Chattisgarh High Court
Kunwar Singh vs Sushila Bai on 23 April, 2025
1
2025:CGHC:18296
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 307 of 2022
Judgment Reserved on : 07/04/2025
Judgment delivered on : 23 /04/2025
1 - Kunwar Singh S/o Late Jagatram Yadav Aged About 84 Years R/o Village -
Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur,
Chhattisgarh
2 - Jaipal Yadav S/o Kunwar Singh Aged About 44 Years R/o Village - Rajakampa,
Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
3 - Ahiliya Bai Wd/o Ramgopal Yadav Aged About 48 Years R/o Village -
Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh.
4 - Minor Ku. Priyanka D/o Late Ramgopal Yadav Aged About 17 Years Through
Natural Guardian Mother Ahiliya Bai Wd/o Ramgopal Yadav, R/o Village -
Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur,
Chhattisgarh
5 - Minor Ku. Sushma D/o Late Ramgopal Yadav Aged About 15 Years Through
Natural Guardian Mother Ahiliya Bai Wd/o Ramgopal Yadav, R/o Village -
Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur,
Chhattisgarh
6 - Minor Ku. Sulochana D/o Late Ramgopal Yadav Aged About 10 Years Through
Natural Guardian Mother Ahiliya Bai Wd/o Ramgopal Yadav, R/o Village -
Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur,
Chhattisgarh
7 - Anita Bai D/o Kunwar Singh Aged About 32 Years R/o Village - Rajakampa,
Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh.
8 - Lalita Bai D/o Kunwar Singh Aged About 28 Years R/o Village - Rajakampa,
Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
... Appellants
versus
1 - Sushila Bai D/o Kunwar Singh Caste - Yadav, R/o Village - Ghoramar, Tahsil,
Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh
2 - Indu Bai D/o Kunwar Singh Aged About 40 Years Caste - Yadav, R/o Village
Beeja, Tahsil Takhatpur, District Bilaspur, Chhattisgarh., District : Bilaspur,
Chhattisgarh
2
3 - State Of Chhattisgarh Through - Collector Bilaspur, District Bilaspur,
Chhattisgarh., District : Bilaspur, Chhattisgarh
... Respondents
For Appellants : Mr. Hanuman Prasad Agrawal, Advocate.
For Respondents No. : Mr. Ravindra Sharma, Advocate.
1&2
For Respondent No. 3 : Mr. Santosh Soni, Govt. Advocate.
(Hon’ble Mr. Justice Naresh Kumar Chandravanshi)
C A V Judgment
1. This is defendants’ Second Appeal filed under Section 100 of CPC
against the judgment and decree dated 10.01.2022, passed by 7 th Upper
District Judge, Bilaspur, in Civil Appeal No. 17-A/2019 reversing the judgment
and decree dated 26.11.2018 passed by Civil Judge, Class-II, Takhatpur,
District Bilaspur, in Civil Suit No. 76-A/2011, whereby the plaintiffs’ suit for
declaration of owner-ship, possession and permanent injunction has been
decreed in their favour. [For the sake of convenience, parties would be
referred to as per their status shown in the plaint filed before the trial Court].
2. Facts of the case, as projected by the plaintiffs, are that they filed
civil suit stating inter alia that both the parties are descendants of late
Jagatram. Following genealogy tree would demonstrate relationship among
the parties:-
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lxuh ckbZ ¼iRuh½ gjdqaoj¼iRuh& e`r½
lqf’kyk banq ckbZ jkexksiky¼e`r½ t;iky vfurk yfyrk
vkfgY;kckbZ¼iRuh½dq- fiz;adk¼iq=h½ dq- lq”kek¼iq=h½ dq- lqykspuk¼iq=h½
3Thus, the plaintiffs are daughters of Sagni Bai, who was first wife of
Kunwar Singh (defendant No.1) and defendants No. 2 to 8 are son, daughter,
daughter-in-law and grand-daughters, respectively of Harkunwar, who was
second wife of Kunwar Singh (defendant No. 1). The defendant No. 1-
Kunwar Singh received the suit property mentioned in Schedule “A” attached
with the plaint from his father. Due to not having a son from Sagni Bai,
without getting divorce, Kunwar Singh had made second wife – late
Harkunwar Bai as per Churi rituals prevalent in their Society. Thereafter,
Kunwar Singh ousted his first wife – Sagni Bai from his house. In the month
of October, 2011, on account of death of Harkunwar Bai, when plaintiffs went
to attend rituals and sought partition of suit property, then their father Kunwar
Singh (Defendant No. 1) and brother Jaipal told them that partition of suit
property has already been done and the same has been given to Ramgopal
and Jaipal and thereby they refused to given them their share. At that time,
plaintiffs came to know about aforesaid fact, as after alleged illegal partition,
suit property has been mutated in the name of Ramgopal and Jaipal, without
noticing the plaintiffs. Since suit property is ancestral property of plaintiffs,
therefore, claiming their 1/7th share, they filed civil suit seeking relief of title,
possession and permanent injunction against the defendants.
