Lakshman Sah vs Chandrakala Devi And Ors
2023 Latest Caselaw 714 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                            FIRST APPEAL No.149 of 2017

     ======================================================

Lakshman Sah Son of Late Ramjee Sah, Resident of Village- Tulsia, P.O.- Baijnathpur, P.S.- Bihariganj, District- Madhepura Bihar.

... ... Defendant No.1-Appellant Versus

1. Chandrakala Devi W/o Ashok Kumar Sah, D/o Late Ramdeo Sah, Resident of Village- Tulsia, P.O.- Baijnathpur, P.S.- Bihariganj, District- Madhepura Bihar. And at Present Village- Dibara Bazar, P.O.- Dibara Bazar, P.S.- Barhara Kothi, District- Purnea.

.....Plaintiff-Respondent 1st Party

2. Gopal Kumar Sah, Son of Late Ramjee Sah,

3. Pradeep Kumar Sah, Son of Late Ramjee Sah, Both Residents of Village-

Tulsia, P.O.- Baijnathpur, P.S.- Bihariganj, District- Madhepura Bihar.

...Defendants 1st Party-Respondents 2nd Party

4. Indira Devi, W/o Birendra Sah, D/o Late Ramjee Sah, Resident of Village-

Singheswar, P.S.- Singheswar, District- Madhepura.

...Defendants 2nd Party-Respondent 3rd Party ====================================================== Appearance :

For the Appellant/s : Mr. Anil Kumar Mukund, Advocate Mr. Anirudh Pandey, Advocate For the Respondent no.1 : Mr. Amit Kumar Anand, Advocate For the Respondent no.4 : Mr. Uday Chand Prasad, Advocate Mr. Manoj Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY

C.A.V. JUDGMENT

Date : 08-02-2023

Heard learned counsel for the appellant, learned counsel

for the respondent no.1 and learned counsel for the respondent

no.4. No one appears on behalf of the respondent nos.2 and 3.

The instant appeal has been preferred against the

judgment dated 23.3.2017 and decree dated 29.3.2017 passed in Patna High Court FA No.149 of 2017 dt.08-02-2023

Title Suit no.3 of 2006 by the learned Sub Judge VII,

Madhepura whereby the learned trial court was pleased to hold

that there was jointness of title and possession of the plaintiff

with the defendants over the suit property and that the plaintiff

was entitled to 1/5th share in the ancestral property of her

mother and father after their death. Learned trial court further

held that the suit as framed was maintainable. She has valid

cause of action, the suit was not barred under section 34 of the

Specific Relief Act and thus decided the issue nos. 1, 2, 3 and 4

in favour of the plaintiff. The suit was allowed on contest ex

parte against the defendant nos.1 to 3. It is against this judgment

that the defendant no.1 has preferred the instant appeal.

The case of the plaintiff in brief is that Late Ramjee

Sah and his wife Late Smt. Ram Dulari Devi, both deceased,

were her parents and were having sufficient landed properties in

Mauza Tulsiya, Sheikhpura and Baidyanathpur, details of which

are given in Schedule I of the plaint. They had right, title and

possession over the suit property. The names have been mutated

in the records of the Revenue Department, they were paying

rent and were being granted rent receipts. The plaintiff's father

died in October 2000 followed by the plaintiff's mother on

6.2.2005. They died leaving behind three sons who are the Patna High Court FA No.149 of 2017 dt.08-02-2023

defendant nos.1, 2 and 3 in the title suit and two daughters ie the

defendant no.4 and the plaintiff. The defendant no.4 was

married to one Birendra Sah. The plaintiff was married to Ashok

Kumar Sah.

It is the case of the plaintiff that the plaintiff and the

four defendants, on the death of their parents inherited the suit

land as their sons and daughters, equally. Thus, the share of the

plaintiff would be 1/5th in the suit property. It was further stated

that a panchayati was held in the village in which the panches

and the defendants accepted and acknowledged the status and

character of the plaintiff having 1/5 share in the suit property

and the defendants agreed to give to the plaintiff her share.

