Chattisgarh High Court

Smt. Pilabai vs Smt. Murti Meenapal on 22 April, 2025

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                                                    2025:CGHC:18206
                                                                  NAFR

             HIGH COURT OF CHHATTISGARH AT BILASPUR


                              SA No. 466 of 2022

1 - Smt. Pilabai W/o Late Halaluram Kosariya Aged About 68 Years Caste
Dhimar Agriculturist R/o Main Road Village Govindpur Tahsil Kanker District
North Baster Kanker (C.G.)


2 - Deokaran S/o Late Halaluram Kosariya Aged About 46 Years Caste
Dhimar Agriculturist R/o Main Road Village Govindpur Tahsil Kanker District
North Baster Kanker (C.G.)


3 - Gaukaran S/o Late Kalaluram Kosariya Aged About 43 Years Caste
Dhimar Agriculturist R/o Main Road Village Govindpur Tahsil Kanker District
North Baster Kanker (C.G.)


4 - Girdhar S/o Late Halaluram Kosariya Aged About 39 Years Caste Dhimar
Agriculturist R/o Main Road Village Govindpur Tahsil Kanker District North
Baster Kanker (C.G.)


5 - Omprakash S/o Late Halaluram Kosariya Aged About 32 Years Caste
Dhimar Agriculturist R/o Main Road Village Govindpur Tahsil Kanker District
North Baster Kanker (C.G.)
                                                            ... Appellants
                                   versus


1 - Smt. Murti Meenapal D/o Late Halaluram Kosariya W/o Trilok Meenapal
Aged About 50 Years Caste Dhimar R/o Nayapara Gokulpur Tahsil Dhamtari,
District : Dhamtari, (C.G.)
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2 - Smt. Tulsi Dhimar D/o Late Halaluram Kosariya W/o Santosh Dhimar
Aged About 36 Years Caste Dhimar, R/o Matth Mandir Chowk Baniyapara
Tahsil Dhamtari, District : Dhamtari, (C.G.)


3 - Gauri D/o Late Halaluram Sosariya Aged About 35 Years Caste Dhimar
R/o Main Road Govindpur Tahsil Kanker District North Baster Kanker (C.G.)


4 - State Of Chhattisgarh Through Collector Kanker, District North Baster
Kanker (C.G.)
                                                               ... Respondents

For Appellant : Mr. Nishant Kumar Sharma, Advocate. For Respondents No. 1 & 2 : Mr. Hemant Kumar Agrawal, Advocate. For Respondent No. 4 : Mrs. Mukta Tripathi, Panel Lawyer

Hon'ble Mr. Justice Naresh Kumar Chandravanshi

Order on Board

22/04/2025

1. This second appeal under Section 100 of the Code of Civil Procedure,

1908 has been preferred challenging impugned judgment & decree dated

06.09.2022 passed by First Upper District Judge, North Baster, Kanker in

Civil Appeal No. 05/2021 affirming the judgment & decree dated 31.08.2021

passed by First Civil Judge, Class-I, Kanker in Civil Suit No. 41-A/2017,

whereby civil suit filed by respondents No. 1 & 2/plaintiffs has been allowed

and decree has been granted in their favour.

[For the sake of convenience, parties would be referred to as per their

status shown and ranking given in the plaint filed before the trial Court]

2. This second appeal has been admitted for hearing on the following

substantial question of law :-

" Whether the plaintiffs during the lifetime of their father

Halaluram Kosariya can file a suit for partition of the

ancestral property, which has been inherited by the

Halaluram from his father ?"

3. Facts of the case, as projected by the plaintiffs, are that they filed civil

suit stating inter alia that both the parties are descendants of late Ghasiaram.

Following genealogy tree would demonstrate relationship among the parties:-

?kafl;kjke ¼e`r½ A gykywjke ¼izfroknh Øa-1½ e`r A ihykckbZ iRuh ¼izfroknh Øa-2½ A&&&&&&&A&&&&&&&A&&&&&&&A&&&&&&&&A&&&&&&&A&&&&&&&A&&&&&&&&A Jherh eqfrZ nsodj.k xkSdj.k Jherh rqylh fxj/kj JherhxkSjh vkseizdk'k y{eh ¼oknuh Øa-1½ ¼izfr-Øa-3½ ¼iz-ok-Øa-4½ ¼oknuh Øa-2½ ¼izfr-Øa-5½ ¼izfr-Øa-8½ ¼izfr-Øa-6½ ¼izfr-Øa-7½

Thus, the plaintiffs and defendants No. 2 to 6 are sons & daughters of

original defendant No. 1 Halaluram (now dead), who received the suit

property mentioned in paragraph 4 of the plaint situated at village Thelkabod,

Tahsil & District Kanker (C.G.) from his father Ghasia Ram, as such, the suit

property was ancestral property of the plaintiffs, but they were not given share

on suit property by their brothers/defendants, therefore, plaintiffs filed civil suit

for grant of their share to the extent of 1 / 10th - 1 / 10th each and also sought

relief of declaration of their title and possession after partition of the suit

property.

4. Defendants No. 2 to 6 filed their written statement, in which, they

admitted relationship between the parties. They also admitted that suit

property was inherited by Halaluram from his father Ghasia Ram, but after

death of Ghasia Ram, defendants have perfected their title over the same by

way of adverse possession, as even after claim of plaintiffs, share of suit

property was not given to them and defendants No. 2 to 6 are in possession

on it prior to 34-35 years since death of Ghasia Ram. They have further

pleaded that suit property was bequeathed by Halaluram vide registered Will

dated 23.03.2015 (Ex.D-1) in favour of defendants No. 2 to 6, as such, the

plaintiffs are not entitled to get any relief.

