DERHAversusVISHAL & ANR.

                  [2023] 11 S.C.R. 937 : 2023 INSC 785



                            CASE DETAILS

                                  DERHA
                                      v.
                             VISHAL & ANR.
                     (Civil Appeal No. 4494 of 2010)
                          SEPTEMBER 01, 2023
         [C. T. RAVIKUMAR AND SANJAY KUMAR, JJ.]

                              HEADNOTES

     Issue for consideration: High Court, whether justified in partly
allowing the second appeal and reducing the appellant’s share holding that
he would be entitled to 1/6th share in the suit properties.
     Hindu Succession Act, 1956 – ss.6, 8 – One ‘P’ died in 1959 with
surviving interest in Mitakshara coparcenary properties – He left
behind ‘K’ (appellant’s mother), a daughter born through his first
wife and ‘V’ and ‘KB’, a son and a daughter born through his second
wife – In a suit filed by ‘K’ (since deceased) claiming her share in the
coparcenary properties, Trial Court decreed the suit holding that the
appellant was entitled to 1/3rd share therein – First appeal filed by ‘V’
and ‘K’ was rejected – Second appeal filed by them, partly allowed by
High Court – Legality:
      Held: In order to ascertain the shares of the heirs in the property of a
deceased coparcener, the share of the deceased himself in the coparcenary
property is to be ascertained – Explanation 1 to s.6 provides a fictional
expedient that his share is deemed to be the share in the property that would
have been allotted to him if a partition had taken place immediately before
his death – Thus, ‘P’ who had two brothers would have been entitled to 1/3rd
share in the coparcenary properties, if a partition had been effected before
his death – Such a partition was actually effected in 1964 and P’s 1/3rd share
was allotted to his only son, ‘V’ who however, was a coparcener in his own
right in a separate coparcenary with his father and would be entitled to a
share in that coparcenary property by birth – Thus, he would be entitled to
                                     937
938           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


a half-share by birth in the 1/3rd share of the coparcenary properties allotted
as P’s share – The other half-share therein belonged to ‘P’ and as he died
intestate, it would firstly devolve upon his Class I heirs, in terms of s.8 – His
Class 1 heirs, as on the date of his death, were ‘K’, ‘V’ and ‘KB’, his three
children – His half-share would therefore be divided equally amongst them,
i.e. 1/6th each – Thus, in the 1/3rd share of ‘P’ in the coparcenary properties,
‘V’ would be entitled to 4/6th share (1/2+1/6) therein, while ‘K’ and ‘KB’
would each get 1/6th share therein, being entitled to lay claim only to the
half-share of ‘P’ – No reason to interfere with the order of the High Court.
[Paras 11 and 13]
     Practice and Procedure – Stand contrary to pleadings of original
plaintiff – Impermissibility:
     Held: Appellant’s argument that suit properties were not coparcenary
properties but were joint properties held by coparcener ‘P’ and his brothers,
cannot be countenanced as the original plaintiff-‘K’ (appellant’s mother,
P’s daughter born through his first wife) had approached the Trial Court
contending that the suit properties were ancestral properties – Her son
and heir cannot be permitted to take a different stand now, contrary to her
pleadings – Hindu Law. [Para 8]

       LIST OF CITATIONS AND OTHER REFERENCES

     Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and
others (1978) 3 SCC 383: [1978] 3 SCR 761; Shyama Devi (Smt) and others
vs. Manju Shukla (Mrs) and another (1994) 6 SCC 342: [1994] 3 Suppl.
SCR 362 – relied on.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4494 of 2010.
    From the Judgment and Order dated 31.03.2009 of the High Court of
Chhattisgarh at Bilaspur in SA No. 891 of 1999.
      Appearances:
     Manoj Sharma, Kapil Kaushik, Mrs. Kanchan Kaur Dhodi, Advs. for
the Appellant.
                    DERHA v. VISHAL & ANR.                                939


     Ms. Richa Kapoor, Kunal Anand, Ms. Tusharika Sharma, Ms. Shisham
Pradhan, Advs. for the Respondents.