However, subsequently the defendants turned down the

plaintiff's claim and the plaintiff was left with no other

alternative except to file the instant suit for such a declaration

by Court. It was submitted that the cause of action for the suit

arose on 25.12.2005 when the 1/5th share of the plaintiff in the

suit property was raised in the panchayati in the village and the

same was acknowledged by the panches and the defendants. It

also arose when subsequently the defendants refused to give the

plaintiff her share. Thus with no other alternative, the plaintiff

filed the suit in the Court of learned Sub Judge, Madhepura Patna High Court FA No.149 of 2017 dt.08-02-2023

which was registered as Title Suit no.3 of 2006 praying therein

for the following reliefs:

"(I) That the court be pleased to declare that the plaintiff has got 1/5 share in the suit properties which were acquired by father and mother (now deceased) of the plaintiff and status and character of the plaintiff to the said extent may kindly be declared by the court and a preliminary decree for partition may kindly be passed in favour of the plaintiff.

(II) That after such adjudication the court be pleased to award cost of the suit to the plaintiff.

(III) That the any other relief or reliefs which your honour deem fit and proper may kindly be awarded to the plaintiff.

(1)(AA) The court be please further appoint Survey Knowing Pleader Commissioner to carve out 1/5th share of the plaintiff in the suit land at the cost of plaintiff."

A written statement and a supplementary written

statement was filed on behalf of defendant nos. 1 to 3 in Title

Suit no.3 of 2006. It was contended therein that the suit as

framed was not maintainable. The plaintiff has no cause of

action for the suit. It was barred under section 34 of the Specific

Relief Act and the law of limitation. It was further contended

that the suit was also barred by estoppel, waiver and

acquiescence and the plaintiff has filed the suit with malafide

intention. It was stated that it was true that panchayati was held Patna High Court FA No.149 of 2017 dt.08-02-2023

on 15.1.2003 and award was prepared which was reduced in

writing, signed by defendant nos.1 to 3 and panches as also the

mother of the defendants and thus the suit was barred under the

provisions of Arbitration and Conciliation Act, 1995. The

properties in the villages were not wholly of Ramji Sah but half

of it belonged to his elder brother Radhe Sah. It was further

contended that Mewaram Sah who was the common ancestor

had two sons namely Mahavir Sah and Ram Sunder Sah.

Mahavir Sah predeceased his father leaving behind two sons

Ram Naresh Sah and Ganesh Sah. The plaintiff and the

defendants were the descendants of Ram Sunder Sah. Ram

Sunder Sah had two sons namely Radhe Sah and Ramji Sah.

Radhe Sah died issueless on 21.9.1991 in jointness with his

brother Ramji Sah and nephews who are the defendant nos.1 to

3. Thus, the interest of Radhe Sah devolved upon Ramji Sah and

after him on his sons only ie defendant nos.1 to 3. Ramji Sah

died on 11.10.2000 leaving behind his widow Ram Dulari Devi

who died on 2.2.2005. The defendant nos.1 to 3 are the three

sons of Ramji Sah and Ram Dulari Devi and the two daughters

are the plaintiff and defendant no.4. It was further stated that it

was incorrect to state that all the lands were mutated in the name

of Ramji Sah and Ram Dulari Devi. In fact, the lands which Patna High Court FA No.149 of 2017 dt.08-02-2023

were purchased in the name of defendant nos. 1 to 3, description

of which has been given in Schedule B were mutated in the

name of defendant nos.1 to 3 and it was these defendants who

were paying rent and rent receipts were issued in their names. It

was submitted that the plaintiff and the defendants have sons

and daughters who have not been impleaded as parties to the

instant suit and thus the suit was fit to be dismissed also for non-

joinder of necessary parties. It was the case of the defendants

that the plaintiff and defendant no.4 neither inherit nor get any

share in the land purchased in the name of defendant nos.1 to 3

which stand mutated in their names. They also do not get equal

shares with defendants in the ancestral property. So far as the

defendants are concerned, they being coparceners had acquired

interest in the coparcenery property by birth and the share to

which the plaintiff may be entitled would only be the share

which she may get out of the property which falls in the share of

their deceased father if a partition had taken place at the time of

his death. However, the plaintiff was not entitled to get any

share in the property as she herself on affidavit had stated before

the panches in the panchayati held on 15.1.2003 that she would

not take share in the property at all. The plaintiff has also sworn

an affidavit to the effect that in view of the help rendered by the Patna High Court FA No.149 of 2017 dt.08-02-2023

defendants in the time of her need in getting her husband

educated and employed, she had reiterated that she would not

take any share in the ancestral property, would not lay any claim

in the future and that she was swearing the affidavit out of her

own sweet will without any coercion and persuasion. It was

submitted that the date of cause of action given by the plaintiff

was absolutely false and wrong.

