[Cites 18, Cited by 0]
Madhya Pradesh High Court
Prahlad Pathak vs Rajendra Prasad Pathak on 18 December, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:69757
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 18th OF DECEMBER, 2025
MISC. PETITION No. 5061 of 2025
PRAHLAD PATHAK
Versus
RAJENDRA PRASAD PATHAK AND OTHERS
Appearance:
Ms. Taneyaa Manoucha - Advocate for petitioner.
Shri Vinod Kumar Napit - Advocate for respondents No.1 to 6.
Shri Janak Lal Soni - Advocate for respondents No.8 to 15.
ORDER
By way of present petition, challenge is made to the order passed by
the trial Court dated 04.08.2025 whereby the trial Court has allowed
application under Order 1 Rule 10 CPC for impleading parties who are the
children of defendant No.1.
2. A suit has been instituted by the present petitioner/plaintiff on the
assertion that he and the defendants No.1 to 6 are brothers and sisters. There
was a family partition carried out by their deceased father before the plaintiff
was born, dividing the property into four parts, three to be taken by the elder
three brothers, who are defendants No.1 to 3 and the fourth portion went to
the father. After this partition took place, the present petitioner/plaintiff was
born and, therefore, the deceased father prior to his death had executed a will
in the year 2016 in favour of the present petitioner, giving over his portion of
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property to the petitioner/plaintiff.
3. During pendency of the suit, it appears that some better sense prevailed
and all the brothers and sisters i.e. plaintiff on one side and defendant Nos.1
to 6 on the other side filed a compromise application before the trial Court
dated 28.04.2025 recognising the share of the petitioner in the properties.
4. After this compromise was filed, an application under Order 1 Rule 10
CPC was filed by legal representatives of the defendant No.1 who is the
eldest brother of the seven siblings and in the said application it was pleaded
that the defendant No.1 is no longer a person of sound mind and he in his old
age is more interested in worship of God and sometimes he takes food in the
house of the plaintiff and under his impression, he has signed the
compromise and therefore, the applicants being the wife and children of the
defendant No.1 be permitted to be impleaded as defendants in the suit.
5. The trial Court has allowed the said application by the impugned order
on the ground that the presence of the proposed parties seems to be necessary
to decide the controversy arising in the matter.
6. It is very interesting fact that the defendant No.1 whose wife and
children seek to be impleaded in the suit, is already alive and before this
Court also, the counsel for defendant No.1 has appeared and today it has
been categorically stated by him that all the siblings have arrived at a mutual
compromise and they have no objection to the compromise and the
defendant No.1 does not want to grab the share of the youngest brother being
plaintiff and he has signed the compromise with open eyes. However, his
wife and children are not agreeable to the compromise and are unnecessarily
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objecting to the compromise. Be that as it may be.
7. After amendment in the Act of 1955, the sons and daughters have been
placed on equal pedestal. The issue was considered by the Hon'ble Supreme
Court in Uttam Vs. Saubhag Singh & others, 2016 (4) SCC 68 with
reference to amendment of 2005 and it was held by the Hon'ble Supreme
Court that upon death of ancestor after enforcement of Hindu Succession Act
1955, there is a deemed partition by operation of law immediately before his
death, and the property ceased to be joint family property and the successors
were merely tenants-in-common, and not joint family members. It was held
as under:-
" 1 8 . Some other judgments were cited before us for the
proposition that joint family property continues as such even with
a sole surviving coparcener, and if a son is born to such coparcener
thereafter, the joint family property continues as such, there being
no hiatus merely by virtue of the fact there is a sole surviving
coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu
Agalawe [Dharma Shamrao Agalawe v. Pandurang Miragu
Agalawe, (1988) 2 SCC 126] , Sheela Devi v. Lal Chand [Sheela
Devi v. Lal Chand, (2006) 8 SCC 581] and Rohit
Chauhan v. Surinder Singh [Rohit Chauhan v. Surinder Singh,
(2013) 9 SCC 419 : (2013) 4 SCC (Civ) 377] were cited for this
purpose. None of these judgments would take the appellant any
further in view of the fact that in none of them is there any
consideration of the effect of Sections 4, 8 and 19 of the Hindu
Succession Act. The law, therefore, insofar as it applies to joint
family property governed by the Mitakshara School, prior to the
amendment of 2005, could therefore be summarised as follows:
(i) When a male Hindu dies after the commencement of the
Hindu Succession Act, 1956, having at the time of his death an
interest in Mitakshara coparcenary property, his interest in the
property will devolve by survivorship upon the surviving members
of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30
Explanation of the Act, making it clear that notwithstanding
anything contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property is property that can be disposed
of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained
in the proviso to Section 6, which states that if such a male Hindu
had died leaving behind a female relative specified in Class I of
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the Schedule or a male relative specified in that class who claims
through such female relative surviving him, then the interest of the
deceased in the coparcenary property would devolve by
testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male
coparcener who is governed by Section 6 proviso, a partition is
effected by operation of law immediately before his death. In this
partition, all the coparceners and the male Hindu's widow get a
share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of
the death of a male Hindu leaving self-acquired property or by the
application of Section 6 proviso, such property would devolve
only by intestacy and not survivorship.
