Himachal Pradesh High Court
Vidhi Chand & Others vs Of on 23 August, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.575 of 2007 .
Reserved on: 01.08.2023 Date of Decision 23.08.2023 Vidhi Chand & others ....Appellants/defendants Versus of Kumari Hardeep Kaur and others ...Respondents.
Coram rt Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 For the appellants: Mr. Bimal Gupta, Senior Advocate, with Mr.Gurinder Parmar, Advocate, for the appellants.
For the Respondents: Mr.Bhupender Gupta, Senior Advocate, with Ms.Rinki Kashmiri, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment & decree passed by learned District Judge, Sirmaur at Nahan, vide which the appeal filed by the appellants (defendants before learned trial Court) was dismissed. (Parties shall hereinafter be referred to in the same 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 23/08/2023 20:34:09 :::CIS 2manner as they were arrayed before the learned trial Court for convenience).
.
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned trial Court seeking a declaration that she is entitled to 1/6th share of in the land comprised in Khata Khatauni No. 41/64, Khasra Nos. 339/64, measuring 10-1 Bigha, rt 259/166 measuring 0-16 Bigha, 393/167 measuring 9-3 Bighas, Kita 3 total measuring 20 Bighas, Khata Khatauni No.102/156, Khasra No.174 measuring 5-17 Bigha and 0-1 Bigha and 0-2 Bighas out of Khata Khatauni No.55/83 and 65/96, situated in Mauza Haripur Tohana, Tehsil Paonta Sahib, District Sirmaur, H.P and Khata Khatauni No.53/131, Khasra No.21 measuring 3-18 Bigha situated in Mauza Akalgarh, Tehsil Paonta Sahib, District Sirmaur, H.P. (hereinafter referred to as the suit land). The Will dated 20.04.1992, qua, the share of Sarwan Singh is illegal, fraudulent and not binding upon the plaintiff and the entry of succession based on the Will ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 3 regarding the suit land to the prejudice of 1/6th share of the plaintiff is illegal, void and not .
binding upon the plaintiff. A consequential relief of joint possession and a permanent prohibitory injunction restraining defendants no.
1 to 3 from alienating, changing the nature or of encumbering the suit land in any manner, whatsoever, was also sought. It was pleaded that deceased rtSadhu had six sons(sic), defendants no. 1 to 3, Gajjan Singh and Sarwan namely, Singh. The suit land is ancestral coparcenary property of Sadhu and his six sons (sic). Each son had 1/6th share in the suit land. Gajjan Singh and Sarwan Singh pre-deceased Sadhu and they were survived by proforma defendants no. 4 to 9 and the plaintiff. Their 1/6th share devolved upon proforma defendants no. 4 to 9 and the plaintiff after their death. Sadhu died on 11.08.2001. The defendants propounded a Will stated to have been executed by Sadhu. The plaintiff was in the womb at the time of the death of Sarwan and she was born on 25.01.1985. Sarwan died on 24.10.1984.
::: Downloaded on - 23/08/2023 20:34:09 :::CIS 4The mother of the plaintiff took the plaintiff to her parental house. The mother of the plaintiff .
married one Bakshish Singh in Village Patlion. A mutation of inheritance was attested in favour of the defendants based on the Will. The plaintiff requested the defendant to get the mutation of of the share of the plaintiff attested in her favour, but in vain; hence, the suit was filed rt for seeking the relief mentioned above.
3. The suit was opposed by defendants no. 1 to 3 by filing a written statement taking preliminary objections regarding lack of cause of action & maintainability, the suit having not been filed for the benefit of the plaintiff and the suit land not being joint Hindu family property. The contents of the plaint were denied on merits; however, it was admitted that Sadhu had six sons. It was denied that the suit land is coparcenary property and sons of Sadhu had 1/6th share in the same. It was asserted that Sadhu executed a Will bequeathing his estate on 20.04.1992. This Will was registered in the ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 5 office of the Sub-Registrar, Paonta Sahib. The execution of the Will was known to the mother of .
the plaintiff. The mother of the plaintiff
severed her relations with the defendants and
Sadhu. She settled somewhere
and took the
plaintiff with her. The mother of the plaintiff of took away her entire movable property and executed a document on 01.09.1986. She never rt claimed any right to the property. The plaintiff is not the coparcener and is not entitled to any share; therefore, it was prayed that the suit be dismissed.
