Derha vs Vishal

CIVIL APPEAL No. 4494 OF 2010

DERHA ….. Appellant

Vs.

VISHAL & ANR. ..... Respondents

JUDGMENT

SANJAY KUMAR, J.

1. Tried and tested many times over, the issue of succession to

Mitakshara coparcenary property continues to raise its head time and again

like an undying Hydra of Lerna. The case on hand is one such instance.

2. Phannuram Sahu died on 22.06.1959 with surviving interest in

Mitakshara coparcenary properties, being agricultural land admeasuring

24.64 acres in Village Dhaneli along with house properties. He left behind

Kesar Bai, a daughter born through his first wife, Dukalhin Bai, along with

Vishal and Keja Bai, a son and a daughter born through his second wife, Signature Not Verified

Ganga Bai. Both his wives predeceased him.

Digitally signed by SNEHA DAS Date: 2023.09.01 16:22:15 IST Reason: 1

3. It was the case of Kesar Bai that a partition was effected on

12.03.1964 amongst Vishal; Ramnath, Phannuram’s nephew; and Manbat

Bai, Phannuram’s sister-in-law. Having received Phannuram’s 1/3 rd share in

the coparcenary properties, Vishal rejected Kesar Bai’s demand for partition

and allotment of her individual share therein. Kesar Bai thereupon instituted a

partition suit, which came to be numbered as Civil Suit No. 146A of 1991 on

the file of the learned First Civil Judge, Division-II, Raipur. Therein, she

claimed her share in the coparcenary properties along with mesne profits.

During the pendency of the suit, Kesar Bai died on 17.06.1988 and her son,

Derha Ram, the present appellant, succeeded to her estate under registered

will dated 16.12.1980.

4. Upon considering the issues settled for trial and on the strength of

the evidence, oral and documentary, the Trial Court decreed the suit on

06.11.1996, holding that Derha was entitled to 1/3 rd share in the suit

scheduled agricultural land and a 1/3 rd share in two house properties. The

Trial Court also held him entitled to mesne profits @ ₹.400 per annum from

1979 till separate possession was delivered to him.

5. Aggrieved by the Trial Court’s judgment and decree, Vishal and

Keja Bai filed Civil Appeal No. 6A of 1998 before the learned District Judge-III,

Raipur. However, by Order dated 13.04.1999, the Appellate Court dismissed

the appeal in toto.

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6. The matter was then carried in appeal by Vishal and Keja Bai to

the High Court of Chhattisgarh in Second Appeal No. 891 of 1999. By

judgment dated 31.03.2009, the High Court partly allowed the second appeal

and held that Derha would be entitled to 1/6 th share in the suit properties, i.e.,

the agricultural land and two dwelling houses. Aggrieved by the reduction of

his share, Derha filed the present appeal by special leave.

7. By Order dated 09.10.2009, this Court directed status quo

obtaining as on that date to be maintained by both parties.

8. A feeble attempt was made by the learned counsel for the

appellant to contend that the suit properties were not coparcenary properties

but were joint properties held by Phannuram and his brothers. However, this

argument cannot be countenanced as the original plaintiff, Kesar Bai, had

approached the Trial Court contending that the suit properties were ancestral

properties. Her son and heir cannot be permitted to take a different stand

now, contrary to her pleadings. Further, the argument that Manbat Bai,

Phannuram’s sister-in-law, would not have been allotted a share in the

partition on 12.03.1964 had the properties been coparcenary properties,

needs mention only to be rejected. The said partition was never subjected to

challenge and without details as to when Manbat Bai’s husband died, this

Court cannot venture an opinion on whether allotment of a share to her in that

partition was lawful. In any event, allotment of a share to her would not have

the effect of branding the properties in question as being other than

3 coparcenary properties. More so, as Kesar Bai herself filed a suit claiming

that the properties in which she wanted a share were ancestral properties.

