Gujarat High Court
Nachiketa Kantibhai Patel vs Kantibhai Ishwarbhai Patel on 10 June, 2025
NEUTRAL CITATION
C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025
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Reserved On :13/02/2025
Pronounced On : 10/06/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 42 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 42 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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NACHIKETA KANTIBHAI PATEL & ORS.
Versus
KANTIBHAI ISHWARBHAI PATEL & ORS.
Appearance:
A R KADRI(7330) for the Appellant(s) No. 1,2,3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
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NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined TABLE OF CONTENTS Table of Contents.....................................................................................................................2 Factual Matrix..........................................................................................................................3 Case of the Plaintiff - Appellant..............................................................................................4 Analysis and Findings..............................................................................................................6 Hindu Succession: Pre and Post 1956.................................................................................9 Hindu Law concepts as per Mitakshara School of thought (Pre-1956)........................11 Joint Hindu Family...........................................................................................................11 Joint Family Property.......................................................................................................14 Ancestral Property............................................................................................................17 Coparcenary and Coparcenary Property...........................................................................18 Coparcenary Property - Pre and Post 1956......................................................................23 Doctrine of Blending..........................................................................................................27 Necessity and importance of pleadings regarding the nature of property....................31 Codification of the Hindu Law (Hindu Succession Act, 1956).......................................36 Preamble and Section 4 of the Act...................................................................................36 Section 6 of the Act..........................................................................................................37 Section 8 of the Act..........................................................................................................42 Order VII Rule 11..............................................................................................................46 Non-disclosure of cause of action....................................................................................47 Limitation.........................................................................................................................49 Conclusion...............................................................................................................................53 Page 2 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined
1. The present Second Appeal has been filed challenging the judgment and decree passed by the 4th Additional District Judge, Ahmedabad Rural in Civil Appeal No. 77 of 2017 confirming the judgment and decree passed in Regular Civil Suit No. 1418 of 2015 dated 06.09.2017.
2. For the sake of convenience, the parties are referred to as per their original status in the suit.
Factual Matrix
3. The brief facts arising in the present suit are that the suit property was owned by Ishwarbhai Patel who died intestate on 13.01.1993 and he was survived by his wife Kashiben and five sons viz. Kantibhai Iswarbhai Patel (defendant no.1), Becharbhai Iswarbhai Patel (defendant no.2), Jayendrabhai Ishwarbhai Patel (defendant no.3), Pragneshbhai Iswarbhai Patel (defendant no.4) and Bipinbhai Iswarbhai Patel (defendant no.5) so also three daughters viz. Anandiben Iswarbhai Patel, Vinaben Iswarbhai Patel and Nirmala Iswarbhai Patel and accordingly their names were incorporated in revenue record. Thereafter three daughters of Iswarbhai Patel relinquished their rights in the suit property and there is no dispute to the said fact.
4. Thereafter by registered sale-deed No. 692 dated 21.04.1994, the suit property was sold by wife of Iswarbhai and five sons of Iswarbhai (to defendant nos. 4 and 5). The said sale-deed was signed by all owners for Page 3 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined themselves and all the executors signed for themselves and one of the sons of Iswarbhai Somabhai viz Pragnesh Iswarbhai signed for himself as well as for mother viz. Kasiben i.e. wife of Iswarbhai as Power of Attorney holder of Kasiben. Thereafter defendant No. 4 further sold his half shares to Defendant No. 5 vide registered sale-deed no.1694 dated 13.05.1996 and defendant no.5 transferred entire suit land to his son i.e. defendant no.6. The present suit that has been filed is filed by son of defendant no.1 as Plaintiff no.1. Plaintiff no.2 is nephew of defendant nos.1, 2 and 3 and Plaintiff no.3 is sister-in-law of defendant nos.1 to 3.
5. The contention that has been taken in the suit by all the Plaintiffs is that they being legal heirs of late Iswarbhai Somabhai Patel, who has expired on 13.01.1993 and being legal heirs of late Iswarbhai Somabhai Patel, they have their right, title and interest in the suit land and the suit property has been illegally disposed of by defendant nos.1, 2 and 3 and other co-owners by registered sale-deed.
Case of the Plaintiff - Appellant
6. It is the case of the Plaintiffs that suit land being ancestral property, the Plaintiffs have right in the suit property by birth and defendant Nos.1 to 2 could not have executed the sale-deed in favour of defendant no.4 without the consent of Plaintiff. Therefore, suit has been filed to cancel the said sale-deed dated 12.04.1994 and 13.05.1996 and in the said suit the Page 4 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined defendant filed an application vide Exh. 27 under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 ('the CPC', for short) and after considering the plaint and the documentary evidence filed along with the plaint, the said suit has been rejected as being barred by law, more particularly on the ground of limitation. Said order of the trial Court was challenged by way of Regular Civil Appeal No. 77 of 2017 and after re- appreciating the entire matter, the first Appellate Court dismissed the said civil appeal. Hence, the present Second Appeal.
7. Learned Advocate for the Plaintiffs has mainly argued that suit property being ancestral property, the Plaintiffs would have right in the suit property by birth and defendant could not have sold suit property without consent of the Plaintiffs. It has also been argued by learned Advocate for the Plaintiffs that suit property i.e. disputed property has coparcenery character and, therefore, Plaintiffs will have right by birth and the trial Court could not have rejected the plaint on the ground that the plaint is barred on the ground of limitation.
8. It has been argued that at the time when the sale transaction took place, original Plaintiffs were minor and, therefore, it has been argued that on the date of execution of sale-deed dated 21.04.1994. The Plaintiff no.2 was only aged about 6 months as his birth date is 28.12.1993 and as soon as he Page 5 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined attained majority, the suit came to be filed which is well within the three years of attending the majority of Plaintiff No.2.
