# Smt. Usha v. Sri Kalau Ram & Ors. 1190 INDIAN LAW REPORTS ALLAHABAD SERIES Issues for Consideration

- **Citation:** (2026) 2 ILRA 1189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-23
- **Case number:** First Appeal No. 168 of 2026
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-usha-v-sri-kalau-ram-ors-1190-indian-law-reports-allahabad-series-issues-54119
- **Pages:** 12

## Text

2 All. Smt. Usha Vs. Sri Kalau Ram & Ors.
1189
despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a
court or of a procedure or a pure question of law unrelated to the right of the parties founded
purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A
question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be
deemed to have been finally determined by an erroneous decision of a court. Therefore, the
doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks
jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare
legislation are created, the doctrine of waiver also does not apply to a case of decree where the
court inherently lacks jurisdiction.

(emphasis supplied)

21. Accordingly, the judgment and decree passed by the Trial Court is without jurisdiction and
is a nullity, in the eye of law. On this ground alone, the impugned judgment and decree is liable to
be set aside. It is apparent that any finding recorded by a court lacking inherent jurisdiction, does
not operate as res judicata, between the parties.

22. Since the dispute relates to property rights between husband and wife, the suit is
exclusively cognizable by the Family Court.

23. In view of the aforesaid facts and circumstances, the appeal is liable to be allowed.

24. Accordingly, the appeal is allowed. The impugned judgment and decree dated
19.10.2024 is hereby set aside.

25. Original Suit No. 544 of 2020 is restored to its original number, and the Trial Court is
directed to return the plaint to the plaintiff under Order VII Rule 10 CPC for presentation before the
competent Family Court.

26. The concerned Family Court is directed to decide the suit afresh, within a period of six
months, from the date the plaint is presented to it, without affording unnecessary adjournment to
either of the parties, in accordance with law, on merits.
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(2026) 2 ILRA 1189
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 168 of 2026

Smt. Usha ...Appellant
Versus
Sri Kalau Ram & Ors. ...Respondents
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
Issues for Consideration
(i) Whether the plaintiff was entitled to claim partition and injunction in respect of the disputed property
during the lifetime of recorded tenure holder Kalua Ram;
(ii) Whether the provisions of the Hindu Succession Act, 1956 (as amended) were applicable to the disputed
property at the relevant time?

Headnotes
U.P. Zamindari Abolition and Land Reforms Act, 1950 - Succession - Agricultural land -
Applicability of personal law:

Held: Succession in respect of agricultural land governed by the provisions of U.P.Z.A. & L.R. Act is regulated
by the provisions of the said Act and not by personal law; till the land retains its agricultural character, no right
can be asserted on the basis of the Hindu Succession Act. [Paras 17-18]

Hindu Succession Act, 1956 (as amended) - Section 6 - Coparcenary rights - Applicability:

Held: The right of a female coparcener under Section 6 can be asserted only from 09.09.2005 and subject to
applicability of the Act; where on the said date the property was still agricultural, the provisions of the Hindu
Succession Act were not applicable and could not confer any right. [Paras 20, 22]

Property - Change of nature - Agricultural to Abadi - Effect:

Held: Where the disputed property was declared non-agricultural (Abadi) under Section 143 of U.P.Z.A. & L.R.
Act on 30.05.2007, only thereafter the provisions of the Hindu Succession Act became applicable. [Para 19]

U.P. Zamindari Abolition and Land Reforms Act, 1950 - Section 171 - Devolution - Effect:

Held: Where the recorded tenure holder died when the property was agricultural, succession was governed
by Section 171 of the Act and the son became Bhumidhar of the disputed land. [Paras 12, 23]

Property Law - Right to claim partition - During lifetime of owner:

Held: Where Kalua Ram was the absolute owner of the disputed property and was alive at the time of
institution of suit, the plaintiff had no right to claim partition or assert ownership during his lifetime. [Paras
23-24]

Hindu Succession Act, 1956 - Section 8 - Devolution after death:

