1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Second Appeal No.266 of 2010

1. Bhagela Sahu, S/o Dhelu Ram Sahu, aged about 47 years,

2. Toman Lal, S/o Bhagela, aged about 8 years, (Minor) Through his legal
guardian Father Bhagela Sahu.

Both are R/o Village Jaung, Post Jevra, Patwari Halka Number 33,
Tahsil Bemetara, District Durg (C.G.)
(Defendants)
—- Appellants

Versus

1. Raju Sahu, S/o Dhelu Ram Sahu, aged about 26 years, Present R/o
Shankar Nagar, Simga, District Raipur (C.G.)
(Plaintiff)

2. State of Chhattisgarh, Through Collector Durg, District Durg (C.G.)
(Defendant No.3)
—- Respondents

————————————————————————————————————

For Appellants / Defendants No.1 2: –

Mr. Pushpendra Kumar Patel, Advocate.

For Respondent No.1 / Plaintiff: –

None present.

For Respondent No.2 / State: –

Mr. Anshuman Rabra, Panel Lawyer.

Amicus Curiae: Mr. Ratan Pusty and Mr. Shobhit Koshta, Advocates.

————————————————————————————————————

Hon’ble Shri Justice Sanjay K. Agrawal

Judgment On Board

27/02/2020

1. This second appeal preferred under Section 100 of the CPC by the

appellants herein / defendants No.1 2 was admitted for hearing by

formulating the following substantial questions of law: –

“(1) Whether the suit suffered from non-joinder of
necessary parties as the daughters of defendant No.1 were
not arrayed in the suit?

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(2) Whether a decree for ½ share in the suit property can
be passed in favour of the appellants in respect of the
ancestral property for which the suit has been preferred
during the lifetime of father?”

[For the sake of convenience, parties hereinafter will be referred
as per their status shown and ranking given in the plaint before the trial
Court.]

2. It is the case of the plaintiff that the suit property mentioned in Schedule

A appended with the plaint fell in the share of Bhagela Sahu – defendant

No.1 in the family partition between his brother and his father and the

property mentioned in Schedule B appended with the plaint was

purchased out of the income of the property shown in Schedule A of

the plaint. The plaintiff filed suit for declaration of title, partition,

separate possession and mesne profit stating inter alia that he is son of

Bhagela Sahu out of his marriage with first wife Kumari Bai, whereas

defendant No.2, Chandrakali and Dhaneshwari Bai are son and

daughters of Bhagela Sahu out of his marriage with second wife Kunti

Bai. Defendant No.1 Bhagela Sahu filed written statement and disputed

the paternity of the plaintiff stating inter alia that the plaintiff is not his

son and therefore not entitled for partition over the suit land, that too

during his lifetime.

3. The trial Court after appreciating oral and documentary evidence

available on record, dismissed the suit holding that the plaintiff is not son

of defendant No.1, but in appeal preferred by the plaintiff before the

first appellate Court, the first appellate Court held that the plaintiff is the

legitimate son of Bhagela Sahu – defendant No.1 out of his marriage

with Kumari Bai and defendant No.2, Chandrakali Dhaneshwari Bai

are son daughters of Bhagela Sahu out of his marriage with Kunti Bai
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– second wife, during the subsistence of marriage with Kumari Bai

(without chod chutti) and accordingly held that the plaintiff is entitled

for half share in the suit property against which this second appeal under

Section 100 of the CPC has been preferred by defendants No.1 2 in

which substantial questions of law have been formulated which have

been set-out in the opening paragraph of this judgment.

4. Mr. Pushpendra Kumar Patel, learned counsel appearing for the

appellants herein / defendants No.1 2, wold submit that Chandrakali

and Dhaneshwari Bai – two daughters of Bhagela ought to have been

impleaded as party defendants in the suit, as such, the suit is bad for

non-joinder of necessary party. He would further submit that since

defendant No.1 Bhagela is still alive, therefore, the plaintiff (son) could

not have brought suit for partition during the lifetime of his father /

defendant No.1. As such, the suit deserves to be dismissed on both the

counts.

5. Per contra, Mr. Ratan Pusty and Mr. Shobhit Koshta, learned amicus

curiae, would submit that the position with regard to filing of suit by son

has been settled by the Supreme Court in the matter of Puttrangamma

and others v. M.S. Ranganna and others 1 as with regard to the joint

family property / coparcenary property, son is at liberty to file suit

against his father during the lifetime of his father, as such, no exception

can be taken to the suit which has been filed by the son – plaintiff

against his father – defendant No.1. They would further submit that

since daughters of Bhagela are illegitimate daughters and the suit

property is the ancestral property in the hands of Bhagela, therefore,

1 AIR 1968 SC 1018
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daughters would not be necessary party in the light of the decision of the

M.P. High Court in the matter of Smt. Gomati Devi v. Ram Prasad

Prabhudayal and others2.

