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Chunni Lal v. Smt. Dullar - SECOND APPEAL No. 394 of 1989  RD-AH 11805 (12 July 2007)
Second Appeal No. 394 of 1989
Chunni Lal............................................................................. Appellant
Smt. Dullar ...........................................................................Respondent
Hon. Tarun Agarwala, J.
The plaintiffs filed a suit for partition claiming 4/21 share in the property in suit. The plaintiffs contended that the property in question originally belonged to Shiv Dihal which was inherited by his three sons Bhola, Garib and Mangru in equal shares. Bhola had three sons from his first marriage through Sundari, namely, Sandlu, Tunnu and Chunni Lal and three sons from his second wife Dullar, namely, Munni Lal, Mehi Lal and Pannal Lal. Bhola died on 7.4.1961. It was alleged that defendant No.1 Garib had 1/3 share, defendant No.2 Mangru had 1/3 share and defendant Nos.2 to 5, namely, Sandlu, Tunnu and Munni Lal had 3/21 share in the property of Bhola whereas the plaintiffs had 4/21 share. On these allegations the plaintiffs claimed partition to the share of 4/21 in the property in dispute. During the pendency of the suit, Sandlu and Tunnu died and the plaint was amended and the plaintiffs also claimed a portion of the share of Tunnu claiming that the plaintiffs are now entitled for 29/105 share in the property of Bhola.
The defendant Nos.3 to 5 filed a joint written statement resisting the claim of the plaintiff and contended that Bhola never married Dullar, plaintiff No.1 and that Dullar, was the wife of Algu Dhobi and that the remaining plaintiffs, Munni Lal, Mehi Lal and Panna Lal were in fact the sons of Algu and were not the sons of Bhola and therefore, the question of the partition of the property or giving the plaintiffs any share from the property of Bhola did not arise. The defendant Nos.1 and 2, namely, Garib and Mangru, being brothers of Bhola, also filed their written statements denying the plaint allegations and only admitted that the property originally belonged to Shiv Dihal and upon his death devolved in equal shares in the name of his three sons. It has come on record that after filing the written statement, the said defendants did not contest the matter.
The trial court after framing the issues and after considering the evidence brought on the record, decreed the suit holding that the plaintiffs were entitled to 29/105 share in the property left by Bhola. The trial court held that the plaintiff No.1, Smt. Dullar, was the wife of Bhola and therefore, was entitled to a share in the property in dispute. The said finding was based upon various evidence filed by the plaintiffs which shall be considered hereinafter. The Trial Court further gave a finding that the plaintiffs are the heirs of Bhola and that they were not the tenants of the present defendant Nos.3 to 5 or of Bhola.
Aggrieved by the decision of the trial court, the defendants filed an appeal which was also dismissed and the judgment of the trial court was affirmed. The defendants, being aggrieved by the aforesaid decision have filed the present Second Appeal before this Hon'ble Court which was admitted on the following questions of law:-
1.Whether even on the facts alleged by the plaintiff respondents, the determination of their share to the extent of 29/105 in the suit house is not in accordance with law ?
2.Whether the shares of Sadlu and Tunnu who died during the pendency of the suit, real brothers of defendant appellant would devolve on appellant and on plaintiff respondent Nos. 2 to 4 (step brothers) in equal shares ?
3.Whether the finding that Smt. Dullar is legally wedded wife of Bhola and that plaintiff respondent Nos.2 to 4 are her sons by Bhola is vitiated in law ?
Heard Sri Ashok Kumar Singh, the learned counsel for the defendant-appellant and Sri Ram Niwas Singh, the learned counsel assisted by Sri Sanjeev Kumar Asthana, the learned counsels for the plaintiffs-opposite parties.