5. Based on pleading of both the parties, learned trial Court framed as

many as six issues and recorded evidence adduced by both the parties and

after considering the same, granted decree in favour of plaintiffs. First Appeal

bearing Civil Appeal No. 05/2021 was dismissed by the appellate Court

affirming the judgment & decree passed by the trial Court. Against which,

instant second appeal has been preferred by the appellants/defendants

questioning the same.

6. Learned counsel appearing for the appellants / defendants would

submit that though suit property was obtained by Halaluram from his father

Ghasia Ram, but he received the same after death of Ghasia Ram, as such,

it became self acquired property of Halaluram, therefore, in the life time of

Halaluram, plaintiffs, who are his daughters, cannot claim partition, but instant

suit was filed by plaintiffs in life time of Halaluram, therefore, the suit was not

maintainable. However, he submits that after filing of civil suit and prior to

filing of written statement, Halaluram has died. He further submits that

Halaluram has bequeathed suit property in favour of defendants No. 2 to 6

vide registered Will dated 23.03.2015 (Ex.D-1), as such, defendants

No. 2 to 6 have obtained absolute right over the suit property, hence, on this

count also the plaintiffs are not entitled to get any share on it. He placed

reliance upon the judgment of the Supreme Court in the matter of

Commissioner of Wealth Tax, Kanpur, etc.etc. vs. Chander Sen etc. 1,

Yudhishter v. Ashok Kumar2, Radha Bai vs. Ram Narayan & others3 ,

State of Bihar & others vs. Sri Radha Krishna Singh and others 4, The

Principal Secretary, Revenue Department, State of Telangana & Another

Vs. B. Rangaswamy (Dead) By Lrs. & others 5 and Meenakshiammal

(Dead) Through Lrs. And Ors. Vs. Chandrasekaran and others 6, in

support of his submissions.

7. Per contra, learned counsel for respondents No. 1 & 2/plaintiffs would

submit that suit property was obtained by Halauram from his father Ghasia

Ram, as such, the plaintiffs are grand-daughters of Ghasia Ram, as such, as

per Section 6 of the Hindu Succession Act, 1956, they obtained co-parcenary

right over the suit property, hence, they are automatically entitled to get

partitioned of suit property even in the life time of their father Halalu Ram. He

further submits that coparcenary right accrues to the child born in Mitakshara

joint family property from his / her birth and vide judgment rendered by Apex

Court in that matter of Vineeta Sharma vs. Rakesh Sharma7, their Lordships

of the Supreme Court have held that, daughters are to be given share in

coparcenary property equal to that of a son even in pending proceedings for

final decree or in an appeal. As such, the plaintiffs are entitled to file suit for

partition even in life time of their father. He further submits that during

pendency of civil suit and prior to filing written statement, Halaluram expired,

hence, in this count also, plaintiffs entitled to claim their share over the suit

1 (1986) 3 SCC 567 2 AIR 1987 SC 558 3 2020 (19) SCC 513 4 AIR 1983 SC 684 5 2022 (16) SCC 264 6 2005 (1) SCC 280 7 2020 (9) SCC 1

property. He further submits that, though defendants have filed Will dated

23.03.2015 (Ex.D-1) allegedly executed by Halaluram in favour of defendants

No. 2 to 6, but that has not been proved by plaintiff in accordance with law, as

both the attesting witnesses namely Tulsiram (PW-3) and Krishna Jain

(PW-4) have clearly stated that while taking their signature on the said

document, all the papers / pages were not enclosed with it, rather only the

page, in which, their signature was obtained, was there. Even, they have

denied that the Will (Ex.D-1) was executed before them. Hence, second

appeal filed by the defendants is liable to be rejected.

8. I have learned counsel appearing the parties and perused the record of

trial Court as well as appellate Court.

9. Undisputedly, both the parties are descendants (grand sons & grand

daughers) of Ghasia Ram and their father Halaluram Kosariya was the son of

Ghasia Ram. It is also not in dispute that suit property was succeeded by

Halaluram Kosariya from his father Ghasia Ram, as such, suit property

became coparcenary property of plaintiffs in view of amended provisions of

Section 6 of the Hindu Succession Act [Amendment Act, 2005] and judgment

rendered by the Supreme Court in the matter of Vineeta Sharma vs. Rakesh

Sharma (supra), wherein the Supreme Court has specifically held that

daughters are also entitled to get equal share and coparcenary right on the

ancestral property as of son or male member.

10. Thus, on the strength of amended provisions of Section 6 of the Hindu

Succession Act, 1956 and judgment rendered by the Supreme Court in the

matter of Vineeta Sharma vs. Rakesh Sharma, contention of learned

counsel for the appellant that suit property was not coparcenary property of

plaintiffs or they were not having coparcenary / successory right over the suit

property, is not sustainable.

11. It was further contention of learned counsel for the

appellants/defendants that since suit property was inherited by Halaluram

Kosairya after death of his father Ghasia Ram, therefore, it was self acquired

property of Halaluram Kosariya, is also not sustainable, because, though

after partition, immovable property obtained by a person, became his self

acquired property so long only, his children are not borne, as soon as a child

is born, the property becomes a coparcenary property.

12. In the case of Rohit Chauhan v. Surinder Singh & Ors.8, Hon'ble

Supreme Court has held as under :-

"11. .................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 commencement of 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 8 (2013) 9 SCC 419

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."