CIVIL APPEAL NO. 5889 OF 2009
A.M. Khanwilkar, J.
3. The appellant filed suit in the Court of Civil Judge, Class – First, Shakti – District Bilaspur
being Civil Suit No.31/A of 1985 asserting that the land situated in Village Barra, Tehsil Shakti,
more particularly described in Schedule A of the plaint, was owned and possessed by
SukhdeoChhannahu son of SardhaChhannahu. Sukhdeo was a Hindu and governed by the
Mitakshra Laws. The suit land came in the hands of Sukhdeo as ancestral property, in which
Sukhdeo and his sons Janakram and Pilaram were having joint shares being coparceners. The
appellant’s father Saheblal was the son of Janakram, who had another son by name Sonu (original
defendant No. 4, who has died during the pendency of the present appeal). The appellant’s father
Saheblal predeceased Janakram (his father) and Sukhdeo (his grandfather). He died in 1957,
whereas Janakram died in 1982 and Sukhdeo, in 1965. Saheblal left behind Laxmi Bai, his wife
and their daughter Radhabai (appellant/plaintiff). In this backdrop, the appellant asserted that she
was entitled to a share in the suit property, claiming through her father Saheblal. The appellant’s
mother had already expired in 1984 before filing of the suit in 1985.
4. It is the case of the appellant that after the death of her mother, the appellant came to village
Barra and requested the Patwari of the village to mutate the land in her name. In response, she
was told that the land had already been mutated in the name of Ram Narayan (defendant No.1),
Jaya Narayan (defendant No. 2) and Rohit Kumar (defendant No.3) three sons of Sonu (deceased
defendant No. 4), by virtue of the registered sale deed executed in their favour by Janakram on 21
st July, 1979. It was further revealed that after the demise of Sukhdeo in 1965, his two sons
Janakram and Pilaram partitioned the suit property in or around the year 1967, as a result of
which, the suit property came to the exclusive share of Janakram and he had become absolute
owner thereof, on the basis of which right, he executed registered sale deed in favour of his three
grandsons (sons of his son Sonu (now deceased) defendant Nos.1 to 3 respectively).
5. Immediately after becoming aware of the above, in 1985, the appellant instituted the suit for
declaration and possession and sought the following reliefs:
“14.): Prayer of the plaintiff is as under:
i): The court should award decree about the possession of the relevant disputed land to the
plaintiff;
I (a): By partitioning the disputed lands, half share be awarded to the plaintiff, and its land
revenue should be determined separately.
ii): The plaintiff may be awarded expenses of the suit.
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iii): Looking at the circumstances of the suit, whatsoever appropriate relief the court may
consider it fit and just, the same may be awarded to the plaintiff.”
6. The respondents defendants resisted the said suit. On the basis of the rival pleadings, the Trial
Court framed as many as 9 issues, which read thus:
“ISSUES: CONCLUSION:
(1.): Whether, after the death of Sukhdev, partition of the joint & united property had been carried
in between Janakram&Pilaram. Yes.
(2.): Whether, the disputed land was received by Janakram in the said partition. Not proved.
(3.):Whether, up to the year 1982, the disputed land remained entered in joint & united accounts
of Janakram, Laxminbai and the plaintiff.} Due to negative conclusion of issue No.2, detailed
appreciation has not been done.
(4.): Whether, Janakram had no right to sale the disputed property/land.
(5.): Whether, the sale deed dated 21st of July, 1997 is illegal and void.
(6.): Whether, the plaintiff is entitled to obtain the possession of the disputed lands.
(7.): Relief & Expenses. Suit is dismissed. The rival parties shall bear their own expenses.
ADDITIONAL ISSUES:
(8.): Whether, the plaintiff is entitled to get half share in the disputed lands. Not proved.
(9.): Whether, the suit of the plaintiff is not maintainable.
No. Its maintainable.“
7. The Trial Court after analysing the evidence on record, proceeded to dismiss the suit preferred
by the appellant vide judgement and decree dated 24th November, 2000.