It was further case of the defendants that a panchayati

was held on 15.1.2003 and the award prepared in presence of all

including the plaintiff and the defendant no.4, both of whom on

their own agreed to take no share. The plaintiff is not entitled to

any relief and it was prayed that the suit be dismissed with

exemplary cost.

A further supplementary written statement was filed on

behalf of defendant nos.1 to 3 in light of the amended plaint

wherein it was stated that the two sisters ie the plaintiff and the

defendant no.4 out of their own free will refused to take any

share in the property as they were reared, educated and married

in affluent families. The defendant no.1 who was appointed a

Lecturer in a college at Patna under the Magadh University,

from his earnings as a Lecturer and giving tuitions, on 4.6.1994

purchased 15 dhurki of land through registered sale deed in Patna High Court FA No.149 of 2017 dt.08-02-2023

Patna, out of reverence in the name of his late father who

subsequently also executed a deed of relinquishment in his

favour. The plaintiff was conscious of the fact that the property

at Patna was the exclusive purchase of the defendant no.1. The

panchnama dated 15.1.2003 was between the mother and the

three brothers and also signed by the sisters. The plaintiff is a

greedy person and under the influence of her husband, who

wants illegal gain as a result of the instant case.

Having perused the contents of the plaint as also the

written statements filed on behalf of the defendants, the learned

trial court was pleased to frame the following issues:

"(i) Is the suit as framed maintainable?

(ii) Whether the plaintiff has got any cause of action to file this suit?

(iii) Whether the suit is hit by section 34 of the Specific Relief Act?

(iv) Whether the suit is barred by principles of waiver, acquiescence, estoppel and resjudicata?

(v) Whether the suit property is a joint family property and whether there is unity of title and possession between the parties to the suit?

(vi) Whether the plaintiff is entitled to get 1/5 share in the suit property?

(vii) Whether the plaintiff is entitled to get the reliefs as sought for in the plaint?

(viii) Whether the plaintiff is entitled to get any other relief or reliefs from the Court?"

Patna High Court FA No.149 of 2017 dt.08-02-2023

It may be stated here that the plaintiff examined five

witnesses in support of her case besides several documentary

evidences which included the registered sale deeds executed in

favour of her mother and the khatiyan/khatas of her father.

On the other hand, the defendants did not examine

any witness on their behalf nor did they produce any

documentary evidence in support of their case.

The plaintiff witness ie PW 1 Chandeshwari Yadav in

his deposition stated that he knows both the parties and has seen

the disputed land which is about total area of about 23 acres.

The parents of the plaintiff had land at different places. The

father of the plaintiff died in the year 2000 while her mother

died in the year 2005. They left behind three sons who are

defendant nos.1, 2 and 3 and two daughters ie the plaintiff and

defendant no.4. While the defendant no.4 was married to

Birendra Sah, the plaintiff was married to Ashok Kumar Sah.

The parties are coming in joint possession of the property left

behind by their father Late Ramji Sah and mother Late Ram

Dulari Devi and all of them are entitled to equal share ie 1/5

each.

This witness PW 1 Chandeshwari Yadav was cross-

examined on behalf of the defendants. In his cross-examination, Patna High Court FA No.149 of 2017 dt.08-02-2023

he stated that he was not on regular visiting terms nor was he

related/connected to the parties. He did not have any

sale/purchase transactions with Ramji Sah nor any conversation

with Ram Dulari Devi. He states about the marriages of the two

daughters ie the defendant no.4 and the plaintiff. He is not aware

as to what total area of land did Ramji Sah possess. He states

that Ramji Sah had land at different places and no partition had

taken place in his presence.

