For a proper appreciation of the facts of the case, the following pedigree would be essential:-
Jagesar Baijnath Kedar Kishore (Unmarried) Died on 04.12.2004 Died on 10.08.1995 (Died on 12.02.1996 ) Suchit Sukhi Budhi Bachha Gobari Nandlal Sukhlal (Plaintiff No. 1 to 4) (Def. No. 1) (Def. No. 2) (died) Sharda (wife) (Dayanand) (Def. No. 3) After the death of Jagesar, the property devolved upon his three sons viz. Baijnath, Kedar and Kishore and each of them got 1/3rd of the property of their father Jagesar. Thereafter, one son of Jagesar, namely, Kedar died on 10.08.1995 and, therefore, his three sons, namely, Gobari, Nandlal and Sukhlal inherited the property of Kedar.
Thereafter, when Kishore, another son of Jagesar, died on 12.2.1996, it is the case of the plaintiffs, that as per Section 171 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, (hereinafter referred to as 'the Act') 1/3rd share of Kishore, the son of Jagesar, devolved upon his surviving brother Baijnath. Therefore, when the plaintiffs, the sons of Baijnath, came to know about the sale deed which was being executed by the defendant first set, they filed the suit being Suit No. 718 of 2008 and took the case that when the defendants first set were only owners of 1/3rd of the share of Jagesar then they could not sell the properties which exeeded the 1/3rd share of Jagesar and, therefore, they took a case in the plaint that the properties in excess of 1/3rd share of Jagesar, which, the defendants first set was selling, could not be sold and the sale deed to that extent be cancelled. A further prayer for permanent injunction restraining the defendants from interfering with the petitioners' possession over the share which came in their lot was made. In their written statement the defendants took up a case that the plaintiffs and the defendants first set were each owners of half of the property of Jagesar as Kishore during his life time had partitioned his property and had divided amongst his two brothers Baijnath and Kedar. They had also taken up a case that the plaintiffs and the defendants (first set) were in possession over their shares which they had got through Jagesar and also over the share which was distributed amongst the plaintiffs and the defendants (first set) by Kishore. Further case, which was taken, was the other villages also where the plaintiffs and defendants (first set) had properties, they were in possession. The plaintiffs were in possession over half of the properties of Jagesar and the defendants (first set) were in possession over the remaining half.
Still further defendants had taken up a case that the plaintiffs when had sold some property of theirs on 13.7.2007 to one Smt. Nanda then they had stated in the sale deed that they were owners of half of the property.
The Trial Court framed 4 issues. Essentially while deciding the first issue regarding ownership it decided that upon the death of Kishore on 12.2.1996 as per the law existing on that date, the whole of the share of Kishore which he had inherited from his father Jagesar devolved upon Baijnath and, therefore, Baijnath had become owner of 2/3rd of the property which was left by his father Jagesar. It also was of the view that there was no estoppel against law and even if the plaintiffs had in any of the earlier Sale Deeds which they had executed on 13.7.2007 stated that they were owners of half of the property which they had inherited from their father Jagesar, then it was of no value whatsoever. The suit was, thereafter, decreed and the sale deed dated 10.3.2008 and 22.5.2008 which were executed of an area which was more than the share of the defendant (first set) was cancelled.
The Appellate Court, however, reversed the findings of the Trial Court after framing a specific point for determination as to whether when Kishore died was the property of Kishore inherited by Baijnath and the successors of Kedar together and on the basis of an amendment by which Section 171 was amended much after the death of Kishore i.e. in the year 1998, dismissed the suit and held that the properties of Kishore would devolve upon Baijnath and the successors of Kedar equally.
This Second Appeal was filed by the plaintiffs and the same was admitted on the substantial question of law as to whether the amendment of Section 171 of the Act after the death of Kishore would be retrospective or prospective.
The appellants submitted that inheritance took place the day a person died and, therefore, they submitted that the day when Kishore died i.e. 12.2.1996, the law as it existed on that date made the properties of Kishore devolve only on his surviving brother Baijnath and the predecessor-in-interest of the plaintiffs.
The defendants, however, in reply, submitted that the amendment which was made to Section 171 was retrospective as the plaintiffs had not exercised their rights before the amendment to Section 171 of the Act. Further, the counsel for the respondents submitted that Kishore had partitioned his share between his brothers Baijnath and Kedar. He submitted that on that basis the P.W. - 1 Bachcha, one of the plaintiffs, had also deposed the fact of partition. In this context, learned counsel for the respondents also submitted that the sale deed of the year 2007 also indicated that the plaintiffs had accepted that they had half of the share of Baijnath and 1/2 of the share of the properties of Kishore. Learned counsel for the respondents further submitted that a suit for partition was also pending before the Revenue Court under Section 176 of the Act and, therefore, the instant suit for cancellation of the sale was not maintainable.
Having heard the learned counsel for the parties, this Court is of the view that succession takes place the day a person dies and when Kishore died on 12.2.1996, the law as per Section 171 of the Act made the properties of Kishore devolve upon his brother Baijnath and, therefore, the predecessor-in-interest of the plaintiffs, namely, Baijnath had 2/3rd share of his father's properties. Whether a suit for partition was pending before the Revenue Court would not make any difference to the succession which took place on the date of death of Kishore and, also this Court is of the view that there is no estoppel against statute and as per the statute Kishore's share had to devolve upon Baijnath. Any amount of mentioning of shares in any particular sale deed by the plaintiffs would not lessen their share. Definitely, an amendment to Section 171 of the Act would not be retrospective as succession had already taken place the day Kishore had died. Accordingly, the substantial question of law is answered.
Under such circumstances, the judgement and decree passed by the First Appellate Court dated 18.7.2011 in Civil Appeal No. 14 of 2011 cannot be sustained in the eyes of law and, thus, the same is set aside.
The Second Appeal stands allowed.
Order Date :- 30.5.2019 praveen.
(Siddhartha Varma,J.)