8. Being aggrieved, the appellant filed appeal being Civil Appeal No.5A of 2001 in the Court of
Additional District Judge, Shakti, DistrictBilaspurChhattisgarh. The Appellate Court, however,
reversed the conclusion reached by the Trial Court and allowed the appeal vide judgment and
decree dated 22 nd January, 2002. The operative order passed by the First Appellate Court reads
thus:
“26.): On the basis of the abovementioned critical appreciation, decree may be drawn to the
following effect:
i): That, resultant to acceptance of the appeal of the appellant, the impugned judgment and the
decree dated 24th of November, 2000 is set aside.
ii): That, resultant to acceptance of the appeal of the appellant, the suit of the plaintiff/appellant is
accepted, and it is ordered that the plaintiff/appellant is entitled to obtain possession over the half
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share separately, by carrying out partition of half share of the disputed land, which has been
enumerated in the Schedule “A” annexed with the plaint; and accordingly land revenue to that
effect should also be determined.
iii): The Schedule “A” annexed with the plaint shall be integral part of the decree
iv): The answering plaintiffs/respondents apart from bearing their own expenses of the case, shall
also bear the expenses of the case of the plaintiff/appellant.
v): Advocate’s fee, upon verification be payable in the decree at Rs.300/ (Rupees Three hundred
only).
vi): Accordingly, decree may be drawn.”
9. The respondentsoriginal defendant Nos. 1 to 4 filed second appeal before the High Court, being
Second Appeal No.84 of 2002. While admitting the second appeal, the Court formulated two
questions as substantial questions of law. The same read thus:
“1. Whether the plaintiff being the female had got the right to partition to the property solely
belonged to Sukhdeo and devolved upon Janak Ram by survivorship after the demise of his father
Sukhdeo?”
2. Whether the suit land inherited by late Janak Ram from his father Sukhdeo, the sole owner of
the same became the ancestral property for the plaintiff on the date of death of Sukhdeo in 1965
and on the date of death of Janak Ram in 1982?”
10. After analysing the factual matrix and the evidence on record, the High Court opined that the
Appellate Court committed manifest error and misapplied the settled legal position. The High
Court considered the matter in the following words:
“8. The sole point which thus arises for determination in the Second Appeal is whether the suit
property was held by Janak Ram in his own right to the exclusion of Pila Ram, and whether the
rule of succession or the rule of survivorship shall apply. It has been pleaded in the plaint that
three years after the death of Sukhdeo, a partition took place in which the suit properties had
fallen to the share of Janak Ram. Once a partition of the coparcenary property takes place and the
coparcener is put in exclusive possession of the property falling to his share to the exclusion of
others he acquires an absolute right over the property. The plaintiff Radha Bai had a mere
spessuccessionis and would have been entitled to a share by succession which would have opened
only after the death of Janak Ram. In this view of the matter, since Janak Ram, prior to his death
in 1982, had sold the suit lands to the defendants No.1to 3 by executing a registered sale deed, the
plaintiff Radha Bai could question the same only on the limited ground of fraud or being without
consideration. During life time of Janak Ram, Radha Bai, being the daughter of a predeceased son
Saheblal, had merely a spessuccessionis to the suit property and nothing more. There is no
material on record to show that the defendant No.4 – Sonu had got the sale deed dated 21.7.1979
executed from Janak Ram perforce or without consideration. In this view of the matter, Janak
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Ram who, after partition, held the suit property to the exclusion of the other coparcener had an
absolute right to sell it to the defendants no.1 to 3.
Radha Bai, the plaintiff, having failed to prove that the sale deed was without consideration or
was executed perforce could not challenge the said transaction on any ground. The evidence led
by Radha Bai itself shows that she had full knowledge of the sale deed executed by Janak Ram in
favour of defendants No.1 to 3. Radha bai, the plaintiff, did not enter the witness box despite
present in Court and having been asked to do so. In this view of the matter, I am of the considered
opinion that the suit filed by Radha Bai must fail because the rule of succession applied to the
facts of the case and succession would have opened only after the death of Janak Ram, who was
the exclusive owner of the share received by him in partition with Pilaram. The substantial
question No.1 is thus answered in negative that Janak Ram being the exclusive owner of the suit
property, during his life time Radha Bai had acquired no right to the suit properties and to file a
suit for partition and possession of the suit lands which had already been sold by Janak Ram
during his life time by executing a sale deed in favour of defendants No.1 to 3. Question No.2 is
answered that after death of Sukhdeo, there was a partition of coparcenary property in which
Janak Ram had received the suit lands as his share and was therefore, the absolute owner of the
suit property. In this view of the matter, rule of survivorship does not apply to the facts of the
present case, since suit property, after partition, was held by Janak Ram in his own right and to
the exclusion of the other coparcener. Thus, the suit property had, after partition effected between
Janak Ram and Pila Ram, ceased to be ancestral property and was held by Janak Ram as
exclusive owner thereof. The rule of succession would thus apply to the present case and
succession would have opened only after the death of Janak Ram. Therefore, Radha Bai, who had
a mere spessuccessionis could succeed only by proving that the sale deed executed by Janak Ram
was without consideration or was got executed by defendant no.4 – Sonu perforce. Having failed
to do so, the suit must fail.
