LexSHAILNDRA KUMAR JAIN AND OTHERS versus MAYA PRAKASH JAIN AND OTHERS
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A B C D E F G H 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 in 1966 by one of the son against his parents, three brothers (defendant nos.1 to 5) and four sisters (defendant nos.6 to 9), seeking declaration that certain properties had fallen to his share after partition between the parents and three brothers – Suit decreed vide order dtd. 23.02.1966 – ‘MP’, defendant no.5 in the 1966 suit thereafter filed suit in 2006 submitting inter alia that after the decree dtd 23.02.1966, there was a further family settlement arrived at between all the brothers in pursuance whereof said ‘MP’ was exclusive owner of certain properties mentioned in the schedule to the plaint in the 2006 suit – Application filed by ‘SJ’, defendant no.8 (in the 1966 Suit) seeking impleadment as one of the defendants in 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 entered into between the plaintiff, the parents and three brothers, the properties were mutually divided amongst said six persons – Since the parents were alive, the proper parties in an action seeking relief of partition of joint family estate, going by the then prevailing principles of Hindu Law, were only the husband, wife and their sons – Defendant nos.6 to 9 could not, as a matter of right, claim any share if the joint family properties were to be partitioned – However, on the death of the parents, if they died intestate, then under the principles of the 1956 Act, every Class I heir including the daughters, would be entitled to a share in the property left behind by their parents – It is on this count that the applicant ‘SJ’ claims entitled to have share in the properties allocated to the parents – Partition effected pursuant to decree in 1966 suit cannot, in any way, disentitle ‘SJ’ from claiming a share in the properties of her [2019] 5 S.C.R. 631 631 A B C D E F G H 632 SUPREME COURT REPORTS [2019] 5 S.C.R. parents – ‘SJ’ was definitely a necessary and proper party to be impleaded in the subsequent suit filed by ‘MP’ – Due execution of the Wills, allegedly executed by the parents, is yet to the proved by the respondents – If the Wills are not proved, the daughters would be entitled to a share in the properties, being Class-I heirs – Order passed by the courts below set aside – Application filed u/Or.1 r.10, CPC 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 his parents, three brothers and four sisters. In terms of compromise entered 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 action seeking relief of partition of joint family estate, going by the then prevailing principles of Hindu Law, were only the husband, wife and their sons. The daughters in the family, namely, Defendant Nos.6 to 9 could not, as a matter of right, claim any share if the joint family properties were to be partitioned. However, if a partition takes place between her husband and sons, a wife is entitled (except in Southern India) to receive a share equal to that of a son and enjoy that share separately even from her husband. Therefore, if the compromise was entered into between the Plaintiff and Defendant Nos.1 to 5, there was nothing improper about it. In the circumstances, the absence of any challenge to the decree in 1966 Suit was irrelevant. As a matter of fact, the applicant ‘SJ’ could not have challenged the decree in 1966 Suit. [Para 10][635-F-H; 636-A-C] 1.2 On the death of the father and mother, if they died intestate, then under the principles of the Hindu Succession Act, every Class I heir including the daughters, would be entitled to a share in the property left behind by their parents. It is precisely on this count that the applicant ‘SJ’ claims to be entitled to have a share in the properties which were allocated to her parents. The partition effected pursuant to decree in 1966 Suit cannot, in any way, disentitle her from claiming a share in the properties of her father and mother. In the aforesaid premises, ‘SJ’ w
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