PW 2 Brahmdeo Das in his deposition states that he

knows both the parties and had seen the disputed properties

which measures a total area of 22-23 acres. He knows both

Ramji Sah and his wife Ram Dulari Devi. Both of them died

leaving behind three sons and two daughters. All five of them

have title over the property left behind by their parents. The

plaintiff has 1/5 share in the disputed property. There has never

been any partition amongst the contesting parties and the

plaintiff has filed this suit for her 1/5 share in the same. He is on

visiting terms with the parties.

In his cross-examination, this witness PW 2 Brahmdeo

Das has stated that in the partition, the grandfather of the

plaintiff namely Ramsunder Sah had received about 22-23 acres

of land. The said Ramsunder Sah had two sons namely Ramji Patna High Court FA No.149 of 2017 dt.08-02-2023

Das (father of the plaintiff) and Radhe Sah. The said Radhe Sah

died issueless in the year 1991. Ramji Sah had sold some land

of his share. No partition has taken place in his presence. This

witness states that he knows about the disputed property since

30-35 years and as no partition has taken place between the

parties, the plaintiff being five brothers and sisters is entitled to

1/5 share. Ramji Sah had married all the five children himself.

The next witness on behalf of the plaintiff ie PW 3

Sudhir Yadav in his deposition has stated that he knows the

parties, has seen the disputed property which is about 22-23

bighas in area. Ramji Sah had two daughters and three sons. He

died leaving behind the five children and his wife Ram Dulari

Devi and all of them have been coming in joint possession of

the property left behind by Ramji Sah. Ram Dulari Devi also

died subsequently. There has been no partition of the immovable

property between the parties nor has the plaintiff sold any land.

There is unity of title and unity of possession of the plaintiff and

she has filed the instant case for her 1/5 share.

In his cross-examination, the witness PW 3 Sudhir

Yadav has stated that Ramji Sah was two brothers ie Ramji Sah

and Radhe Sah. Both the brothers came in joint possession of

the property. Radhe Sah died issueless in the year 1991 and Patna High Court FA No.149 of 2017 dt.08-02-2023

Ramji Sah died in the year 2000. The land are in five mauzas.

Laxman Sah is a Professor in Patna for the last 15 years. The

second son of Ramji Sah namely Gopal Sah is also employed.

The third son Pradeep Sah is a Veterinary doctor. Ramji Sah had

two daughters. Chandrakala was married in the year 1985 while

Indira was married before her. He is on talking terms with the

three sons of Ramji Sah. All the three brothers are together and

there has not been any talk of partition between him and the

brothers. It is not correct to state that the brothers had

partitioned.

The plaintiff witness PW 4 Ashok Kumar Sah in his

deposition states that he happens to be the husband of the

plaintiff Chandrakala Devi. His father-in-law Late Ramji Sah

and mother-in-law Late Ram Dulari Devi had a number of

properties and were in joint possession along with the other

members of the family. Ram Dulari Devi died in the year 2005

leaving behind her three sons and two daughters and ever since

her death, her five children have joint title and possession over

the property. The plaintiff has 1/5 share in all the properties.

There is unity of title and unity of possession. In spite of request

by the plaintiff to the defendants to give her 1/5 share in the suit

property, the defendant have been avoiding her on one pretext or Patna High Court FA No.149 of 2017 dt.08-02-2023

the other. This witness further states that Ramji Sah having sold

the ancestral property in mauza Baidyanathpur and mauza

Sheikhpura had purchased land in Patna and Bihariganj in

different names wherein the share of the plaintiff is 1/3.

PW 4 Ashok Kumar Sah in his cross-examination

has staed that he was married to Chandrakala Devi (plaintiff) on

23.6.1985 and at the time of his marriage the brother of his

father-in-law namely Radhe Sah was alive. Radhe Sah died in

the year 1991. Ramji Sah died in October 2000. After partition

with his brother, Ramsunder Sah had about 50 acres of land. In

the year 1991 at the time of death of Radhe Sah, both had about

30-35 acres of land. The land was khatiyani. He further states

that at the time of his marriage only Indira had been married

while the three boys were unmarried. Even after his marriage,

he was not a party in the sale deed which was executed. He

states that he is not aware of the memorandum of partition or the

so called deed of relinquishment executed by his mother-in-law

in favour of her sons. It is not correct to state that the sons and

daughters of Ramji Sah partitioned in the year 2003 and that in

lieu of the land the brothers gave large amount to the plaintiff.