       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT
     SANJAY KUMAR, J.
      1. Tried and tested many times over, the issue of succession to
Mitakshara coparcenary property continues to raise its head time and again
like an undying Hydra of Lerna. The case on hand is one such instance.
     2. Phannuram Sahu died on 22.06.1959 with surviving interest in
Mitakshara coparcenary properties, being agricultural land admeasuring
24.64 acres in Village Dhaneli along with house properties. He left behind
Kesar Bai, a daughter born through his first wife, Dukalhin Bai, along with
Vishal and Keja Bai, a son and a daughter born through his second wife,
Ganga Bai. Both his wives predeceased him.
      3. It was the case of Kesar Bai that a partition was effected on
12.03.1964 amongst Vishal; Ramnath, Phannuram’s nephew; and Manbat
Bai, Phannuram’s sister-in-law. Having received Phannuram’s 1/3rd share in
the coparcenary properties, Vishal rejected Kesar Bai’s demand for partition
and allotment of her individual share therein. Kesar Bai thereupon instituted
a partition suit, which came to be numbered as Civil Suit No. 146A of 1991
on the file of the learned First Civil Judge, Division-II, Raipur. Therein, she
claimed her share in the coparcenary properties along with mesne profits.
During the pendency of the suit, Kesar Bai died on 17.06.1988 and her son,
Derha Ram, the present appellant, succeeded to her estate under registered
will dated 16.12.1980.
      4. Upon considering the issues settled for trial and on the strength
of the evidence, oral and documentary, the Trial Court decreed the suit
on 06.11.1996, holding that Derha was entitled to 1/3rd share in the suit
scheduled agricultural land and a 1/3rd share in two house properties. The
Trial Court also held him entitled to mesne profits @ ₹400 per annum from
1979 till separate possession was delivered to him.
940          SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      5. Aggrieved by the Trial Court’s judgment and decree, Vishal and Keja
Bai filed Civil Appeal No. 6A of 1998 before the learned District Judge-III,
Raipur. However, by Order dated 13.04.1999, the Appellate Court dismissed
the appeal in toto.
      6. The matter was then carried in appeal by Vishal and Keja Bai to the
High Court of Chhattisgarh in Second Appeal No. 891 of 1999. By judgment
dated 31.03.2009, the High Court partly allowed the second appeal and held
that Derha would be entitled to 1/6th share in the suit properties, i.e., the
agricultural land and two dwelling houses. Aggrieved by the reduction of
his share, Derha filed the present appeal by special leave.
     7. By Order dated 09.10.2009, this Court directed status quo obtaining
as on that date to be maintained by both parties.
      8. A feeble attempt was made by the learned counsel for the appellant
to contend that the suit properties were not coparcenary properties but were
joint properties held by Phannuram and his brothers. However, this argument
cannot be countenanced as the original plaintiff, Kesar Bai, had approached
the Trial Court contending that the suit properties were ancestral properties.
Her son and heir cannot be permitted to take a different stand now, contrary
to her pleadings. Further, the argument that Manbat Bai, Phannuram’s sister-
in-law, would not have been allotted a share in the partition on 12.03.1964
had the properties been coparcenary properties, needs mention only to be
rejected. The said partition was never subjected to challenge and without
details as to when Manbat Bai’s husband died, this Court cannot venture an
opinion on whether allotment of a share to her in that partition was lawful. In
any event, allotment of a share to her would not have the effect of branding
the properties in question as being other than coparcenary properties. More
so, as Kesar Bai herself filed a suit claiming that the properties in which she
wanted a share were ancestral properties.
       9. Once it is held that the properties which were the subject matter of
the partition suit were coparcenary properties, the only issue that remains
is as to how the said properties were to be divided amongst the legal heirs
of Phannuram upon his death in 1959, i.e., after the advent of the Hindu
Succession Act, 1956 (for brevity, ‘the Act of 1956’). Section 6 of the Act
of 1956 would govern the situation, as rightly observed by the Chhattisgarh
High Court. Section 6 of the Act of 1956, as it then stood, states that when a
                    DERHA v. VISHAL & ANR.                                941
                      [SANJAY KUMAR, J.]

