Derha vs Vishal & Anr.

Court

Supreme Court of India

Date

1 September 2023

Case No.

Civil Appeal No. 4494 of 2010

Result

Dismissed

Bench

C.T. Ravikumar, Sanjay Kumar

Citation

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

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:

Headnote

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 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.

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 da

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