Held: After the death of Kalua Ram during pendency of appeal, and the property having become nonagricultural, succession would be governed by Section 8 of the Hindu Succession Act and the plaintiff could
claim her share only thereafter in accordance with law. [Para 24]

Civil Procedure Code, 1908 - Appeal - Interference with findings:

Held: Where the trial court, on appreciation of evidence and applicable law, rightly concluded that the plaintiff
had no right in the disputed property at the time of filing of suit, the findings did not suffer from perversity
and did not warrant interference in appeal. [Para 25]

Civil Procedure Code, 1908 - Appeal - Dismissal at admission stage:

Held: Where no ground for interference was made out, the appeal was liable to be dismissed at the
admission stage and the impugned judgment and decree affirmed. [Paras 26-27]
2 All. Smt. Usha Vs. Sri Kalau Ram & Ors.
1191
Appeal dismissed. (E-14)

Case Law Cited
Smt. Anjali Kaul and another v. Narendra Krishna Zutshi and others, 2013 SCC OnLine All 13843
- relied on; Vineeta Sharma v. Rakesh Sharma and others, (2020) 9 SCC 1 - relied on.

List of Acts / Statutes
Code of Civil Procedure, 1908; U.P. Zamindari Abolition and Land Reforms Act, 1950; Hindu Succession Act,
1956.

List of Keywords
Partition; Agricultural land; Abadi land; Coparcenary; Female coparcener; Succession; U.P.Z.A. & L.R. Act;
Hindu Succession Act; Bhumidhar; Appellate interference.

Case Arising From
Judgment and decree dated 07.10.2025 passed by Additional District Judge, Court No.7, Agra in Original Suit
No. 21 of 2021 (Smt. Usha vs. Kalua Ram and others).

Appearance for Parties
For the Appellants: Sri Anuj Srivastava, Sri Devaang Savla
For the Respondents: Sri Narendra Kumar Chaturvedi, Sri Arvind Kumar Yadav

(Delivered by Hon'ble Sandeep Jain, J.)

Order on Civil Misc.Substitution Application No.4 of 2026:-

1. Heard learned counsel for the appellants and learned counsel for the respondent Nos.1 & 7.

2. The substitution application has been filed in time for incorporating the fact that the
defendant No.1 Kalua Ram has died on 06.01.2026 leaving behind his heirs who are already
impleaded as party to the suit.

3. Learned counsel for the respondents submits that he has no objection to the above
substitution application.

4. An affidavit has been filed in support of the substitution application, which is
uncontroverted.

5. The substitution application is allowed.

6. Accordingly, in the memo of appeal after the name of defendant-respondent No.1 it be
recorded that he has died during the pendency of appeal.

Order on appeal:-

1. The instant appeal has been filed by the plaintiffs under Section 96 C.P.C. against the
impugned judgment and decree dated 07.10.2025, passed by the Court of Additional District Judge,
court no.7, Agra, in Original Suit No. 21 of 2021 (Smt. Usha vs. Kalua Ram and others), whereby
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
the plaintiffs' suit seeking the relief of partition claiming her 1/8th share in the disputed property,
permanent prohibitory injunction for restraining the defendants from interfering in her peaceful
possession of the disputed property, for decree of mesne profit at the rate of Rs.2,50,000/- per
month alongwith cost of legal notice has been rejected.

Plaint Case

2. Factual matrix is that the the plaintiff filed the O.S. No.21 of 2021 with the averments
that her grandfather Ninua Ram was the recorded owner in possession of the disputed Khasra
No.206 and 207 before the consolidation of holdings proceedings as per revenue records of Mauza
Basai Mustqil, Chungi Andar, Tehsil and District Agra and after the commencement of the
consolidation proceedings, the aforesaid khasra numbers were changed as Khasra No.2006 (min)
area 0.2420 hectare and Khasra No.2007 (Min) area 0.2820 hectare situated at Mauza Basai
Mustqil, Chungi Bahar, Tehsil and District Agra in Fasli year 1422 to 1427. It was further averred
that Ninua Ram died leaving behind the defendants and plaintiff as co-owners of the above
disputed property, which was declared as non agricultural vide order dated 30.05.2007 passed by
the SDM, Sadar, Agra in Suit No.150 of 2006-07 (Kalua Vs. State of U.P). under Section 143 of
U.P.Z.A. & L.R. Act.