4. A separate written statement was filed by defendant no. 10-Smt.Gulzar Kaur, taking almost identical pleas. However, she asserted that Sadhu had 05 sons. Sarwan Singh and Gajjan Singh died during the lifetime of Sadhu.
Defendant No. 10 has a share in the ancestral property equal to her sons and Sadhu based on the principle of notional partition. Sadhu acquired the proprietary rights over the part of the suit land under Section 11 of the Himachal Pradesh ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 6 Abolition of Big Landed Estates and Land Reforms Act, 1953. The property so acquired by him was .
self-acquired. The mother of the plaintiff remarried and severed her relations with the family. The plaintiff is not a coparcener and she is not entitled to any share; hence, it was of prayed that the suit be dismissed.
5. A separate written statement was filed rt by defendant no. 11-Smt.Ranjeet Kaur, admitting the contents of the plaint. It was asserted that defendant no. 11 is also a legal heir of Sarwan along with the plaintiff and defendant no. 10.
They are all entitled to succeed to the share of deceased Sarwan in the suit property in equal share. She is entitled to 1/3rd share in the estate of Sarwan. Defendant No. 11 was not aware of her legal rights when she left the house of her deceased husband. She was being tortured in her matrimonial home by defendants no. 1 to 9 and they obtained her signature on some documents;
however, such documents do not affect her rights;
::: Downloaded on - 23/08/2023 20:34:09 :::CIS 7hence, it was prayed that defendant no. 11 be declared to be the owner of 1/6th share.
.
6. A replication denying the contents of the written statement and affirming those of the plaint was filed.
7. The following issues were framed by the of learned trial Court:-
1. Whether rt the suit property is ancestral coparcenary property of deceased Sadhu Singh as alleged? OPP
2. Whether the plaintiffs and defendants are joint owners in possession of the suit land as alleged? OPP
3. Whether the Will dated 20.04.1992 in favour of defendants No. 1 to 3 by deceased Sadhu Ram is illegal, fraudulent and not binding on the plaintiffs as alleged? OPP
4. Whether the plaintiffs have no cause of action as alleged? OPD
5. Whether the suit is not maintainable as alleged? OPD
6. Whether the time of the death of Sh.Sadhu Singh. Sadhu Singh was not a member of a joint Hindu family as alleged? OPD
7. Whether the suit is not properly valued for the purpose of court fees and jurisdiction as alleged? OPD ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 8
8. Whether the Will dated 20.04.1992 in favour of defendants No.1 to 3 executed by Sadhu Singh in disposable state of mind as alleged? OPD .
9. Whether the plaintiff is entitled to the relief of joint possession as prayed for? OPP
10. Relief.
8. The parties were called upon to produce of the evidence and Ranjeet Kaur, Legal Guardian of the plaintiff appeared as PW-1. The defendant rt examined Vidhi Chand, (DW-1), Satish Gupta (DW-
2), and Bhupinder Singh (DW-3). The plaintiff examined herself (PW-2) in rebuttal.
9. Learned trial Court held that Sadhu had acquired 20 Bighas of land from his ancestors.
However, the rest of the property was self-
acquired property as proprietary rights were conferred upon Sadhu regarding the same. The succession would be governed by Section 6 of the Hindu Succession Act as Sadhu had left female heirs after his death. A deemed partition has to be effected to determine the share of Sadhu, which would devolve upon his successors defined ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 9 under Section 8 of the Hindu Succession Act. The document executed by the mother of the plaintiff .
will not divest the plaintiff of her right over the property. Sadhu had no right to execute any Will regarding the property owned by Sarwan.
