Jharkhand High Court

Kisto Sahu vs Fulmani Devi on 23 February, 2022

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    S.A. No. 184 of 2006
1. Kisto Sahu
2. Gita Devi
3. Anita Devi                          ....    .... Appellants
                           Versus
1. Fulmani Devi
2. Sitamuni Devi
3. Saraswati Devi
4. Satpati Devi                        ....  .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Arshad Hussain, Advocate For the Respondents : Mr. Atanu Banerjee, Advocate

C.A.V. ON 07.02.2022 PRONOUNCED ON 23 /02/2022

1. The appellants are the plaintiffs who have preferred the instant appeal against the judgment of reversal passed by the Additional District Judge, Simdega in Title Appeal No. 27 of 1998 whereby and whereunder, the learned appellate Court has reversed and set aside the judgment and decree passed in Partition Suit No. 30 of 1991.

2. Plaintiffs brought the suit for 1/2th share in the joint family property described in the Schedule by partition.

3. As per the case of the plaintiff the suit land fully detailed in Schedule A was recorded in the name of Banmali Sahu and was succeeded by his sons Shivcharan Sahu and Brajmohan Sahu. The property was not partitioned by metes and bounds though for convenience they lived separately. Shivcharan Sahu died on 25.08.1978 leaving his daughter Parwati Devi who died in the year 1990 leaving behind her husband Kristo Sahu Plaintiff no.1 and two daughters Anita Devi and Gita Devi as her heir and successor.

4. Plaintiff No. 1, Kristo Sahu is the husband and plaintiff No. 2, Gita Devi is the daughter of deceased Parwati Devi. It is further case of the plaintiffs that Shivcharan Sahu had sold some land under his possession described in Schedule-B to his daughter Parwati Devi on 29.06.1975 and Parwati Devi and Kristo Sahu also sold some land out of it to different persons as shown in Schedule-C of the plaint. The suit land was joint property of both the parties and they are entitled to half share each. When the demand for partition was not heeded the present suit was filed.

5. The case of defendant No. 1 Brajmohan Sahu is that the plaintiff is not in possession of the suit land and partition suit has been filed under the garb of Title Suit. It is the case of the defendant that Shivcharan Sahu died in the year 1952, hence plaintiffs and defendant No. 2 cannot claim any right, title and possession over the suit land. It has been disputed that Shivcharan Sahu and Brajmohan Sahu were full brothers and had not partitioned the suit land. It has been admitted that Parwati Devi died in the year 1989 but contended that her property was not inherited by her two daughters.

6. On the basis of the pleadings of the parties the following main issues were framed:

ii) Whether the suit lands are ancestral lands of plaintiffs and defendants?

iv) Whether there has been any partition of the suit lands between plaintiffs and defendants?

viii) When did Shivcharan Sahu die, in the year 1978 or in the year 1952?

7. The learned Trial Court answered all these issued in favour of the plaintiffs and decreed the suit on the following grounds: Firstly, it has been admitted by the defendants that Banmali Sahu was a recorded tenant of the suit land and he had two sons namely Brajmohan Sahu and Shivcharan Sahu (Exhibit-3 series) are the certified copy of Khatiyan which shows that the land under Khata Nos. 156, 226, 225 were recorded in the name of Banmali Sahu which has been corroborated by oral evidence.

Secondly, in the written statement it has been admitted that there has not been any partition between both the parties. Thirdly, on issue No. 8 regarding the question of death of Shivcharan Sahu in the year 1978 or in the year 1952, the documentary and oral evidence has supported the case of the plaintiff that Shivcharan Sahu died in the year 1978. It has been deposed by the plaintiffs that his father-in-law Shivcharan Sahu on 29.06.1975 had sold the land detailed in Schedule-B to his daughter Parwati Devi. Part of that land was also sold by Parwati Devi to different persons as detailed in Schedule-C. After the sale, land was duly mutated in her name and in that regard the correction slip and the revenue receipts have been adduced into

evidence and marked as Exhibit-2, Exhibit-4 series. Fourthly, Shivcharan Sahu died in the year 1978 after coming into force of the Hindu Succession Act, 1956 and thereby Parwati Devi and after her death her husband Kristo Sahu and her daughters inherited the property of Shivcharan Sahu.

8. The learned Appellate Court concurred with the finds of fact recorded by the learned Court below that Shivcharan Sahu died in the year 1978. Further, it has been held that by operation of Section 14 of the Hindu Succession Act, Parwati Devi acquired full ownership over the suit property. 'Property' includes that obtained by inheritance as per Explanation to S/14.

9. The appeal by the defendants was allowed and the suit for partition was dismissed on the ground that partition cannot be demanded unless one is a coparcener of Hindu Mitakshara School. The plaintiff being the son-in-law was not a coparcener, therefore, he cannot demand partition in the joint Hindu family and as per Section 16 of the Hindu Succession Act it would devolve upon the sons and daughter and the husband.

10. This appeal has been admitted on the following substantial questions of law:

I. Whether after the death of Parwati Devi her successor can claim partition in the joint family property even though the female coparcener had not demanded partition during her life time? II. Whether 2005 Amendment of the Hindu Succession Act will have application in the present case?