3. Defendants No. 1 to 8 filed their joint written statement, in which,
they did not dispute genealogy tree / relationship between the parties. They
pleaded that the suit property was not ancestral property of the plaintiffs,
rather it was self acquired property of defendant No. 1 – Kunwar Singh. They
have pleaded that about 35 years prior, mother of plaintiffs namely Sagni Bai
left the company of defendant No. 1 and she had been granted movable
property in partition, she has also taken ornaments with her and after selling
the same, she had purchased land in the name of her nephew – Sunhar. It is
4
further pleading of defendants that defendant No. 1 had partitioned the suit
property and granted it to his sons namely Ramgopal and Jaipal. It is further
pleading of defendants that defendant No. 1 had purchased tractor for son of
plaintiff No. 1 in lieu of land owned by Ramgopal & Jaipal, margin money was
also paid by defendant No. 1. The said Tractor was purchased on loan, but,
since loan amount was not paid by son of plaintiff No. 1 -Sushila Bai,
therefore, that Tractor was possessed by Finance Company and loan was
paid by Ramgopal and Jaipal by selling their land bearing Khasra No. 134,
135 and 280. As such, plaintiffs are not entitled to get relief sought for by
them. They further pleaded that the suit filed by them is barred by limitation,
therefore, the same is liable to be dismissed.
4. Based on pleading of the parties, the trial Court framed as many
as 7 issues, recorded evidence adduced by the parties and after considering
the same and contention of the parties, dismissed the civil suit holding therein
that the plaintiffs have failed to prove that the suit property is their ancestral
property.
5. Being aggrieved & dissatisfied with the same, the plaintiffs preferred
first appeal bearing Civil Appeal No. 17-A/2019, which was decreed by the
first appellate Court holding therein that the suit property was ancestral
property of defendant No. 1 – Kunwar singh, as he received the same in
mutual partition from his brothers, which was succeeded by them from their
father late Jagatram and thereby, first appellate Court reversed the judgment
& decree of the trial Court and allowed the civil appeal filed by plaintiffs
granting decree in their favour. Against which, instant second appeal has
been preferred by the appellant/defendants No. 1 to 8 challenging the same.
6. This second appeal has been admitted for hearing on the
following substantial questions of law :-
5
“1. Whether the First Appellate Court is justified in reversing the
finding of the Trial Court or not ?
2. Whether finding recorded by the trial Court and upheld by the
First Appellate Court that civil suit is within limitation, is perverse and
illegal ?
7. Learned counsel appearing for the appellants/defendants submits
that undisputedly the suit property belongs to late Jagatram partition of his
lands were effected between his five sons and in that partition, the suit
property was fallen in share of defendant No. 1 – Kunwar Singh prior to
year 1994 and in the year 1994, Kunwar Singh effected partition between
his sons namely Ramgopal and Jaipal on 19.10.1994, thereafter, their
names were mutated in the revenue record in the year 1994. But plaintiffs
namely Sushila Bai and Indu Bai instituted civil suit on 01.12.2011. He
submits that as per amended provision of Section 6 of the Hindu
Succession Act [Amendment Act, 2005] declaration of title and partition
effected prior to 20.12.2004 cannot be challenged. As such, civil suit filed
by plaintiffs is not maintainable, as the same was filed on 1.12.2011, which
was beyond the period of 20.12.2004. It is further contended that Kunwar
Singh (defendant No.1) had given suit property in share of his sons
namely late Ramgopal and Jaipal in the year 1994 and in the same year,
suit properties were recorded in their names in the revenue record, but
instant civil suit has been filed by the plaintiffs on 01.12.2011. As such, the
suit is barred by limitation, but the trial Court and First Appellate Court
have wrongly held that suit is within limitation. It is lastly submitted that well
reasoned findings recorded by trial Court dismissing the civil suit, have
been reversed by the first appellate Court without any cogent reasons.
