 suitthereafter filed suit in 2006 submitting inter alia that after the decreedtd 23.02.1966, there was a further family settlement arrived atbetween all the brothers in pursuance whereof said ‘MP’ wasexclusive owner of certain properties mentioned in the schedule tothe plaint in the 2006 suit – Application filed by ‘SJ’, defendantno.8 (in the 1966 Suit) seeking impleadment as one of the defendantsin the 2006 suit – During the pendency of the application, ‘SJ’expired and the appellants, her legal heirs were substituted –Application dismissed – Revision in the High Court – Dismissed –On appeal, held: In the 1966 suit, in terms of compromise enteredinto between the plaintiff, the parents and three brothers, theproperties were mutually divided amongst said six persons – Sincethe parents were alive, the proper parties in an action seeking reliefof partition of joint family estate, going by the then prevailingprinciples of Hindu Law, were only the husband, wife and theirsons – Defendant nos.6 to 9 could not, as a matter of right, claimany share if the joint family properties were to be partitioned –However, on the death of the parents, if they died intestate, thenunder the principles of the 1956 Act, every Class I heir includingthe daughters, would be entitled to a share in the property left behindby their parents – It is on this count that the applicant ‘SJ’ claimsentitled to have share in the properties allocated to the parents –Partition effected pursuant to decree in 1966 suit cannot, in anyway, disentitle ‘SJ’ from claiming a share in the properties of her

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Aparents – ‘SJ’ was definitely a necessary and proper party to beimpleaded in the subsequent suit filed by ‘MP’ – Due execution ofthe Wills, allegedly executed by the parents, is yet to the proved bythe respondents – If the Wills are not proved, the daughters wouldbe entitled to a share in the properties, being Class-I heirs – Orderpassed by the courts below set aside – Application filed u/Or.1 r.10,BCPC by SJ’, allowed – Hindu Succession Act, 1956.

Disposing of the appeal, the Court

HELD: 1.1 The earlier suit was filed by a son against hisparents, three brothers and four sisters. In terms of compromiseCentered into between the Plaintiff, the parents and three brothers,the properties were mutually divided amongst said six persons.Since ‘AP’ and ‘DJ’ were alive, the proper parties in an actionseeking relief of partition of joint family estate, going by the thenprevailing principles of Hindu Law, were only the husband, wifeand their sons. The daughters in the family, namely, DefendantDNos.6 to 9 could not, as a matter of right, claim any share if thejoint family properties were to be partitioned. However, if apartition takes place between her husband and sons, a wife isentitled (except in Southern India) to receive a share equal tothat of a son and enjoy that share separately even from herEhusband. Therefore, if the compromise was entered into betweenthe Plaintiff and Defendant Nos.1 to 5, there was nothing improperabout it. In the circumstances, the absence of any challenge tothe decree in 1966 Suit was irrelevant. As a matter of fact, theapplicant ‘SJ’ could not have challenged the decree in 1966 Suit.[Para 10][635-F-H; 636-A-C]F

1.2 On the death of the father and mother, if they diedintestate, then under the principles of the Hindu Succession Act,every Class I heir including the daughters, would be entitled to ashare in the property left behind by their parents. It is preciselyon this count that the applicant ‘SJ’ claims to be entitled to haveGa share in the properties which were allocated to her parents.The partition effected pursuant to decree in 1966 Suit cannot, inany way, disentitle her from claiming a share in the properties ofher father and mother. In the aforesaid premises, ‘SJ’ wasdefinitely a necessary and proper party to be impleaded in theHsubsequent suit which was filed by ‘MP’. [Para 11][636-C-E]

1.3 The due execution of the Wills is yet to the proved bythe Respondents. If the Wills are not proved, the daughterswould be entitled to a share in the properties, being Class-I heirs.The daughters are, therefore, necessary parties to theproceedings. In the present case, if the Wills so propounded areproved, they will chart a course of succession other than thenormal mode of succession and to the prejudice of the daughters.In such an action or proceeding, the daughters being Class Iheirs are necessary and proper parties and are required to beimpleaded. ‘SJ’s’ application to be impleaded as one of thedefendants in the suit, was erroneously rejected by the courtsbelow. The order passed by the courts below, set aside and theapplication filed under Order 1 Rule 10 CPC by the applicant‘SJ’ is allowed. [Paras 12, 13][636-F-G; 637-A-B]

Lakshmi Chand Khajuria and Ors. v. Ishroo Devi (1977)2 SCC 501 : [1977] 3 SCR 400 – referred to.