Hence, the learned trial Court answered issues of no. 1, 2 and 6 partly in affirmative, issue no.
4, 5, and 7 in negative and issue no. 9 in affirmative.
accordingly.
rt Issues
The
no.
suit
3
of
and
the
8 were
plaintiff
decided
was
partly decreed and the plaintiff was declared to be the owner to the extent of 1/6th share in the land comprised in Khata Khatauni No. 41/64 Kitta 3 measuring 20 Bighas situated in Mauza Haripur Tohana, Tehsil Paonta Sahib, District Sirmaur, H.P. A decree for joint possession was also passed in favour of the plaintiff.
10. The defendants no. 1 to 3 and 10 filed an appeal against the judgment and decree passed by learned trial Court before learned District Judge, Sirmaur at Nahan. The learned District Judge upheld the findings recorded by the ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 10 learned trial Court that the land measuring 20 Bighas was ancestral coparcenary property. Sadhu .
had a 1/6th share in the same. Sadhu had left female heirs and the property would devolve under Section 6 of the Hindu Succession Act.
Sadhu had 05 sons and each would get a 1/6th of share. The plaintiff would get the property on the death of her father Sarwan Singh even though she was rt in her womb. Sadhu bequeathed the share of Sarwan by way of the could not have Will; hence, the appeal was dismissed.
11. Being aggrieved and dissatisfied with the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed asserting that the learned Courts below did not appreciate the evidence on record.
Sadhu and Sarwan had expired leaving behind female successors. Sadhu had left behind his daughters Sangat Kaur, Ranjeet Kaur, and Surinder Kaur and widow Gulzar Kaur. This fact was mentioned in the Will. The property would devolve as per Section 6 of the Hindu Succession ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 11 Act. Sadhu was a tenant at Will of the property in dispute and he had acquired the proprietary .
rights as per the law. The property would devolve by survivorship. Therefore, it was prayed that the appeal be allowed and judgments & decrees passed by learned Courts below be set of aside.
12. The appeal was admitted on the following rt substantial question of law on 16.07.2008.
"Whether the findings of the Courts below are vitiated simply on the application of bare provision of law, more particularly, when the trial Court has specifically held that the suit will be governed by Section 6 of Hindu Succession Act whereas the first Appellate Court has held that Section 6 of the Hindu Succession Act is not applicable."
13. I have heard Sh. Bimal Gupta learned Senior counsel assisted by Sh. Gurinder Parmar, learned counsel for the appellants/defendants and Sh. Bhupender Gupta learned Senior counsel assisted by Ms Rinki Kashmiri, learned counsel for the respondent/plaintiff.
::: Downloaded on - 23/08/2023 20:34:09 :::CIS 1214. Sh. Bimal Gupta, learned Senior counsel for the appellants/defendants submitted that .
learned Courts below erred in calculating the shares. The shares of the females left behind by Sadhu and Sarwan were to be calculated at the time of the notional partition. Hence, he prayed of that the present appeal be allowed and the shares calculated by learned Courts below be modified.
rt
15. Sh. Bhupinder Gupta learned Senior Counsel submitted that this plea was never taken before the Courts below and cannot be taken before this Court. There was no infirmity in the calculation of the shares; hence, he prayed that the appeal be dismissed.
16. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
Substantial question of law.
17. Learned trial Court held that since the property was ancestral; therefore, Sadhu ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 13 had no right to dispose of the share of Sarwan.
It was specifically held by learned trial Court .
in Para 11 that the Will of Sadhu in respect of the share of Sarwan was invalid irrespective of the fact that it was validly executed by him.
Learned First Appellate Court concurred with of this finding in Para 24 of the judgment.
Therefore, the validity of the Will (Ext. DG) Will that rt is not in dispute. Sadhu had mentioned in the he had three sons - Vidhi Chand, Pritam Singh and Balbir. He had married his daughters, who were happy in their matrimonial homes. Hence, Sadhu was executing a Will in favour of his three sons. The Will shows that Sadhu was not only survived by his sons but also by his daughters.