6
Hence, it is prayed that appeal may be allowed, judgment & decree
passed by the first appellate Court may be set-aside and the judgment &
decree passed by the trial Court may be restored.
8. Per contra, learned counsel appearing for the respondents
No. 1 & 2 / plaintiffs would submit that undisputedly, suit property was
owned by father (late Jagatram) of defendant No. 1-Kunwar Singh and
after death of Jagatram, it was mutated in the name of Kunwar Singh
(defendant No.1) and his brothers. It is further contended that in mutual
partition effected between brothers of defendant No. 1 – Kunwar Singh,
suit property was obtained by him in his share. He further submits that
though suit property was recorded in the name of defendnats namely late
Ramgopal and Jaipal in the revenue records in the year 1994 on the
strength of alleged partition effected by their father Kunwar Singh
(defendant No. 1), but that partition was not a valid partition, as in that
partition except late Ramgopal and Jaipal, none other share-holders were
given their share and even Kunwar Singh (defendant No.1) himself was
not kept his own share only to deprive the plaintiffs from suit property. He
further submits that Section 6 (5) of the Hindu Succession Act, 1956 only
protect registered partition or partition effected by a decree of Court
between the parties, but in the guise of said provision, illegal partition
cannot be protected by invoking the aforesaid provisions. In the instant
case, since no valid partition was effected by Kunwar Singh between his
sons & daughters, therefore, such illegal partition can not be protected
under aforesaid provision. He further submits that alleged partition /
mutation was effected without noticing / informing plaintiffs and they came
to know first time in the month of October, 2011 about aforesaid fact.
7
Thereafter, they filed civil suit on 01.12.2011, which is well within the
period of limitation. Therefore, learned first appellate Court has rightly
reversed the judgment & decree passed by the trial Court, decreeing the
suit filed by plaintiffs in their favour, hence, he prayed that the second
appeal filed by the defendants is liable to the dismissed.
9. I have heard learned counsel appearing for the parties and
perused the record of trial Court as well as first appellate court with utmost
circumspection.
10. Plaintiff – Sushila Bai (PW-1) has deposed that the suit property
was owned by her grandfather – Late Jagatram and in the partition
effected between defendant No. 1 – Kunwar Singh and his brothers, the
suit property was fallen in the share of her father Kunwar Singh. This fact
has also been supported by Sukhiram (PW-2), who is brother of defendant
No. 1 – Kunwar Singh.
11. Though, defendant No. 1 – Kunwar Singh (DW-1) and defendant
No. 2 – Jaipal Yadav (DW-2) have stated in their examination-in-chief that
the suit property was self acquired property of defendant No. 1 -Kunwar
Singh, but in cross-examination, they have admitted the suggestion of
plaintiffs’ counsel that suit property was obtained by defendant No. 1 –
Kunwar Singh in partition held between his brothers. Defendant No.1 has
also admitted that he had obtained suit property from his father.
12. The plaintiffs have filed certified copy of ‘ukekarj.k iath’ (Ex.P-9) to
(Ex.P-12), which show that after death of Jagatram, as per Ex.P-9, his
lands were mutated in the name of his sons namely Amar Singh, Kunwar
Singh (defendant No.1), Kanhai Ram, Dukhi Ram and Sukhiram. Perusal
8
of entries made in ‘ukekarj.k iath’ (Ex.P-10) to (Ex.P-12) shows that Kunwar
Singh and his brothers had mutually partitioned their lands between them
and, thereafter, they were cultivating their respective lands to their share.
