HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Writ Petition No.10189 of 2012 Shanti Bai and others Vs. Sushila Bai and others Shri S.B. Shrivastava :- Counsel for the petitioners. Shri Ashok Tiwari :- Counsel for respondent nos. 1 & 2. Shri Shyam Yadav, :- Counsel for respondent nos. 3 to 5. None :- for respondent nos. 6 and 7. Shri Amit Sharma :- PL for respondent no.8. ORDER
1110/2013 U.C. MAHESHWARI, J.
1. The petitioners- applicants have filed this petition being aggrieved by the order dated 17.5.2012, (Ann. P-1), passed by Additional Civil Judge, Class-II, Gadarwara in COS No.19-A/2011 whereby their application, filed under Order 1, Rule 10 of CPC (Ann. P-4) to implead them as a party in a suit filed by the respondent nos. 1 and 2 against respondent nos. 3 to 7 with impleading the respondent no.8 - State of M.P. as formal party for declaration, perpetual injunction and partition with some other reliefs, has been dismissed.
2. The facts giving rise to this petition in short are that respondent nos. 1 and 2 herein filed above mentioned suit against respondent nos. 3 to 7 for declaration and perpetual injunction and partition of the property described in the plaint, (Ann. P-2). In pendency of such suit on behalf of petitioners, the above mentioned application contending that Ramesh Kumar Bramin, the husband of respondent No.1, while the father of respondent No.2 was the brother of the petitioners- applicants while the respondent nos. 3 and 4 are their parents and the respondents No.5 to 7 are their brothers. In continuation, it is stated that the petitioners are also having the right, title and share in the disputed property but in order to deprive them from their such right and shares, they have not been impleaded as party in the suit. If they are not impleaded as party in the matter then they will have to suffer a lot and they have to file their separate suit by spending lot of money. With these averments, prayer to implead them as party in the matter is made.
3. In the reply of respondent nos. 1 and 2, the averments of the aforesaid IA, (Ann. P-5), regarding the rights, share and title of the petitioners in the alleged property are denied. In addition to it, it is stated that the petitioners are married and their shares in the property has already been given at the time of their marriage. It is also stated that the petitioners are not necessary party in the matter and only on the ground of that if they are not impleaded as party, then they will have to file separate suit by allowing their application, they could not be impleaded as party in the matter.
4. On consideration, the trial court has dismissed such application (Ann. P-1) holding that in the available factual matrix, the petitioners are not necessary party. Being dissatisfied with such order, the petitioners have come to this court.
5. The petitioners' counsel after taking me through the averments of the petition alongwith the papers placed on record, so also the impugned order argued that in view of the amended provision of Section 6 of the Hindu Succession Act, which have come into force in the year 2005, the petitioners being daughters of the respondent nos. 3 and 4 by virtue of such amended provision are having share in the disputed property but without considering their such right, contrary to settled legal position and the above mentioned provision, their application has been dismissed under the wrong premises. In support of such contention, he also placed his reliance on a decision of the Orissa High Court in the matter of Pravat Chandra Pattnaik and others Vs. Sarat Chandra Pattnaik and another reported in AIR2008 Orissa 133 and of the judgment of Bombay High Court in the matter of M/s. Vaishali Satish Ganorkar & Anr. Vs. Satish Keshorao Ganorkar & Ors. reported in AIR2012 Bombay 101 and prayed to set aside the impugned order and allowing their application by admitting and allowing this petition.
6. Keeping in view the arguments, advanced, I have carefully gone through the impugned order alongwith papers placed on record, so also aforesaid cited cases.
7. It is undisputed fact in the matter that all the petitioners being married are residing in their matrimonial home and they have got birth prior to 2005, before coming into force the amended provision of Section 6 of the Hindu Marriage Act, in which the daughters have been extended the rights in the ancestral property of the parental family as co-parcenors with prospective effect. In view of the factum that all the petitioners have got birth before 2005, the cited cases are not helping to the petitioners because in such cases it was held that daughters, who have got birth subsequent to enforcement of aforesaid amended provision of Section 6 of the Hindu Succession Act, have a co-parcenory rights in the ancestral Joint Hindu Family Property of their parents. It is further held in the cited cases that such daughters shall get the rights in such property on opening the succession on account of death of the co-parcenors of the family through whom they are claiming the share. In the case at hand it is apparent that the respondent nos. 3 and 4, the parents of the petitioners are still alive. Therefore, in view of the factum that the petitioners got birth before 2005, only on account of death of their brother, Ramesh Chandra in the life time of the father of the petitioners, it could not be said that their succession right has been opened. So in such premises, the petitioners are not entitled to get any right, title or share as co-parcenors in the disputed property.
8. Apart the aforesaid, the impugned suit being filed for declaration, perpetual injunction by the legal representatives of the deceased, one of the co- parcenor of family, Ramesh Chandra Bramin against the parents and brothers of such Ramesh Chandra Bramin, then the petitioners, who have got birth prior to 2005 before coming into force the amended provision of Section 6 of the Act are neither necessary nor proper party in the impugned suit. The same could be adjudicated by passing the effective decree only in presence of respondent nos. 1 and 2, the plaintiffs and the respondent nos. 3 to 7, the existing defendants.
9. In the aforesaid premises, the trial court has not committed any error in dismissing the impugned application of the petitioners. In such premises, I have not found any perversity, illegality, irregularity or anything against the property of law in the order impugned. Consequently, this petition being devoids of any merits deserves to be and is hereby dismissed at the initial stage of motion hearing. ( U.C. MAHESHWARI ) JUDGE bks