9. It has also been argued that issue of limitation is mixed question of facts and the trial Court and the appellate Court could not have rejected the plaint on the issue of limitation. It has been argued that though Plaintiff no.1 and 3 were major at the time of execution of sale-deed, Plaintiff no.2 was minor and, therefore, the suit can be said to have been filed within the time period of limitation and since there are substantial questions of law involved in the present suit, the present Second Appeal is required to be admitted on such substantial questions as suggested in the memo of present appeal.
Analysis and Findings
10. Shorn of unnecessary details and facts, the moot question for adjudication in the present Appeal is that whether grandchildren (Plaintiffs in the present case) have a vested right in the property of their grandfather inherited by their father upon their birth itself? In other words, is every property inherited by a father from the grandfather an "ancestral" or "coparcenery" property as regards the grandchildren? etc.
11. These questions have deep roots in the Indian society. Unfortunately, despite several decisive and unambiguous judgments of the Hon'ble Apex Court and several other High Courts, such litigations (at the behest of Page 6 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined grandchildren; or sometimes in matrimonial disputes motivated also), keep cropping up before the Courts with impunity. It is almost startling that Plaintiff - grandchildren in most cases are aware (or made aware) of their rights under the Mitakshara law, but conveniently forget the law that has been codified thereafter.
12. Before codification of the Hindu Succession Act in the year 1956, the position was that immediately upon birth of the grandchild, he would have a right in the joint family property and the father would hold the property as a joint family property as regards his male successors or coparceners. In other words, before 1956, property inherited by a Male Hindu from his paternal male ancestors would be a coparcenary property in his hands vis- à-vis his male descendants up to three degrees below him.
13. This position has changed in the year 1956. This changed position has also been laid down by several judgements. However, Courts are fraught with litigations of this kind to this date. It is often forgotten that the original Hindu methodology of succession went hand in hand with the obligations and duties which were imposed in terms of pious (or otherwise) obligations of the successor. More often than not, by conveniently ignoring (or forgetting) this obligation or duty, successors often come to the Courts emphatically stomping on horses of their so-called right. This was never the intention of the uncodified Hindu law, which anyway, has now Page 7 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined culminated into the present-day Hindu Succession Act, 1956 ("the Act or HSA").
14. After the advent of the Act, position of succession in Hindus is governed by this enactment alone. As provisions of the said act would show, it has not only brought in a sea change in the method of succession but has also streamlined the methods of succession. It is unfathomable that a novel (or different) succession method or right, distinct from what has been couched in the provisions of the Act, can be adopted or claimed post 1956.
15. It is well settled that section 8 of the Act provides for the general rules of succession for a Hindu male who has died intestate. Whereas, section 6 of the said Act is an exception to the same in case of a coparcenary property. Therefore, unless and until there is a clear pleading, proof and consequential finding of fact that the property in question is a coparcenary property, the question of application of Section 6 does not arise. In such an event, the general clause, i.e., Section 8 of the Act will come into play and govern the succession.
16. Amongst all these also, cases of the present kind need to be examined with more scrutiny. Grandfather passed away in the year 1993. Property was sold by all the heirs around the year 1994. After 18 years, and the property having changed multiple hands, can the heirs of the original owner now come up asserting their alleged ancestral right? If cases of the like are not Page 8 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined weeded out and nipped in the bud, crushing pendency of cases will become order of the day.
17. It must be borne in mind that the concept of ancestral property under the Hindu law was meant to protect the rights of the children of a joint family. Which is why by birth, a son acquired interest in the family property jointly with his father. However, the concepts and nature of joint families have changed over the time. Hence, the mode of succession has suitably been amended by the Hindu Succession Act, 1956.
18. Therefore, it is important to note the position of Hindu Succession law pre and post 1956 and the changes made therein.
Hindu Succession: Pre and Post 1956
19. Hon'ble Apex Court has categorically reiterated multiple times that if succession of a Hindu has opened before 1956, the Mitakshara law will apply. On the other hand, if succession has opened post 1956, the HSA alone shall govern the field. This is based on a simple premise. Once the HSA has been enacted, the general school of law, i.e., Mitakshara law does not apply save to the extent as provided for in the Act itself.
20. In Arshnoor Singh v. Harpal Kaur, (2020) 14 SCC 436 Hon'ble Apex Court has held as follows:
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NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined 7.3 Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors up to three degrees above him, then his male legal heirs up to three degrees below him, would get an equal right as coparceners in that property.
7.4. In Yudhishter v. Ashok Kumar [Yudhishter v. Ashok Kumar, (1987) 1 SCC 204] , this Court held that: (SCC p. 210, para 10) "10. This question has been considered by this Court in CWT v. Chander Sen [CWT v. Chander Sen, (1986) 3 SCC 567 : 1986 SCC (Tax) 641] where one of us (Sabyasachi 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 coparcenary. 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 separated 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 Karta of his own undivided family but takes it in his individual capacity."
7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post 1956, if a person Page 10 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined inherits a self-acquired property from his paternal ancestors, the said property becomes his self-acquired property, and does not remain coparcenary property. (emphasis supplied).
21. Therefore, once the 1956 Act was enacted, the entire succession has undergone a sea change and now it was only the 1956 which holds the field. Therefore, in order to appreciate what is the change in the position of law post 1956, one must first see the original position under the uncodified regime.
22. The concepts of Hindu law, in my opinion, cannot be considered in isolation or vacuum. For instance, an understanding of what is an ancestral property, or a coparcenery property or a Hindu Undivided Family Property, etc. is interdependent and intersecting at several instances. Hence, the same is important to be dealt with for the present adjudication. Hindu Law concepts as per Mitakshara School of thought (Pre-1956) Joint Hindu Family
23. A Hindu Joint Family or HUF is the core concept of the Hindu Mitakshara school of thought. Under the said school, there has always been a presumption that a hindu family is a joint one.