Aforesaid documents further demonstrates that on 19.10.1994, on the
basis of mutual partition earlier effected between them, they got separated
their shares in revenue records (ukekarj.k iath ) and at the time of that ‘[kkrk
caVokjk’ , defendant No. 1 – Kunwar Singh instead of getting record his
share in his name directly got recorded suit lands of his share in the name
of his sons namely Ramgopal and Jaipal without giving share to the
plaintiffs and himself. Aforesaid facts specifically shows that partition
effected by defendant No. 1 – Kunwar Singh between his two sons
namely Late Ramgopal and Jaipal was not a valid partition, as despite
being ancestral property, he did not give any share to his daughters
(plaintiffs), whereas they were having coparcenary / successory rights on it
as per judgment of the Supreme Court in the matter of Vineeta Sharma
vs. Rakesh Sharma1, wherein the Supreme Court has held that daughters
shall also have co-parcenary right and inherit ancestral property equally as
male heir, irrespective that the father was alive or not. Thus, from the oral
and documentary evidence adduced by the parties, it is very well proved
that the suit property was ancestral property of the plaintiffs, as such,
being daughter of defendant No. 1, they inherited suit property as
coparcener.
13. Though, suit property bearing Khasra No. 857/3/ d, area 0.336
hectare situated at village Bahurta, Tahsil Takhatpur is not mentioned in
ukekarj.k iath (Ex.P-12) and as per registered sale-deed (Ex.D-1) dated
1 2020 (9) SCC 1
9
12.03.1981, land bearing Khasra No. 218, area 1.70 hectare, situated at
village Rajakampa, Tahsil Takhatpur, District Bilaspur was purchased by
defendant No. 1 – Kunwar Singh from Sukhni Bai and her son Ramcharan
@ Santosh, but no evidence has been brought on record by defendants to
prove the fact that those lands were acquired by defendant No. 1 –
Kunwar Singh from his self earning or self acquired property, rather it has
been proved that he had obtained 3.206 hectare suit property in his share
in the partition of his ancestral property and no other source of income of
Kunwar Singh (defendant No.1) has been proved, therefore, on the basis
of preponderance of probabilities, it is proved that those suit properties
were obtained / purchased by defendant No.1 – Kunwar singh from the
income of his ancestral property fallen in his share, therefore, aforesaid
two properties are also found to be ancestral property of the plaintiffs. As
such, finding recorded by learned first appellate Court that plaintiffs are not
entitled to get share in aforesaid two properties is perverse & illegal,
hence, the same is liable to be and is hereby set aside and it is held that
plaintiffs are also entitled to get share on aforesaid two properties i.e.
Khasra No. 857/3/d area 0.336 hectare situated at village Bahuratha,
Tahsil Takhatpur and Khasra No. 218, area 1.70 situated at village
Rajakampa , Tahsil Takhatpur, District Bilaspur.
14. It is admitted / proven fact between the parties that during life
time of Sagni Bai (first wife), her husband Kunwar Singh (defendant No.1)
performed second marriage (pwM+h ‘kknh) with Harkunwar without getting
divorce from his first wife Sagni Bai. It is also admitted fact that the
plaintiffs are daughters of defendant No. 1 – Kunwar Singh born from his
first wife Sagni Bai and defendants are son, daughters & grand daughters
10
of Kunwar Singh (defendant No.1) born from his second wife late
Harkunwar. Since defendant No.1 performed second marriage with
Harkunwar during subsistence of his first marriage, therefore, that second
marriage of defendant No. 1 was void, as such, defendant No. 2 to 8 are
not entitled to get share of suit property, which is ancestral property of
plaintiffs and defendant No. 1, as they (defendants No. 2 to 8) are son,
daughters and grand daughters born from invalid marriage of defendant
No. 1 – Kunwar Singh & Harkunwar.
15. In the case Jinia Keotin and others vs. Kumar Sitaram Manjhi
and others2 Hon’ble Supreme Court has held that children born of void or
voidable marriage are not entitled to claim inheritance in ancestral
coparcenary property, but entitled to claim inheritance in property of
parents only. In aforesaid case, contention made on behalf of children
born of void / voidable marriage was as under :-
” It was contended on behalf of the appellants that once the
children born out of void and illegal marriage have been
specifically safeguarded under Section 16 as amended by
the Central Act 68 of 1976, there is no justification to deny
them equal treatment on par with the children born of wife
in lawful wedlock by countenancing claims for inheritance
even in the ancestral coparcenary property. It was also
contended by the learned counsel that inasmuch as but for
the Hindu Marriage Act, 1955 there was no prohibition for a
Hindu to have more than one wife and it is by virtue of the
said Act such marriages became unlawful or void, once the
legislature by amendment of Section 16 chosen to
2 (2003) 1 SCC 730
11legitimatise the children born of such void marriages, the
prohibition must be held to have been relaxed and the
stigma wiped out so as to render the progeny, legitimate for
all purposes and, therefore, the provisions of Section 16(3)
of the Act also should be construed keeping in view the
totality of circumstances and the object and purpose of the
legislation in respect of right to inherit property also like the
children born out of lawful wedlock.