18. Learned First Appellate Court noticed in Para 11 that Sangat Kaur, Ranjeet Kaur, Surinder Kaur and Widow-Gulzar Kaur were alive. It was also asserted in the Memorandum of Appeal filed before this Court that Sadhu was survived by his daughters Sangat Kaur, ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 14 Ranjeet Kaur, Surinder Kaur and Widow-Gulzar Kaur. However, no evidence was led to show the .
names of the daughters or their numbers. Even, the names of Gulzar Kaur-wife and Ranjeet Kaur-
daughter of Sadhu were added
by filing an
application under Order 1 Rule 10 of CPC by of asserting that the copy of the Pariwar Register produced by the defendant shows that the mother rt of Sarwan and wife of Sarwan were alive, who were required to be impleaded. The copy of the Pariwar Register (Ext. C-1) of the family of Gulzar Kaur- wife of Sadhu- shows the names of Balbir Singh, his wife and children residing with Gulzar Kaur. Therefore, there is insufficient evidence on record to show that the daughters of Sadhu were alive on the date of his death, their numbers or names and in the absence of such evidence, their shares cannot be calculated.
19. Both the learned Courts below have concurrently found that land measuring 20 Bighas was ancestral property in the hands of ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 15 Sadhu. The property was traced to Punnu, ancestor of the parties and thereafter, to .
Surjan, father of Sadhu. These findings are supported by the record. The copy of the pedigree table (Ext. P-4) shows Punnu to be the common ancestor having two sons-Surjan and of Mahiya. Punnu is shown to be the owner in the mutation (Ext.P-4). An entry has been made rt regarding his death and mutating his property in favour of his sons. Copy of Misal Hakiyat Samvat 1984-85, shows Rama, Sarna, Heera, Jiwana, Sadhu sons of Surjan, Moti Ram son of Mahiya and Attra son of Punnu to be the owners in possession of the land. The entries in the revenue record carry with them a presumption of correctness and no evidence was led to rebut this presumption. Therefore, the findings recorded by learned Courts below that land measuring 20 Bighas was ancestral in the hands of the Sadhu is duly supported by the record.
20. It was not disputed that Sarwan, father of the plaintiff predeceased Sadhu. The ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 16 plaintiff specifically asserted in Para 3 of the plaint that Sarwan died on 24.10.1984. The .
defendants no.1 to 3 stated in their written statement that the plaintiff was born after the death of Sarwan and the mother of the plaintiff had severed her relations with Sadhu after the of death of her husband. Gulzar Kaur-defendant no.
10, mother of Sarwan and wife of Sadhu, also Gajjan rt stated in Para 1 of the written statement that Singh and Sarwan had died during the lifetime of Sadhu. Vidhi Chand/defendant no. 1 asserted in his examination-in-chief that a compromise (Ext. D-1) was effected by the mother of the plaintiff with Sadhu relinquishing her share. This compromise (Ext.D-1) also records the fact that Ranjeet Kaur, mother of the plaintiff, had married Sarwan who had died two years before the execution of the agreement. Thus, it is duly proved that Sarwan had pre-deceased Sadhu leaving behind the plaintiff and Ranjeet Kaur.
::: Downloaded on - 23/08/2023 20:34:09 :::CIS 1721. Section 6 of the Hindu Succession Act, as it stood before its amendment by Hindu .
Succession Amendment Act, 2005 reads as under:-
"S. 6 - Devolution of interest in coparcenary property - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara of coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in rt accordance with this Act:
Provided that, if the deceased had left surviving him a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1. For the purposes of this 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.::: Downloaded on - 23/08/2023 20:34:09 :::CIS 18
Explanation 2. Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the .
coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
22. Heirs in Class-I include daughter, of widow and mother. In the present case, Sarwan had left behind a widow and a daughter in the womb; therefore, the provision of Section 6 of rt the Hindu Succession Act would apply on the death of Sarwan.
