SHEO PRAKASH JHUNJHUNWALLA Vs. CHHOTELAL JHUNJHUNWALLA

JUDGEMENT

(1.) The unsuccessful plaintiff has filed this appeal assailing the judgment and decree dated 20.12.2011 and 2.01.2012 respectively passed by the learned 2nd Addl. Civil Judge (Senior Division), Cuttack in C.S. No. 46 of 1995 dismissing the suit filed for a preliminary decree for partition and other ancillary relief.

(2.) The case of the plaintiff, in short, is that one Binj Raj, the common ancestor, died leaving behind two sons, namely, Harmukh Rai and Ramkumar. Harmukh Rai died in the year 1930 leaving behind his widow, Sheo Bai and his son, Liladhar. Liladhar predeceased Sheo Bai in the year 1935 leaving behind his widow, Gomati Bai (defendant No. 7). Sheo Bai died in the year, 1955. Likewise, Ramkumar died in the year, 1980 leaving behind his only son, Chhotelal (defendant No. 1). During pendency of the suit, Chhotelal died leaving behind Gourisankar and Nandakishore (defendant nos. 2 and 3 respectively). The 3rd son of Chhotelal, namely, Kailash, died in the year, 1990 leaving behind his widow, Uma (defendant No. 4) and his sons, namely, Alok (defendant No. 5) and Aditya (defendant No. 6). It is the case of the plaintiff that Harmukh and Ramkumar were carrying on partnership business in Calcutta and Cuttack. Both of them jointly purchased the suit property 'Schedule-A' vide registered sale deed dated 20.9.1910 (Ext. 4) having undivided equal share in the said property. It is further case of plaintiff that after death of Harmukh, his son, namely, Liladhar, inherited 1/2 share in the suit property and after his death in the year, 1935, his widow, Gomati Bai and his mother Sheo Bai succeeded to the same as his legal heirs. Since Liladhar died issueless, Gomati Bai had adopted one Madanlal in the year, 1940, who died in the year, 1946. Thereafter, Gomati adopted Sheo Prakash (the plaintiff) in the year, 1965. Due to their helpless condition, Sheo Bai and Gomati Bai were depending upon Ram Kumar to look after them and to take care of their share in the suit property. Taking advantage of the illiteracy and innocence of Sheo Bai and Gomati Bai, defendant No. 1 (Chhotelal) enjoyed the entire suit property for which Gomati Bai had filed a suit in the High Court of Calcutta bearing Suit No. 188 of 1963 praying for a decree for declaration that she was the absolute owner of the undivided 1/2 share in the suit property and also for partition of the same by metes and bounds allotting 1/2 share to her along with other ancillary relief. The suit was decreed in favour of Gomati Bai on 17.5.1989 allotting 50% share in her favour. In that suit, the present plaintiff was impleaded as defendant No. 3. It was also held in the said suit that Kailash Prasad Jhunjhunwalla (defendant No. 4), the son of Chhotelal (defendant No. 1) was not the adopted son of said Gomati Bai. The suit property herein was also the subject matter of the said suit before Calcutta High Court. The suit land was a piece of Khasmahal leasehold property at Cuttack, which was leased out in favour of the father of plaintiff, namely, Liladhar and Ramkumar. After death of Liladhar, the name of Gomati Bai (defendant No. 7) was recorded as a lessee vide order dated 3.8.1951 of the Khasmahal Authority. The period of lease expired sometime in December, 1973. Taking advantage of the situation, said Ramkumar without informing either plaintiff or defendant No. 7 (Gomati Bai) made an application before the Tahasildar, Sadar, Cuttack for renewal of the lease in his name. However, the prayer for renewal of the lease was not acceded to. But most mischievously, Ramkumar filed C.S. No. 30 of 1981 for partition and permanent injunction to deprive defendant No. 7 from enjoying 'A' schedule property. An ex parte decree was also obtained by said Ramkumar in the suit. When defendant No. 7 came to know about the same, she filed an application under Order 9 Rule 13 C.P.C. to set aside the said decree. Khasmahal lease being heritable and transferable, plaintiff acquired title in respect of the share of his mother (defendant No. 7) in the suit property. The plaintiff also challenged the legality and propriety of the lease granted in favour of defendant nos. 1 to 3 and late Kailash Prasad Jhunjhunwalla in Khasmahal Lease Case No. 1034 of 1974 on several grounds. Faced with the aforesaid situation and finding that his mother (defendant No. 7) was not in a position to fight out the litigation, plaintiff filed the suit for aforesaid relief to protect his interest in the suit land.