The last witness ie PW 5 Chandrakala Devi states

that she is the plaintiff in the suit and her brothers and sisters are Patna High Court FA No.149 of 2017 dt.08-02-2023

the defendants, all being sons and daughters of Ramji Sah and

his wife Ram Dulari Devi who had immovable property at a

number of places. The plaintiff and the defendants were having

joint title and joint possession over the property in question, the

jamabandi was established in the name of Ramji Sah and Ram

Dulari Devi, they were paying malguzari and receipts were

being issued in their names. Ram Dulari Devi died in the year

2005 and the plaintiff and the defendants have joint possession

and 1/5 share each in the immovable property. Although the

defendants agreed to give 1/5 share to the plaintiff, however

subsequently they refused and hence the suit.

The plaintiff witness PW 5 Chandrakala Devi was

cross-examined at length. She states that the land is khatiyani.

They have about 22-23 acres of land. She is unable to state the

details of the land in the joint possession of the parties. She is

not in possession of the papers. The elder son of Ramji Sah

namely Laxman Sah was a Professor and is about 25-30 years

elder to the plaintiff. Gopal Sah works in a private company

while Pradeep Sah is a Veterinary doctor. All brothers are joint.

Ram Dulari Devi died in the year 2005 in the month of

February. Her father Ramji Sah died in the year 2000. After the

death of her father, she had asked for her share from her mother Patna High Court FA No.149 of 2017 dt.08-02-2023

but her mother had not given her any share. Her husband was a

Professor in an unrecognised private college and is at present

having a pharmaceutical shop. He was not helped by her

brothers in opening the shop. As the plaintiff and the defendants

are five brothers and sisters, for this reason she has asked for 1/5

share. It is incorrect to state that any panchayati had taken place

in the village where partition had been effected. It is wrong to

state that the lands are completely partitioned.

Heard learned counsel for the defendant no.1-

appellant and learned counsel for the plaintiff-respondent no.1.

It is the contention of the learned counsel appearing

for the defendant no.1-appellant that the plaintiff has claimed

immovable property belonging to her father which has been

seriously disputed by the defendants. In the garb of a partition

suit, the plaintiff has filed a title suit. The title suit is without

jurisdiction and not maintainable and it could not have been

filed to lay claim over one's share in the family property. The

plaintiff-respondent ought to have filed a partition suit in the

court below. It was further contended that the burden to prove

that the property is a joint property is on the person who asserts

it but in the court below the claim of the plaintiff-respondent has

been accepted on face value and the impugned judgment has Patna High Court FA No.149 of 2017 dt.08-02-2023

been passed without according proper opportunity to the

defendant no.1-appellant to examine witnesses in support of his

case nor were they given any opportunity to cross-examine the

witnesses on behalf of the plaintiff. The husband of the plaintiff-

respondent has tried to shoot off his wife's shoulder by laying

claim not only over the ancestral property belonging to other co-

sharers but also over the self-acquired property of the defendant

no.1-appellant which he earned by way of his personal income.

The learned court below failed to appreciate that the plaintiff-

respondent no.1 had herself sworn an affidavit on 29.7.2003

before the panches stating that she will never claim any share in

the ancestral property.

It was contented on behalf of the plaintiff-respondent

no.1 that the suit preferred by the plaintiff praying therein for

preliminary decree for partition of her 1/5 share in the suit

property which were acquired by her father and mother and for

appointment of a Survey Knowing Pleader Commissioner to

carve out 1/5 share of the plaintiff in the suit land was rightly

decreed by the learned trial court. There being no merit in the

instant appeal, the appeal be dismissed.

Learned counsel appearing for the defendant no.4-

respondent no.4 submitted that the said respondent fully Patna High Court FA No.149 of 2017 dt.08-02-2023

supports the case of the defendant no.1-appellant. Partition had

already taken place on 15.1.2003 in presence of their mother,

brothers and sisters. Some of the properties which were acquired

by the appellant's personal income were returned back by the

father and the said acquisitions cannot be said to be out of the

joint family property. It was out of his personal earnings that the

brother built a house on the land purchased in Patna and the

sisters cannot lay a claim on the brother's self acquired property.

