Madhya Pradesh High Court
Shivdas Kabra vs Archana Kabra on 20 April, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:30703
1 CR-566-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 20th OF APRIL, 2026
CIVIL REVISION No. 566 of 2024
SHIVDAS KABRA AND OTHERS
Versus
ARCHANA KABRA
Appearance:
Shri Pramendra Singh Thakur - Advocate with Shri Sankalp Kochar -
Advocate for the petitioners.
Ms. Krishna Singh Chandel - Advocate appeared on behalf of
Gyanendra Singh Baghel- Advocate for respondent No.1.
ORDER
The present revision has been filed challenging the order dated 20.5.2024 passed by the trial Court whereby the application of the petitioners-defendants seeking rejection of plaint under Order 7 Rule 11 CPC has been rejected.
2. The suit has been instituted by the sole respondent, who is the daughter of defendants No.1 & 2 and sister of other defendants. During lifetime of her parents, the suit for declaration of separate share and partition and cancellation of Will executed by the defendant No.1 who is still alive, has been filed by the daughter of defendant No.1. An application for rejection of plaint was filed by the defendants on the ground that since the father of the plaintiffs who is still alive and therefore even if the properties Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 2 CR-566-2024 are held to be properties inherited by the father from his ancestors then also during lifetime of father, the children have no right to seek partition and therefore, the suit is premature and does not disclose any valid cause of action.
3 . It was contended by the counsel for the petitioners that petitioners- defendants that filing suit during lifetime of the defendant No.1 who is father of the plaintiff seeking partition is in violation of Section 8 of Hindu Succession Act, 1955 which declares the rules of succession of a male Hindu intestate and once the father of the plaintiff is alive, then the property would devolve on the father upon succession from the grandfather of the plaintiff and would not devolve to the plaintiff in the lifetime of defendant No.1 and therefore, the suit could not be maintained in view of section 8 of Hindu Succession Act which provides for succession upon death of a Hindu male dying intestate. On these assertions, it is being sought before this Court that the application under Order 7 Rule 11 CPC may be rejected.
4. The respondents/plaintiffs on the contrary had argued that in view of judgment of the Hon'ble Supreme Court in Srihari Hanumandas Totala vs. Hemant Vithal Kamat, 2021(9) SCC 99, the scope of application under Order 7 Rule 11, CPC is very limited and only the plaint averments are to be seen to decide application under Order 7, Rule 11, CPC and no assertions of the defendant can be taken into consideration. Therefore, it is argued that the application under Order 7, Rule 11 has rightly been rejected by the Trial- Court.
5. The sole question that arises for determination in the present case Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 3 CR-566-2024 is whether the suit was maintainable during the lifetime of the father of plaintiff seeking partition. The counsel for the petitioner had relied on various judgments of this court and of the Hon'ble Supreme Court to contend that when a male Hindu even having interest in Mitaksara coparcenary property dies intestate after commencement of Hindu Succession Act then as per Section 6 (3) of Hindu Succession Act, the deceased's interest in coparcenary property would devolve by intestate succession under Section 8 and not by survivorship under Section 6. It is therefore argued that even if there is presumed to be any existence of coparcenary property, then also the plaintiffs could not maintain a suit during the lifetime of their father because as per plaint assertions, the plaintiffs seek birthright in the property, theory of which no longer survived even for Hindu males being sons and irrespective of the amendment of 2005, though the same law would apply to sons and daughters but even the son cannot file a suit for partition in lifetime of father and therefore the suit filed by the daughters during lifetime of father must suffer rejection of plaint being barred by Section 8.
6. Upon hearing the rival parties and on perusal of the record, it is seen that the Trial-Court has rejected the application on the grounds that it requires to be adjudicated whether the suit property is an ancestral property or a self-acquired property and this issue can only be decided after adducing evidence and therefore it is not appropriate to reject the plaint under Order 7 Rule 11 CPC.