Mulla on Hindu Law 22nd Edition – referred to.

Case Law Reference

[1977] 3 SCR 400referred to

Para 10

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3587of 2019.

From the Judgment and Order dated 19.07.2018 of the HighCourt of Judicature at Allahabad in Civil Revision No. 156 of 2016.

Dinesh K. Garg, Abhishek Garg, Dhananjay Garg, Deepak Mishra,Advs. for the Appellants.

Jitendra Mohan Sharma, Sr. Adv., Ajit Sharma, Adnan Siddiqui,Sandeep Singh, Pranshu Kaushal, Sudhir Kumar Gupta, Manish Gupta,Advs. for the Respondents.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. Leave granted.

2. This appeal challenges the correctness of the decision dated19.07.2018 passed by the High Court of Judicature of Allahabad in CivilRevision No.156 of 2016.

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A3. One Vinay Prakash Jain filed Suit No.92 of 1966 (“1966 Suit”,for short) in the Court of Sub-Judge, First Class, Delhi seeking declarationthat certain properties had fallen to his share after a partition betweenhis father Amba Prasad, his mother Smt. Devi Jain and three brothers,all of whom were arrayed as Defendant Nos.1 to 5. In the suit foursisters, including Smt Srikanta Jain were also arrayed as Defendant Nos.6Bto 9.

4. An order was passed by the trial court on 23.02.1966 in 1966Suit recording a compromise amongst the parties pursuant to which thesuit was decreed. Relevant portion of the order was as under:

C“The plaintiff has prayed that a declaration be made thathe is the owner of the properties in the plaint of the suit (illegible).The said properties had fallen in his share in (illegible) betweenthe plaintiff and defendant Nos.1 to 5. The defendants have todaythrough their counsel Shri Vijay Kishan, Advocate filed writtenstatement admitting the claim of the plaintiff. The counsel for theDdefendants has also made a statement in the Court that decree bepassed as prayed for.

In the result, I pass a decree for declaration to the effectthat the plaintiff is the owner and in possession of the propertiesmentioned in clause (a) of para No.11 of the plaint. The partiesEbe bear their own costs of the suit.

Pronounced.”

5. Defendant No.5 in 1966 Suit i.e. Maya Prakash thereafter filedSuit No.464 of 2006 in the Court of Civil Judge (Senior Division), Meerut,submitting inter alia that after the aforesaid decree dated 23.02.1966,Fthere was a further family settlement arrived at between all sons of saidAmba Prasad Jain on 05.11.2005 regarding division of house and otherjoint properties. This settlement was said to have been arrived at in thepresence of Smt. Chandrakanta Jain, Shri D.P. Jain, Smt. PadamkantaJain and Shri Akhilesh Jain. It was claimed that the parties were boundGby said settlement dated 05.11.2005 and that in pursuance thereof saidMaya Prakash Jain was exclusive owner of certain properties mentionedin the schedule to the plaint in said suit of 2006.

6. An application Ex.92 Ka was preferred by original DefendantNo.8 in 1966 Suit i.e. Srikanta Jain seeking her impleadment as one ofthe defendants in aforesaid Suit No.464 of 2006. It was submitted thatafter the death of her parents i.e. Amba Prasad Jain, and Smt. DeviJain, the applicant was entitled to the property which was left behind bythe parents and the applicant being a necessary party she ought to beimpleaded as one of the defendants in Suit No.464 of 2006. During thependency of the application, Smt. Srikanta Jain expired and the appellants,i.e. her legal heirs were substituted in her place.

7. The application was dismissed by the trial court vide orderdated 10.03.2016. It was observed that the applicant Smt. Srikanta Jainhad knowledge of 1966 Suit but no steps were taken to appeal againstthe decree passed on the basis of oral family partition between her parentsand brothers and as such her application was required to be dismissed.

