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Shailndra Kumar Jain vs Maya Prakash Jain on 9 April, 2019

1
Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3587 OF 2019
(Arising out of Special Leave Petition (Civil) No.3490 of 2019)

Shailndra Kumar Jain and others …Appellants

VERSUS

Maya Prakash Jain and others …Respondents

JUDGMENT

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal challenges the correctness of the decision dated

19.07.2018 passed by the High Court of Judicature of Allahabad in Civil

Revision No.156 of 2016.

3. One Vinay Prakash Jain filed Suit No.92 of 1966 (“1966 Suit”, for

short) in the Court of Sub-Judge, First Class, Delhi seeking declaration that

certain properties had fallen to his share after a partition between his father
Signature Not Verified

Digitally signed by
INDU MARWAH
Amba Prasad, his mother Smt. Devi Jain and three brothers, all of whom were
Date: 2019.04.10
17:22:56 IST
Reason:

arrayed as Defendant Nos.1 to 5. In the suit four sisters, including Smt

Srikanta Jain were also arrayed as Defendant Nos.6 to 9.
2

4. An order was passed by the trial court on 23.02.1966 in 1966 Suit

recording a compromise amongst the parties pursuant to which the suit was

decreed. Relevant portion of the order was as under:

“The plaintiff has prayed that a declaration be
made that he is the owner of the properties in the plaint
of the suit (illegible). The said properties had fallen in
his share in (illegible) between the plaintiff and
defendant Nos.1 to 5. The defendants have today
through their counsel Shri Vijay Kishan, Advocate filed
written statement admitting the claim of the plaintiff.
The counsel for the defendants has also made a
statement in the Court that decree be passed as prayed
for.

In the result, I pass a decree for declaration to the
effect that the plaintiff is the owner and in possession
of the properties mentioned in clause (a) of para No.11
of the plaint. The parties be bear their own costs of the
suit.

Pronounced.”

5. Defendant No.5 in 1966 Suit i.e. Maya Prakash thereafter filed Suit

No.464 of 2006 in the Court of Civil Judge (Senior Division), Meerut,

submitting inter alia that after the aforesaid decree dated 23.02.1966, there

was a further family settlement arrived at between all sons of said Amba

Prasad Jain on 05.11.2005 regarding division of house and other joint

properties. This settlement was said to have been arrived at in the presence of

Smt. Chandrakanta Jain, Shri D.P. Jain, Smt. Padamkanta Jain and Shri
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Akhilesh Jain. It was claimed that the parties were bound by said settlement

dated 05.11.2005 and that in pursuance thereof said Maya Prakash Jain was

exclusive owner of certain properties mentioned in the schedule to the plaint

in said suit of 2006.

6. An application Ex.92 Ka was preferred by original Defendant No.8 in

1966 Suit i.e. Srikanta Jain seeking her impleadment as one of the defendants

in aforesaid Suit No.464 of 2006. It was submitted that after the death of her

parents i.e. Amba Prasad Jain, and Smt. Devi Jain, the applicant was entitled

to the property which was left behind by the parents and the applicant being a

necessary party she ought to be impleaded as one of the defendants in Suit

No.464 of 2006. During the pendency of the application, Smt. Srikanta Jain

expired and the appellants, i.e. her legal heirs were substituted in her place.

7. The application was dismissed by the trial court vide order dated

10.03.2016. It was observed that the applicant Smt. Srikanta Jain had

knowledge of 1966 Suit but no steps were taken to appeal against the decree

passed on the basis of oral family partition between her parents and brothers

and as such her application was required to be dismissed.

8. The appellants being aggrieved, preferred Civil Revision No.156 of

2016 in the High Court, which revision was dismissed by the High Court vide

order dated 19.07.2018. It was observed as under:
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“Since, as noticed above, the suit where from this revision
arises basically seeks implementation of an earlier decree in
Suit No.92 of 1966, which determined the shares of the parties
thereto, upon acceptance of an alleged oral partition between
them, and since admittedly the parties to the suit are only those
whose shares are to be separated, the Court below has
committed no illegality in rejecting the impleadment
application, on a finding that revisionist are not necessary
parties In the proceedings.”

9. We heard Shri D.K. Garg, learned Advocate for the appellants and

Shri Jitender Mohan Sharma, learned Senior Advocate for the respondents.

10. 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 Amba Prasad Jain and Smt. Devi Jain 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, it is well settled 1 that 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

1
See: Lakshmi Chand Khajuria and Ors vs. Ishroo Devi – (1977) 2 SCC 501 para 14
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even from her husband2. 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 Srikanta Jain

could not have challenged the decree in 1966 Suit.

11. 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 Srikanta Jain claims to

be entitled to have a share in the properties which were allocated to Amba

Prasad Jain and Smt. Devi Jain. 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, Srikanta Jain

was definitely a necessary and proper party to be impleaded in the subsequent

suit which was filed by Maya Prakash Jain.

12. It was, however, contended by Mr. Jitender Mohan Sharma, learned

Senior Advocate appearing for Respondent No.1 that the father and the

mother, namely, Amba Prasad Jain and Smt. Devi Jain had left behind Wills

under which their properties had devolved upon the sons exclusively. The due

2
Mulla on Hindu Law – 22nd Edition Page 496
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execution of the Wills 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. The daughters are, therefore, necessary parties to the

proceedings. In the present case, if the Wills so propounded are proved, they

will chart a course of succession other than the normal mode of succession

and to the prejudice of the daughters. In such an action or proceeding, the

daughters being Class I heirs are necessary and proper parties and are required

to be impleaded.

13. Thus, considering the matter from any perspective, the applicant

Srikanta Jain was a necessary and proper party. Her application to be

impleaded as one of the defendants in the suit, was erroneously rejected by

the courts below. We, therefore, allow this appeal, set aside the order passed

by the courts below, and allow the application Ext.92 Ka filed under Order 1

Rule 10 CPC preferred by the applicant Srikanta Jain in Suit No.464 of 2006.

No costs.

………..…..……..……J.

(Uday Umesh Lalit)

..………….……………J.

(Indu Malhotra)
New Delhi;

April 09, 2019.

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