The learned court below has failed to appreciate the materials on

record including the affidavit sworn by the plaintiff-respondent

no.1 on 29.7.2003 before the Notary Public at Purnea to the

effect that she will never claim any ancestral property having

got more than her own share in the shape of money after selling

the lands.

Having heard learned counsel for the parties and

taking into consideration the oral and documentary evidence

brought on record, it transpires that while five witnesses were

examined on behalf of the sole plaintiff in the learned trial court

and she brought on record a number of documentary evidence

by way of exhibits, so far as the defendants are concerned,

neither any witness was examined on their behalf nor any

documentary evidence brought on record.

Patna High Court FA No.149 of 2017 dt.08-02-2023

On perusal of the statements of the five plaintiff

witnesses, it transpires that PW 1 (Chandeshwari Yadav), PW 2

(Brahmdeo Das) and PW 3 (Sudhir Yadav) are all independent

witnesses. None of the three witnesses are related to either side

but know both the sides. In their depositions, they had

categorically stated that the plaintiff and the four defendants are

all sons and daughters of Ramji Sah and Ram Dulari Devi. They

have further stated that Ramsunder Sah partitioned from his

brother Mahavir Sah. Ramsunder Sah had two sons namely

Ramji Sah and Radhe Sah. Radhe Sah died issueless. Ramji Sah

died in the year 2000 while his wife Ram Dulari Devi died in

the year 2005. The witnesses categorically state that Ramji Sah

and Ramdulari Devi died leaving behind their three sons and

two daughters who are the plaintiff and defendants in the instant

suit having joint title and joint possession over the suit property.

No partition having taken place between the parties, each of the

five were entitled to get 1/5 share each.

The other two witnesses on behalf of the plaintiff

happen to be PW 4 Ashok Kumar Sah who is the husband of the

sole plaintiff and the plaintiff herself ie PW 5 Chandrakala Devi.

They have also supported the plaintiff's case about the five

children of Ramji Sah and Ram Dulari Devi who happen to be Patna High Court FA No.149 of 2017 dt.08-02-2023

plaintiff and defendants in the suit, on the death of their parents

succeeding jointly to the suit property and of no partition having

taken place in the family.

At this stage itself, it would be relevant to point out

that some attempt has been made by the learned counsel for the

appellant to make submissions to the effect that adequate

opportunity was not afforded to the appellant who was

defendant no.1 in the learned trial court to put forward his case.

The records speak otherwise. On service of notice, the

defendants appeared in the learned trial court and a written

statement was filed on 19.1.2007 on behalf of the defendant

nos.1 to 3 in Title Suit no.3 of 2006 in the Court of learned Sub

Judge, Madhepura. Subsequent to amendment in the plaint, a

supplementary written statement was filed on behalf of

defendant nos.1 to 3 in the title suit on 16.11.2010. While the

first written statement was signed and verified by the defendant

no.1-appellant Laxman Sah on 19.1.2007, the supplementary

written statement was also affidavited by the said Laxman Sah

on 16.11.2010.

It further transpires that each of the five witnesses

on behalf of the plaintiff filed their depositions on affidavit but

were cross-examined at length in the learned trial court on Patna High Court FA No.149 of 2017 dt.08-02-2023

behalf of the defendants. PW 1 (Chandeshwari Yadav) was

cross-examined on 15.2.2012, PW 2 (Brahmdeo Das) on

17.2.2012, PW 3 (Sudhir Yadav) on 23.3.2012, PW 4 (Ashok

Kumar Sah) on 26.3.2012 and 27.3.2012 and the plaintiff (PW

5) Chandrakala Devi was cross-examined on 16.4.2012 and

17.4.2012. Thus, from the facts stated herein above, it would

transpire that the defendants in the learned trial court at all

stages were actively participating and seriously contesting the

suit.

So far as the share of the daughters, like the

plaintiff-respondent no.1 in the instant case, in view of the

amended section 6 of the Hindu Succession Act, 1956 is

concerned, the matter in issue stands settled by the judgment of

the Hon'ble Supreme Court in the case of Vineeta Sharma vs.