24. A Joint Hindu Family consists of all persons who lineally descend from the common ancestor and includes their wives and unmarried daughters. It is one in worship and holds joint assets. After separation of assets, the family Page 11 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined ceases to be joint (See: Ved Parkash v. Naresh Kumar and Ors., 2023 SCC Online Del 213).
25. Aforesaid presumption of the family being a joint unit has also been recorded by the Hon'ble Apex Court in Rukhmabai v. Lala Laxminarayan, (1960) 2 SCR 253
5. There is a presumption in Hindu law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member o f a joint Hindu family, is joint family property. The burden lies upon the Page 12 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined person who asserts that a particular property is joint family property to establish that fact. ..."
26. The concept of Joint Hindu Family has also been explained by Bhashyam Iyenger, J. in Sudarsanam Maistri v. Narasimhulu Maistri, 1901 SCC Online Mad 91 in the following manner:
The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body (Gan Savant Bal Savant v. Narayan Dhond Savant [I.L.R., 7 Bom., 467 at p. 471.] and Mayne's 'Hindu Law and Usage,' 6th edition, paragraph 270) and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may he left put of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition, viz., the undivided state--it forms a corporate, body. Such corporate body, with its heritage, is purely a creature of law and cannot he created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family. Persons, who by birth or adoption are not members of a Hindu family, cannot, in the absence of a custom having the force of law, by mere agreement, become or he made members of a joint family.Page 13 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
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27. This judgment has also been cited in the Hon'ble Apex Court's judgment of State Bank of India v. Ghamandi Ram, (1969) 2 SCC 33. Joint Family Property
28. It is pertinent to note at this juncture that though creation of a Joint Hindu Family is presumed in law, the same is not the case with property of such family. In other words, there can be no presumption that property purchased by a member of the HUF is property of the HUF itself. This position has also been clearly laid down in several judgments of the Hon'ble Apex Court.
29. In Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade, (2007) 1 SCC 521 Hon'ble Apex Court has held as follows:
12. So far as the legal proposition is concerned, there is no gainsaying that whenever a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants to n show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them.
This settled proposition emerges from various decisions of this Court right from 1954 onwards.
13. In Shrinivas Krishnarao Kango v. Narayan Devji Kango [(1955) 1 SCR 1 : AIR 1954 SC 379] their Lordships held that proof of the existence of a joint family does not lead Page 14 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self- acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Therefore, so far as the proposition of law is concerned, the initial burden is on the person who claims that it was joint family property but after initial discharge of the burden, it shifts to the party who claims that the property has been purchased by him through his own source and not from the joint family nucleus. Same proposition has been followed in Rukhmabai v. Lala Laxminarayan [(1960) 2 SCR 253 :
AIR 1960 SC 335] wherein it was observed as follows: (SCR pp. 259-60) ... But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property."Page 15 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
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14. Similarly, in Achuthan Nair v. Chinnamu Amma [(1966) 1 SCR 454 : AIR 1966 SC 411] their Lordships held as follows: (SCR p. 458 C-D) "Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well-settled proposition of law."
15. Similarly, in Bhagwant P. Sulakh v. Digambar Gopal Sulakhe [(1986) 1 SCC 366 : AIR 1986 SC 79] their Lordships have held that the character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. ...
16. In Surendra Kumar v. Phoolchand [(1996) 2 SCC 491] their Lordships held as follows: (SCC p. 495, para 6) "It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. ..." (emphasis supplied).
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NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined Ancestral Property
30. Time and again, Hon'ble Apex Court has specified that ancestral property is the property belonging to Father, Father's father or Father's Father's Father. That is to say, a property passed on from any of the three lineal generations preceding the successor is termed as ancestral property.
31. In Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646 Hon'ble Apex Court held as under:
12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.
32. However, this connotation "ancestral property" is often misunderstood in the post 1956 era. Of course, according to the pre-codified Mitakshara law, son would inhere a right in the property by birth (due to creation of coparcenary). However, after 1956, merely because a property is ancestral, would give birth to no right title or interest of any person in the Page 17 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined said property. That is to say, merely because a property is ancestral, the son, grandson or great grandson (or daughters, respectively) would acquire no right over the same.
33. Only if a property (naturally, being ancestral) has the character of a coparcenary property, is such right created by operation of law. That right as created before 1956, is also preserved by way of Section 6 and continues as such post enactment of the HSA 1956. Coparcenary and Coparcenary Property
34. Having seen the nature and legal position on Joint Hindu Family as well as ancestral property, it would be apposite to discuss what is a coparcenary and how the same is formed. From the pleadings across cases, it appears that there is some confusion in the minds of litigants regarding a coparcenary and the way it comes into existence.
35. There is often a loose ended pleading that there was a joint family of the parties and hence, the property of the family belonged to HUF. Similarly, a pleading that a property is coparcenary property without any basis is prevalent in many pleadings. Therefore, the position of coparcenary is required to be understood.
36. Coparcenary by definition, is a narrower body than the joint family. It consists of the propositus and three lineal descendants and no more. Before Page 18 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined the 2005 Amendment of the 1956 Act, only male members could be the coparceners and hence, it was the male lineage membership of the joint family. Acquisition of interest in the coparcenary property is always by birth. Such interest is always undivided.
37. An apposite finding on the nature of coparcenary and how it comes into existence is rendered by the Hon'ble Apex Court in Sunil Kumar v. Ram Prakash, (1988) 2 SCC 77 as follows:
18. The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants up to three degrees can offer spiritual ministration to an ancestor. Only males can be coparceners.