7. By way of amendment in Hindu Succession carried out in the Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 4 CR-566-2024 year 2005, there has been an amendment in Section 6 also. Section 6, after amendment 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,--
(a) by birth become a coparcener in her own right in 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 sub-section (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 Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703
5 CR-566-2024 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 the recovery of any debt due from his father, grandfather or great-grandfather solely on the Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 6 CR-566-2024 ground of the pious obligation under the Hindu law, of such son, grandson or great-
grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of t h e 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.] 8 . After amendment in the Act of 1955, the sons and daughters have Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 7 CR-566-2024 been placed on equal pedestal. The issue was considered by the Hon'ble Supreme Court in Uttam Vs. Saubhag Singh & others 2016 (4) SCC 68 with reference to amendment of 2005 and it was held by the Hon'ble Supreme Court that upon death of ancestor after enforcement of Hindu Succession Act 1955, there is a deemed partition by operation of law immediately befor his death, and the property ceased to be joint family property and the succesors were merely tenants-in-common, and not joint family members. It was held as under:-
18. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe [Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe, (1988) 2 SCC 126] , Sheela Devi v. Lal Chand [Sheela Devi v. Lal Chand, (2006) 8 SCC 581] and Rohit Chauhan v. Surinder Singh [Rohit Chauhan v. Surinder Singh, (2013) 9 SCC 419 : (2013) 4 SCC (Civ) 377] were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarised as follows:
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703
8 CR-566-2024 coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self- acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in- common and not as joint tenants.
19. Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 9 CR-566-2024 hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants-in-common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. The appeal is consequently dismissed with no order as to costs.
(Emphasis supplied) 9 . The Supreme Court has considered the impact of Hindu Succession Act 1956 in its judgment in the case of Commissioner of Wealth-tax, Kanpur etc. v. Chander Sen etc., (1986) 3 SCC 567 : AIR 1986 SC 1753 , and has held as under:-
"19. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.
20. In view of the Preamble to the Act i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not includes son's son but does include son of a predeceased son, to say, that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter would be applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8."Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11
NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 10 CR-566-2024
10. The Supreme Court in its judgment in the case of Yudhishter v. Ashok Kumar, (1987) 1 SCC 204 : AIR 1987 SC 558 , has again considered the question and has held as under:--
"10. This question has been considered by this Court in Commr. of Wealth Tax, Kanpur v. Chander Sen, (1986) 3 SCC 567 : AIR 1986 SC 1753, where one of us (Sabysachi Mukharji, J.) observed that under the Hindu Law; the moment a son is born, he gets a share in father's property and becomes part of the coparcanary.
His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by section 8 of the Hindu Succession Act 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity."
11. In view of the aforesaid pronouncements, it is clear that after coming into force of the Hindu Succession Act, the theory of birthright does not exist and son gets share in the property only after death of his father. This is because as held in the case of Uttam (supra) by the Hon'ble Supreme Court, upon death of ancestor after enforcement of Hindu Succession Act 1955, there is a deemed partition by operation of law immediately before his death, and the property ceased to be joint family property and the succesors were merely tenants-in-common, and not joint family members.
12. The same position has been considered by the Co-ordinate Bench Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 11 CR-566-2024 of this Court in 2002(3) MPLJ 576 (Chandrakanta Vs. Ashok Kumar) .
13. Another Co-ordinate Bench of this Court in case of Uttam Vs. Saubhagsingh & Others (S.A.No.206/2005) vide order dated 29.10.2013 has held as under:-
"9. Under Section 8 of Hindu Succession Act, the property of a male Hindu dying intestate is to devolve according to the provisions of Chapter-II of the Act, firstly upon the heirs, being the relatives specified in Class-I of the Schedule and if there is no class I heir then upon Class II heir and so on. In the schedule grand-son has not been included in the list of class I heirs, whereas son of a predeceased son is included therein, therefore, grand-son's birth right on the coparcenary property no longer exists under the Act and grand-son cannot claim partition during the lifetime of his father.