Hon’ble Supreme Court while rejecting the contention and
dismissing the appeal held as under :-
” Section 16 of the Act, while engrafting a rule of fiction
in ordaining the children, though illegitimate, to be
treated as legitimate, notwithstanding that the marriage
was void or voidable chose also to confine its application,
so far as succession or inheritance by such children are
concerned to the properties of the parents only.
Though Section 16 was enacted to legitimise
children, who would otherwise suffer by becoming
illegitimate, at the same time it expressly provide in Sub-
section (3) by engrafting a provision with a non obstante
clause stipulating specifically that nothing contained in
Sub-section (1) or Sub-section (2) shall be construed as
conferring upon any child of a marriage, which is null and
void or which is annulled by a decree of nullity under
Section 12, “any rights in or to the property of any
person, other than the parents, in any case where, but
12for the passing of this Act, such child would have been
incapable of possessing or acquiring any such rights by
reason of his not being the legitimate child of his
parents.” In the light of such an express mandate of the
legislature itself, there is no room for according upon
such children who but for Section 16 would have been
branded as illegitimate any further rights than envisaged
therein by resorting to any presumptive or inferential
process of reasoning, having recourse to the mere object
or purpose of enacting Section 16 of the Act. Any attempt
to do so would amount to doing not only violence to the
provision specifically engrafted in Sub-section (3) of
Section 16 of the Act but also would attempt to court
relegislating on the subject under the guise of
interpretation, against even the will expressed in the
enactment itself.
16. In reference case of Revanasiddappa and another vs.
Mallikarujun and others3, issue in reference before Supreme Court was
that : “whether a child who is conferred with legislative legitimacy under
Section 16(1) or 16(2) is, by reason of Section 16(3), entitled to the
ancestral/coparcenary property of the parents or is the child merely
entitled to the self-earned/separate property of the parents ? ”
In aforesaid case, Hon’ble Supreme Court while considering various
judgments and relevant provisions of Hindu Marriage Act, 1955 and Hindu
Succession Act, 1956 in respect of joint Hindu family governed by
3 (2023) 10 SCC 1
13Mitakshara law has held that, child born from void or voidable marriage
conferred legitimacy under Section 16 of Hindu Marriage Act, is not a
coparcenar in Hindu Mitakshra joint family. However, such child would be
entitled to share of parents in coparcenary property in accordance with
mandate of Section 6 of Hindu Succession Act, 1956. It was further held
that child conferred legitimacy under Section 16 of the Hindu Marriage Act
has rights only in exclusive and absolute property of parents, such child
cannot seek partition of ancestral / joint family / coparcenary property, in
which, parents have share, during life time of parents. After detailed
discussion, Hon’ble Supreme Court answered reference by formulating
conclusion in paragraph 81 in following terms, which is reproduced
below :-
“81.1. In terms of sub-section (1) of Section 16, a child of a
marriage which is null and void under Section 11 is
statutorily conferred with legitimacy irrespective of
whether (i) such a child is born before or after the
commencement of Amending Act 1976; (ii) a decree of
nullity is granted in respect of that marriage under the Act
and the marriage is held to be void otherwise than on a
petition under the enactment;
81.2 In terms of sub-section (2) of Section 16 where a
voidable marriage has been annulled by a decree of
nullity under Section 12, a child ‘begotten or conceived’
before the decree has been made, is deemed to be their
legitimate child notwithstanding the decree, if the child
would have been legitimate to the parties to the marriage
14if a decree of dissolution had been passed instead of a
decree of nullity;
(81.3) While conferring legitimacy in terms of sub-section
(1) on a child born from a void marriage and under sub-
section (2) to a child born from a voidable marriage which
has been annulled, the legislature has stipulated in sub-
section (3) of Section 16 that such a child will have rights
to or in the property of the parents and not in the
property of any other person;
(81.4) While construing the provisions of Section 3(1)(j)
of the HSA 1956 including the proviso, the legitimacy
