Hindu Succession Act, 1956 — Sections 6 & 9 — Coparcenary property

March 20th, 2013

Hindu Succession Act, 1956 — Sections 6 & 9 — Coparcenary property — Claim of share when shares among heirs not identified and determined — One `S’ died intestate leaving two wives `N’ and `Sh’, one son `RK’ and three daughters surviving — Prior to her marriage with `S’, `Sh’ was married to `L’ and a son, appellant was born from her first marriage — Appellant, son of `Sh’ born out of her first marriage, filed a suit against his mother — Claim made by appellant was found on basis that his mother `Sh’ had acquired 1/5th share in the property after death of `S’ — No evidence that shares among heirs of `S’ were determined by agreement or otherwise — Trial court decree appellant’s suit — Whether determination of shares among the heirs of `S’ by the courts below could be sustained — Held, no — In absence of any pleading or evidence in the suit filed by appellant that shares among heirs of `S’ were determined by agreement or otherwise, the share of `Sh’ was not identified and, thus, she could not have alienated 1/5th share in the property to appellant — Principles of Hindu Law by Mulla, Vol. 1(17th Edn.), Article 315.

A. Raghavamma vs. A. Chenchamma, AIR 1964 SC 136, Kalyani (Dead) By LRs. vs. Narayanan, 1980(Supp) SCC 298, Relied on.

HELD: In our opinion, the conclusion arrived at by the three courts that the decree dated March 9, 1979 was not binding on the first respondent is right and proper and calls for no interference. However, we maintain the conclusion not for the reasons given by the High Court or the two courts below but for the reasons which we indicate hereinafter. Pertinently, in the earlier suit filed by the appellant against his mother in which the decree dated March 9, 1979 was passed, it was not even the case of the appellant or his mother Shingari that shares among heirs of Soran were determined by agreement or otherwise. Till disruption of joint family status takes place, neither coparcener nor the other heirs entitled to share in the joint family property can claim with certainty the exact share in that property.

In Principles of Hindu Law by Mulla; Vol. I (17th Edition) as regards the right of wife, it is stated that a wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled (except in Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband.

Widow, sons and daughters are Class I heirs and in terms of Section 9, the succession among heirs in Class I takes simultaneously and to the exclusion of all other heirs. Mr. Neeraj Jain, learned senior counsel for the appellant strenuously urged that in view of proviso to Section 6, which is attracted in the present case as the normal rule provided for by that Section does not apply and the fact that Soran left behind him two wives, one son and three daughters at the time of his death and one of the surviving wives had also died, Shingari’s share in the property would be at least 1/5th and, therefore, High Court was clearly in error in holding that Shingari alienated much beyond her share to the appellant.

We are afraid, in the absence of any pleading or evidence in the suit filed by the appellant that shares among heirs of Soran were determined by agreement or otherwise, the share of Shingari was not identified and, thus, she could not have alienated 1/5th share in the property to the appellant. In any case, determination of the shares in the absence of the three daughters of Soran, who were also Class I heirs in Schedule appended to the 1956 Act could not have been done. All the three courts fell in grave error in determining the shares of Shingari and the first respondent even though the three daughters were not party in the suit. The whole exercise by the three courts in this regard was unnecessary, uncalled for and in violation of principles of natural justice.

Man Singh v. Ram Kala[Bench Strength 2], Civil Appeal No. 7179/2005(09/12/2010), 2011 AIR(SC) 1542: 2010(14) SCC 350: 2010(13) JT 550: 2010(13) SCALE 250: 2010(8) Supreme 475: 2010(9) SLT 294 [Aftab Alam, J.: R.M. Lodha, J.]

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