8. The appellants being aggrieved, preferred Civil Revision No.156of 2016 in the High Court, which revision was dismissed by the HighCourt vide order dated 19.07.2018. It was observed as under:

“Since, as noticed above, the suit where from this revision arisesbasically seeks implementation of an earlier decree in Suit No.92of 1966, which determined the shares of the parties thereto, uponacceptance of an alleged oral partition between them, and sinceadmittedly the parties to the suit are only those whose shares areto be separated, the Court below has committed no illegality inrejecting the impleadment application, on a finding that revisionistare not necessary parties In the proceedings.”

9. We heard Shri D.K. Garg, learned Advocate for the appellantsand Shri Jitender Mohan Sharma, learned Senior Advocate for therespondents.

10. The earlier suit was filed by a son against his parents, threebrothers and four sisters. In terms of compromise entered into betweenthe Plaintiff, the parents and three brothers, the properties were mutuallydivided amongst said six persons. Since Amba Prasad Jain and Smt.Devi Jain were alive, the proper parties in an action seeking relief ofpartition of joint family estate, going by the then prevailing principles ofHindu Law, were only the husband, wife and their sons. The daughters A

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Ain the family, namely, Defendant Nos.6 to 9 could not, as a matter ofright, claim any share if the joint family properties were to be partitioned.However, it is well settled[1] that if a partition takes place between herhusband and sons, a wife is entitled (except in Southern India) to receivea share equal to that of a son and enjoy that share separately even fromher husband[2]. Therefore, if the compromise was entered into betweenBthe Plaintiff and Defendant Nos.1 to 5, there was nothing improper aboutit. In the circumstances, the absence of any challenge to the decree in1966 Suit was irrelevant. As a matter of fact, the applicant Srikanta Jaincould not have challenged the decree in 1966 Suit.

11. On the death of the father and mother, if they died intestate,Cthen under the principles of the Hindu Succession Act, every Class Iheir including the daughters, would be entitled to a share in the propertyleft behind by their parents. It is precisely on this count that the applicantSrikanta Jain claims to be entitled to have a share in the properties whichwere allocated to Amba Prasad Jain and Smt. Devi Jain. The partitionDeffected pursuant to decree in 1966 Suit cannot, in any way, disentitleher from claiming a share in the properties of her father and mother. Inthe aforesaid premises, Srikanta Jain was definitely a necessary andproper party to be impleaded in the subsequent suit which was filed byMaya Prakash Jain.E12. It was, however, contended by Mr. Jitender Mohan Sharma,learned Senior Advocate appearing for Respondent No.1 that the fatherand the mother, namely, Amba Prasad Jain and Smt. Devi Jain had leftbehind Wills under which their properties had devolved upon the sonsexclusively. The due execution of the Wills is yet to the proved by theRespondents. If the Wills are not proved, the daughters would be entitledFto a share in the properties, being Class-I heirs. The daughters are,therefore, necessary parties to the proceedings. In the present case, ifthe Wills so propounded are proved, they will chart a course of successionother than the normal mode of succession and to the prejudice of thedaughters. In such an action or proceeding, the daughters being Class IGheirs are necessary and proper parties and are required to be impleaded.

13. Thus, considering the matter from any perspective, the applicantSrikanta Jain was a necessary and proper party. Her application to be H

1 See: Lakshmi Chand Khajuria and Ors vs. Ishroo Devi – (1977) 2 SCC 501 para 14

2 Mulla on Hindu Law – 22

SHAILNDRA KUMAR JAIN v. MAYA PRAKASH JAIN[UDAY UMESH LALIT, J.]

impleaded as one of the defendants in the suit, was erroneously rejectedby the courts below. We, therefore, allow this appeal, set aside the orderpassed by the courts below, and allow the application Ext.92 Ka filedunder Order 1 Rule 10 CPC preferred by the applicant Srikanta Jain inSuit No.464 of 2006. No costs.

Divya Pandey

Appeal disposed of.

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