REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7179 OF 2005

Man Singh (D) By LRs.                                 ……  Appellant

Vs.

Ram Kala (D) By LRs. & Ors.          ……  Respondents  

JUDGMENT

R.M. LODHA, J.  

This  appeal,  by  special  leave,  is  directed  against  the  

judgment dated January 7, 2004 passed by the High Court of Punjab  

and  Haryana  whereby  the  second  appeal  preferred  by  present  

respondents 1(i)  to (vi) was allowed and the judgment and decree  

dated December 21, 1981 passed by the Additional  District  Judge  

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(III), Kurukshetra was set aside and the judgment and decree dated  

August  31,  1981  passed  by  Sub-Judge,  Ist  Class,  Kaithal  was  

restored.

2. Soran,  resident  of  Village  Bandrana,  Tehsil  Kaithal,  

District Kurushetra, Haryana died intestate  leaving two wives – Nanhi  

and  Shingari,  one  son  Ram  Kala  and  three  daughters  Chameli,  

Panmehswari  and  Boghri  him  surviving.   Soran’s  first  wife  was  

Pratapi  who  pre-deceased  him.  Ram  Kala  was  born  out  of  that  

wedlock.    Chameli,  Panmeshwari  and  Boghri  are  daughters  of  

Shingari from the loins of Soran. Prior to her marriage with Soran,  

Shingari  was married to Lachhman and a son Man Singh was born  

from her first marriage.

3. Man Singh (since  deceased  –  now represented  by his  

wife – hereinafter referred to as ‘the appellant’) filed a suit against his  

mother Shingari on March 6, 1979 in the Court of Sub-Judge, IInd  

Class, Kaithal. The prayer was  for ‘a decree for declaration to the  

effect that the plaintiff is  owner in possession of the land mentioned  

in para no. 1(a)(b) of the plaint in place of the defendant’ based on  

the family settlement entered into between him and his mother on  

January  1,  1978.   He  averred  that   on  the  basis    of  the  family  

settlement, he was given possession of the land mentioned in para 1  2

of the plaint and his mother agreed that she would get the revenue  

entries of the suit land corrected in his favour but those entries have  

not been corrected.  He alleged that his mother was seeking  to back  

out of the family settlement.  

4. Shingari  filed  written statement on March 9,  1979 and  

admitted appellant’s  claim in the suit. As there was no contest from  

Shingari,  the Sub-Judge, IInd Class, Kaithal decreed appellant’s suit  

as prayed on that day itself.  

5. The appellant, as noted above,  was Shingari’s son born  

of  her  first  marriage  with  Lachhman  and  he  had  no  claim  in  the  

property left by Soran. The claim made by the appellant against his  

mother was founded on the basis that his mother had acquired 1/5th  

share in the  property after the death of  Soran. Having come to know  

of the decree  passed in favour of the appellant,  Ram Kala (since  

deceased – now represented by his legal heirs – hereinafter referred  

to  as  the  ‘first  respondent’)  instituted a  suit  against  appellant  and  

Shingari  praying  therein  that  the  decree  dated  March  9,  1979  be  

declared   null  and  void  and  the  appellant  be  restrained  from  

interfering with the possession of the first respondent in respect of the  

said land. The first respondent set up the case that the property of  

Soran has devolved on his heirs according to the Hindu Succession  3

Act, 1956 and Shingari inherited 1/10th   share in the property left by  

his father and she had no right to alienate the suit land in favour of  

the appellant.  

6. The  appellant  traversed  the  averments  made  by  the  

first respondent  and set up diverse pleas justifying the decree dated  

March 9, 1979.

7. On the basis of the pleadings of the parties, the trial court  

framed as many as nine issues and after  recording the evidence,  

decreed the suit filed by the first respondent  on August 31, 1981 and  

held that the decree dated March 9, 1979 was null and void and  not  

binding on the first respondent.