Rakesh Sharma and others (AIR 2020 SC 3717) wherein the

Hon'ble Supreme Court held as follows:

"61. With respect to a Hindu who dies after the commencement of the Amendment Act, 2005, as provided in section 6(3) his interest shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares which would have been allotted to his heirs had there been a partition. The daughter is to be allotted the Patna High Court FA No.149 of 2017 dt.08-02-2023

same share as a son; even surviving child of predeceased daughter or son are given a share in case child has also died then surviving child of such predeceased child of a predeceased son or predeceased daughter would be allotted the same share, had they been alive at the time of deemed partition. Thus, there is a seachange in substituted section 6. In case of death of coparcener after 9.9.2005, succession is not by survivorship but in accordance with section 6(3)(1). The Explanation to section 6(3) is the same as Explanation I to section 6 as originally enacted. Section 6(4) makes a daughter liable in the same manner as that of a son. The daughter, granddaughter, or greatgranddaughter, as the case may be, is equally bound to follow the pious obligation under the Hindu Law to discharge any such debt. The proviso saves the right of the creditor with respect to the debt contracted before the commencement of Amendment Act, 2005. The provisions contained in section 6(4) also make it clear that provisions of section 6 are not retrospective as the rights and liabilities are both from the commencement of the Amendment Act.

62. The proviso to section 6(1) and section 6(5) saves any partition effected before 20.12.2004.

However, Explanation to section 6(5) recognises partition effected by execution of a deed of partition duly registered under the Registration Act, 1908 or by a decree of a court.

Other forms of partition have not been Patna High Court FA No.149 of 2017 dt.08-02-2023

recognised under the definition of 'partition' in the Explanation.

63. Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of section 6(1)(a) and 6(1)(b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in section 6(1), it is not necessary that there should be a living, 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 of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).

Patna High Court FA No.149 of 2017 dt.08-02-2023

64. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3).

99. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and Patna High Court FA No.149 of 2017 dt.08-02-2023

changes due to the subsequent event can be taken into consideration.

128. The expression used in Explanation to Section 6(5) 'partition effected by a decree of a court' would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based Patna High Court FA No.149 of 2017 dt.08-02-2023

upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.

129. Resultantly, we answer the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are Patna High Court FA No.149 of 2017 dt.08-02-2023

required to be given full effect.

Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.

However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."

Thus, in view of the facts and circumstances stated

herein above, the Court finds no reason to disbelieve the

deposition of the five witnesses examined on behalf of the

plaintiff which included the three independent witnesses who

have been consistent inspite of being cross-examined on behalf

of the defendants at length. Taking into account the statement of

the plaintiff witnesses specially PW 1, PW 2 and PW 3 who

besides stating about the death of Ramji Sah in the year 2000 Patna High Court FA No.149 of 2017 dt.08-02-2023

and Ram Dulari Devi in the year 2005, the witnesses

categorically state that both of them died leaving the five

brothers and sisters who are parties to the suit in state of

jointness having joint title and joint possession over the suit

property and over which each of them including the plaintiff has

1/5 share each. Besides the oral evidence, the learned trial court

has also rightly taken into account the registered sale deeds

executed in favour of the mother of the plaintiff Ram Dulari

Devi which has been marked as Ext. 1/A, 1/B, 1/C and 1/D as

also the copies of the khatiyan/khatas which were marked as

Ext. 2, 2/A, 2/B, 2/C, 2/D and 2/E to prove that the land in

question was joint amongst the parties to the suit.

In view of the facts of the case as discussed above,

the worthiness of the plaintiff's witnesses who were cross-

examined on behalf of the defendants together with the fact that

neither any oral nor documentary evidence was produced on

behalf of the defendants, the Court is of the opinion that no

partition had taken place amongst the plaintiff and the

defendants. Thus in view of the judgment of the Hon'ble

Supreme Court in the case of Vineeta Sharma (supra), the

learned trial court rightly decreed the suit in favour of the

plaintiff.

Patna High Court FA No.149 of 2017 dt.08-02-2023

There is no merit in the instant appeal and the same is

dismissed.

All pending applications stand disposed of.

(Partha Sarthy, J) Saurabh/-

AFR/NAFR                AFR
CAV DATE                30.08.2022
Uploading Date          08.02.2023
Transmission Date