23. The effect of the death of Sarwan leaving behind female heirs specified in Class-
I will be the deemed partition of a joint Hindu family headed by Sadhu. Sadhu had a wife-Gulzar Kaur. It has been stated in para 314 of Mulla Hindu Law 23rd Edition on Page 499 that a wife cannot demand a partition, but if a partition takes place between her husband and his son, she is entitled to receive a share equal to that of her son. It has been observed:
::: Downloaded on - 23/08/2023 20:34:09 :::CIS 19"A wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled (except in .
Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband."
24. It was laid down by the Hon'ble Supreme Court of India in Gurupad Khandappa of Magdum v. Hirabai Khandappa Magdum, (1978) 3 SCC 383, that while applying Section 6 of Hindu rt Succession Act, the interest of Hindu Mitakshara coparcener has to be calculated and the same has to be allotted to his surviving heirs. The wife has to be given one share at the time of notional partition between her husband and sons. It was observed:
"8. Before considering the implications of Explanation 1, it is necessary to remember that what section 6 deals with is the devolution of the interest which a male Hindu has in a Mitakshare coparcenary property at the time of his death. Since Explanation 1 is intended to be explanatory of the provisions contained in the section, what the Explanation provides has to ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 20 be correlated to the subject matter, which the section itself deals with. In the instant case the plaintiff's suit, based as it is on the .
provisions of section 6, is essentially a claim to obtain a share in the interest, which her husband had at the time of his death in the coparcenary property. Two things become necessary to determine for the purpose of giving relief to the of plaintiff. One, her share in her husband's share and two, her husband's own share in the rt coparcenary property. The proviso to section 6 contains the formula for fixing the share of the claimant while Explanation 1 contains a formula for deducing the share of the deceased. The plaintiff's share, by the application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in sections 8, 9 and 10 of the Hindu Succession Act. The deceased Khandappa died leaving behind him two sons, three daughters and a widow. The son, daughter and widow are mentioned as heirs in class I of the Schedule and therefore, by reason of the provisions of section 8(a) read with the 1st clause of section 9, they take simultaneously and to the ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 21 exclusion of other heirs. As between them the two sons, the three daughters and the widow will take equally, each having one share in the .
deceased's property under section 10 read with Rules 1 and 2 of that section. Thus, whatever be the share of the deceased in the coparcenary property, since there are six sharers in that property each having an equal share, the plaintiff's share therein of will be 1/6th.
9. The next step, equally important though not equally easy to work out, rt is to find out the share which the deceased had in the coparcenary property because, after all, the plaintiff has a 1/6th interest in that share. Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu Mistakshara 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. One must, therefore, imagine a state of affairs in which a little prior to Khandappa's death, a partition of the coparcenary property was effected between him and other members of the coparcenary. Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 22 between her husband and his two sons, she would be entitled to receive a share equal to that of a son. (see Mulla's Hindu Law, Fourteenth .
Edition, page 403, para 315). In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappa's wife, the plaintiff. Khandappa would have therefore got a 1/4th share in the of coparcenary property on the hypothesis of a partition between himself and, his sons.
rt xxxxxxxxx
13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share, of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that 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 that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 23 death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share .
of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption, which the statute requires to be made that a partition had in fact taken place must permeate of the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the rt assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle.
All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they bad separated from one another and had received a share in the partition which had taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be- treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 24 recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased bad 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.