3. It was further averred that the plaintiff and the defendants each have jointly 1/8th share
in the above property on which a private Sabji Mandi is running, which was situated at Fatehabad
Road, near Shanti Manglik Hospital, Agra and the rental income from the Sabji Mandi was about
Rs.8 lacs per month, which was collected and kept by defendant No.1 Kalua Ram as co-owner and
trustee on behalf of the plaintiff and defendants. It was further averred that when the plaintiff
demanded her 1/8th share in the property alongwith Rs.1 lac per month from the rental income
from the property, then it was refused by the defendants.

4. In view of the above backdrop, the plaintiff filed the suit claiming the following
reliefs:-

(i) that by decree of partition of the property given at the foot of the plaint, holding the
plaintiff has 1/8th share and possession be delivered to her of her lot prepared by meters and
bounds by the court Amin.

(ii) that by decree of permanent prohibitory injunction against the defendants, in favour
of the plaintiff restraining the defendants and their agents, associates, servants, etc. in any manner
from interfering in the title and peaceful joint possession of 1/8th share in the suit property of the
plaintiff over the property in suit, or the defendants be also restrained to transfer by will or any
other instrument or alienate the property in suit to any other person, be passed in favour of plaintiff
against the defendants.

(iii) that a decree of mesne profit of Rs.2.5 lac per month be passed against the
defendants in favour of the plaintiff.
2 All. Smt. Usha Vs. Sri Kalau Ram & Ors.
1193

(iv) that the cost of legal notice of Rs.11,000/- and the suit be also awarded to the plaintiff
against the defendants.

Written statement of the defendants

5. The defendant No.1 Kalua Ram filed his written statement before the trial court in which he
denied the plaint averments. It was averred that the disputed property was the exclusive
Bhumidhari land of the defendant in which no right, title and interest vested in the plaintiff and
other defendants. It was further averred that after the death of Ninua Ram the defendant No.1
became the sole owner of the disputed property. It was further averred that the defendant was
running Sabji Mandi on the disputed property which exclusively belongs to him, as such, the
plaintiff or other defendants have got no right over the income, which was being generated from
that business. It was specifically averred that the plaintiff has got no right to claim partition in
respect of the suit property, since she has no right therein.

6. It was further averred that the plaintiff was not even in existence when U.P.Z.A. & L.R. Act
came into force, as such, she cannot be said to be the co-owner of the disputed property. It was
further averred that it was not an ancestral property of the plaintiff. The plaintiff's suit was barred
under Section 34,38 and 41 of the Specific Relief Act and the plaint was liable to be rejected under
Order 7 Rule 11 (d) CPC.

7. The defendant Nos.2 to 4 and 6 to 13 also submitted their written statement before the trial
court in which they denied the plaint averments and averred that the plaintiff wants to usurp the suit
property, who was having no right, title, interest and possession in it. It was further averred that the
disputed property was the exclusive Bhumidhari land of the defendant No.1 wherein, the plaintiff
and other defendants have got no right, title or interest and possession of any kind. It was further
averred that the defendant No.1 was the sole owner of the disputed property who was running his
private Sabji Mandi over the disputed land and he was the sole owner of the income generated from
the above property. It was specifically averred that the plaintiff as well as the defendant Nos.2 to 13
have got no right title or possession over any part of the suit property because the disputed property
was exclusively owned and possessed by the defendant No.1 which was not an ancestral property
of the plaintiff.

8. The defendant No.5 also filed her written statement, which reiterated the averments earlier
made by the other defendants before the trial court.

Issues framed and the evidence adduced

9. On the basis of pleadings of the parties, the trial court framed the following issues:-

(i) Whether the plaintiff is entitled to receive 1/8th share of the disputed property?

