MAN SINGH (D) BY LRS.versusRAM KALA (D) BY LRS. & ORS.

               [2010] 14 (ADDL.) S.C.R. 577


                MAN SINGH (D) BY LRS.                           A-
                            v.
             RAM KALA (D) BY LRS. & ORS.
             (Civil Appeal No. 7179 of 2005)
                   DECEMBER 09, 2010
                                                                B
          [AFTAB ALAM AND R.M. LODHA, JJ.]

      Hindu Succession Act, 1956 - ss. 6 and 9 - Joint hindu
family - Coparcenary property - Devolution of interest -
Held: Until disruption of joint family status takes place, C
neither coparcener nor other beirs entitled to share in the
joint family property, can claim with certainty the exact share
in that property - Widow, sons and daughters are Class I
 heirs - Succession among heirs in Class I takes
simultaneously and to the .exclusion of all other heirs - On o
facts, 'S'-father died intestate leaving behind property -
Appellant-son born to third wife of 'S' from her first marriage
 with 'L' filing suit against his mother claiming certain property
 by virtue of family settlement, decreed - Thereafter, suit by
respondent-son of first wife of 'S' seeking declaration that E
decree in favour of appellant is null and void - Holding by
three courts that decree in favour of appellant not binding
on first respondent, does not call for interference - In
absence of any pleadings or evidence in the suit by
appellant against his mother, that shares among the heirs F
of the father were determined by agreement or otherwise,
share of mother in the joint family property was not identified,
thus, could not have alienated 1!5th share in the property
to her son - Courts below erred in determining shares
among the heirs of the father in absence of the daughters,
Class I heirs - Determination of shares among heirs of the G
father not sustainable and set aside.

     '$' died intestate leaving his ~~. ~idows, 'N' and
'SH', son 'RK' and three daughters.·· The respondent-
                                .• '· .. · .          .
                           577      :.·.                        H
    578    SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A 'RK' was the son of 'S' from his first wife 'P' who pre-
  deceased him. The appellant-'MS' was the son of 'SH'
  born to her from her first marriage with 'L'. The appellant
  filed a suit against his mother 'SH' seeking declaration
  to the effect that the appellant is the owner of the land
B in place of first respondent on basis of the family
  settlement entered into between him and his mother in
  the year 1978; and that his mother had acquired 1/5th
  share in the property after the death of 'S'. 'SH' admitted
  the claim and the suit was decreed. First respondent
C filed a suit against the appellant and 'SH' that the decree
  passed in favour of the appellant be declared null and
  void and not binding on first respondent. The trial court
  decreed the suit filed by first respondent. The appellant
  filed a first appeal and the same was partly allowed
  holding that the first decree would not affect the rights
0
  of first respondent. First respondent filed second appeal.
  During pendency, the appellant and first respondent
  died and their legal representatives were brought on
  record. The High Court allowed the second appeal.

E         Disposing of the appeal, the Court

       HELD: 1.1 The conclusion arrived at by the three
  courts that the decree dated 09.03.1979 was not binding
  on the first respondent is right and proper and calls for
F no interference. It is pertinent that in the earlier suit
  filed by the appellant against his mother in which the
  decree dated 09.03.1979 was passed, it was not even
  the case of the appellant or his mother 'SH' that shares
  among heirs of 'S' were determined by agreement or
G 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. [Para 12) [585-H; 586-
  A-C]

H         Appovier Alias Seetaramier v. Rama Subba Aiyan and
MAN SINGH (D) BY LRS. v. RAM KALA (D) BY LRS. 579
                   & ORS.

Ors. (1866) 11MIA 75; A. Raghavamma and Anr. v. A. A
Chenchamma and Anr. AIR 1964 SC 136; Kalyani (Dead)
By LRs. v. Narayanan and Ors. 1980 (Supp) SCC 298 -
referred to.

     Principles of Hindu Law by Mui/a; Vol. I 17th Edn -      B
referred to.