14. The interpretation which we are of placing upon the provisions of section 6, its proviso and Explanation I thereto will further the legislative intent in regard to rt the enlargement of the share of female heirs, qualitatively and quantitatively. The Hindu Law of Inheritance (Amendment) Act, 1929 conferred heirship rights on the son's daughter, daughter's daughter and sister in all areas where the Mitakshara law prevailed. Section 3 of the Hindu Women's Rights to Property Act. 1937, speaking broadly, conferred upon the Hindu widow the right to a share in the joint family property as also a right to demand partition like any male member of the family. The Hindu Succession Act, 1956 provides by section 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner thereof and not as a limited owner. By restricting the operation of the ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 25 fiction created by Explanation I in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it .
were the clock of social reform which has enabled the Hindu Woman to acquire an equal status with males in matters of property. Even assuming that two interpretations of Explanation I are reasonably possible, we must prefer that of interpretation which will further the intention of the legislature and remedy the injustice from which the rt Hindu women have suffered over the years." (Emphasis supplied)
25. Similarly, it was held in Anar Devi v. Parmeshwari Devi, (2006) 8 SCC 656= 2006 SCC OnLine SC 973 that the share of the coparcener is to be calculated at the time of notional partition and such share has to be divided amongst the surviving heirs. It was observed:
6. Reference in this connection may be made to a passage from the most authoritative Treatise of Mulla, Principles on Hindu Law, Seventeenth Edition, page 250 wherein while interpreting Explanation I to Section 6 of the Act, the learned author stated that "Explanation I defines the expression 'the interest of the ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 26 deceased in Mitakshara coparcenary property' and incorporates into the subject the concept of a notional partition.
.
It is essential to note that this notional partition is for the purpose of enabling succession to and computation of an interest, which was otherwise liable to devolve by survivorship and for the ascertainment of the shares of in that interest of the relatives mentioned in Class I of the Schedule. Subject to such carving rtout of the interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption. A statutory fiction which treats an imaginary state of affairs as real requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of that state of affairs."
7. The learned author further stated that "the operation of the notional partition and its inevitable corollaries and incidents is to be only for the purposes of this section namely, devolution of ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 27 interest of the deceased in coparcenary property and would not bring about total disruption of the coparcenary as if there .
had in fact been a regular partition and severance of status among all the surviving coparceners."
8. According to the learned author, at page 253, the undivided interest of "of the deceased coparcener for the purpose of giving effect to the rule laid down in the proviso, as already pointed out, is to be ascertained on rt the footing of a notional partition as of the date of his death. The determination of that share must depend on the number of persons who would have been entitled to a share in the coparcenary property if a partition had in fact taken place immediately before his death and such person would have to be ascertained according to the law of joint family and partition. The rules of Hindu law on the subject in force at the time of the death of the coparcener must, therefore, govern the question of ascertainment of the persons who would have been entitled to a share on the notional partition." xxxxxx
11. Thus we hold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 28 of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in .
the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under which the undivided interest of a deceased of coparcener can be ascertained and, i.e., that the interest of a Hindu Mitakshara coparcener shall be deemed rt 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.
It means for the purposes of finding out the undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.
::: Downloaded on - 23/08/2023 20:34:09 :::CIS 2926. It was submitted that a daughter being a coparcener will also get a share in the .
property by birth. Reliance was placed upon the judgment of the Hon'ble Supreme Court in Vineeta Sharma versus Rakesh Sharma 2020 (9) SCC 1 in support of his submission, however, in of the absence of any evidence, it cannot be said that any daughter or her heir specified in Sarwan rt amended Section 6 was alive on the death of and no share can be allotted to the daughters.
27. The partition between Sadhu and his five sons will result in the allotment of one share to Gulzar Kaur-wife of Sadhu, therefore, each will get 1/7th share and not 1/6th share, as calculated by the learned Courts below. Both the Courts below ignored the share of the wife, which she would get on the partition between her husband and her son under Mitakshra Law;
therefore, Sarwan had 1/7th share in the property measuring 20 Bighas.
::: Downloaded on - 23/08/2023 20:34:09 :::CIS 3028. The 1/7th share of Sarwan would be inherited by his wife and his daughter, .
therefore, Ranjeet Kaur and the plaintiff would have obtained 1/14th share on the date of death of Sarwan.