9. Once it is held that the properties which were the subject matter of

the partition suit were coparcenary properties, the only issue that remains is

as to how the said properties were to be divided amongst the legal heirs of

Phannuram upon his death in 1959, i.e., after the advent of the Hindu

Succession Act, 1956 (for brevity, ‘the Act of 1956’). Section 6 of the Act of

1956 would govern the situation, as rightly observed by the Chhattisgarh High

Court. Section 6 of the Act of 1956, as it then stood, states that when a male

Hindu died after the commencement of the Act of 1956, having at the time of

his death an interest in Mitakshara coparcenary property, his interest in that

property shall devolve by survivorship upon the surviving members of the

coparcenary. However, the proviso thereto states that, if the deceased left

behind him a surviving female relative specified in Class I of the Schedule or

a male relative specified in that class who claimed through such female

relative, the interest of the deceased in the Mitakshara coparcenary property

shall devolve by testamentary or intestate succession, as the case may be,

under the Act of 1956 and not by survivorship. Explanation 1 clarified that, for

the purposes of Section 6, 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 such partition or not.

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10. Section 8 of the Act of 1956 elaborates on intestate succession in

the case of males. It provides that a property of a male Hindu, dying intestate,

shall devolve firstly, upon Class I heirs; secondly, upon Class II heirs; thirdly, if

there is no heir of any of the two Classes, upon the agnates of the deceased;

and lastly, if there is no agnate, then upon the cognates of the deceased.

11. In Gurupad Khandappa Magdum vs. Hirabai Khandappa

Magdum and others [(1978) 3 SCC 383], a 3-Judge Bench of this Court

dealt with Section 6 of the Act of 1956 in depth. It was held therein that, in

order to ascertain the shares of the heirs in the property of a deceased

coparcener, the first step is to ascertain the share of the deceased himself in

the coparcenary property and Explanation 1 to Section 6 provides a fictional

expedient, namely, that his share is deemed to be the share in the property

that would have been allotted to him if a partition had taken place immediately

before his death. It was pointed out that once that assumption has been

made for the purpose of ascertaining the share of the deceased, one cannot

go back on the assumption and ascertain the shares of the heirs without

reference to it, and all the consequences which flow from a real partition have

to be logically worked out, which means that the shares of the heirs must be

ascertained on the basis that they had separated from one another and had

received a share in the partition which had taken place during the life-time of

the deceased. In effect, the Bench held that the inevitable corollary of this

position is that the heir will get his or her share in the interest which the

5 deceased had in the coparcenary property at the time of his death, in addition

to the share which he or she received or must be deemed to have received in

the notional partition.

12. This principle finds affirmation in Shyama Devi (Smt) and others

vs. Manju Shukla (Mrs) and another [(1994) 6 SCC 342] and several other

decisions of this Court and various High Courts across the country.

13. Applying this principle, the share of Phannuram would first have to

be determined as on the date of his death. He seems to have had two

brothers and would have been entitled to a 1/3 rd share in the coparcenary

properties, if a partition had been effected before his death. In fact, such a

partition was actually effected in 1964 and Phannuram’s 1/3 rd share was

allotted to his only son, Vishal. However, Vishal was a coparcener in his own

right in a separate coparcenary with his father and would be entitled to a

share in that coparcenary property by birth. Therefore, he would be entitled to

a half-share by birth in the I/3 rd share of the coparcenary properties that was

allotted as Phannuram’s share. The other half-share therein belonged to

Phannuram and as he died intestate, it would firstly devolve upon his Class I

heirs, in terms of Section 8 of the Act of 1956. His Class 1 heirs, as on the

date of his death, were Kesar Bai, Vishal and Keja Bai, his three children. His

half-share would therefore be divided equally amongst the three of them, i.e.,

1/6th each. In consequence, the final division of the 1/3 rd share of Phannuram

in the coparcenary properties would be as follows: Vishal would be entitled to

6 4/6th share (1/2+1/6) therein, while his sisters, Kesar Bai and Keja Bai, would

each get 1/6th share therein, as they would be entitled to lay claim only to the

half-share of Phannuram. As this is exactly what the Chhattisgarh High Court

did and directed, we see no reason whatsoever to interfere in the matter.

14. The Civil Appeal is devoid of merit and is accordingly dismissed.

Interim order dated 09.10.2009 shall stand vacated.

In the circumstances, parties shall bear their own costs.

…………………….J [C.T. RAVIKUMAR]

……………………..J [SANJAY KUMAR] New Delhi;

September 1, 2023.

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