11.The genealogy is not in dispute that Banmali Sahu was the recorded tenant of the suit land had two sons Shivcharan Sahu and Brajmohan Sahu (Defendant no.1). Shivcharan Sahu had one daughter Parwati Devi who died leaving behind her heir and Anita Devi (Defendant no.2) and Gita (Plaintiff no.2). Plaintiff no.1 Kristo Sahu is the husband of Parwati Devi. For better appreciation the genealogy is set out below:

Banmali Sahu

Seo Charan Sahu Brajmohan Sahu

Parbati Devi (d) Kristo Sao (h)

Anita Devi Gita Devi

12. The main question of fact whether Shiv Charan Sahu had died after coming into force of the Hindu Succession Act 1956 and by operation of Section 6 his daughter Parwati Devi had acquired interest in the joint family property has been answered in favour the Plaintiffs and Defendant no.2 that he died some time in 1978.

13. In order to appreciate the legal position it will be desirable to set out the relevant provisions of Hindu Succession Act 1956 as it originally stood and that after the 2005 Amendment Act:

Under S/6 of the succession Act ---- When a male Hindu dies after the commencement of this Act having at the time of his death an interest in a Mitakshra Coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that if the deceased had left surviving him a female relative specified in Class I of the schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be and not by survivorship.

Explanation I- For the purposes of this Section, 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 partition or not. Explanation II- Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. AFTER THE 2005 AMENDMENT

6. Devolution of interest in coparcenary property.--(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre- deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.--For the purposes of this sub-section, 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 partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu Law, of such son, grandson or great- grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect--

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.--For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]

14. Even before the 2005 Amendment to the Act 1956, in terms of Section 6 when a male Hindu died after the commencement of this Act having at the time of his death an interest in a Mitakshra Coparcenary property died, leaving behind a female relative specified in Class I of

the schedule or a male relative ,specified in that class who claims, through such female relative, the interest of the deceased in Mitakshara coparcenary property to devolve by testamentary or intestate succession as the case may be and not by survivorship. The interest of Shivcharan Sahu thus devolved on Parwati Devi by inheritance and she became full owner of the property.

It has been held in Arshnoor Singh v. Harpal Kaur, (2020) 14 SCC 436 "Post 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self-acquired property, and does not remain coparcenary property. If succession opened under the old Hindu law i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-à- vis his male descendants up to three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956".

14. After the 2005 Amendment Act the daughters having been admitted into coparcenary acquired coparcenary right to claim partition in the joint family property. The question concerning the interpretation of section 6 of the Hindu succession act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 has been settled by Hon'ble the Supreme Court in (2020) 9 SCC 1 Vineeta Sharma Vs Rakesh Sharma wherein the following proposition of law has laid down: I. Section 6 of the HS Act, 1956 deals with devolution of interest in coparcenary property of a joint Hindu family governed by Mitakshara Law. The originally enacted provision of section 6 excluded the rule of succession concerning Mitakshara coparcenary property. It provided that the interest of a coparcener mail Hindu who died after the commencement of the 1956 Act, shall be governed by survivorship upon surviving members of the coparcenary. The exception was provided by the proviso to section 6 that if the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims to such female relative, the interest of such coparcener cell devolved by testamentary or intestate succession, as the case

may be, in order to ascertain the share of decreased coparcener, the partition has to be deemed before his death. Explanation to this entitles the separated person from making any claim in case of intestate succession.

II. The substituted provisions of Section 6(1) of the H.S. Act 1956, provide that on and from the commencement of 2005 Amendment Act, the daughter is conferred the right of a coparcener. Section (1)(a) makes doubted by birth a coparcener " in her own right" and "in the same manner as the son". Section (1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 1(b) confers the same rights in the coparcenary property "as she would have had if she had been a son".

III. As the right is by birth and not by inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the debt of a father or other coparcener. Thus, as the daughter has not been conferred the rights of coparcener by obstructed heritage (where right depends upon owner's death), it is not at all necessary that father or the daughter should be leaving as one the date of the amendment that is 9.9.2005. It is not necessary that there should be leaving coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that that of a son by taking birth before or after the amendment act of 2005.

15. In the above stated position of fact and law in the present case after the death of Shivcharan Sahu his coparcenary interest devolved on his daughter Parwati Devi by inheritance and after her death on her husband (plaintiff no.1) Anita Devi (Defendant no.2) and Gita Devi (Plaintiff no.2) by inheritance under Section 15 and 16 of the H.S. Act, 1956. Both of them, by birth become a coparcener in her own right with all concomitant rights in terms of Section 6 of the Hindu Succession Act 1956 in the property of her mother.

16. Both the substantial questions are, therefore, answered in favour of plaintiff no.2.

17. In a suit for partition every party whether a plaintiff or a defendant is

in the position of a plaintiff for the purposes of apportionment of shares and it is the duty of Court to avoid any multiplicity of proceeding to apportion the share with clarity of each of the party in the preliminary decree. Plaintiff no.1 and 2 had the right to claim partition, and shall be entitled to equal share in view of Section 15 of the Hindu Succession Act 1956. Both plaintiff nos. 1, 2 and defendant no.2 are entitled to 1/6th share of the suit property.

18. The Court when it passes a preliminary decree will identify and declare the properties with precision, the correct name of the parties entitled to a share in the property, preferably not necessarily with Adhar Number of each and also declare the shares of each party as percentage in whole.

I am of the considered view that Judgment of reversal passed by the Appellate Court is not sustainable and is, accordingly, set aside. The Judgment and decree passed by the Trial court is affirmed with the above modification. Plaintiffs' suit for partition is decreed. The appeal is allowed on contest with cost.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 23rd February, 2022 AFR / AKT