6. None present for respondent No.1 / plaintiff, though served with the

notice of appeal.

7. I have heard learned counsel for the parties present and considered their

rival submissions made herein-above and also went through the record

with utmost circumspection.

8. The trial Court dismissed the suit holding that the plaintiff is not son of

defendant No.1 which the first appellate Court reversed holding that he

is son of defendant No.1 and that finding has not been assailed in this

second appeal, as such, this finding of son and father relationship has

become final.

Answer to Substantial Question of Law No.1: –

9. The question for consideration is, whether Chandrakali and Dhaneshwari

Bai – daughters of defendant No.1 Bhagela out of his wedlock with

Kunti Bai during the subsistence of his first marriage with Kumari Bai, are

necessary party by which the plaintiff is liable to be non-suited?

10. In this regard, Sir Dinshaw Fardunji Mulla in his celebrated work “Hindu

Law” (23rd Edition) at page 529 under the heading “Suit for Partition”

indicated in sub-section (2) of Section 332 as to who should be party

(necessary and / or proper) in a suit for partition which reads as under: –

“(2) Parties to suit.–(a) The plaintiff in a partition suit
should plead as defendants:

(i) the heads of all branches;

2 AIR 1958 MP 6
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(ii) females who are entitled to a share on partition;

(iii) the purchaser of a portion of the plaintiff’s share, the
plaintiff himself being a coparcener;

(iv) if the plaintiff himself is a purchaser from a
coparcener, his alienor.

The above are necessary parties and if any of them is
not joined, the suit is liable to be dismissed. The entire joint
family must be represented either expressly or implicitly.
Reference may be made to section 6 of the Hindu Succession
Act, 1956, and particularly to the proviso to that section.
Also, see notes under that section post.

(b) It is desirable that the following persons should be
made parties; though not necessary parties, they are proper
parties to such a suit:

(i) a mortgagee with possession of the family property or
of the undivided interest of a coparcener;

(ii) simple mortgagees of specific items of the family
property;

(iii) purchaser of the undivided interest of a coparcener;

(iv) persons entitled to provision for their maintenance
and marriage, i.e., widows, daughters, sisters and such
like and distinguished heirs;

(v) any person entitled to maintenance from the family.”

11. A careful perusal of the aforesaid provision would show that in the suit

for partition, the head of all branches; females who are entitled to a

share on partition; the purchaser of a portion of the plaintiff’s share, the

plaintiff himself being a coparcener; and if the plaintiff himself is a

purchaser from a coparcener, his alienor, are necessary parties and

otherwise, the suit is liable to be dismissed, and proper parties has also

been indicated in clause (b) of sub-section (2).

12. The M.P. High Court in Smt. Gomati Devi (supra) has clearly held that
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where a person in a suit for partition is interested in its result and is

entitled to a share he must be regarded as a necessary party. Relying

upon Mayne’s Treatise on Hindu Law and Usage, 1953 Edition, it has

further been held that the females are also necessary parties to the suit

when they are entitled to share on partition.

13. Reverting to the facts of the present case, in this case, express objection

was taken by defendant No.1 before the trial Court and the trial Court

struck issue No.6 and held that the suit suffers from non-joinder of

necessary party, but that finding has been reversed by the first appellate

Court holding that defendant No.1 Bhagela married Kunti Bai – second

wife without giving divorce to his first wife Kumari Bai, even no

customary divorce took place between them, as such, out of the

marriage of Kunti Bai with Bhagela during the subsistence of his first

marriage with Kumari Bai, Tomanlal – defendant No.2, Chandrakali and

Dhaneshwari Bai were born being illegitimate son and daughters,

therefore, they (Chandrakali Dhaneshwari Bai) were not necessary

party. Since it has been held by the first appellate Court that the suit

property was the ancestral property in the hands of Bhagela, therefore,

Chandrakali and Dhaneshwari Bai being the illegitimate daughters of

Bhagela out of his wedlock with Kunti Bai would not be entitled for

share in the ancestral property of Bhagela by virtue of Section 16(3) of

the Hindu Marriage Act, 1956, as held by the Supreme Court in the

matter of Jinia Keotin v. Kumar Sitaram Manji3, by virtue of Section

16(3) of the Hindu Marriage Act, 1956, illegitimate sons and

daughters are only entitled to succeed the self-acquired property of their

3 (2003) 1 SCC 730
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father and they are not entitled to succeed the ancestral property of