(ii) Whether the plaintiff is entitled to a permanent injunction against the defendants,
prohibiting the defendants and their employees from interfering with the plaintiff's peaceful
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
possession and from transferring the disputed property through a sale deed, Will, or other
agreement?

(iii) Whether the plaintiff is entitled to receive Rs.2,50,000/- per month during
intermediate period?

(iv) Whether the suit is undervalued?

(v) Whether the Court fee paid by the plaintiff is insufficient?

(vi) Whether the Court has jurisdiction to hear the suit?

(vii) Whether the plaintiff is entitled to get other reliefs?

10. The plaintiff Smt. Usha examined herself as PW-1, her husband Bhim Singh as PW-2 and
Hemant Kumar, Court Amin, as PW-3 whereas, the defendant No.1 Kalua Ram has examined
himself as DW-1.

11. In documentary evidence, khasra, khatauni of the disputed land, declaration under Section
143 of U.P.Z.A. & L.R. Act, legal notices etc. were filed by the parties.

Reasoning of the trial court

12. The trial court after considering the evidence on record concluded that Ninua Ram, the
grandfather of the plaintiff was the owner of the khasra No.2006 (M) area 0.2420 hectare and
khasra No.2007 (M) area 0.2820 hectare, who died in the year 1998 and since the property was
agricultural which was governed by the provision of U.P.Z.A. & L.R. Act 1950, as such, his son
Kalua Ram became Bhumidhar of the disputed land in accordance with Section 171 of the Act,
1950. It was further concluded that the provision of Hindu Succession Act, 1956 were not
applicable and Section 6 of that Act only became applicable from 09.09.2005 and prior to that the
plaintiff could not have enforced her right in the disputed property. It was further concluded that
the disputed property was declared Abadi and a declaration under Section 143 of the U.P.Z.A. &
L.R. Act was made in the year 2007, as such, after that the provision of Hindu Succession Act
became applicable on the disputed property.

13. In view of this, the trial court held that since the provisions of Hindu Succession Act were
not applicable prior to 09.09.2005 as such, the plaintiff had no share in the disputed property. The
trial court specifically recorded that Kalua Ram was the absolute owner of the disputed property in
which the plaintiff has got no right during his lifetime and in view of this, it was held that the
plaintiff has got no right to claim partition in the disputed property. On this basis, the suit was
dismissed, aggrieved against which, the plaintiff has filed the instant appeal.

Submissions of the Learned Counsel
2 All. Smt. Usha Vs. Sri Kalau Ram & Ors.
1195

14. Learned counsel for the plaintiff-appellant submitted that the disputed property was the
property of HUF and being the coparcener, in accordance with Section 6 of the Hindu Succession
Act, the plaintiff was entitled to assert her right as coparcener from 09.09.2005 but the trial court
has held otherwise. It was further submitted that since the plaintiff was a coparcener with Kalua
Ram in the disputed property, the plaintiff could have filed the suit for partition for declaring her
share and also for dividing it by meters and bounds. It was further submitted that the plaintiff also
claimed for the relief of permanent injunction for restraining the defendants from alienating the
disputed property which has been erroneously rejected by the trial court. With these submissions, it
was prayed that the appeal be admitted for hearing.

15. Per contra, learned counsel for the defendants-respondents submitted that plaintiff's
grandfather Ninua Ram was the absolute owner of the disputed property, whose name was recorded
as Bhumidhar in the Khatauni in accordance with the provision of U.P.Z.A.&L.R. Act and after his
death in the year 1998, the name of his son Kalua Ram was recorded as Bhumidhar in accordance
with Section 171 of the Act. It was further submitted that at no point of time, the disputed property
was the coparcenary property, in which the plaintiff has got no right and as such, the plaintiff's suit
was rightly rejected. It was further submitted that since Kalua Ram has died on 06.01.2026 during
the pendency of the appeal and the plaintiff, being the legal heir of Kalua Ram and more
particularly since the disputed property has been declared as Abadi, under the provisions of U.P.
Z.A.&L.R. Act,1950, as such, the plaintiff has become owner of 1/7th part of the disputed property,
to which she is entitled to claim partition in accordance with law. He further submitted that the trial
court has not erred in dismissing the plaintiff's suit. With these submissions, it was prayed that the
appeal is meritless and is liable to be dismissed at the admission stage itself.