8. As against the decree passed by the Sub-Judge, Ist Class,  

Kaithal, the appellant  preferred civil first appeal which was heard by  

Additional  District  Judge  (III),  Kurukshetra.  The  Additional  District  

Judge partly allowed the appeal; modified the  decree passed by the  

Sub-Judge Ist Class, Kaithal on August 31, 1981 by holding that the  

findings recorded by the trial court on issue nos. 5 and 6 were wrong  

but maintained that the  decree dated March 9, 1979  would  not  

affect the rights of the first respondent.

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9. The first respondent challenged the decree passed by the  

Additional District Judge (III)  in the second appeal before the High  

Court. During the pendency of the second appeal the appellant  as  

well  as  first  respondent  died  and  their  legal  representatives  were  

brought  on  record.  In  the  opinion  of  the  High  Court,  the  only  

substantial question of law  for consideration in second appeal was,  

whether there could be any estoppel against the statute. The   High  

Court while dealing with the said question held as under :

“Indisputably,  Soran  died  intestate  leaving  behind  his  two widows, three daughters and one son. It is also the  undisputed position that all  the widows of a deceased  are entitled to only one share. It is also not disputed that  sons, grandsons and great grandsons acquire interest  in the joint Hindu family property by birth. In the present  case  Smt.  Shingari,  who  had  given  birth  to  three  daughters,  from  the  loins  of  Soran,  had  suffered  a  collusive  decree  in  civil  suit  No.  165  of  1979  on  9.3.1979 in favour of Man Singh (defendant No. 1), who  was her son from the loins of her earlier husband, and  thereby  she  had  alienated  one-fifth  share  from  the  property which belonged to Soran, Ram Kala being the  only male child of Soran, had acquired one-half share in  the  property  of  Soran on the  very  day  he  was  born.  Thus,  as  per  Explanation  1  to  Section  6  of  the  Act,  Soran was the owner of only one half share in the suit  property  as  the  other  half  belonged  to  Ram  Kala  plaintiff.  After the death of Soran, only one-half of the  suit  property  could  be  distributed  amongst  his  legal  heirs.  According to the undisputed position of law, Ram  Kala, Chameli,  Panmeswari  and Buggari were entitled  to  one-fifth  share  each  out  of  the  one-half  share  of  Soran Deceased. The rest of one-fifth share out of the  one-half  share of  Soran is to be divided between the  two  widows,  namely,  Nanhi  and  Shingari,  thus,  both  Nanhi  and  Shingari  were  jointly  entitled  to  one-tenth  

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share of the total suit property and each one of them  was entitled to only one-twentieth share, after the death  of  Nanhi,  the  property  left  behind  by  her  was  to  be  divided  among  the  remaining  legal  heirs,  i.e.  Smt.  Shingari, Ram Kala, Chameli, Panmeswari and Buggari.  Thus, Smt. Shingari was entitled to only 1/20th  Share +  1/100th share out of the total suit property. On the other  hand,  Ram  Kala  was  entitled  to  one  half  +  1/10th  +  1/100th  share  out  of  the  total  suit  property.  As  Smt.  Shingari had alienated one-fifth share in favour of her  son Man Singh out of the total suit  property,  which is  much  beyond  her  share  in  the  suit  property,  the  impugned decree dated 9.3.1979 (Ex.  P6) is null  and  void and is not binding on the rights of the plaintiff (Ram  Kala).  It  is  well-settled that  there can be no estoppel  against the statute. In case, the plaintiff was not aware  of his right in the suit property at the time of filing of the  suit in the trial Court, it does not mean that his share is  to be usurped by Smt. Shingari and her son Man Singh  (defendants).”           

10. It  is  pertinent  to  notice here that  insofar  as the decree  

dated  March  9,  1979  is  concerned,  all  the  three  courts  have  

concurrently held that the said decree was not binding on the first  

respondent,   although  reasons  recorded  for  that  conclusion  were  

different. The trial court recorded the following reasons in this regard:  

“With regard to issue no. 5 and 6, it is observed that it  has been found in issues no. 2 and 3 above that Smt.  Shingari inherited 1/ 20th share of the property of Soran  deceased on his death and she further inherited 1/100th  share (1/5th share of 1/20th share) on the death of Nanhi.  Thus the total share of Smt. Shingari is less than 1/ 5th  which she alienated in  favour  of  defendant  no.  1 Man  Singh through impugned decree passed in Civil Suit No.  165/79.  Consequently,  the  decree  is  liable  to  be  set  aside and the plaintiff is entitled to the relief claimed by  him.”  