which is conferred by Section 16 of the HMA 1955 on a
child born from a void or, as the case may be, voidable
marriage has to be read into the provisions of the HSA
1956. In other words, a child who is legitimate under sub-
section (1) or sub-section (2) of Section 16 of the HSA
would, for the purposes of Section 3(1)(j) of the HSA
1956, fall within the ambit of the explanation ‘related by
legitimate kinship’ and cannot be regarded as an
‘illegitimate child’ for the purposes of the proviso;
(81.5) Section 6 of the HSA 1956 continues to recognize
the institution of a joint Hindu family governed by the
Mitakshara law and the concepts of a coparcener, the
acquisition of an interest as a coparcener by birth and
rights in coparcenary property. By the substitution of
15
Section 6, equal rights have been granted to daughters,
in the same manner as sons as indicated by sub-section
(1) of Section 6;
(81.6) Section 6 of the HSA 1956 provides for the
devolution of interest in coparcenary property. Prior to the
substitution of Section 6 with effect from 9 September
2005 by the Amending Act of 2005, Section 6 stipulated
the devolution of interest in a Mitakshara coparcenary
property of a male Hindu by survivorship on the surviving
members of the coparcenary. The exception to devolution
by survivorship was where the deceased had left
surviving a female relative specified in Class I of the
Schedule or a male relative in Class I claiming through a
female relative, in which event the interest of the
deceased in a Mitakshara coparcenary property would
devolve by testamentary or intestate succession and not
by survivorship. In terms of sub-section (3) of Section 6 as
amended, on a Hindu dying after the commencement of
the Amending Act of 2005 his interest in the property of a
Joint Hindu family governed by the Mitakshara law will
devolve by testamentary or intestate succession, as the
case may be, under the enactment and not by
survivorship. As a consequence of the substitution of
Section 6, the rule of devolution by testamentary or
intestate succession of the interest of a deceased Hindu
16
in the property of a Joint Hindu family governed by
Mitakshara law has been made the norm;
(81.7) Section 8 of the HSA 1956 provides general rules of
succession for the devolution of the property of a male
Hindu dying intestate. Section 10 provides for the
distribution of the property among heirs of Class I of the
Schedule. Section 15 stipulates the general rules of
succession in the case of female Hindus dying intestate.
Section 16 provides for the order of succession and the
distribution among heirs of a female Hindu;
(81.8) While providing for the devolution of the interest of a
Hindu in the property of a Joint Hindu family governed by
Mitakshara law, dying after the commencement of the
Amending Act of 2005 by testamentary or intestate
succession, Section 6 (3) lays down a legal fiction namely
that ‘the coparcenary property shall be deemed to have
been divided as if a partition had taken place’. According
to the Explanation, the interest of a Hindu Mitakshara
coparcener is deemed to be the share in the property that
would have been allotted to him if a partition of the
property has taken place immediately before his death
irrespective of whether or not he is entitled to claim
partition;
(81.9) For the purpose of ascertaining the interest of a
deceased Hindu Mitakshara coparcener, the law mandates
the assumption of a state of affairs immediately prior to the
17
death of the coparcener namely, a partition of the
coparcenary property between the deceased and other
members of the coparcenary. Once the share of the
deceased in property that would have been allotted to him
if a partition had taken place immediately before his death
is ascertained, his heirs including the children who have
been conferred with legitimacy under Section 16 of the
HMA 1955, will be entitled to their share in the property
which would have been allotted to the deceased upon the
notional partition, if it had taken place; and
(81.10) The provisions of the HSA 1956 have to be
harmonized with the mandate in Section 16(3) of the HMA
1955 which indicates that a child who is conferred with
legitimacy under sub-sections (1) and (2) will not be entitled
to rights in or to the property of any person other than the
parents. The property of the parent, where the parent had
an interest in the property of a Joint Hindu family governed
under the Mitakshara law has to be ascertained in terms of
the Explanation to sub-section (3), as interpreted above.