16. I have heard the learned counsel for the parties, perused the impugned judgment and
documents submitted with the appeal.

17. A Division Bench of this Court in the case of Smt. Anjali Kaul and Anr. vs Narendra
Krishna Zutshi and others 2013 SCC OnLine All 13843 held as under:-

"19. A Full Bench decision of this Court in the case of Ramji Dixit v. Bhiruganath, AIR
1965 All 1 is worth quoting:

"An agricultural tenant has no religion and no personal law except as expressly provided
in the Zamindari Abolition and Land Reforms Act. It applies to Hindus, Muslim, Christians etc.
regardless of their religion and, therefore, regardless of their personal law except as regards
succession in certain cases. It contains its own provisions regarding inheritance and transfers; and
when it has left certain matters to be governed by the personal law it has done so by an express
provision. Personal law has never been applied proprio vigore to questions of inheritance and
transfer of tenancy rights as it has been applied to inheritance and transfer of proprietary rights."

20. This view was also adopted by this Court in another Full Bench decision of Ram
Awalamb v. Jata Shankar, AIR 1969 All 526.
1196 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In the case of Madhuri Devi v. Board of Revenue, U.P. Lucknow, 2011 (29) LCD
2655 : (2012 (1) ALJ 94), this Court has held that "tenancy in this province is governed by the
provision of U.P.Z.A. & L.R. Act and the succession is also governed by the provisions of the said
Act and is not governed by the principles of Hindu Law or any personal law."

*******

29. In the case Amar Singh v. Assistant Director of Consolidation, (1988) 4 SCC
143 (AIR-1988 SC 2020), Vijay Pal Singh v. Deputy Director of Consolidation, (1995) 5
SCC 212 : (AIR 1996 SC 146) & Audhar v. Chandrapati, (2003) 11 SCC 458 : (AIR 2003
SC 4389) Apex Court has held that personal law will not be applicable to the land
governed by tenancy law.

30. We are in respectful agreement with this view and the view expressed by this
court in "Smt Prema Devi v. Joint Director of Consolidation (AIR 1970 All 238) and hold
that the words "interest in any immovable property of an intestate" do not include
agricultural land of an intestate.

31. It needs hardly be said that U.P.Z.A. & L.R. Act is a special Act where
provisions of Hindu Succession Act are not applicable inasmuch as rights of the parties
are governed by U.P.Z.A. & L.R. Act. The U.P.Z.A. & L.R. Act is a self contained Code."

18. From the documents submitted with the appeal, it is undisputed that Ninua Ram
was the absolute owner of the the disputed property of Khasra No.206 and 207 before the
consolidation of holdings proceedings which became Khasra No.2006 (M) area 0.2420
hectare and khasra No.2007 (M) area 0.2820 hectare after the consolidation proceedings
and after his death in the year 1998, his son/defendant no.1 Kalua Ram became
Bhumidhar/recorded tenure holder of the disputed property, in accordance with Section 171
of the U.P. Z.A.&L.R. Act,1950. It is well settled that the provision of Hindu Succession
Act are not applicable on U.P.Z.A.&L.R. Act as well as U.P. Revenue Code 2006, as such,
on the basis of Hindu Succession Act no right can be asserted in any manner whatsoever
till the property remains agricultural in the revenue records.

19. In the instant case, it is not disputed that the status of the disputed property was
changed from agricultural to Abadi and a declaration under Section 143 was made on
30.05.2007 by the competent authority, as such, after that date the property lost its
character of agricultural land and become Abadi land, regarding which the provision of
Hindu Succession Act become applicable.