9. Having answered both the substantial questions of law, the appeal deserves to be allowed.
Accordingly, the appeal is allowed. The judgment and decree dated 22.1.2002 passed by
Additional District Judge, Sakti, District Bilaspur in Civil Appeal No.5A/2001 is set aside and the
judgment and decree passed by Civil Judge, ClassII, Sakti dated 24.11.2000 in Civil Suit
No.90A/88 is affirmed. There shall be no order as to costs.”
11. The appellant plaintiff has assailed the aforesaid decision of the High Court on the ground
that in the backdrop of the indisputable factual position and the decisions of this Court in
GurupadKhandappaMagdum Vs. HirabaiKhandappaMagdum and Others1 and Ramesh Verma
(Dead) Through Legal Representatives Vs. Lajesh Saxena (Dead) By Legal Representatives and
Another2, the High Court committed manifest error of law in holding that the rule of survivorship
will not apply and plaintiff had a mere spessuccessionis. According to the appellant, the suit
property was admittedly ancestral property in the hands of Sukhdeo. After coming into force of
the Hindu Succession Act, 1956 (for short “the 1956 Act”) w.e.f. 17 th June, 1956, as Saheblal
had died after commencement of the 1956 Act, Section 6 of the 1956 Act and in particular 1
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(1978) 3 SCC 383 2 (2017) 1 SCC 257 ExplanationI thereof, was clearly attracted. As a result of
which, the notional partition of the coparcenary property had taken place before the death of
Saheblal. The proviso to Section 6 was also attracted since Saheblal left behind his wife
Laxminbai and daughter Radhabai (appellant plaintiff). Resultantly, the interest of deceased
Saheblal in the Mitakashara coparcenary property stood devolved by succession under the 1956
Act and not by survivorship. The appellant plaintiff being the sole surviving heir of Saheblal was
claiming right in the entire share of Saheblal.
12. It is next urged that the sale deed executed by Janakram in favour of respondents defendant
Nos.1 to 3 respectively, dated 21st July, 1979, was ex facie illegal and not binding on the
appellant plaintiff. Janakram had no authority to sell the ancestral property, which had settled in
the coparceners after the death of Sukhdeo. Similarly, the partition effected in 1967 between
Janakram and Pilaram, leaving out the branch of predeceased Saheblal, would be of no avail and
cannot be the basis to dislodge the claim of the plaintiff in the suit property.The appellant prays
that the judgment and decree passed by the First Appellate Court, decreeing the suit in favour of
the appellant plaintiff be upheld and restored.
13. The respondents defendants, on the other hand, would contend that in the present case,
Saheblal died in 1957. The ancestral property was succeeded by two surviving sons of
SukhdeoJanakram and Pilaram equally–when the succession had opened after the death of
Sukhdeo in 1965. The appellant plaintiff was not an heir in Class – I at the relevant time. Had the
appellant been daughter of predeceased son of Sukhdeo, she may have had some chance of
pursuing her claim. However, the appellant being the greatgrand daughter of Sukhdeo, had no
claim in the suit property in 1965. In law, the father of the appellant Saheblal, could not have
succeeded to the property during the life time of his father Janakram. Whereas, on account of
partition between Janakram and Pilaram after the demise of Sukhdeo, the suit property came to
the exclusive share of Janakram and he had become absolute owner thereof. As Janakram held the
suit property in his individual capacity and not on behalf of coparceners and family members, he
could alienate the same as per his volition to any one, which he did in favour of his grandsons
(respondents defendant Nos.1 to 3 respectively) vide registered sale deed dated 21 st July, 1979.
In such a situation, it is settled law that the grand daughter cannot be treated as an heir so as to
have a share in the suit property.