The learned counsel for the appellant submitted that the court below committed a manifest error in coming to the conclusion that Smt. Dullar was the legally wedded wife of Bhola and that the plaintiffs-respondent No.2 to 4 were the sons of Bhola. The learned counsel further submitted that the determination of the share to the extent of 29/105 in the share of the plaintiff in the property in question was incorrect and was not in accordance with law. Further, the defendant Nos.3 and 4, namely, Sandlu and Tunnu were the real brothers of the appellant Chunni Lal and upon their death, the appellant alone was entitled to their share which could not be given or shared with the plaintiffs as they were the step brothers in view of Section 18 of the Hindu Succession Act. Consequently the share of defendant Nos.3 and 4, namely, Sandlu and Tunnu, was required to be redetermined in favour of the appellant.
On the other hand, the learned counsel for the appellant submitted that the findings that Smt. Dullar was the legally wedded wife of Dullar was given on the basis of the material evidence on record which had been affirmed by the lower appellate court and, such findings, being findings of fact, cannot be reappraised in the Second Appeal, since these findings are neither perverse nor any material had been brought on the record by the appellant to show that they were not the heirs of Bhola but were the tenants of Bhola. The learned counsel further submitted that the defendant Tunnu died issueless and only his 1/7th share had been considered on the basis of which the amendment application was filed which was allowed and instead of 4/21 share the plaintiffs became entitled to 29/105 share. The learned counsel explained to the Court with mathematical precision, the calculation of 29/105 share in favour of the plaintiffs. The Court is satisfied with the calculation made by Sri Ram Niwas Singh, the learned counsel for the opposite parties. The learned counsel for the appellant fairly admitted that if the plaintiffs are entitled to a share, they would be entitled to receive 29/105 share.
Having considered the submissions of the learned counsel for the parties this Court finds that the appellant is not entitled for any relief. The courts below have given a categorical finding that Smt. Dullar was the legally wedded wife of Bhola and that the plaintiff-respondent nos.2 to 4 were the sons of Bhola. This finding was based on the evidence of Amir Hasan, P.W.-1, who categorically stated that Bhola and Smt. Dullar were married and that the plaintiff-respondent Nos.2, 3 and 4 were the sons of Bholal and Dhullar. This evidence in my view is relevant and is in accordance with Section 50 of the Evidence Act. The court below has further found that the school leaving certificates of the plaintiff Nos.2, 3 and 4 indicated the father's name as Bhola. Further, the wife of the appellant Chunni Lal has deposed in a criminal case admitting that Smt. Dullar was her step mother. The trial court further fortified its findings by considering the voters list which showed the name of Smt. Dullar as the wife of Bhola. On the basis of these evidences, the court concluded in holding that Smt. Dullar was the wife of Bhola and that the plaintiffs Nos.2, 3 and 4 were the sons of Bhola and Dullar. The Court below was, therefore, justified in holding that the plaintiffs had a share in the property left by the deceased Bhola.
Admittedly, it has come on record that Bhola inherited 1/3 of the property left by his father Shiv Dihal. Consequently, it can safely be said that it was coparcenary property and the rights devolved on the coparceners. The coparceners are the plaintiffs and the defendants whose common ancestor was their father Bhola. In view of Section 6 of the Hindu Succession Act, the property devolved in equal shares on the coparceners. Bhola's death occurred after the commencement of the Hindu Succession Act, 1956. Consequently, Section 6 of the said Act became applicable upon the property in question and, consequently, in view of the aforesaid, Section 18 of the Act became inapplicable. The submission of the learned counsel for the appellant that the plaintiffs in the alternative being half brothers were not entitled to succeed as the heirs of the defendant No.4 Tunnu is erroneous since in the opinion of the Court, Section 18 of the Act would not be applicable to a coparcenary property.
In view of the aforesaid, this Court holds that the determination of the share to the extent of 29/105 in the property in suit was rightly determined by the Court below and the share of Tunnu rightly devolved also on the plaintiffs. The finding that Smt. Dullar is the legally wedded wife of Bhola and that the plaintiffs-respondents Nos.2, 3 and 4 are the sons of Bhola and Dullar cannot be disturbed.
In view of the aforesaid, the question of law framed by the Court are answered accordingly. The appeal fails and dismissed. In the cir cumstances of the case there shall be no order as to cost.
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