their father, though the issue has been referred to larger Bench, but the

legal position as stands today is, the illegitimate sons and daughters are

entitled to succeed the self-acquired property of their father and not

entitled for ancestral property of their father. As such, in the present

case, since Chandrakali and Dhaneshwari Bai are illegitimate daughters of

Bhagela – defendant No.1 out of his wedlock with Kunti Bai and the suit

property is the ancestral / coparcenary property in the hands of Bhagela,

they were not even entitled to succeed the property of their father by

virtue of the amendment incorporated in Section 6 of the Hindu

Succession Act, 1956 with effect from 9-9-2005 and therefore they

were not necessary party and suit for partition is not bad for want of

impleadment of Chandrakali and Dhaneshwari Bai as necessary party.

The first substantial question of law is answered accordingly.

Answer to Substantial Question of Law No.2: –

14. It is the case of defendant No.1 – father that during his lifetime son –

plaintiff cannot seek partition. It is not in dispute that the suit property

is the ancestral property as partly held by the first appellate Court and it

has been held by the first appellate Court that the suit property is the

ancestral property in the hands of defendant No.1 Bhagela.

15. Now, the question is, whether son can bring suit for partition during the

lifetime of his father? This question is no longer res integra.

16. The Supreme Court in Puttrangamma (supra) has held that a member of

a joint Hindu family subject to a Mitakshara law can bring about his

separation in status by a definite, unequivocal and unilateral declaration

of his intention to separate himself from the family and enjoy his share in
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severalty. It was observed as under: –

“(4) It is now a settled doctrine of Hindu Law that a
member of a joint Hindu family can bring about his
separation in status by a definite, unequivocal and unilateral
declaration of his intention to separate himself from the
family and enjoy his share in severalty. It is not necessary
that there should be an agreement between all the
coparceners for the disruption of the joint status. It is
immaterial in such a case whether the other coparceners give
their assent to the separation or not. The jural basis of this
doctrine has been expounded by the early writers of Hindu
Law. …”

17. The decision of the Supreme Court in Puttrangamma (supra) has been

followed by the Mysore High Court in the matter of Devagya Tuklya

and others v. Shivgya Igya and others 4 by concluding that a son is

entitled to seek partition of joint family property without the consent of

his father.

“11. We shall now proceed to consider whether by the
decision of the Supreme Court in Puttarangamma’s case, AIR
1968 SC 1018 the view of the Bombay High Court in
Apaii’s case, (1892) ILR 16 Bom 29 (FB) is impliedly over-
ruled or not. In that case the Supreme Court has observed
as follows:–

“It is now a settled doctrine of Hindu Law that a
member of a joint family can bring about his
separation In status by a definite, unequivocal and
unilateral declaration of his intention to separate
himself from the family and enjoy his share in
severalty. It is not necessary that there should be an
agreement between all the coparceners for the
disruption of the joint status. It is immaterial in such a
case whether the other coparceners give their assent to
the separation or not. The jural basis of this doctrine
has been expounded by the early writers of Hindu law.
The relevant portion of the commentary of
Vijnaneswara states as follows:–

(Text omitted)

4 AIR 1973 Mysore 4
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And thus though the mother is having her menstrual
courses (has not lost the capacity to bear children) and
the father has attachment and does not desire a
partition. Yet by the will (or desire) of the son a
partition of the grand-father’s wealth does take place.

Saraswathi Vilasa, placitum 28 states:

(Text omitted)

From this it is known that without any speech (or
explanation) even by means of a determination (or
resolution), only partition is effected, just as an
appointed daughter is consisted by mere intention
without speech. “Viramitrodaya of Mitra Misra (Ch.
II, pl. 23) is to the following effect :

(Text omitted)

Here too there is no distinction between a partition
during the lifetime of the father or after his death and
partition at the desire of the sons may take place or
even by the desire (or at the will) of a single
(coparcener). Vyavahara Mayukha of Nilakantabhatta
also states:

(Text omitted)

Even in the absence of any common (joint family)
property, severance does indeed result by the mere
declaration “I am separate from these because
severance is a particular state (or condition) of the
mind and the declaration is mere ly a manifestation of
this mental state (or condition).”

(underlining by us)

A reading of the above passage from the decision of the
Supreme Court would show that the right of a member of
coparcenery to demand a partition at his own will and
without the concurrence of the other coparceners including
the father is well recognised. It should, therefore, be held
that the view of the High Court of Bombay in Apaji’s case.
(1892) ILR 16 Bom 29 (FB) stands impliedly overruled. At
this stage we may refer to a decision of the Privy Council in
Shiba Prasad Singh v. Prayag Kumari Debi, AIR 1932 PC 216,
in which Sir Dinshah Mulla speaking for the Judicial
Committee observed as follows:–

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“In the case of ordinary joint family property, the
members of the family have: (1) the right of partition;
(2) the right to restrain alienations by the head of the
family except for necessity; (3) the right of maintenance;
and (4) the right of survivorship.”

