DERHA V. VISHAL 2023 INSC 785

FACTS

1. This is a case related to the issue of succession to Mitakshara Coparcenary property. Phannuram Sahu who died on 22.06.1959 with surviving interest in Mitakshara Coparcenary properties which were agricultural land admeasuring 24.64 acres along with house properties in the village Dhaneli. He left behind a daughter, Kesar Bai from his first wife, Dukalhin Bai, and a son Vishal and another daughter Keha Bai from his second wife. Both his wives died before him.

2. A partition was effected amongst Vishal, Ramnath who was Phannuram’s nephew and Manbat, sister in law of Phannuram received ⅓rd share in the Coparcenary properties. Vishal rejected her sister’s Kesar Bai’s demand for partition. Thereupon, Kesar Bai filed a partition suit numbered as Civil suit no. 146A of 1991. In the suit she claimed her sherr in the Coparcenary properties along with mesne profits. Kesar Bai died on 17.06.1998 and her son Derha Ram, who succeeded her estate under Will, registered on 16.12.1980.

3. Upon considering all the issues settled for trial and on the basis of evidence, oral and documentary, the trial court on 06.11.1996 held that Derha was entitled to ⅓rd share in the agricultural land and a ⅓rd share in two house properties. He was also entitled to mesne profits of Rs. 0.400/- per annum from 1979 till he got separate possession. Aggrieved by this, the matter was further carried in appeal by Vishal and his sister Keja Hai to the High court of Chhattisgarh. The High court partly allowed the second appeal by judgement dated 31.03.2009, and held that Derha would be entitled to only ⅙th share in agricultural land and two dwelling houses. Derha was aggrieved by this reduction; he filed this present appeal.

ISSUES:

1. Whether the suit is maintainable or not?

2. Whether section 6 of Hindu Succession Act, 1956 would apply here, to decide the division of properties?

ARGUMENTS OF APPELLANT:

The learned counsel for the appellant contended that the properties in dispute were not Coparcenary properties but were joint properties held by Phannuram and his brothers. However, this argument holds no gravity because Kesar Bai, in the Trial court has contended that the properties were ancestrals property. Further, the issue according to learned counsel was the position of Manbat Bai in the partition of Coparcenary properties.

ARGUMENTS OF RESPONDENTS:

The respondent herein contended that, the findings and the order of the high court is to be appreciated and no interference is required with the order of the High court as was mentioned above. Thus, the order of the above court needs no interference and modifications regarding the shares on Coparcenary properties.

JUDGEMENT:

SANJAY KUMAR, J.

• The court held that, it is rightly observed by the Chhattisgarh High court that this situation would be governed by Section 6 of the Hindu Succession Act, 1956. Sec 6 states that on the death of a male Hindu after the commencement of this Act, at the time of his death having interest in Mitakshara Coparcenary property, then that interest shall devolve by survivorship upon the surviving members of the Coparcenary. However, the proviso of the Act states that, if the deceased has a surviving female relative as specified in Class 1 of the Schedule or a male relative specified in Class 1 who claimed through such female relative, the interest of the deceased has to be devolve by intestate succession or testamentary, and not by survivorship. Section 8 of the Act defines intestate succession in the case of males.

• This Hon’ble court referred to the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum & ors.^[1], In which it was held that to ascertain the share of the members of Coparcenary properties, the share of the deceased has to be determined. The share of the heirs has to be ascertained on the basis of their separation from one another and if they had received a share in the partition taken place during the lifetime of the deceased.

• Applying the principle of Shyama Devi & ors. V. Manju Shukla & anr.^[2] And several other references to different cases, the share of Phannuram firstly is to be determined by the date of his death. He had two brothers, thus, each of them would be entitled to ⅓rd share in the Coparcenary properties. Vishal was a Coparcenary in a totally separate Coparcenary from his father by birth. He would be entitled to a ½ share by birth in the ⅓rd share of his father’s share. The other ½ share belonging to Phannuram would firstly devolve upon Class 1 heir as per Section 8, whose were Kesar Bai, Vishal Keja Bai as on his date of death. Now, his half share would be divided equally amongst them i.e. ⅙th each.

• Finally, Vishal would be entitled to 4/6th share (½ + ⅙), while both his sisters, would be entitled to get ⅙th share each. This was exactly held by the Chhattisgarh High court, the court said they do not see any reason to interfere with the matter.

This Civil Appeal thus, Dismissed. The parties shall bear their own costs.

REFERENCES:

https://www.advocatekhoj.com/library/judgments/announcement.php?WID=16750#:~:text=In%20effect%2C%20the%20Bench%20held,received%20in%20the%20notional%20partition

https://main.sci.gov.in/case-status

This article is written by Deepanshi Srivastava of Shambhunath Institute of Law, Legal intern at legal Vidhiya.

^[1] [(1978) 3 SCC 383]

^[2] [(1994) 6 SCC 342]

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