    1.2 Widow, sons and daughters are Class I heirs
and in terms of Section 9 of the Hindu Succession Act,
1956, the succession among heirs in Class I takes
simultaneously and to the exclusion of all other heirs. C
[Para 18] [589-E]

    Gurupad Khandappa Magdum vs. Hirabai Khandappa
Magdum and Ors. (1978) 3 SCC 383; Smt. Raj Rani vs.
Chief Settlement Commissioner, Delhi and Ors. (1984) 3 0
sec 619 - referred to.
     1.3 In the absence of any pleading or evidence, in
the suit filed by the appellant that shares among heirs
of 'S' were determined by agreement or otherwise, the
share of 'SH' was not identified and, thus, she could E
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 'S', who were
also Class I heirs in the Schedule appended to the 1956
Act could not have been done. All the three courts fell F
in grave error in determining the shares of 'SH' 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. [Para 18] [590- G
A-C]

     1.4 The judgment of the High Court to the extent
that the decree dated March 9, 1979 is not binding on
the first respondent, is upheld. However, the H
    580    SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A determination of shares among the heirs of 'S' by the
  High Court cannot be sustained and ·is set aside. It
  would be open to the heirs of 'S' to prosecute
  appropriate remedy for determination of their respective
  shares and claim partition in accordance with law, if so
B advised. [Para 19] [590-D-F]

                        Case Law Reference:
          (1866) 11 MIA 75      Referred to          Para 12
          AIR 1964 SC 136       Referred to            Para 13
c
          1980 (Supp) sec 298 Referred to            Para 14
          (1978) 3 sec 383      Referred to          Para 18
          (1984) 3 sec 619      Referred to            Para 18
D
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7179 of 2005.

      From the Judgment & Order dated 07.01.2004 of the
  High Court of Punjab & Haryana at Chandigarh in RS.A. No.
E 259 of 1982 (0 & M).

        Neeraj Kr. Jain, Sachin Jain, Dr. Kailash Chand for the
    Appellants.

F       Manoj Swarup, Ankit Swrup, Ashok Anand, Rameshwar
    Prasad Goyal for the Respondents.

          The Judgment of the Court was delivered by

       R.M. LODHA, J. 1. This appeal, by special leave, is
G 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 (Ill}, Kurukshetra
H was set aside and the judgment and decree dated August
MAN SINGH (D) BY LRS. v. RAM KALA·(D) BY LRS. 581
           & ORS. [R.M. LODHA, J.]
31, 1981 passed by Sub-Judge, 1st Class, Kaithal was               A
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         B
Chameli, Panmehswari and Boghri him surviving. Saran'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          C
and a son Man. Singh was born from her first marriage.

     3. Man. Singh  ~e      deceased - now represented by
his wife·_ h~reinafter referred to as 'the appellant') filed a
suit against his mother-Shingari on March 6, ~ ~79 in the
Court of Sub-Judge, llnd Class, Kaithal. The prayer was for        D
'a decree for 1declaration 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 fnto between him and his mother on
January 1, 1978. He aver.red that ori the basis of the family      E
settlement, he was given possession of the land mentioned
in para 1 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.       F
    4. Shingari filed written statement on March 9, 1979 and
admitted appellant's claim in the suit. As there was no contest
from Shingari, ttie Sub-Judge, llnd Class, Kaithal decreed
appellant's suit as prayed on that day itself.
                                                                   G
      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     H
    582   SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A 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
B 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 Act, 1956 and Shingari inherited 1/
c 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.
D
      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,
E 1979 was null and void and not binding on the first respondent.