14. To buttress the above noted submission, reliance is placed on the decision of the Madhya
Pradesh High Court in the case of Chandrakanta and Others Vs. Ashok Kumar and Others2002
(3) MPLJ 576and two decisions of this Court in Hardeo Rai Vs. Sakuntala Devi and Others(2008)
7 SCC 46 and Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others
(1986) 3 SCC 567. Additional reference is made to the dictum in Yudhishter Vs. Ashok
Kumar(1987) 1 SCC 204 and Smt. Raj Rani Vs. Chief Settlement Commissioner, Delhi and
Others
(1984) 3 SCC 619
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. It is urged that the High Court has not committed any error, much less a manifest error,
warranting interference by this Court. Hence, it is urged that this appeal being devoid of merits,
be dismissed.
6 7 15. We have heard Mr. Sarabjit Dutta, learned counsel for the appellant and Mr. Manoj
Prasad, learned Senior Counsel for the respondents.
16. Before we proceed to analyse the rival submissions, it may be apposite to reproduce Section
6 of the 1956 Act as applicable at the relevant time. The same read thus:
17. This Court has noted the incidents of coparcenery under the Mitakshra Law, in the case of
State Bank of India Vs. Ghamandi Ram (Dead) Through Gurbax Rai(1969) 2 SCC 33 . In
paragraph 5 of the reported decision, the Court observed thus:
“5. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is
held in collective ownership by all the coparceners in a quasi corporate capacity. The textual
authority of the Mitakshara lays down in express terms that the joint family property is held in
trust for the joint family members then living and thereafter to be born (see Mitakshara, Chapter I,
127). The incidents of coparcenary under the Mitakshara law are: first, the lineal male
descendants of a person up to the third generation, acquire on birth ownership in the ancestral
properties of such person; secondly, that such descendants can at any time work out their rights
by asking for partition; thirdly, that till partition each member has got ownership extending over
the entire property, conjointly with the rest; fourthly, that as a result of such co ownership the
possession and enjoyment of the properties is common; fifthly, that no alienation of the property
is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that
the interest of a deceased member lapses on his death to the survivors. A coparcenary under the
Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on
adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral
properties of the latter.” (emphasis supplied) This exposition has been taken note of in Hardeo
Rai (supra).
After noticing this exposition, the Court went on to observe in paragraph Nos.20 to 23 as follows:
8 “20. The first appellate court did not arrive at a conclusion that the appellant was a member of a
Mitakshara coparcenary. The source of the property was not disclosed. The manner in which the
properties were being possessed by the appellant visàvis the other co-owners had not been taken
into consideration. It was not held that the parties were joint in kitchen or mess. No other
documentary or oral evidence was brought on record to show that the parties were in joint
possession of the properties.
21. One of the witnesses examined on behalf of the appellant admitted that the appellant had been
in separate possession of the suit property. The appellant also in his deposition accepted that he
and his other cosharers were in separate possession of the property.
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22. For the purpose of assigning one’s interest in the property, it was not necessary that partition
by metes and bounds amongst the coparceners must take place. When an intention is expressed to
partition the coparcenary property, the share of each of the coparceners becomes clear and
ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary
property. The parties in such an event would not possess the property as “joint tenants” but as
“tenants in common”. The decision of this Court in SBI1, therefore, is not applicable to the
present case.
23. Where a coparcener takes definite share in the property, he is owner of that share and as such
he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate
property.” In the case of Chander Sen (supra), this Court considered the interplay
between Sections 4, 6 and 8 of the 1956 Act including Chapter II and heirs in ClassI of the
Schedule. The Court noted as follows:
“10. The question here, is, whether the income or asset which a son inherits from his father when
separated by partition the same should be assessed as income of the Hindu undivided family of
son or his individual income. There is no dispute among the commentators on Hindu law nor in
the decisions of the court that under the Hindu law as it is, the son would inherit the same as karta
of his own family. But the question is, what is the effect of Section 8 of the Hindu Succession
Act, 1956? The Hindu Succession Act, 1956 lays down the general rules of succession in the case
of males. The first rule is that the property of a male Hindu dying intestate shall devolve
according to the provisions of Chapter II and Class I of the Schedule provides that if there is a
male heir of Class I then upon the heirs mentioned in Class I of the Schedule. Class I of the
Schedule reads as follows:
“Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of
a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of
a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son;
widow of a predeceased son of a predeceased son.”