10. The Supreme court in the matter of Commissioner of Wealth Tax Kanpur etc. Vs. Chander Sen etc. reported in AIR 1986 SC 1753 while approving the view taken by this Court in the matter of Shrivallabhdas Modani Vs. Commissioner of Income Tax MP-I, reported in (1982) 138 ITR 673; Allahabad High court in the matter of Commissioner of Income tax UP Vs. Ram Rakshpal Ashok Kumar, reported in (1968) 67 ITR 164; the Full Bench judgment of Madras High court in the matter of Additional Commissioner of Income Tax Vs. P.L. Karuppan Chettiar, reported in [1978] 114 ITR 523; and judgment of Andhra Pradesh High court in the matter of Commissioner of Wealth Tax A.P-II Vs. Mukundgirji, reported in 144 ITR 18, has held that since in Schedule to the Hindu Succession Act, only son is included and son's son is not included as Class I heir therefore, the son would inherit the property in the situation contemplated by Section 8 of the Act not as Karta of his own undivided family and that one should look only to the Act and not to the pre-existing Hindu law. Referring to Section 8 of the Act, it is held that Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 12 CR-566-2024 son's son get excluded and the son alone inherits the property to the exclusion of his son. In the judgment of this Court in the matter of Shrivallabhdas Modani (supra) which has been approved by the Supreme court in the above judgment, it was held by this Court that son's son is not mentioned as Class I heir in the Schedule and therefore, he cannot get any right in the property of his grand-father under the Act. The right of son's son in his grand-father 's property during the lifetime of his father which existed under the Hindu law as in force before the Act is not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in suchproperty has ceased to have effect. It was further held that Section 8 of the Act should be taken as a selfcontained provision laying down the scheme of devolution of the property of a Hindu dying intestate. The Allahabad High court in the matter of Commissioner of Income Tax UP Vs. Ram Rakshpal Ashok Kumar (supra) has held that in case of assets of business left by father in the hands of his son, it would be governed by Section 8 of the Act and he would take in his individual capacity. The Madras High court in the matter of Additional Commissioner of Income Tax Vs. P.L. Karuppan Chettiar (supra) had held that by reason of Section 8 of the Act, the son's son gets excluded and the son alone inherits the property to the exclusion of his son and that the statutory provision contained in the Act must prevail in view of the unequivocal intention in the statute itself, expressed in Section 4(1). The Andhra Pradesh High court in the matter of Commissioner of Wealth Tax A.P-II Vs. Mukundgirji (supra) had taken the view that the properties which devolved upon heirs mentioned in Class I of Schedule under Section 8 of the Act constituted the absolute properties and the son's son will have no right by birth in such properties. The Supreme court in the matter of Chander Sen (supra) has approved the above view of this Court as well as Allahabad, Andhra Pradesh and Madras High Courts. The contrary view of the Gujarat High court has been dis-approved by the Supreme court.Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11
NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 13 CR-566-2024
11. In the matter of Yudhishter Vs. Ashok Kumar, reported in AIR 1987 SC 558 referring to the earlier judgment in the case of Chander Sen (supra) it has been held by the Supreme Court that the property which devolved upon the father on the demise of the grand- father cannot be said to be HUF property in the hands of the father vis-a-vis his own sons. In the matter of Sheela Devi and others Vs. Lal Chand and another reported in (2006) 8 SCC 581, it has been further clarified by the Supreme court by holding that prior to the commencement of the Act as per the Mitakshara law usage once a son was born he used to acquire an interest in the coparcenary property as an incident of his birth, but now the Act would prevail over the Hindu law. In that case son's son was born prior to the commencement of 1956 Act therefore, it was held that he would retain his share of the property as a coparcener even after the commencement of the 1956 Act, while father who had died in 1889, his share will devolve upon his heirs according to the provisions of the Act. The Single Bench of this Court in the matter of Chandrakanta and another Vs. Ashok Kumar and others, reported in 2002(3) MPLJ 576 has also held that after coming into force of Hindu Succession Act, the theory of birth right does not exist and the son gets share in the property only after death of his father. Similar view has also been taken by another Single Bench judgment in the matter of Babulal and others Vs. Ramkali Bai & others, reported in ILR[2012] MP 1271."
The aforesaid judgment of this Court has been upheld by the Apex Court in case of Uttam Vs. Saubhag Singh & Others (supra) .
14. In view of the above, it is clear that suit for partition of properties succeeded by father in the joint family would not lie at the instance of either son or at the instance of daughter in the lifetime of father. Nothing has been pleaded in the plaint, whether the defendant No.1-father Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11 NEUTRAL CITATION NO. 2026:MPHC-JBP:30703 14 CR-566-2024 had already inherited the suit properties upon death of his father prior to 1955, so as to project basic facts for continuation of coparcenary or continued application of Section-6 of the Act of 1955.
15. Consequently, it has to be held that the suit was barred by law and the application under Order 7 Rule 11 of CPC has erroneously been rejected by the trial court by not dismissing a suit filed by children of a Hindu male, for partition during his lifetime.
16. Consequently, the revision deserves to be and is hereby allowed. The impugned order passed by the trial court is set aside. The plaint filed by the respondent/plaintiff stands rejected with liberty to file a fresh suit after arising of a valid cause of action.
(VIVEK JAIN) JUDGE nks Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 27-04-2026 18:40:11