[See: Hindu Law by N.R. Raghavachariar, 8th Edn., p. 202]
38. Till the time partition is done between the parties, each coparcenor has ownership extending over the entire property, conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predict the share which he might receive. The result of such co-ownership is that the possession and enjoyment of the property is common. (See: Page 19 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
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385)
39. In Rohit Chauhan v. Surinder Singh, (2013) 9 SCC 419 the Hon'ble Apex Court has held as follows:
We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.Page 20 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
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40. However, what is more important to be noted at this juncture is that coparcenary cannot be created by any agreement or Act of the parties. The formation of a coparcenary is by birth of the coparceners in the permissible degree. (See: Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 - Para
80). Therefore, formation of a coparcenary is only by way of operation of law and not by Act of parties by any means.
41. Further, this coparcenary can be formed only when there is an ancestral property (belonging to the father) before 1956 and the same was inherited by the son, who would hold this property jointly with his son as ancestral property. Therefore, this was the automatic means of creation of coparcenary. It cannot be done by way of Act of the parties.
42. In Bhagwan Dayal v. Reoti Devi AIR 1962 SC 287, it was held as follows:
"47. ...Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognises a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the Page 21 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognise some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognised by it. ..."
43. Therefore, before 1956, a coparcenary was created in the following manner as laid down in Mulla on Hindu Law (24th Edition) states as follows:
Genesis of Coparcenary - A coparcenary is created in the following manner: A Hindu male A, who has inherited no property at all from his father, grandfather, or great- grandfather, acquires property by his own exertions. A has a Page 22 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined son B, B does not take any vested interest in the self- acquired property of A during A's lifetime, but on A's death, he inherits the self-acquired property of A. If B has a son C, C takes a vested interest in the property by reason of his birth, and the property inherited by B from his father A, becomes ancestral property in his (B's) hands, and B and C are coparceners as regards the property. If B and C continue joint, and a son D is born to C, he enters the coparcenary by the mere fact of is birth. Moreover, if a son E is subsequently born to D, he too becomes a coparcener. (Emphasis Supplied) Coparcenary Property - Pre and Post 1956
44. After 1956 (w.e.f. 17th June 1956), this position has changed. Merely inheritance gives no vested interest in the grandson (or grandchild after 2005) in self acquired property of the grandfather. Hence, there is no automatic creation of coparcenary. In other words, upon inheritance, the property in hands of the son retains the nature and character of individual property and not as an ancestral property of the grandson in the hands of the son. Therefore, there is no acquisition of right by birth in properties which were not already a coparcenary property. This is in view of the Section 8 of the 1956 Act where interest now devolves through succession and not survivorship.
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45. This change in position has been recorded in several judgments of the Hon'ble Apex Court. In Yudhishter v. Ashok Kumar, (1987) 1 SCC 204 the Court held as under:
9. We are of the opinion that no much support can be sought for by the appellant from the said decision. Here in the instant case, the question is whether the respondent who undoubtedly was governed by the Mitakshara school of law, had acquired a right to ancestral property by his birth. But this question has to be judged in the light of the Hindu Succession Act, 1956. Reliance was also placed on State Bank of India v. Ghamandi Ram [MANU/SC/0297/1969:
1969:INSC:39 : (1969) 2 SCC 33]. At p. 686 of the Report (SCC pp. 36-37, para 5), this Court observed that according to the Mitakshara school of Hindu law all the property of a Hindu joint family was held in collective ownership by all the coparceners in a quasi-corporate capacity. The court approved the observations of Mr. Justice Bhashyam Ayyangar in Sundarsanam Maistri v. Narasimhulu Maistri [MANU/TN/0138/1901 : (1901-2) ILR 25 Mad 149, 154 : 11 MLJ 353]. But the question in the instant case is the position of the respondent after coming into operation of the Hindu Succession Act, 1956. Shri Banerji drew our attention to Mulla's Hindu Law 15th, Edn. at p. 924 where the learned commentator had discussed effect in respect of the devolution of interest in Mitakshara coparcenary property of the coming into operation of the Hindu Succession Act, 1956.Page 24 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
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10. This question has been considered by this Court in CWT v.
Chander Sen [MANU/SC/0265/1986 : 1986:INSC:143 :
(1986) 3 SCC 567: 1986 SCC (Tax) 641] where one of us (Sabyasachi 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 coparcenary. 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 separated 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 karta of his own undivided family but takes it in his individual capacity.
At p. 577 to 578 of the Report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn., pp. 924-26 as well as Mayne's Hindu Law, 12th Edn. pp. 918-19. Shri Banerji relied on the said observations of Mayne on Hindu Law, 12th Edn., at p. 918-19. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Page 25 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined th Law, 12 Edn., p. 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house. (emphasis supplied).
46. Further, in Ashnoor Singh v. Harpal Kaur and ors., (2020) 14 SCC 436 the Hon'ble Court has held as following:
7.5 After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self-acquired property and does not remain a coparcenary property.
7.6 If succession opened under the old Hindu law i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a Male hindu from his paternal male ancestor shall be coparcenary property in his hands vis-à-vis his male descendants up to three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956.Page 26 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
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47. Therefore, a conjoint reading of the provisions of law along with the judgments laid down by the Hon'ble Court would show without a shred of doubt that before commencement of the 1956 Act if a property had been impressed with the character of a coparcenary property it remained the same and it would devolve as per Section 6 of the Act. However, if the property was not a coparcenary property before commencement of the 1956 Act and succession opened after 1956 Act of a self-acquired property, it would be transferred only as an individual property and no coparcenary would be created thereafter of such property. Doctrine of Blending
48. There is one more important concept as regards coparcenary property. This phenomenon is doctrine of blending. Simply put, it refers to the phenomenon by which a property is blended with the existing common hotchpotch of coparcenary properties for the common use of the coparcenary. After such deliberate blending, the newly introduced property also partakes the character of coparcenary property in the common hotchpotch.