20. Section 6 of The Hindu Succession Act,1956, as amended by Act 39 of 2005,
w.e.f. 09.09.2005 reads as under:-

6. Devolution of interest in coparcenary property.-(1) On and from the
commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family
governed by the Mitakshara law, the daughter of a coparcener shall,-
2 All. Smt. Usha Vs. Sri Kalau Ram & Ors.
1197

(a) by birth become a coparcener in her own right the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if
she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property
as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include
a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition of property
which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be
regarded, notwithstanding anything contained in this Act or any other law for the time
being in force, as property capable of being disposed of by her by testamentary
disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by
the Mitakshara law, shall devolve by testamentary or intestate succession, as the case
may be, under this Act and not by survivorship, and the coparcenary property shall be
deemed to have been divided as if a partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would
have got had they been alive at the time of partition, shall be allotted to the surviving child
of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased
daughter, as such child would have got had he or she been alive at the time of the
partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son
or a pre-deceased daughter, as the case may be.

Explanation.-For the purposes of this sub-section, the interest of a Hindu
Mitakshara coparcener shall be deemed to be the share in the property that would have
been allotted to him if a partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no
court shall recognise any right to proceed against a son, grandson or great-grandson for
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
the recovery of any debt due from his father, grandfather or great-grandfather solely on
the ground of the pious obligation under the Hindu law, of such son, grandson or greatgrandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect?

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as
the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any
such right or alienation shall be enforceable under the rule of pious obligation in the same
manner and to the same extent as it would have been enforceable as if the Hindu
Succession (Amendment) Act, 2005 had not been enacted.

Explanation.- For the purposes of clause (a), the expression ?son?, ?grandson?
or ?great-grandson? shall be deemed to refer to the son, grandson or great-grandson, as
the case may be, who was born or adopted prior to the commencement of the Hindu
Succession(Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been
effected before the 20th day of December, 2004.

Explanation.-For the purposes of this section "partition" means any partition
made by execution of a deed of partition duly registered under the Registration Act, 1908
(16 of 1908) or partition effected by a decree of a court.

21. The Apex Court in the case of Vineeta Sharma vs Rakesh Sharma and others
(2020) 9 SCC 1 (By 3 Judges), while considering the amended Section 6 of the Hindu
Succession Act, held as under:-

"137.1. The provisions contained in substituted Section 6 of the Hindu Succession
Act, 1956 confer status of coparcener on the daughter born before or after the amendment
in the same manner as son with same rights and liabilities.

137.2. The rights can be claimed by the daughter born earlier with effect from 99-2005 with savings as provided in Section 6(1) as to the disposition or alienation,
partition or testamentary disposition which had taken place before the 20th day of
December, 2004.

137.3. Since the right in coparcenary is by birth, it is not necessary that father
coparcener should be living as on 9-9-2005.

137.4. The statutory fiction of partition created by the proviso to Section 6 of the
Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition
or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of
2 All. Smt. Usha Vs. Sri Kalau Ram & Ors.
1199
deceased coparcener when he was survived by a female heir, of Class I as specified in the
Schedule to the 1956 Act or male relative of such female. The provisions of the substituted
Section 6 are required to be given full effect. Notwithstanding that a preliminary decree
has been passed, the daughters are to be given share in coparcenary equal to that of a son in
pending proceedings for final decree or in an appeal.

137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the
1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of
partition effected by a deed of partition duly registered under the provisions of the
Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases
where plea of oral partition is supported by public documents and partition is finally
evinced in the same manner as if it had been affected (sic effected) by a decree of a court,
it may be accepted. A plea of partition based on oral evidence alone cannot be accepted
and to be rejected outrightly."

22. It is apparent that as per Section 6 of the Hindu Succession Act, which was
interpreted by the Apex Court in the case of Vineeta Sharma (supra) the female
coparcener could have asserted her right only from 09.09.2005 and not prior to that date.
It is further apparent that on 09.09.2005 the property was still agricultural as such, even
on that date the provision of Hindu Succession Act were not applicable on the disputed
property which only became applicable when the disputed property was declared Abadi
on 30.05.2007.

23. It is further apparent that since Kalua Ram was the absolute owner of the property
as such till the property remained agricultural the succession was bound to be effected in
terms of Section 171 of the U.P.Z.A. & L.R. Act.