(3.) Defendant nos. 1 to 6 filed three sets of written statement challenging the maintainability of the suit on different grounds, out of whom defendant No. 6 being minor filed his written statement through GAL. While admitting the joint acquisition of the suit property by late Harmukh and Ramkumar, the defendant nos. 1 to 6 asserted that defendant No. 7 had never adopted the plaintiff. They also denied the adoption of Madanlal by defendant No. 7 in the year, 1940. The suit property was never considered as a separate property of any member of the family as Harmukh and Ramkumar constituted a Hindu joint family. It was the case of defendants that Harmukh and Liladhar having died prior to commencement of Hindu Women Right to Property Act, 1937, the widows, namely, Sheo Bai and Gomati Bai (defendant No. 7) could not have inherited the interest of Harmukh as well as Liladhar, who died in the year, 1930 and 1935 respectively. After the death of interest of Liladhar, his interest in the joint family property reverted back to Ramkumar, who was the sole reversioner at the relevant time. They further contended that Suit No. 188 of 1963 filed before the Calcutta High Court claiming half share in the property, which included the suit property herein, did not answer the issue of right, title and interest of defendant No. 7 in respect of properties situated at Cuttack (the suit property) and left it to be decided in the appropriate Court having jurisdiction over the aforesaid property. In the suit filed before Calcutta High Court, the father of defendant No. 1, namely, Ramkumar, was impleaded as a party and upon his death, the defendant No. 1 was substituted in his place. No other defendant in the present suit was impleaded as party to the said suit at Calcutta except Kailash Prasad Jhunjhunwalla (predecessor of defendant nos. 4 to 6). Though the suit land was a Khasmahal land and the same was leased out by the Tahasildar, Cuttack, the Government of Odisha was not impleaded as a party to the suit. Hence, the suit was bad for non-joinder of necessary party. Since the defendant No. 7 was a pre-Act widow, she had acquired no interest in the suit property after the death of her husband, namely, Liladhar. Thus, there was no necessity on the part of the defendants to intimate her (defendant No. 7) regarding renewal of Khasmahal lease. The plaintiff being not the adopted son of defendant No. 7 was not noticed in the Khasmahal lease proceeding. Kailash Prasad Jhunjhunwalla (predecessor of defendants nos. 4, 5 and 6) was one of the applicants in the said lease proceeding. The petition under Order 9 Rule 13 C.P.C. filed by defendant No. 7 was rejected and the preliminary decree passed in T.S. No. 30 of 1981 was made final. The said decree having not been challenged reached its finality and cannot be reopened in the present suit. Impletion of plaintiff as a party to the suit before the High Court of Calcutta has got no bearing either in T.S. No. 30 of 1981 or in the present suit. The defendants were not precluded from challenging the right of plaintiff to bring the present suit for partition. Even for the sake of argument, if it is assumed that the plaintiff was adopted by defendant No. 7, which took place in the year, 1965, he cannot succeed to the interest of Liladhar, the husband of defendant No. 7, who died in the year, 1935 and the plaintiff cannot succeed to the interest of Liladhar during the lifetime of defendant No. 7. After the death of Liladhar in the year, 1935, the defendant No. 7 being a pre-Act widow could not have acquired any interest in the suit property. After expiry of the Khasmahal lease in December, 1973, the Khasmahal Authority granted fresh lease exclusively in favour of defendant nos. 1 to 3 and late Kailash Prasad Jhunjhunwalla by dint of separate lease deeds. Since the lease granted by Khasmahal Authority was not challenged in appropriate forum, plaintiff is estopped from changing the same in the suit contending it to be void and non est in the eyes of law. Defendant No. 7 had filed the suit before Calcutta High Court in Suit No. 188 of 1963 and also filed MJC No. 398 of 1985 to set aside the ex parte decree in T.S. No. 30 of 1981 and pursued the proceedings personally. Thus, it cannot be said that she was not capable of managing the affairs of the suit property. Therefore, the defendant nos. 1 to 6 prayed for dismissal of the suit.