49. Therefore, this is one exception by which a coparcenary property can be created. However, this is subject to certain conditions which have been well laid down and defined by Hon'ble Apex Court. Page 27 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
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50. One important nuance of this is also that one can mix in a hotchpotch only when a hotchpotch exists. Without the same having existed, there is no hotchpotch with which the individual property can be blended with. Hon'ble Supreme Court in Mallesappa Bandeppa Desai v. Desai Mallappa, MANU/SC/0377/1961 has held as follows:
11. This doctrine, therefore, inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener.
(emphasis supplied).
51. Further, the Delhi High Court in Shri Neeraj Bhatia v. Shree Ravindra Kumar Bhatia, MANU/DE/4729/2024 has laid great emphasis on requirement of existence of a coparcenary property for blending of a new self-acquired in the existing common hotchpotch. It has quoted Mulla on Hindu Law to state as follows:
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35. In Hindu law, the basis of 'doctrine of blending' of self-
acquired property with the coparcenary property by throwing the same into the 'common hotchpotch' or the 'common stock' has a mandatory pre-requisite that the owner of the self- acquired property is himself a coparcener, who has an interest in the coparcenary property and desires to blend his self- acquired property with such a coparcenary property. This 'doctrine of blending' will not be applicable in the absence of the separate existence of a coparcenary and a coparcenary property.
...
35.2 The fundamental basis of the 'doctrine of blending' is thus, the pre- existence of coparcenary and coparcenary property as well as the existence of separate property of a coparcener. These are in fact pre-conditions and had been explained in Mulla on Hindu law in its 24th Edition at Para 225 at Page 340 which reads as under:
"Precondition for blending. -The existence of coparcenary property is essential for blending of a coparcener's separate property with the coparcenary property, since, if there is no coparcenary property, there can obviously be no blending or throwing of self-acquired property into the common stock.
The doctrine of blending of properties cannot be stretched, so as to include properties inherited by a male coparcener from his relations on the maternal side. Such properties would be his separate properties and cannot therefore form a part of the corpus of the coparcenary property, unless, by evidence, it is Page 29 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined established that such separate property has been thrown into the common stock and has been treated as joint property.
52. Moreover, such blending of property must be deliberate and with a clear intention of doing so. Mere permitting use of the property for the family or coparcenary will not attract any presumption of blending.
53. In Angadi Chandranna v. Shankar and Ors., MANU/SC/0528/2025, the Hon'ble Apex Court held as follows:
20. Regarding the doctrine of blending of self-acquired property with joint family, it is settled law that property separate or self- acquired of a member of joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilized out of generosity to support persons whom the holder was either bound or not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness, will not ordinarily be regarded as an admission of a legal obligation [See: Lakkireddi Chinna Venkata Reddy and Ors. v.
Lakkireddi Lakshamama MANU/SC/0246/1963: 1963:
INSC:45: 1964 (2) SCR 172 and K.V. Narayanan v. K.V. Page 30 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined Ranganandhan and Ors. MANU/SC/0528/1976: 1976:
INSC:54: (1977) 1 SCC 244].
54. Therefore, if a property is thrown into an existing common hotchpotch of joint family property with deliberate intention, then that also makes a property attain the character of a coparcenary property.
Necessity and importance of pleadings regarding the nature of property
55. Having noticed the concepts and legal position of ancestral, HUF and coparcenary property, it is important to see whether they can be interchangeably used and their respective legal effect. By necessary implication, it becomes imperative that the nature of property must be pleaded and proved since they cannot be interchangeably used.
56. In law, there is no presumption that a property belongs to an HUF or a coparcenary without there being any legal basis thereof. This proposition is well settled. Merely because there is a HUF existing it does not mean that a property also is presumed to belong to the same. Angadi Chandranna v. Shankar and Ors., MANU/SC/0528/2025, the Hon'ble Apex Court held as follows:
Further, it is a settled principle of law that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there Page 31 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined was nucleus with which the joint family property could be acquired, then there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. That apart, while considering the term 'nucleus' it should always be borne in mind that such nucleus has to be established as a matter of fact and the existence of such nucleus cannot normally be presumed or assumed on probabilities. This Court in R. Deivanai Ammal (Died) v. G. Meenakshi Ammal MANU/TN/2417/2004: AIR 2004 MADRAS 529, dealt with the concept of Hindu Law, ancestral property and the nucleus existing therein. ..."
57. Therefore, it is clear that unless and until there is a nucleus which has been used for purchase of the property, every property cannot be termed to be a property of the HUF merely because the same exists. Therefore, in absence of such presumption, it is necessary that exact pleadings with material particulars must be averred in the Plaint (or respective pleading) for a property to be construed as a joint family or ancestral property.
58. This can be examined from one more angle. Order VI Rule 4 of the Civil Procedure Code, 1908 ("CPC") provides that all material particulars are required to be given in a Plaint. In fact, Courts have also held that averment of the nature of property cannot be averred as a mere mantra. Page 32 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
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59. In Surendra Kumar v. Dhani Ram, (2016) 227 DLT 217, the Delhi High Court has held as follows:
I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order 6 Rule 4, CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhister (supra), there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically, stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such Page 33 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.
60. This principle is all the more important to be followed in view of the fact that post 1956, in absence of an existing coparcenary or property thereof, succession will be governed by Section 8 of the Act. Therefore, a party is obligated to give detailed material particulars and averments regarding the nature, existence, manner and mode of inheritance, etc. In absence of these material pleadings and particulars, there cannot be a presumption in vacuum. In the present case, assuming there is an averment that the property belonged to joint family, the same cannot be made in abstract and bereft of material particulars. Therefore, the statement cannot be a mere ipse dixit.
61. Moreover, in Ved Prakash v. Naresh Kumar and Ors.
MANU/DE/0188/2023 the Delhi High Court held as under:
It was further explained in Sunny (Minor) (Supra) that it is not enough to simply aver in the plaint that the subject property belongs to Hindu Joint Family or that there exists a HUF. The detailed facts as required by Order VI Rule 4 CPC as to when and how the properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be Page 34 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is a known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratio in the cases of Chander Sen (Supra) and Yudhishter (Supra), there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario, a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties. It must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.
