Tag: ancestralproperty

-Report by Sarweshree Bawari

It was held by the Delhi district court in Bhim Singh versus Sube Singh, that the plaintiff failed to convince the court that the facts are rightfully presented and there are grounds for the case.

Facts

In this case, the plaintiff filed a case against five other parties viz. Sube Singh, Dharampal Singh, Manipal Singh, Mahendra Singh and Mahesh Kumar for violating their legal contract or ‘Rajinama’. All the defendants are blood relatives of the plaintiff. The plaintiff and defendants lived separately on the same piece of land, which was divided by their ancestors decades ago. However, they had a single common opening, which was being used for going in and for coming out. The passage was used by all and was in common possession, electric meters of each of them were fixed on the wall.

Some issues arose between Mahendra Singh and Mahesh Kumar, which was taken up by the Panchayat where it was decided that the passage would be divided into three and they signed a ‘Rajinama’. The Rajinama stated that all the personal construction on the passage should be demolished or a fine will be inflicted. The plaintiff performed his part but the other residents refused to obey the order. Therefore, the plaintiff after much deliberation filed a suit against the defendants.

Plaintiffs Contention

The plaintiff and the defendant had come to an understanding and had agreed to demolish the constructed parts, as described in the Rajinama. He contended that the other defendants convinced him to get rid of his portion in the common passage before and then they would follow. However, when he got his task done the defendants played a clever game. He further accused Dharampal Singh of being the main player who is willingly not following the order and influencing the others, dragging the plaintiff into other legal proceedings to divert the attention from the real issue. He stated that the defendants have deliberately and willingly fully not performed their duties as agreed in the Rajinama so they should be liable for a fine of Rs.5,00,000.

Defendants Contention

The defendants contended that the present suit is not maintainable and has been filed by the plaintiff only to harass them. They argued that the portion in possession of the defendant sought to be demolished by way of this suit does not fall within the area of the common passage and as such, there is no need to demolish the same. The plaintive had purposely not mentioned the measurement of the common passage which is 8‘8“ and it is highly impractical to be divided into three parts. Further, the stairs constructed on the common passage were the only way through which they commute. The Rajinama also appeared not to be very authentic as it didn’t have proper stamps with the date on them.

COURT’S DECISION

The burden to prove was on the plaintiff, he failed to prove the matter regarding the electricity meters which were being placed in the common passage. The ‘Rajinama’ had to be registered according to sections 17 and 49 of the Registration Act, 1908. As it was an unregistered document, the court did not admit it as evidence. It was observed

“Joint reading of Section 17 & Section 49 of the Registration Act provides that an unregistered document which is compulsorily registrable under Section 17 of the Registration Act cannot effect any immovable property comprised therein. Rajinama dated 01.01.2013 Ex.PW1/1 deals with division of common passage amongst plaintiff and defendants and the same is unregistered document. Therefore, same cannot be received as an evidence of any transaction affecting such property or conferring any such power. Hence, the same is not legally admissible/ valid document to show partition of the common passage between the plaintiff and defendants.”

Plaintiff also admitted during his cross-examination that he has not filed any bills showing the money spent upon the demolition of his part. The court came to the conclusion that the case should be dismissed. The plaintiff was not entitled to any relief claimed in the plaint.

-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.