17. Thus, from perusal of the aforesaid case law, it has been settled by
the Apex Court that, children born from null and void marriages would be
entitled to rights in or to the absolute property of the parents and not other
persons and they also cannot claim partition during life time of parents.
18. In the instant case, it is proved that plaintiffs are daughters of
defendant No. 1- Kunwar Singh born from his first wife – Sagni Bai, but
since in her life time during subsistence of first marriage, Kunwar Singh
18
(defendant No.1) performed second marriage with Harkunwar, therefore,
that second marriage was void under Section 11 of the Hindu Marriage
Act, 1955, therefore, the defendants No. 2 to 8 are not a coparcener of suit
property, hence, they are not entitled to get equal share on the suit
property as of plaintiffs, rather they are entitled to get share from the share
of their father / grand-father – Kunwar Singh (defendant No.1). In other
words, applying aforesaid law laid down by Hon’ble Supreme Court, being
ancestral property, the suit property ought to have been divided between
the plaintiffs and his father Kunwar Singh and each of them would have
got 1/3rd share and only from the 1/3rd share received by Kunwar Singh,
defendant Nos. 2 to 8 would have got their share.
19. Though, each of the plaintiffs are entitled to obtain 1 / 3 rd share
of suit property, but they themselves have claimed only 1/7th – 1/7th share
on it. The plaintiffs’ claim of a less share implies that they have waived
their remaining right / shares. Further, it is settled law that relief not found
on pleading should not be granted. And if a Court considers or grants
relief, for which no prayer or pleading was made, it could lead a
miscarriage of justice. [ See : Akella Lalitha Vs. Konda Hanumantha
Rao & another4]
20. In the case of Bachhaj Nahar Vs. Nilima Mandal and another5,
Hon’ble Supreme Court has held that it is a fundamental rule that in a civil
suit, relief to be granted can be only with reference to the prayer made in
the pleadings. Relevant paragrah 23 of the judgment is reproduced
below :-
4 Civil Appeal No. 6325-6326 of 2015, decided on 28.07.2022
5 (2008) 17 SCC 491
19“23. It is fundamental that in a civil suit, relief to be
granted can be only with reference to the prayers made
in the pleadings. That apart, in civil suits, grant of relief
is circumscribed by various factors like court fee,
limitation, parties to the suits, as also grounds barring
relief, like res judicata, estoppel, acquiescence, non-
joinder of causes of action or parties etc., which require
pleading and proof. Therefore, it would be hazardous to
hold that in a civil suit whatever be the relief that is
prayed, the court can on examination of facts grant any
relief as it thinks fit. In a suit for recovery of Rs.one lakh,
the court cannot grant a decree for Rs. Ten lakhs. In a
suit for recovery possession of property `A’, court
cannot grant possession of property `B’. In a suit
praying for permanent injunction, court grant a relief of
declaration or possession. The jurisdiction to grant relief
in a civil suit necessarily depends on the pleadings,
prayer, court fee paid, evidence let in, etc.”
21. Further, in the case of Manohar Lal (D) by Lrs. vs. Ugrasen (D)
by Lrs. and others6 Hon’ble Supreme Court has emphasized that
decisions cannot be based on the grounds outside the pleadings and relief
not asked for, cannot be granted without any amendment to the plaint.
22. Therefore, though each of the plaintiffs are entitled to get 1/3 rd
share over the suit property, but they have claimed only 1/7 th share for
6 AIR 2010 SC 2210
20
each, hence, they cannot be given more share, than what they have
claimed.
23. So far as contention of learned counsel for the appellant with regard
to maintainability of Civil Suit filed by plaintiffs in respect of Section 6(5) of
the Hindu Succession Act, 1956 is concerned. Aforesaid provisions reads
thus :-
“6. Devolution of interest in coparcenary property. (1) ………………
xxx xxx xxx
xxx xxx xxx
(5) Nothing contained in this section shall apply to a partition, which has
been effected before the 20th day of December, 2004.
Explanation. – For the purpose of this section “partition” means any
partition made by execution of a deed of partition duly registered
under the Registration Act, 1908 (16 of 1908) or partition effected by
a decree of a court.