62. The Delhi High Court in Premwati and Ors. vs. Bhagwati Devi and Ors.
MANU/DE/4784/2012 has held as follows:
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NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined Therefore, the net effect of reading of the plaint is that there is no averment of existence of a Hindu Undivided Family/Joint Hindu Family prior or after the year 1956. There is also no averment that properties were inherited by Sh. Bal Kishan Dass as HUF or ancestral properties although they were inherited prior to coming of Hindu Succession Act, 1956 into existence. Accordingly, the suit-plaint which only talks of the properties being purchased out of the funds of the business of late Sh. Banwari Lal, cannot be said to have ingredients for seeking partition of the properties of a Hindu Undivided Family/Joint Hindu Family. In fact, as already stated above, there is even no averment that the shareholdings of the defendants No. 7 to 12 companies are the shareholdings of any HUF and no claim/relief is claimed as regards the shareholdings of the defendants Nos. 7 to 12 companies. The suit is therefore barred in terms of the judgments of the Supreme Court in the cases of Commissioner of Wealth Tax (supra) and Yudhishter (supra) as stated above, and especially after passing of the Hindu Succession Act, 1956.
Codification of the Hindu Law (Hindu Succession Act, 1956)
63. Having noted all the concepts of different nature of properties and the legal position thereof, I now proceed to note the important Sections of the Hindu Succession Act and its effect on succession after 1956. Preamble and Section 4 of the Act Page 36 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined
64. A bare perusal of the Preamble of the 1956 Act would show that it was infact codifying and amending the law relating to intestate succession amongst the Hindus. Therefore, two important conclusions follow:
i. The law now stands codified and hence, there can be no other mode of succession save for the ones provided in the Act.
ii. The law is amended and hence, apart from the mode provided in the Act, all other and previous connotations stand amended.
65. This is further fortified by the overriding clause as couched in Section 4 of the Act in the following terms:
4. Overriding effect of Act. ―(1) Save as otherwise expressly provided in this Act,― (a) 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 this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
66. Hence, a given concept of Hindu law as prevalent before codification of the law, shall be (i) codified (ii) amended and (iii) have overriding effect over its previous connotation. In view of the clear provisions of law, it is mandatory to give effect to the provisions in the manner and method as provided in the law without more.
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67. I have already discussed above in detail what is the nature and characteristics of a coparcenary. (See: State Bank of India v. Ghamandi Ram, (1969) 2 SCC 33). Bearing the same in mind, one important aspect to be reiterated is that there can be no creation of a coparcenary by conduct or agreement of parties but simply by operation of law.
68. That being the case, there can be no creation of coparcenary after the enactment of Section 8 in the 1956 Act. This is because, before 1956, self- acquired property would be passed down to the son, who would hold the property as ancestral or joint family property for his son or other coparcenors. However, after 1956, the self-acquired property would pass down and be inherited as self-acquired property only (by virtue of Section
8). (See: Yudhishter (supra), CWT v. Chander Sen (supra) and Arshnoor (supra)).
69. Further, Section 6 of the Act lays down the manner in which the coparcenary property would devolve. One important aspect to be noted is that Mr. Ishwarbhai Patel passed away on 13.01.1993. Hence, the pre 2005 amendment Section 6 would apply in the present case. For ready reference the same is reproduced hereinunder:
"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 coparcenary property, his interest in the property shall devolve by Page 38 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined survivorship upon the surviving members of the coparcenary and not in accordance with this Act :
Provided that, if the deceased had left him surviving 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 the 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.
Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who had 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." It is common ground between the parties that since the present suit was filed only in 1998 and the decree in the said suit was passed on 20.12.2000, that the amendment to Section 6, made in 2005, would not govern the rights of the parties in the present case. This becomes clear from a reading of the proviso (i) to Section 6 of the amended provision which states as follows:-Page 39 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
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"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." From a reading of the aforesaid provision it becomes clear that a partition having been effected by a court decree of 20.12.2000, which is prior to 9th September, 2005, (which is the date of commencement of the Amending Act), would not be affected.
70. Therefore, the following would apply in the present situation:
i. In accordance with the proviso, since the deceased Mr. Ishwar Patel left his widow surviving, the devolution of property would be by intestate succession and not survivorship. In other words, the succession will be in accordance with Section 8.
ii. By virtue of Explanation 1, property shall be deemed to be partitioned right before the passing away of the deceased.
71. Therefore, as per Section 8, all the Class I heirs (which does not include the grandchildren) would simultaneously to the exclusion of the other heirs partake their share in the property.
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72. Hon'ble Supreme Court in Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors. MANU/SC/0407/1978 has held in relation with the deemed parititon as follows:
"13. ... 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 death. That assumption, once made, is irrevocable. In other words, the assumption Raving 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 the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the 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 had separated from one another and had received a share in the partition which had taken place during the life time of the deceased."
73. Therefore, once deemed partition has taken place and effect, one cannot go back and all the heirs receive the property in their share as their property. Page 41 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined Therefore also, in the present case, the Plaintiffs cannot claim the same, even if the property is assumed to be a coparcenary one. Section 8 of the Act
74. Section 8 of the Hindu Succession Act applies to the present case for three reasons:
i. There is no pleading with particulars that the suit property was a coparcenary property. In every other case, property would devolve by intestate succession under Section 8.
ii. Even on assuming that the suit property was a coparcenary property, since the deceased had left a female Class I heir, by virtue of proviso to unamended Section 6, the inheritance would be by intestate succession (under Section 8) and not by survivorship.
iii. Otherwise also, by virtue of Explanation 1 to unamended Section 6, there is a deemed partition between the heirs as if had taken place before death of the deceased.
