[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 justifi ed 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 fi rst wife and ‘V’ and ‘KB’, a son and a daughter born through his second wife – In a suit fi led 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 fi ctional 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 fi rstly 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 diff erent 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 eff ected 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 fi le of the learned First Civil Judge, Division-II, Raipur. Therein, she claimed her share in the coparcenary properties along with mesne profi ts. 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 profi ts @ ₹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 diff erent 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 fi led 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 specifi ed 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 fi rst 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 eff ect, 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 fi nds 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 fi rst 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 eff ected 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 fi rstly 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

[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 justifi ed 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 fi rst wife and ‘V’ and ‘KB’, a son and a daughter born through his second wife – In a suit fi led 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 fi ctional 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 fi rstly 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 diff erent 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 eff ected 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 fi le of the learned First Civil Judge, Division-II, Raipur. Therein, she claimed her share in the coparcenary properties along with mesne profi ts. 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 profi ts @ ₹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 diff erent 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 fi led 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 specifi ed 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 fi rst 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 eff ect, 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 fi nds 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 fi rst 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 eff ected 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 fi rstly 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