It is, therefore, clear that the right of partition is considered
as a necessary incident of the co-ownership of property by
members of a Hindu joint family. The above decision of the
Privy Council must also be considered as having superseded
the opinion expressed in Apaji’s case, (1892) ILR 16 Bom
29 (FB).”

18. The decision of the Mysore High Court in Devagya Tuklya (supra) has

been followed with approval by the Rajasthan High Court in the matter

of Kastoor Chand and others v. Board of Revenue and others 5 in which

following the decision of the Supreme Court in Puttrangamma (supra),

the Rajasthan High Court has clearly held that now, it is well settled that

grand-son/son can seek partition of the ancestral joint Hindu property

during the time of his father/grand-father. However, the Karnataka

High Court in the matter of Kenchegowda v. K.B. Krishnappa and

others6 held as under: –

“25. Under the Hindu law, a Hindu son in the area covered
by Mitakshara law acquires right in the co-parcenary property
by birth. Therefore, he can maintain a suit against his father
in respect of his right which he acquires by birth. That is
what is precisely stated in Section 307 referred to supra

“307.Sons, grandsons and great-grandsons-Every adult
coparcener is entitled to demand and sue for partition of
the coparcenary property at any time.”

30. The principle underlying the concept is that the
property to be divided is Ex. vi termini, the property which
has been previously held as Joint Property in co-parcenary.

The son’s right at birth, under the Mitakshara, is so
connected with the right to share in, and to obtain partition

5 2006 SCC OnLine Raj 1534
6 ILR 2008 Karnataka 3453
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of, the estate, that it does not exist independently of the
latter right. Thus under the Hindu law, the son acquires right
to co-parcenary property by birth. In other words he
acquires title to the co-parcenary property by birth. It is a
vested right. It is that right in the property, i.e., the right to
joint enjoyment of the property, which is transformed into an
enjoyment in severally through the process of partition. It is
that antecedent title which the members of a co-parcenary
possess by birth jointly with other members of the co-
parcenary which is specifically defined at the partition.
Existence of an antecedent title is a prerequisite for
enforcement of a right to partition. Separate or self acquired
property of a member of the coparcenary or joint family
cannot be the subject matter of partition amongst the
member of a co-parcenary or Joint family. No child whether
legitimate or illegitimate, acquires any right by birth in the
separate property or the self acquired property of its parents.
Thus they acquire no title to such property by birth. They
do not possess any antecedent title to such property. The
right to such property accrues to them only on their parents
dying intestate. It is the death of the parents and not the
birth of the child, which confers right on such property. In
respect of such property, both legitimate and illegitimate
child, succeed in accordance with the provisions of Section 8
and 15 of the Succession Act, if the parents die intestate. It
is only after the event, i.e. death, the suit for partition could
be filed. Therefore, it follows that no suit for partition could
be filed against the parents during their life time, in respect
of separate self acquired property of parents. The
illegitimate son is not a co-parcener. He has no right in co-
parcenary property. However, he has a right in the share of
the father in co-parcenary property. That right he can
exercise only on his father dying intestate. He has no right
by birth in the separate or self acquired property of his
parents. His right accrues only after his parents die intestate.
Therefore, a son born of void or voidable marriage
(illegitimate son) can never maintain a suit in respect of the
property of his parent, against his or her parent.”

19. Mulla in “Hindu Law” (23rd Edition) at page 492 under the heading

“Persons entitled to a share on partition” observed in Section 306 as

under: –

“§ 306. Sons, grandsons and great-grandsons.–Every adult
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coparcener is entitled to demand and sue for partition of the
coparcenary property at any time. …”

20. In view of the aforesaid settled legal position, son is entitled to seek

partition only on the ancestral / coparcenary property of his father

during his lifetime held as a coparcener and he would not be entitled to

seek partition of the separate property of his father during the lifetime of

his father. The second substantial question of law is answered

accordingly.

21. As a fallout and consequence of the aforesaid discussion, the second

appeal deserves to be and is accordingly dismissed. Parties shall bear

their own cost(s).

22. This Court appreciates the assistance rendered by Mr. Ratan Pusty and

Mr. Shobhit Koshta, Advocates, on short notice.

23. Decree be drawn-up accordingly.

Sd/-

(Sanjay K. Agrawal)
Judge
Soma