75. Hence, when Section 8 of the 1956 Act applies to the present case, the inheritance of self-acquired property would partake the character of a self- acquired property of the heir and not joint family property. This position has been amply made clear in Yudhishter (supra), CWT v. Chander Sen (supra) and Ashnoor (supra) amongst many other judgments. Page 42 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined
76. Moreover, even the Delhi High Court in several judgments has categorically laid down that once Section 8 applies to the fact of a case, there is no question of it being a joint family property. In Sunny and Ors. vs. Raj Singh and Ors. MANU/DE/3560/2015 the Court held as under:
As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in-interest from the latter's paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person 'A' inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a self- acquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to 'A'. After passing of the Hindu Succession Act, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the person who inherits the same.Page 43 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined There are two exceptions to a property inherited by such a person being and remaining self-acquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successors-in-interest upto the three degrees would have a right. The second exception to the property in the hands of a person being not self- acquired property but an HUF property is if after 1956 a person who owns a self-acquired property throws the self-acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties...."
77. Further, in Ved Prakash v. Naresh Kumar and Ors., 2023 SCC Online Del 213 the following is held:
21. The above judgments were referred in the case of Sunny (Minor) v. Sh. Raj Singh, CS(OS) No. 431/2006 decided on 17.11.2015 by this Court which arrived at the following conclusions:
"(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance Page 44 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined of an 'ancestral' property but the inheritance is as a self-
acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e. a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of self-acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc. to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc. will have a right to seek partition of the properties.
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(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc. of an HUF was entitled to partition of the HUF property.
78. Therefore, in accordance with Section 8 after enactment of the 1956 Act, there can be no inheritance of joint family property and it will only be inheritance as self-acquired property of the heirs. [See: Yudhishter (supra), CWT v. Chander Sen (supra), Ashnoor (supra), Commissioner of Income Tax v. PL Karuppan Chettiar (1992) 197 ITR 646 SC, Sunny v. Raj Singh CS OS 431 of 2006, Neelam v. Sada Ram, CS OS 823 of 2010, Master Sushant CS OS 1240 of 2003, Rahul Behl v. Ichayan Behl (1991) 21 DRJ 205, Amit Johri v. Dipak Johri CS OS 818 of 2011, et al.]
79. One interesting thing to be noted is that grandson is not mentioned either in Class I or in Class II of the schedule. Therefore, by necessary implication also, it must be understood that there is no vested right of grandson in property of the grandfather [see: CWT v. Chander Sen (supra) Para 24, Radha Bai v. Ram Narayan MANU/SC/1608/2019 Para 20] Order VII Rule 11
80. In the present case as pointed out above, the following is clear. Page 46 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined Non-disclosure of cause of action
81. There is no cause of action for the Plaintiffs to sue the Defendants on the following counts i. Since in the present case, succession has opened after 1956, the property is vested in the heirs as their self-acquired property. ii. There are no pleadings to show as to how is the suit property a joint family or HUF or coparcenary property.
iii. Admittedly, inheritance in the present case is covered by Section 8 of the 1956 Act and hence, no cause of action arises on part of grandchildren to seek partition in grandfather's property.
82. Therefore, there is no cause of action to file the present Plaint and hence, it is required to be rejected on this count alone. In a similar case of Sushant vs. Sunder Shyam Singh, MANU/DE/6206/2012 the Delhi High Court while rejecting the Plaint under Order VII Rule 11 held as under:
2. Prior to passing of the Hindu Succession Act, 1956 if any person inherited ancestral properties, the ancestral properties in his hands automatically were HUF properties and to which the successors by four degrees automatically took a share.
However, after passing of the Hindu Succession Act, 1956 merely because a person receives property from his paternal ancestors, the property in his hands is not an HUF property but the inheritance is as self-acquired property unless at the Page 47 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined time of devolution there existed an HUF. The Supreme Court has specifically laid down this ratio in the judgments in the cases of Commissioner of Wealth Tax Etc. Vs. Chander Sen Etc. MANU/SC/0265/1986 : AIR 1986 SC 1753 and Yudhishter Vs. Ashok Kumar MANU/SC/0525/1986 : AIR 1987 SC 558 by observing that merely because a person who receives ancestral properties after passing of the Hindu Succession Act, 1956, the person who inherits will not receive the properties as HUF properties but as self-acquired properties i.e. ancestral properties did not automatically have the stamp of HUF properties. The only exception would be if a person after receiving self-acquired properties, he creates an HUF and in which case the members of the HUF including the sons would have rights to the HUF properties.
3. In the present case, since the only averments which are mentioned in the plaint are with respect to inheritance of the properties by the defendant i.e. the father of the plaintiff from the grandfather of the plaintiff as ancestral properties, it cannot be said that the plaintiff can have any rights to the properties inherited by the defendant from his own father inasmuch as inheritance of properties by the defendant from his ancestors will only make the properties in the hands of the defendant as self-acquired properties and not HUF properties in view of the ratio of the judgments of the Supreme Court in the cases of Commissioner of Wealth Tax Etc. (supra) and Yudhishter (supra).
4. Accordingly, on the admitted facts contained in the plaint, the plaintiff has no legal right to sue. The plaint since does Page 48 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined not disclose a cause of action, the same is therefore rejected under Order 7 Rule 11 of Code of Civil Procedure, 1908 (CPC). Parties are left to bear their own costs. Since the suit stands disposed of, all the pending applications also stand disposed of.
83. Similarly, there are several other judgments where on this count alone, the Plaint is rejected under Order VII Rule 11 because there is no cause for the grandchildren to seek partition in property of the grandfather or seek cancellation of the sale thereof. [See: Rahul Behl v. Ichayan Behl (1991) 21 DRJ 205]
84. I respectfully agree with the view taken by the Delhi High Court.
Limitation
85. Even assuming if the Plainitff's had any right to seek such declaration, the same has been sought after a period of over 18 years. Therefore, seeking cancellation of sale deed after a period of 18 years is clearly barred by the law of limitation.
