Lehja Bai (D) Thru LRS.
Vs. Sewanti Bai & ANR. [2009] INSC 874 (4 May 2009)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO.3170 OF 2009 (Arising out of SLP (C) No.24760 of
2007) Lehja Bai (D) Thru LRs. ....... Appellant(s) Sewanti Bai & Anr.
....... Respondent(s)
R. V. RAVEENDRAN J.,
1.
Leave
granted. Heard. This appeal is by the defendants in a suit for partition and
separate possession filed by first respondent.
2.
This
appeal arises out of a suit for partition. One Ganaram and his son Sahdeo
constituted a joint family. Lehja Bai was the wife of Ganaram and mother of
Sahdev. Ganaram and Lehja Bai had four daughters in addition to their only son
Sahdeo. Sahdeo died intestate in the year 1972 issueless survived by his wife
Sewanti Bai. Ganaram died in the year 1986.
3.
Sewanti
Bai filed a suit for partition and separate possession of her share in the
joint family properties, in the year 1989. She impleaded her mother-in- law
Lehja Bai as the first defendant, four sisters-in-law as defendants 2 to 5 and
the State of Madhya Pradesh as defendant no.6. Defendants 2 to 5 resisted the
suit inter alia on the ground that the deceased Ganaram had left a will dated
22.2.1983 bequeathing the suit properties in their favour.
4.
The
suit was decreed by the trial court by judgment and decree dated 21.12.1999
declaring that Sewanti Bai was entitled to 7/12th share in the suit schedule
properties and directing division by metes and bounds through the Revenue
Authorities. The trial court also declared that the will dated 22.2.1983 was
not valid nor binding on the plaintiff. Feeling aggrieved, defendants 1 to 5
filed an appeal before the District Judge, Chhindwara (MP). In the said appeal,
Sewanti Bai filed cross objections contending that she was entitled to mesne
profits from the date of the suit to the date of possession. The first
appellate court by judgment dated 14.2.2003, dismissed both the appeal and
cross objections thereby confirming the decision of the trial court.
5.
The
trial court and the first appellate court proceeded on the basis that Ganaram
and Sahdeo each had a half share in the suit schedule properties, that on the
death of Sahdeo, his wife Sewanti Bai succeeded to his half share; that when
Ganaram died subsequently, his wife Lehja Bai, his daughter-in-law Sewanti Bai
and four daughters (D2 to D5) each became entitled to 1/6th share 3 in his
half share; and that therefore, Sewanti Bai was entitled to the half share of
Sahdeo plus 1/12th share from Ganaram's share (that is, 1/6th of Ganaram's half
share), in all to 7/12th share. The trial court and first appellate court also
held that defendants 1 to 5 each were entitled to 1/12th share.
6.
Defendants
1 to 5 filed a second appeal before the High Court wherein the only question
that was raised was whether the courts below were justified in holding that
Sewanti Bai was entitled to 7/12th share. The High Court by judgment dated
27.7.2006 allowed the appeal in part. It held that if there had been a
partition of the joint family properties during the life time of Ganaram, then
Ganaram, Lehja Bai and Sahdeo would have each got 1/3rd share in the suit
schedule properties; that when Ganaram died, his wife, four daughters and son
were each entitled to a 1/6th share in his 1/3rd share; that as his son Sahdeo
had died, Sahdeo's 1/18th share was further divided into two shares of 1/36th
each and taken by his wife Sewanti Bai and mother Lehja Bai. Strangely, the
High Court did not calculate or state what was the share of Sewanti Bai in the
joint family properties or what was the share of Lehja Bai therein. The High
Court neither answered the substantial question of law raised nor indicate its
final `decision' in the matter except stating that the judgment and decree of
the courts below was modified in terms of its judgment.
7.
The
said judgment is challenged in this appeal by special leave by defendants 2 to
5, as first defendant died after the decision of the High Court.
The appellants
contend that Lehja Bai was entitled to 21/36th share, Sewanti Bai was entitled
to 7/36th share and defendants 2 to 5 were each entitled to 1/18 th share. The
contention of the appellant is that Lehja Bai was entitled to 1/3rd share in
the joint family properties on her own account, 1/6th share as legal heir of
her son, 1/18th share as legal heir of her husband, and 1/36th share as legal
heir of her son in the share of Ganaram.
8.
But
during arguments, both counsel fairly agreed that the correct method of
calculation would be on the following basis : that Ganaram and Sahdeo would be
entitled to = share each in the joint family properties; that on the death of
Sahdeo, his half share would have devolved in two equal shares on his mother
Lehja Bai and wife Sewanti Bai and consequently, each of them would have got
1/4th share; and that when Ganaram died, his half share would have devolved
equally on his wife, daughter-in-law, and four daughters equally which would
mean that each of them would get 1/12th share as legal heirs of Ganaram's
share. It was therefore, agreed that Lehja Bai would have 1/4th + 1/12th equal
to 1/3rd share; that Sewanti Bai would also have 1/4th + 1/12th equal to 1/3rd
share; and the four daughters (D2 to D5) would each have 1/12th share together
1/3rd share.
9.
As
Lehja Bai died after the decision of the High Court, her one-third share will
now devolve upon her four daughters equally. Consequently each of them will
have another 1/12th share in addition to their 1/12th each that is 1/6th each.
10.
We
accordingly allow this appeal and modify the judgments and decrees of the
courts below holding that the share of plaintiff in the joint family properties
is 1/3rd (one-third) and the share of each of defendants 2 to 5 is 1/6th
(one-sixth). The trial court's decree for division and separate possession of plaintiff's
share remains undisturbed. Draw up preliminary decree accordingly.
Parties to bear their
respective costs.
............................J
[R. V. Raveendran]
.............................J
[J. M. Panchal]
New
Delhi;
May
4, 2009.
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