-Report by Avinash Pandey
The Mitakshara philosophy, which is prevalent in most regions of India, believes that a male’s ability to be a coparcener is innate. However, if a baby boy is the fourth longitudinal descendant, i.e., a great-great-grandson, and his human ancestors are still living, the privilege to be included in the coparcenary will not be available until becomes the third descendant.
In Chokhelal & Ors. vs Ashwini Kumar & Ors the respondent had initially filed a suit for the pronouncement of 1/12 partition with another decree of separate possession for the house which was in contention. It was further claimed by the respondent that the property was his ancestral property which had belonged to the common ancestors wherein the great grandfather of the appellants was included.
The respondent further claims that after the death of the great grandfather, his son, following which his brother and thereafter the defendant became the Karta of the family. The name of the respondent was then recorded in the suit property. The appellant in his contention had mentioned that the property was not a Hindu joint family property and hence the contention by the respondent is not valid. The appellant further said that the house was built by his father. His father mentioned that the respondent was allowed to live in the house along with his family as a licensee.
The decision of the learned trial court stated that the suit was dismissed on the basis that the property in contention is not a joint Hindu family property and the appellant in this case i.e., Mr. Kumar was the exclusive owner of the property as the plaintiffs had separated themselves from him. The appellant had the rightful duty to sell off the property if he wanted to. The respondents filed an appeal aggrieved by the decision of the trial court.
The appellants had filed a counterclaim which had been dismissed by the trial court and then by the first appellate court. The second appeal of counterclaim had been filed before the High Court of Madhya Pradesh.
The Hon’ble High Court in its observation of the appeal filed by the respondents had stated that the respondent had been born prior to the Hindu succession act and had a right to the joint Hindu property belonging to his great grandfather. Furthermore, the court stated that the property being the joint Hindu family property was never under the ownership of the appellant or his father.
The court further stated in this case that the dismissal of the appeal of the counterclaim filed by the appellant is correct by the lower appellate court. The final order passed by the first appellate court was confirmed and the second appeal was dismissed.