         · 8. As against the decree passed by the Sub-Judge, 1st
    Class, Kaithal, the appellant preferred civil first appeal which
    was heard by Additional District Judge (Ill), Kurukshetra. The
    Additional District Judge partly allowed the appeal; modified
F   the decree passed by the Sub-Judge 1st 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.
G
   , 9. The first respondent challenged the decree passed by
  the Additional District Judge (Ill) in the second appeal before
  ~he High Court. During the pendency of the second appeal
  the appellant as well as first respondent died and their legal
H representatives were brought on record. In the opinion of the
MAN SINGH (0) BY LRS. v. RAM KALA (0) BY LRS. 583
           & ORS. [R.M. LODHA, J.]
High Court, the only substantial question of law for               A
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     B
    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    C
    case Smt. Shingari, who had given birth to three
    daughters, from the loins of Soran, had suffered a
    collusive decree in civil suit No. 165of1979 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      D
    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       E
    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        F
    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 share of the total suit property and     G
    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       H
    584    SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A         Share + 1/100th share out of the total suit property. On
          the other hand, Ram Kala was entitled to one half + 1/
          10th + 1/1 OOth share out of the tbtal suit property. As
          Smt. Shingari had alienated one-fifth share in favour of
          her son Man Singh out of the total suit property, which
B         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
c         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
D   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:
E
          "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
F         share (1/Sth share of 1/20th share) on the death of Nanhi.
          Thus the total share of Smt. Shingari is less than 1/ 5th
          which he 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
G
          him."

          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:
H
MAN SINGH (D) BY LRS. v. RAM KALA (D) BY LRS. 585
           & ORS. [R.M. LODHA, J.]

    'The learned counsel for the appellant has then contended      A
    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       B
    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     c
    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
                                                                   0
    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
    AlR 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     F
    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 de'cided and it is held that the decree
    passed in Civil Suit 165/79 shall not effect the rights of     G
    the plaintiff, to the extent of his share, as held above,
    and the plaintiff is entitled to the relief to that extent."

    12. We have already noticed the view of the High Court
above. In our opinion, the conclusion arrived at by the three      H
    586     SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A   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
B   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 ofjoint family status takes place,
c   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
0   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.'

          13. In A. Raghavamma and Anr. v. A. Chenchamma
E 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
F 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
G 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 intentiol}_ to the other m_embers

    1.   (1866) 11 MIA 75.
H 2. AIR 1964 SC 136.
 MAN SINGH (0) BY LRS. v. RAM KALA (0) BY LRS. 587
            & ORS. [R.M. LODHA, J.]

of the family from whom he seeks to separate, even though           A
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         B
      as by a pragmatic approach that, sue~ a declaration to
      be effective should reach the person or persons affected
    · by one process or other appropriate to a given situation."

     14. In Kalyani (Dead) By LRs. v. Narayanan and Ors. 3,
this Court explained the concept of partition in Mitakshara         c
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    D
     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,
                                                                    E
     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.
                                                                    F
     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."tc
                                                                    G
     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
3:""1"9so (Supp) sec 298.                                           H
    588    SUPREME COURT REPORTS (2010) 14 (ADDL.) S.C.R.


A         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
B         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 a partition, but if a partition does
C 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
D 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.-
E         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:
F
          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
G         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
H
MAN SINGH (0) BY LRS. v. RAM KALA (0) BY LRS. 589
           & ORS. [RM. LOOHA, J.]

    deemed to be the share in the property that would have      A
    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     8   .
    section shall be construed as enabling a person who
    has separated himself from the coparcenary before the
    death of 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         C
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       D
    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 E
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, w.~ich
is attracted in the present case as the normal rule provided F
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 G
Shingari alienated much beyond her share to the appellant.
In this regard, learned senior counsel relied upon, (i) Gurupad
Khandappa Magdum vs. Hirabai Khandappa Magdum and
others 4 and (ii) Smt. Raj Rani vs. Chief Settlement
                                                                H
    590     SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.


A   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/Sth share
B   in the property to the appellant. In any case, determination of
    the shares in the absence of the three daughters ff Soran,
    who were also Class I heirs in Schedule append~d 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
c   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 juagment
D 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.
E It will be open to the heirs ¢ Soran to 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.

    N.J.                                    Appeal disposed of.




    4.   (1978) 3 sec 383.
    s.   (1984) 3 sec 619.-