24. A bare perusal of aforesaid provision specifically shows that if partition
was effected between the parties vide registered partition deed or by a decree of
a court prior to 20.12.2004, then, such partition cannot be challenged under the
provisions contemplated in Section 6 of the Act, 1956, meaning thereby if
partition is not effected vide registered partition deed or a decree of a court, then
that partition is not protected under Section 6 (5) of the Act, 1956.
25. In the instant case, it is proved from the evidence available on record that
defendant No. 1 – Kunwar Singh has not effected partition between his
successors vide registered sale-deed or a decree of court, rather alleged
partition was completely invalid partition, as plaintiffs were not given any share in
the suit property. In lieu of their share, defendant No. 1 has allegedly purchased
Tractor in the name of son of plaintiff No. 1 – Sushila Bai and she also taken
ornaments in lieu of her share, but the same has also not been proved.
21
Eventually, no share has been given to the plaintiffs by their father Kunwar Singh
(defendant No.1) of their ancestral property, therefore, contention raised by
learned counsel for the defendants that the civil suit filed by the plaintiffs is not
maintainable in view of provisions contained in Section 6 (5) of the Act, 1956 is
completely misconceived. Therefore, the same is not sustainable. rather as has
been discussed in preceding paragraphs, the suit land is ancestral property of
plaintiffs and defendant No. 1, as such, plaintiffs also inherited suit property and,
therefore, they are entitled to get their share.
26. As per pleading of plaintiffs and deposition of plaintiff No.1 – Sushila Bai,
when the plaintiffs had gone to participate rituals on account of death of her step
mother Harkunwar Bai in the month of October, 2011 to their parental home and
sought partition of suit property, then defendants No. 1 & 2 told them that the
partition of the suit property has already been done, then they first time, came to
know about aforesaid fact. Defendant No. 1 – Kunwar Singh (DW-1) and Jaipal
(DW-2) have not deposed that the alleged partition/ mutation of the suit land was
done in the year 1994 in the name of late Ramgopal and Jaipal, which was well
within the knowledge of plaintiffs. Revenue documents (Ex.P-9) to (Ex.P-12)
also did not contain the fact that prior to such partition/ mutation, any notice was
issued / served to the plaintiffs, rather it is found that to deprive plaintiffs from
their share, defendant No. 1 in a secretive manner, got mutated the suit property
in the name of only his two sons namely late Ramgopal and Jaipal, therefore,
finding recorded by the trial Court as well as by the first appellate that the
plaintiffs first time came to know about alleged invalid partition / mutation in the
month of October, 2011 and the suit was filed by the plaintiffs on 01.12.2011, as
such, the civil suit is well within the limitation period is just & proper. Even
otherwise, as per Article 110 of the Schedule of Limitation Act, 1963 “12 years”
limitation has been prescribed for filing civil suit by a person excluded from a joint
22family property to enforce right of share therein, from the date when the
exclusion becomes known to the plaintiffs. Therefore, finding recorded by the trial
Court and upheld by first appellate Court that suit has been filed within the
limitation period is well within the premise of law, which do not call for any
interference of this Court.
27. Thus, though each of the plaintiffs are entitled to get 1/3 rd share of suit
property, but they themselves have claimed less share i.e. 1/7 th – 1/7th to be
granted to them and thereby they have waived their remaining share on it.
Therefore, granting 1/7th share of the suit property to each of the plaintiffs by
learned appellate Court is found to be valid in view of above discussion. As
such, the same is hereby affirmed.
28. In view of foregoing discussion, it is found that first appellate Court has
not committed any error of law in granting 1 / 7 th share each to both the plaintiffs
over the suit property by reversing the finding of the trial Court, and finding
recorded by First Appellate Court upholding the finding of trial Court that the civil
suit filed by the plaintiffs is well within the limitation period is also in accordance
with law. Consequently, judgment & decree passed by the first appellate Court is
upheld and the second appeal filed by the appellants/defendants deserves to be
dismissed.
29. Accordingly, both the substantial questions of law are answered in favour
of plaintiffs and against the defendants. Consequently, second appeal is
dismissed.
30. A decree be drawn up accordingly.
Sd/-
AMIT
Digitally
signed by
AMIT KUMAR
(Naresh Kumar Chandravanshi)
Judge
DUBEY
KUMAR Date:
DUBEY 2025.04.24
11:38:59
+0530
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