male Hindu died after the commencement of the Act of 1956, having at the
time of his death an interest in Mitakshara coparcenary property, his interest
in that property shall devolve by survivorship upon the surviving members of
the coparcenary. However, the proviso thereto states that, if the deceased left
behind him a surviving female relative specified in Class I of the Schedule
or a male relative specified in that class who claimed through such female
relative, the interest of the deceased in the Mitakshara coparcenary property
shall devolve by testamentary or intestate succession, as the case may be,
under the Act of 1956 and not by survivorship. Explanation 1 clarified that,
for the purposes of Section 6, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted
to him if a partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim such partition or not.
      10. Section 8 of the Act of 1956 elaborates on intestate succession
in the case of males. It provides that a property of a male Hindu, dying
intestate, shall devolve firstly, upon Class I heirs; secondly, upon Class II
heirs; thirdly, if there is no heir of any of the two Classes, upon the agnates
of the deceased; and lastly, if there is no agnate, then upon the cognates of
the deceased.
      11. In Gurupad Khandappa Magdum vs. Hirabai Khandappa
Magdum and others [(1978) 3 SCC 383], a 3-Judge Bench of this Court
dealt with Section 6 of the Act of 1956 in depth. It was held therein that,
in order to ascertain the shares of the heirs in the property of a deceased
coparcener, the first step is to ascertain the share of the deceased himself
in the coparcenary property and Explanation 1 to Section 6 provides a
fictional expedient, namely, that his share is deemed to be the share in the
property that would have been allotted to him if a partition had taken place
immediately before his death. It was pointed out that once that assumption
has been made for the purpose of ascertaining the share of the deceased,
one cannot go back on the assumption and ascertain the shares of the heirs
without reference to it, and all the consequences which flow from a real
partition have to be logically worked out, which means that the shares of
the heirs must be ascertained on the basis that they had separated from one
another and had received a share in the partition which had taken place
during the life-time of the deceased. In effect, the Bench held that the
942            SUPREME COURT REPORTS                         [2023] 11 S.C.R.


inevitable corollary of this position is that the heir will get his or her share
in the interest which the deceased had in the coparcenary property at the
time of his death, in addition to the share which he or she received or must
be deemed to have received in the notional partition.
     12. This principle finds affirmation in Shyama Devi (Smt) and others
vs. Manju Shukla (Mrs) and another [(1994) 6 SCC 342] and several other
decisions of this Court and various High Courts across the country.
      13. Applying this principle, the share of Phannuram would first have
to be determined as on the date of his death. He seems to have had two
brothers and would have been entitled to a 1/3rd share in the coparcenary
properties, if a partition had been effected before his death. In fact, such a
partition was actually effected in 1964 and Phannuram’s 1/3rd share was
allotted to his only son, Vishal. However, Vishal was a coparcener in his
own right in a separate coparcenary with his father and would be entitled to
a share in that coparcenary property by birth. Therefore, he would be entitled
to a half-share by birth in the I/3rd share of the coparcenary properties that
was allotted as Phannuram’s share. The other half-share therein belonged to
Phannuram and as he died intestate, it would firstly devolve upon his Class
I heirs, in terms of Section 8 of the Act of 1956. His Class 1 heirs, as on the
date of his death, were Kesar Bai, Vishal and Keja Bai, his three children.
His half-share would therefore be divided equally amongst the three of
them, i.e., 1/6th each. In consequence, the final division of the 1/3rd share of
Phannuram in the coparcenary properties would be as follows: Vishal would
be entitled to 4/6th share (1/2+1/6) therein, while his sisters, Kesar Bai and
Keja Bai, would each get 1/6th share therein, as they would be entitled to
lay claim only to the half-share of Phannuram. As this is exactly what the
Chhattisgarh High Court did and directed, we see no reason whatsoever to
interfere in the matter.
      14. The Civil Appeal is devoid of merit and is accordingly dismissed.
      Interim order dated 09.10.2009 shall stand vacated.
      In the circumstances, parties shall bear their own costs.


Headnotes prepared by:                                          Appeal dismissed.
Divya Pandey