29. The Agreement (Ext.D-1) reads that of Ranjeet Kaur would not claim any right in the estate of her husband. Both the learned Courts rt below had rightly held that this writing would not divest Ranjeet Kaur of her share in the estate of Sarwan. If it is to be read as a relinquishment of the share of Ranjeet Kaur, the same was required to be registered and will not confer any right in the absence of the registration.
30. It was laid down by the Hon'ble Supreme Court of India in Uttam v. Saubhag Singh, (2016) 4 SCC 68 = 2016 SCC OnLine SC 212 that the effect of deemed partition would be the severance of the joint status of the family. It was observed:
::: Downloaded on - 23/08/2023 20:34:09 :::CIS 31"14. On application of the principles contained in the aforesaid decisions, it becomes clear that, on the death of Jagannath Singh in 1973, the .
proviso to Section 6 would apply inasmuch as Jagannath Singh had left behind his widow, who was a Class I female heir. Equally, upon the application of Explanation 1 to the said Section, a partition must be said to have been effected by the of operation of law immediately before his death. This being the case, it is clear that the plaintiff would be rt entitled to a share on this partition taking place in 1973. We were informed, however, that the plaintiff was born only in 1977, and that, for this reason, (his birth being after his grandfather's death) obviously no such share could be allotted to him. Also, his case in the suit filed by him is not that he is entitled to this share but that he is entitled to a 1/8th share on dividing the joint family property between 8 co-sharers in 1998. What has therefore to be seen is whether the application of Section 8, in 1973, on the death of Jagannath Singh would make the joint family property in the hands of the father, uncles and the plaintiff no longer joint family property after the devolution of Jagannath Singh's share, by application of Section 8, among his Class I heirs. This question would have to be answered ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 32 with reference to some of the judgments of this Court.
15. In Commissioner of Wealth Tax, .
Kanpur and Others v. Chander Sen and Others, (1986) 3 SCC 567, a partial partition having taken place in 1961 between a father and his son, their business was divided and thereafter carried on by a partnership firm consisting of the two of them. The of father died in 1965, leaving behind him his son and two grandsons, and a credit balance in the account of the firm. This Court had to answer as to rt whether the credit balance left in the account of the firm could be said to be joint family property after the father's share had been distributed among his Class I heirs in accordance with Section 8 of the Act. This Court examined the legal position and ultimately approved of the view of 4 High Courts, namely, Allahabad, Madras, Madhya Pradesh and Andhra Pradesh, while stating that the Gujarat High Court's view contrary to these High Courts, would not be correct in law. After setting out the various views of the five High Courts mentioned, this Court held:
"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. In view of the ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 33 preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when the Schedule .
indicates heirs in Class I and only includes son and does not include 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 of takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if rt 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 by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8.
Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-
existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis-à-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 34 male heirs in whose hands it will be joint Hindu family property and vis-à-vis son and female heirs with respect to whom no .
such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc. Before we conclude we may state that we of have noted the observations of Mulla's Commentary on Hindu Law, 15th Edn. dealing with Section 6 rt of the Hindu Succession Act at pp. 924-26 as well as Mayne's on Hindu Law, 12th Edn., pp. 918-
19. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to "amend" the law, with that background the express language which excludes the son's son but includes the son of a predeceased son cannot be ignored. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With respect, we are unable to agree with the views of the Gujarat High Court ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 35 noted hereinbefore." [at paras 21- 25]
16. In Yudhishter v. Ashok Kumar, .
(1987) 1 SCC 204 at page 210, this Court followed the law laid down in Chander Sen's case.
17. In Bhanwar Singh v. Puran, (2008) 3 SCC 87, this Court followed Chander Sen's case and the various judgments following Chander Sen's case. This of Court held:-
"The Act brought about a sea change in the matter of rtinheritance and succession amongst Hindus. Section 4 of the Act contains a non obstante provision in terms whereof any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise expressly provided. Section 6 of the Act, as it stood at the relevant time, provided for the devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Clause (1) of the Schedule. In ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 36 the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs but a grandson, so long as the father .
is alive, has not been included.
Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants- in-common and not as joint of tenants. Indisputably, Bhima left behind Sant Ram and three daughters. In terms of Section 8 rt of the Act, therefore, the properties of Bhima devolved upon Sant Ram and his three sisters.
Each had a 1/4th share of the property. Apart from the legal position, factually the same was also reflected in the record-of- rights. A partition had taken place amongst the heirs of Bhima.
Although the learned first appellate court proceeded to consider the effect of Section 6 of the Act, in our opinion, the same was not applicable in the facts and circumstances of the case. In any event, it had rightly been held that even in such a case, having regard to Section 8 as also Section 19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of Bhima would ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 37 succeed to his interest as tenants-in-common and not as joint tenants. In a case of this nature, the joint coparcenary did .
not continue." (at paras 12-15)
18. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving of coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by rt virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, 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 summarized 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 ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 38 in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving .
members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding of anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is rt a property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on a 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 ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 39 effected by the 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 the self-acquired property or by of the application of Section 6 proviso, such property would devolve only by intestacy and not rtsurvivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after the 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 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 ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 40 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 of consequently dismissed with no order as to costs." (Emphasis supplied)
31. rt Similar view was taken by this Court in Anmol Sharma v. Vikrant Seth, 2019 SCC OnLine HP 1470 = AIR 2019 HP 182, wherein, it was observed::
"14. Therefore, succession in 1984 opened in terms of provisions of Section 6 read with Section 8 of the Hindu Succession Act, as it existed then. In other words, after the presumption of death of Mukti Nath @ Mohan Lal Sharma, since he was survived by his wife, i.e. a female legal heir, therefore, by virtue of provisions of Section 8 of the Hindu Succession Act, the interest devolved by means of intestate succession, i.e. under Section 8 of Hindu Succession Act. The coparcenary nature of the suit property ceased to exist in 1984. Law laid down in ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 41 Uttam's case (supra), becomes applicable to the property."
.
32. Thus, 1/7th share acquired by Sadhu on partition became his self-acquired property, which would devolve by succession and not by survivorship.
of
33. Both the learned Courts below have concurrently found that Sadhu had executed a rt Will in favour of his three sons and he was incompetent to execute the Will regarding the shares of Sarwan. Sarwan had 1/7th share;
therefore, the Will does not operate regarding the share of Sarwan, However, it will be operative qua the share of Sadhu and the property would devolve upon legal heirs of Sadhu as per the Will.
34. Both the learned Courts below calculated the share of Sarwan as 1/6th and this share was allotted to the plaintiff. They ignored that the wife of Sadhu would also be entitled to one share at the time of deemed ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 42 partition between Sadhu and his sons. They even ignored that 1/6th share calculated by them .
would devolve upon the widow and daughter of Sarwan and not upon the daughter alone.
Therefore, even as per the calculations made by the learned Courts below, the share of the of plaintiff would have been 1/12th and not 1/6th.
The learned Courts below failed to correctly rt apply the provisions of Section 6 of the Hindu Succession Act. Hence, the plaintiff will be entitled to 1/14 share in the land measuring 20 bighas found to be ancestral by the Courts below and not 1/6th. Thus, the judgments and decrees passed by the learned Courts below are liable to be modified and the share of the plaintiff has to be calculated as 1/14th and not 1/6th. The substantial question of law is answered accordingly.
Final Order
35. In view of the above, the present appeal is partly allowed. The judgments and ::: Downloaded on - 23/08/2023 20:34:09 :::CIS 43 decrees passed by learned Courts below are modified by holding that the plaintiff will be .
entitled to 1/14th share and not 1/6th share allotted by the learned Courts below. Subject to this modification, the judgments and decrees passed by learned Courts below are upheld. The of present appeal stands disposed of.
rt (Rakesh Kainthla)
Judge
23rd August 2023
(pathania)
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