11. The heirs mentioned in Class I of the Schedule are son, daughter etc. including the son of a
predeceased son but does not include specifically the grandson, being, a son of a son living.
Therefore, the short question, is, when the son as heir of Class I of the Schedule inherits the
property, does he do so in his individual capacity or does he do so as karta of his own undivided
family?
12. Now the Allahabad High Court has noted that the case of CIT v. Ram Rakshpal, Ashok
Kumar after referring to the relevant authorities and commentators had observed at p. 171 of the
said report that there was no scope for consideration of a wide and general nature about the
objects attempted to be achieved by a piece of legislation when interpreting the clear words of the
enactment. The learned judges observed, referring to the observations of Mulla’s Commentary on
Hindu Law and the provisions of Section 6 of the Hindu Succession Act, that in the case of assets
of the business left by father in the hands of his son will be governed by Section 8 of the Act and
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he would take in his individual capacity. In this connection reference was also made before us
to Section 4 of the Hindu Succession Act. Section 4 of the said Act provides for overriding effect
of Act. Save as otherwise expressly provided in the Act, any text, rule or interpretation of Hindu
law or any custom or usage as part of that law in force immediately before the commencement of
this Act shall cease to have effect with respect to any matter for which provision is made in the
Act and any other law in force immediately before the commencement of the Act shall cease to
apply to Hindus insofar it is inconsistent with any of the provisions contained in the Act. Section
6 deals with devolution of interest in coparcenary property and it makes it clear that when a male
Hindu dies after the commencement of the Act having at the time of his death an interest in a
Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon
the surviving members of the coparcenary and not in accordance with the Act. The proviso
indicates that if the deceased had left him surviving 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, under this Act and not by survivorship.” (emphasis
supplied) Again in paragraph 15:
“15. It is clear that under the Hindu law, the moment a son is born, he gets a share in the father’s
property and becomes part of the coparcenary. 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 separated 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. But the question is: is the position affected by Section 8 of the Hindu Succession
Act, 1956 and if so, how? The basic argument is that Section 8 indicates the heirs in respect of
certain property and Class I of the heirs includes the son but not the grandson. It includes,
however, the son of the predeceased son. It is this position which has mainly induced the
Allahabad High Court in the two judgments, we have noticed, to take the view that the income
from the assets inherited by son from his father from whom he has separated by partition can be
assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956
the property of the father who dies intestate devolves on his son in his individual capacity and not
as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary
view.” After considering the divergent views expressed by the Allahabad High Court, Full Bench
of the Madras High Court, Madhya Pradesh and Andhra Pradesh High Courts on one side and the
Gujarat High Court on the other, it proceeded to opine as follows:
“21. 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.
22. 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
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and does not include 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
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 by applying the old Hindu law get a right by birth of
the said property contrary to the scheme outlined in Section 8. Furthermore, as noted by the
Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the
Act in case of doubt and not to the preexisting Hindu law. It would be difficult to hold today that
the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be
HUF in his hand visàvis his own son; that would amount to creating two classes among the heirs
mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property visàvis
son and female heirs with respect to whom no such concept could be applied or contemplated. It
may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow,
mother, daughter of predeceased son etc.
23. Before we conclude we may state that we have noted the observations of Mulla’s
Commentary on Hindu Law, 15th Edn. dealing with Section 6 of the Hindu Succession Act at pp.
92426 as well as Mayne’s on Hindu Law, 12th Edn., pp. 91819.
24. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and
must prevail. The preamble to the Act reiterates that the Act is, inter alia, to “amend” the law,
with that background the express language which excludes son’s son but includes son of a
predeceased son cannot be ignored.” (emphasis supplied) This decision has been quoted with
approval in Yudhishter (supra). In paragraph 10 of the said decision, the Court observed thus:
“10. This question has been considered by this Court in CWT v. Chander Sen where one of us
(Sabyasachi 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 coparcenary. 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 separated 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 karta of his own undivided
family but takes it in his individual capacity. At p. 577 to 578 of the Report, this Court dealt with
the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla,
15th Edn., pp. 92426 as well as Mayne’s Hindu Law, 12th Edn. pp. 91819. Shri Banerji relied on
the said observations of Mayne on Hindu Law, 12th Edn., at p. 91819. This Court observed in the
aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court,
the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and
unable to accept the views of the Gujarat High Court. To the similar effect is the observation of
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learned author of Mayne’s Hindu Law, 12th Edn., p. 919. In that view of the matter, it would be
difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu
Succession Act, 1956 would be HUF in his hand visàvis his own sons. If that be the position then
the property which devolved upon the father of the respondent in the instant case on the demise of
his grandfather could not be said to be HUF property. If that is so, then the appellate authority
was right in holding that the respondent was a licensee of his father in respect of the ancestral
house.”