86. The present suit comes across as an abuse of process of law having challenged the sale deed of the year 1994 after 18 years. Hence, on this count also, the Plaint is required to be rejected.
87. Article 59 of the Limitation Act reads as under:
To cancel or set aside an Three Years. When the facts entitling the instrument or decree or for plaintiff to have the Page 49 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined the rescission of a contract. instrument or decree cancelled or set aside or the contract rescinded first become known to him.
88. Therefore, present case is a classic case where the plaintiff, by way of clever drafting, has made a ground of cause of action to bring the suit within a period of limitation. The fact remains that the sale-deed has been executed in the year 1994 and the suit has been filed to challenge the said sale-deed. Therefore, as the said sale-deed is registered document, the date of registration becomes the date of deemed knowledge and therefore also the plaintiff's suit is hopelessly time barred. The plaintiff in the plaint has not given any particulars with respect to the said fact and in the present suit the sale-deed were executed on 21.04.1994 and 13.05.1996 and the suit has been filed on 11.09.2012 i.e. after more than 18 years from the execution of the first sale-deed. Moreover, at the time of execution of the sale-deed, plaintiff nos.1 and 3 were adult.
89. Therefore also the plaintiffs cannot claim that benefit of Article 60 of the Limitation Act would apply to them and, therefore, none of the two plaintiffs claim benefit of Article 60 of the Limitation Act. With respect to the claim of plaintiff No. 2, it has been mentioned that he borne on 28.12.1993 and he attained majority in the year 2011 but the fact remains Page 50 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined that in view of the provisions of Section 8 of the Hindu Succession Act, 1956, which are herein-above explained, as the plaintiffs have not pleaded in the plaint that defendant nos.1, 2 and 3 were holding the suit property as co-partioners, the present suit will not lie and is required to be rejected and has rightly been rejected.
90. Therefore, when the main relief in a suit is not maintainable, the consequential relief for injunction also must fail. Hon'ble Apex Court in the case of Padhiyar Prahladji Chenaji (Deceased) through L.Rs. vs. Maniben Jagmalbhai (Deceased) through L.Rs. and Ors. MANU/SC/0272/2022 held as follows:
11. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the Plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining Defendant No. 1 from disturbing her possession can be said to be a consequential relief.
Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by Page 51 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined the High Court. Therefore, once the Plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the Plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the Plaintiff is "not legal or authorised by the law", the Plaintiff shall not be entitled to any permanent injunction.
11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.
91. Therefore, it is clear that the Plaintiff has sought other reliefs as a mere consequential relief, which cannot sustain once the main relief of cancellation of sale deed has been held to be not maintainable. Therefore, Page 52 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined there is no question of the suit being sent for trial when there was no cause of action to seek the main relief of cancellation of the sale deed.
92. Since the main relief of cancellation of the Registered Sale Deed is barred by limitation, the consequential relief is also are barred. Hon'ble. Supreme Court has recently while rejecting a Plaint under Order VII Rule 11, in the judgment of Nikhila Divyang Mehta v. Hitesh P. Sanghvi and ors., 2025 SCC Online SC 779 held as follows:
29. ... It is apparent that the primary relief claimed therein is to declare the Will and the Codicil to be null and void and also all subsequent proceedings thereto. In addition to it, the plaintiff has claimed permanent injunction. The other reliefs are dependent upon the first relief and cannot be granted until and unless the plaintiff succeeds in the first relief. Therefore, once the Plaint or the suit in respect of the main relief stands barred by time, the other ancillary relief claimed therein also falls down.
Conclusion
93. In view of the foregoing discussion and judgments, the following becomes amply clear:
i. There is a presumption that a Hindu family is joint, however, there is no presumption that every property purchased while an HUF exists is a joint family property.Page 53 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025
NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined ii. Coparcenary is the narrower body consisting of the propositus and three members. Coparcenary can never be created by action or conduct of parties but only by operation of law.
iii. If succession opened before 1956, hindus would be governed by Mitakshara law. Whereas if it opened post 1956, then by the codified Hindu Succession Act.
iv. Before 1956, under the Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property. [See: Arshnoor (supra)] v. However, after 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self-
acquired property, and does not remain coparcenary property.
(Section 8). [See: Yudhishter (supra), CWT v. Chander Sen (supra), Arshnoor (supra), Commissioner of Income Tax v. PL Karuppan Chettiar (1992) 197 ITR 646 SC] vi. A coparcenary property (before 1956) shall retain its character even after 1956 as such and devolve as per Section 6 of the 1956 Act. [Arshnoor (supra)] Page 54 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025 NEUTRAL CITATION C/SA/42/2025 CAV JUDGMENT DATED: 10/06/2025 undefined vii. Even under Section 6 succession, if proviso or Explanation to the said section is applicable to the case, then succession would be carried out as per the provisions of Section 8 (and not 6).
viii. In all other situations, intestate succession shall be governed by Section 8 of the 1956 Act. By virtue of this Section, said property becomes his self-acquired property, and does not remain coparcenary property.
ix. Therefore, in no situation (except for a valid and extant coparcenary or joint family property), a grandson can seek partition in the property of the grandfather since it is inherited by his father as his self-acquired property.
94. Therefore, there is no cause of action of grandchildren to seek partition or cancellation of sale deed dated 12.04.1994 and 13.05.1996 in the present situation. Moreover, the present suit is also barred by limitation for seeking cancellation after more than 18 years.
95. Hence, the present Second Appeal is without merits and does not involve any substantial question of law. Hence, the same is hereby rejected.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 55 of 55 Uploaded by MISHRA AMIT V.(HC00187) on Tue Jun 10 2025 Downloaded on : Wed Jun 11 01:03:00 IST 2025