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11. The first appellate court did not agree with the trial court’s  

finding as regards Shingari’s  share in the properties left  by Soran  

and held as under:

“The  learned  counsel  for  the  appellant  has  then  contended that the findings of the learned Trial Court on  Issue No. 5 and 6 are also liable to be reversed. There is  considerable  force  in  the  argument  of  the  learned  counsel.  The learned Trial  Court  set  aside  the decree  passed is Civil Suit No. 165/1979 on the ground that the  share of  Smt.  Shingari  defendant  no.  2 was  less than  1/5th and  that  she  having  admitted  the  claim  of  Man  Singh defendant no. 1 to the extent of 1/5th share, the  entire  decree  was  liable  to  be  set  aside.  However,  in  view of my findings on Issue No. 1 that the plaintiff was  entitled to 1/5th share on the death of Soran and that he  further inherited 1/50th  on the death of Smt.  Nanhi,  the  entire decree passed in Civil Suit No. 165/1979 could not  be set aside by the learned trial court. The plaintiff is only  entitled  to  get  the  relief  to  the  extent  that  the  decree  passed  in  the  said  suit,  effecting  his  right  in  the  suit  property, would not binding on him. This would mean that  the said decree to the extent of 1/50th share (which the  plaintiff  was  entitled  to  inherit  on  the  death  of  Nanhi)  would not be binding on the plaintiff. It has been held in  AIR 1941 Lahore 402 D.B. that the party challenging the  collusion decree can get it declared as void, so far as his  interest are concerned. Accordingly, I hold that the entire  decree passed in Civil  Suit  No. 165/1979 could not be  set aside and that the only relief of which the plaintiff is  entitled  to  is  that  the  said  decree could  not  effect  his  share  1/5th  and  1/50th  share  in  the  suit  property.  According, the finding of the learned trial court on issue  No.  5  and  6  are  set  aside  and  the  said  issue  are  accordingly decided and it is held that the decree passed  in  Civil  Suit  165/79  shall  not  effect  the  rights  of  the  plaintiff, to the extent of his share, as held above, and the  plaintiff is entitled to the relief to that extent.”

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12. We  have  already  noticed  the  view  of  the  High  Court  

above. 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 the case of  Appovier Alias Seetaramier v.  Rama Subba  

Aiyan & Ors.1,  Lord Westbury speaking for the Judicial  Committee  

(Privy  Council)   observed,  ‘According  to  the  true  notion  of  an  

undivided family in Hindoo law, no individual member of that family,  

whilst it remains undivided, can predicate of the joint and undivided  

property,  that  he,  that  particular  member,  has  a  certain  definite  

share.’

1 (1866) 11 MIA 75

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13. In  A.  Raghavamma and  Anr.  v.  A.  Chenchamma  and  

Anr.2, this Court reiterated the legal position  that a member of a joint  

Hindu family can bring about his separation in status by a definite and  

unequivocal declaration of his intention to separate himself from the  

family  and  enjoy  his  share  in  severalty.  While  dealing  with  the  

question  whether   a  member  of  a  joint  Hindu  family  becomes  

separated from the other members of the family by mere declaration  

of his unequivocal intention to divide from the family without bringing  

the same to the knowledge of the other members of the family, after  

noticing the Hindu Law texts  and series of  decisions by the Privy  

Council, it was  held that a member of joint Hindu family seeking to  

separate himself from others will have to make known his intention to  

the other members of the family from whom he seeks to separate,  

even though no actual division  takes place.  This Court in paragraph  

32 of the report held as under :

“32. It  is,  therefore,  clear  that  Hindu  law  texts  suggested  and  Courts  evolved,  by  a  process  of  reasoning  as well  as  by a  pragmatic  approach that,  such  a  declaration  to  be  effective  should  reach  the  person or  persons affected by one process or  other  appropriate to a given situation.”