( v i ) On a conjoint reading of Sections 4, 8 and 19 of the Act,
after joint family property has been distributed in accordance with
Section 8 on principles of intestacy, the joint family property
ceases to be joint family property in the hands of the various
persons who have succeeded to it as they hold the property as
tenants-in-common and not as joint tenants.
1 9 . Applying the law to the facts of this case, it is clear that on
the death of Jagannath Singh in 1973, the joint family property
which was ancestral property in the hands of Jagannath Singh and
the other coparceners, devolved by succession under Section 8 of
the Act. This being the case, the ancestral property ceased to be
joint family property on the date of death of Jagannath Singh, and
the other coparceners and his widow held the property as tenants-
in-common and not as joint tenants. This being the case, on the
date of the birth of the appellant in 1977 the said ancestral
property, not being joint family property, the suit for partition of
such property would not be maintainable. The appeal is
consequently dismissed with no order as to costs.
(Emphasis supplied)
8. The Supreme Court has considered the impact of Hindu Succession Act
1956 in its judgment in the case of Commissioner of Wealth-tax, Kanpur
etc. v. Chander Sen etc., (1986) 3 SCC 567 : AIR 1986 SC 1753 , and has
held as under:-
"19. It is necessary to bear in mind the Preamble to the Hindu Succession Act,
1956. The Preamble states that it was an Act to amend and codify the law
relating to intestate succession among Hindus.
20. In view of the Preamble to the Act i.e., that to modify where necessary and
to codify the law, in our opinion it is not possible when Schedule indicates
heirs in Class I and only includes son and does not includes son's son but does
include son of a predeceased son, to say, that when son inherits the property in
the situation contemplated by section 8 he takes it as karta of his own
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undivided family. The Gujarat High Court's view noted above, if accepted,
would mean that though the son of a predeceased son and not the son of a son
who is intended to be excluded under section 8 to inherit, the latter would be
applying the old Hindu law get a right by birth of the said property contrary to
the scheme outlined in section 8."
9. The Supreme Court in its judgment in the case of Yudhishter v. Ashok
Kumar, (1987) 1 SCC 204 : AIR 1987 SC 558 , has again considered the
question and has held as under:--
"10. This question has been considered by this Court in Commr. of Wealth Tax,
Kanpur v. Chander Sen, (1986) 3 SCC 567 : AIR 1986 SC 1753, where one of
us (Sabysachi Mukharji, J.) observed that under the Hindu Law; the moment a
son is born, he gets a share in father's property and becomes part of the
coparcanary. His right accrues to him not on the death of the father or
inheritance from the father but with the very fact of his birth. Normally,
therefore, whenever the father gets a property from whatever source from the
grandfather or from any other source, be it separate property or not, his son
should have a share in that and it will become part of the joint Hindu family of
his son and grandson and other members who form joint Hindu family with
him. This Court observed that this position has been affected by section 8 of
the Hindu Succession Act 1956 and, therefore, after the Act, when the son
inherited the property in the situation contemplated by section 8, he does not
take it as Kar of his own undivided family but takes it in his individual
capacity."
10. In view of the aforesaid pronouncements, it is clear that after coming
into force of the Hindu Succession Act, the theory of birthright does not exist
and son gets share in the property only after death of his father. This is
because as held in the case of Uttam (supra) by the Hon'ble Supreme Court,
upon death of ancestor after enforcement of Hindu Succession Act 1955,
there is a deemed partition by operation of law immediately before his death,
and the property ceased to be joint family property and the succesors were
merely tenants-in-common, and not joint family members.
11. The same position has been considered by the Co-ordinate Bench of
this Court in 2002(3) MPLJ 576 (Chandrakanta Vs. Ashok Kumar) .
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12. Another Co-ordinates of this Court in case of Uttam Vs. Saubhagsingh
& Others (S.A.No.206/2005) vide order dated 29.10.2013 has held as under:-
"9. Under Section 8 of Hindu Succession Act, the property of a
male Hindu dying intestate is to devolve according to the
provisions of Chapter-II of the Act, firstly upon the heirs, being
the relatives specified in Class-I of the Schedule and if there is no
class I heir then upon Class II heir and so on. In the schedule
grand-son has not been included in the list of class I heirs, whereas
son of a predeceased son is included therein, therefore, grand-son's
birth right on the coparcenary property no longer exists under the
Act and grand-son cannot claim partition during the lifetime of his
father.
10. The Supreme court in the matter of Commissioner of Wealth Tax Kanpur
etc. Vs. Chander Sen etc. reported in AIR 1986 SC 1753 while approving the
view taken by this Court in the matter of Shrivallabhdas Modani Vs.