24. It is apparent that Kalua Ram has died during the pendency of the appeal on
06.01.2026 and after his death, since property has become non-agricultural, all his heirs are
entitled to inherit the property in accordance with Section 8 of the Hindu Succession Act,
if there is no Will regarding the disputed property. In view of this, the plaintiff can claim
her share in accordance with law only after the death of Kalua Ram, and not prior to it. It is
apparent that when the suit was filed by the plaintiff, Kalua Ram was alive as such, during
the lifetime of Kalua Ram, the plaintiff could not have asserted her ownership in the
disputed property, in any manner whatsoever.

25. In view of the above, there is no perversity in the judgment of the trial court in
rejecting the plaintiff's suit, which does not warrant any interference by this Court in
exercise of its appellate jurisdiction.

26. This appeal is meritless and is liable to be dismissed at the admission stage.

27. Accordingly, the instant appeal is dismissed at the admission stage. The impugned
judgment and decree dated 07.10.2025 is affirmed.
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1200 INDIAN LAW REPORTS ALLAHABAD SERIES
(2026) 2 ILRA 1200
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2026

BEFORE

THE HON'BLE PRAKASH PADIA, J.

First Appeal No. 317 of 2019
Alongwith
First Appeal No. 320 of 2019

Sonu Sirohi ...Appellant
Versus
Pushpendra Singh Sirohi & Anr. ...Respondents

Issue for Consideration
Matter pertains to whether a suit for mandatory injunction seeking eviction of a defendant, alleged to be in
unauthorized occupation after revocation of licence, is maintainable in law or is barred u/s 41(h) of the
Specific Relief Act, 1963 on the ground that an equally efficacious remedy of possession was available.

Headnotes
Specific Relief Act, 1963 - s. 41(h) - Transfer of Property Act, 1882 - ss.38, 52 - Protection of
Women from Domestic Violence Act, 2005 - ss. 2(s), 12, 17, 19 - Mandatory Injunction - Mesne
Profits - Determination - Illegal Possession - Eviction - Tripartite Agreement - Maintainability of
Suit - Shared Household - Licence - Revocation - Title and ownership - Burden of proof - Transfer
deed - Validity - The dispute arises out of two connected suits concerning a residential flat,
wherein the husband (plaintiff of Suit No.1) asserted exclusive ownership on the basis of a
tripartite agreement and registered lease deed executed in his favour, and alleged that his wife
(defendant) was permitted to occupy or manage the property merely as a licensee, whose
licence was subsequently revoked, rendering her possession unauthorized - Consequently, he
instituted a suit for mandatory injunction seeking eviction and mesne profits, and during the
pendency of disputes, he transferred the flat to a third party purchaser (plaintiff of Suit No.1),
whereas the wife instituted a separate suit claiming co-ownership on the basis of alleged
contribution from her stridhan, challenging the validity of transfer deed and seeking protection
from eviction - Both suits were consolidated and decided together by the trial court, which
decreed the suit for eviction and damages in favour of the purchaser and dismissed the wife's
suit, leading to the instant appeals.

Held: On consideration of the facts and circumstances, and the arguments advanced, the Court find that the
amount fixed by the Trial Court is reasonable at Rs. 60,000/- per month, especially considering that this was
the rental income generated from the disputed flat when it was occupied by tenant Rohit Sharma (rent
agreement dated 24.6.2008) - The appellant has been enjoying the property since a long time and there is
every likelihood that the rental value of the flat in dispute would have substantially increased over the years,
while she remained in possession - Be that as it may, Rs. 60,000/- per month is a fair measure of
compensation for the loss suffered by the rightful owner (plaintiff no. 2) during the period of unlawful
occupation by the appellant - From the discussion and perusal of oral and documentary evidence it is
established that the Trial Court rightly decreed the Original Suit No. 1199 of 2009 and rightly dismissed the
Original Suit No. 1187 of 2011 - Thus, both the First Appeals dismissed. [Paras 34, 35, 37 ] (E-13)

Case Law Cited