2 AIR 1964 SC 136

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14. In   Kalyani (Dead) By LRs. v. Narayanan and Ors.3, this  

Court explained the concept of partition in Mitakshara Hindu Law in  

paragraph 10 as under :

“Partition in one sense is a severance of joint status and  coparcener of a coparcenary is entitled to claim it as a  matter of his individual volition. In this narrow sense all  that is necessary to constitute partition is a definite and  unequivocal indication of his intention by a member of a  joint family to separate himself from the family and enjoy  his share in severalty. Such an unequivocal intention to  separate brings about a disruption of joint family status,  at  any  rate,  in  respect  of  separating  member  or  members and thereby puts an end to the coparcenary  with right of survivorship and such separated member  holds  from  the  time  of  disruption  of  joint  family  as  tenant-in-common.  Such  partition  has  an  impact  on  devolution of  shares of  such members.  It  goes to his  heirs displacing survivorship. Such partition irrespective  of whether it is accompanied or followed by division of  properties by metes and bounds covers both a division  of right and division of property.”

In paragraph 20 of the report, this Court stated thus :

“Till  disruption  of  joint  family  status  takes  place  no  coparcener  can  claim  what  is  his  exact  share  in  coparcenary  property.  It  is  liable  to  increase  and  decrease depending upon the addition to the number or  departure  of  a  male  member  and  inheritance  by  survivorship. But once a disruption of joint family status  takes place, coparceners cease to hold the property as  joint tenants but they hold as tenants-in-common.”

15. 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  3 1980 (Supp) SCC 298

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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 (Article 315 at Page 506).

16. Section 6 of the Hindu Succession Act, 1956 (for short,  

‘1956 Act’) provides for devolution of interest in coparcenary property.  

Prior to Hindu Succession (Amendment) Act, 2005, Section 6 read as  

follows :

“S. 6. Devolution  of  interest  in  coparcenary  property.— When a male Hindu dies after the commencement of this  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 this Act:

Provided  that,  if  the  deceased  had  left  surviving  him  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.

Explanation  1.—For  the  purposes  of  this  section,  the  interest of a Hindu Mitakshara coparcener shall be deemed  to be the share in the property that would have been allotted  to  him  if  a  partition  of  the  property  had  taken  place  immediately  before  his  death,  irrespective  of  whether  he  was entitled to claim partition or not.

Explanation  2.—Nothing  contained  in  the  proviso  to  this  section shall  be construed as enabling a person who has  separated himself from the coparcenary before the death of  

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the deceased or  any of  his  heirs  to claim on intestacy a  share in the interest referred to therein.”    

17. Section 9 of the 1956 Act provides for order of succession  

among heirs in the Schedule. It reads as under :

“S.  9.   Order  of  succession  among  heirs  in  the  Schedule.—Among the heirs specified in the Schedule,  those in  Class I  shall  take simultaneously  and to the  exclusion of  all  other  heirs;  those in the first  entry  in  Class II shall be preferred to those in the second entry;  those in the second entry shall be preferred to those in  the third entry; and so on in succession.”

18. 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.  In this regard,  

learned senior counsel relied upon, (i) Gurupad Khandappa Magdum  

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vs. Hirabai Khandappa Magdum and others4 and (ii)  Smt. Raj Rani  

vs.  Chief  Settlement   Commissioner,  Delhi  and  others5.   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.

19. For the foregoing reasons, we confirm the judgment  of  

the High Court to the extent it has been held therein that the decree  

dated March 9, 1979 is not binding on the first respondent.  However,  

the determination of shares among  the heirs of Soran by the High  

Court cannot be sustained and we set aside the same.   The appeal  

is disposed of accordingly. It will be open to the heirs of Soran  to  4 (1978) 3SCC 383 5 (1984) 3SCC 619

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prosecute appropriate  remedy for  determination of  their  respective  

shares and  claim partition in accordance with law, if so advised. The  

parties shall bear their own costs.

     …………………….J.

          (Aftab Alam)

    ………………….. J.        (R.M. Lodha)  

NEW DELHI, DECEMBER  9, 2010

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