Commissioner of Income Tax MP-I, reported in (1982) 138 ITR 673; Allahabad
High court in the matter of Commissioner of Income tax UP Vs. Ram Rakshpal
Ashok Kumar, reported in (1968) 67 ITR 164; the Full Bench judgment of Madras
High court in the matter of Additional Commissioner of Income Tax Vs. P.L.
Karuppan Chettiar, reported in [1978] 114 ITR 523; and judgment of Andhra
Pradesh High court in the matter of Commissioner of Wealth Tax A.P-II Vs.
Mukundgirji, reported in 144 ITR 18, has held that since in Schedule to the Hindu
Succession Act, only son is included and son's son is not included as Class I heir
therefore, the son would inherit the property in the situation contemplated by
Section 8 of the Act not as Karta of his own undivided family and that one should
look only to the Act and not to the pre-existing Hindu law. Referring to Section 8
of the Act, it is held that son's son get excluded and the son alone inherits the
property to the exclusion of his son. In the judgment of this Court in the matter of
Shrivallabhdas Modani (supra) which has been approved by the Supreme court in
the above judgment, it was held by this Court that son's son is not mentioned as
Class I heir in the Schedule and therefore, he cannot get any right in the property
of his grand-father under the Act. The right of son's son in his grand-father 's
property during the lifetime of his father which existed under the Hindu law as in
force before the Act is not saved expressly by the Act, and therefore, the earlier
interpretation of Hindu law giving a right by birth in suchproperty has ceased to
have effect. It was further held that Section 8 of the Act should be taken as a
selfcontained provision laying down the scheme of devolution of the property of a
Hindu dying intestate. The Allahabad High court in the matter of Commissioner of
Income Tax UP Vs. Ram Rakshpal Ashok Kumar (supra) has held that in case of
assets of business left by father in the hands of his son, it would be governed by
Section 8 of the Act and he would take in his individual capacity. The Madras
High court in the matter of Additional Commissioner of Income Tax Vs. P.L.
Karuppan Chettiar (supra) had held that by reason of Section 8 of the Act, the
son's son gets excluded and the son alone inherits the property to the exclusion of
his son and that the statutory provision contained in the Act must prevail in view
of the unequivocal intention in the statute itself, expressed in Section 4(1). The
Andhra Pradesh High court in the matter of Commissioner of Wealth Tax A.P-II
Vs. Mukundgirji (supra) had taken the view that the properties which devolved
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upon heirs mentioned in Class I of Schedule under Section 8 of the Act
constituted the absolute properties and the son's son will have no right by birth in
such properties. The Supreme court in the matter of Chander Sen (supra) has
approved the above view of this Court as well as Allahabad, Andhra Pradesh and
Madras High Courts. The contrary view of the Gujarat High court has been dis-
approved by the Supreme court.
11. In the matter of Yudhishter Vs. Ashok Kumar, reported in
AIR 1987 SC 558 referring to the earlier judgment in the case of
Chander Sen (supra) it has been held by the Supreme Court that
the property which devolved upon the father on the demise of the
grand-father cannot be said to be HUF property in the hands of the
father vis-a-vis his own sons. In the matter of Sheela Devi and
others Vs. Lal Chand and another reported in (2006) 8 SCC 581, it
has been further clarified by the Supreme court by holding that
prior to the commencement of the Act as per the Mitakshara law
usage once a son was born he used to acquire an interest in the
coparcenary property as an incident of his birth, but now the Act
would prevail over the Hindu law. In that case son's son was born
prior to the commencement of 1956 Act therefore, it was held that
he would retain his share of the property as a coparcener even after
the commencement of the 1956 Act, while father who had died in
1889, his share will devolve upon his heirs according to the
provisions of the Act. The Single Bench of this Court in the matter
of Chandrakanta and another Vs. Ashok Kumar and others,
reported in 2002(3) MPLJ 576 has also held that after coming into
force of Hindu Succession Act, the theory of birth right does not
exist and the son gets share in the property only after death of his
father. Similar view has also been taken by another Single Bench
judgment in the matter of Babulal and others Vs. Ramkali Bai &
others, reported in ILR[2012] MP 1271."
The aforesaid judgment of this Court has been upheld by the Apex Court
in case of Uttam Vs. Saubhag Singh & Others (supra) .
13. The fact remains that the defendant No.1 is still alive and during his
lifetime his wife and children do not seem to be having a right to appear in
the suit and take any stand contrary to the defendant No.1. They do not seem
to be either a necessary party or a proper party to the suit. They do not claim
any independent right in the suit properties but only claim right through the
defendant No.1 who is himself contesting the suit separately.
14. In view of the above, it is evident that the trial Court has erred in
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allowing the application under Order 1 Rule 10 CPC filed by the respondents
No.8 to 15.
15. Accordingly, the present petition is allowed and the impugned order
dated 04.08.2025 is set aside. The application under Order 1 Rule 10 stands
dismissed.
(VIVEK JAIN)
JUDGE
psm