18. The respondents have also invited our attention to the decision of Madhya Pradesh High
Court in Chandrakanta (supra), which had followed the aforementioned dictum to reject the claim
of the plaintiffs on the ground that so long as their father was alive, they cannot claim any right.
19. Reverting to the factual matrix of the present case, it is noticed that Sukhdeo had inherited
ancestral property and was alive till 1965. The father of appellant, Saheblal, predeceased him in
1957. Saheblal was the son of Janakram. Janakram died in 1982. During the life time of
Janakram, in terms of Section 6 of the 1956 Act, Saheblal could not have succeeded to the
property as he could claim only through Janakram. Janakram, however, was alive till 1982. If
Saheblal himself had no claim in his own rights, the question of appellant, being his daughter,
succeeding to the property does not arise.
20. The consistent view of this Court, including of three Judge Bench, is that the grand son or
grand daughter is clearly excluded from heirs in ClassI. Saheblal himself was grand son of
Sukhdeo, who predeceased Sukhdeo. After the demise of Sukhdeo in 1965, therefore, the
ancestral suit property could be and came to be partitioned between Janakram and Pilaram in
1967. As a result of that partition, the suit property came to the exclusive share of Janakram in his
individual capacity. He could, therefore, legitimately dispose of the same in the manner he
desired and which he did in favour of his grandsons (defendant Nos.1 to 3 respectively) vide
registered sale deed dated 21 st July, 1979. Neither the stated partition of 1967 nor the registered
sale deed in favour of respondents (defendant Nos.1 to 3) dated 21 st July, 1979 has been
challenged. The relief sought in the suit as filed by the appellant/plaintiff is only for partition and
awarding share to the appellant/plaintiff alongwith possession. Suffice it to observe that, the
granddaughter of Janakram (appellant herein) could not have claimed a higher right than the right
of her father Saheblal.
21. Reliance placed by the appellant on the decision of this Court in GurupadKhandappaMagdum
(supra), is inapposite. In that case, the plaintiff, being heir in ClassI, claimed to have share in the
interest of her husband which he had at the time of his death in the coparcenary property. In that
view of the matter, in terms of proviso to Section 6 of the 1956 Act, the interest of her husband in
the coparcenary property would devolve by succession under the 1956 Act. Similarly, in the case
of Raj Rani (supra), the Court was called upon to consider the dispute between the widow, three
sons and three daughters of the deceased who being heirs in ClassI had succeeded to interest in
equal shares, as the property in question was Mitakshara coparcenary property, by virtue of
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ExplanationI of Section 6 of the 1956 Act. That analysis can be discerned from paragraph 17 of
the reported judgment. Even the recent decision of this Court in Ramesh Verma (supra), does not
take the matter any further for the appellant. Inasmuch as, even in that case, the dispute was
between the concerned heirs in ClassI after the demise of Bhagwan Das. Before commencement
of the 1956 Act, the notional partition had taken place and as per Section 82 of the Madhya
Bharat Land Code, his sons and wife became entitled to get 1/3 share in the property. On
partition, share had fallen to one of the sons which became his separate property and no longer
remained a Mitakshara property. This factual position could be discerned from paragraph 11 of
the reported judgment.
22. A priori, we uphold the view taken by the High Court that after the death of Sukhdeo in 1965,
the property devolved upon his two sons Janakram and Pilaram. They succeeded to the ancestral
property equally. They later effected partition in 1967, as a result of which, the property came to
the exclusive share of Janakram. The father of appellant, Saheblal, had predeceased his father
Janakram and even his grandfather Sukhdeo. During the life time of Janakram, Saheblal could not
have succeeded to the property and for the same reason, the appellant being his daughter cannot
be heard to claim any right higher than that of Saheblal. Applying the settled legal position to the
present case, the grounds urged by the appellant need to be rejected.
23. Accordingly, this appeal must fail. Hence, the same is dismissed with no order as to costs.
24. All pending applications are also disposed of in the above terms.
