Holding

A daughter who is a Class I heir under the Hindu Succession Act, 1956 is a necessary and proper party to be impleaded in the subsequent suit, and the earlier partition decree does not extinguish her right to a share in her parents' property.

Summary

In 1966 a son filed a suit for partition of his parents' joint family property, which was decreed by compromise among the parents and three brothers. After the decree, in 2006 one of the brothers (Maya Prakash Jain) filed a suit claiming exclusive ownership of certain properties, asserting a later family settlement. Srikanta Jain, a daughter of the deceased parents, applied to be impleaded as a defendant, asserting her right as a Class I heir under the Hindu Succession Act, 1956. The trial court and the High Court dismissed her application, holding she was not a necessary party. The Supreme Court held that, despite the earlier decree, a daughter is a necessary and proper party to the 2006 suit because she is entitled to a share of her parents' estate as a Class I heir, and the existence of unproven wills does not defeat that right. Consequently, the Court set aside the lower orders and allowed the impleadment application.

Issues considered

Whether a daughter of the deceased parents is a necessary and proper party to be impleaded in a suit concerning the partition of the parents' property.
Whether the decree passed in the 1966 partition suit bars the daughter’s claim to a share in the parents' estate.
Whether the existence of unproven wills affects the daughter’s status as a Class I heir under the Hindu Succession Act, 1956.

Legislation cited

Code of Civil Procedure, 1908s. Order I Rule 10
Hindu Succession Act, 1956s. Section 6

Subjects

partitionHindu lawClass I heirimpleadmentOrder I Rule 10Hindu Succession Actjoint family estatedecreewillsnecessary party

Judgment

[2019] 5 S.C.R. 631 631

SHAILNDRA KUMAR JAIN AND OTHERS A
v.
MAYA PRAKASH JAIN AND OTHERS
(Civil Appeal No. 3587 of 2019)
APRIL 09, 2019 B
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Code of Civil Procedure, 1908 – Or.1, r.10 – Suit filed in
1966 by one of the son against his parents, three brothers (defendant
nos.1 to 5) and four sisters (defendant nos.6 to 9), seeking
C
declaration that certain properties had fallen to his share after
partition between the parents and three brothers – Suit decreed vide
order dtd. 23.02.1966 – ‘MP’, defendant no.5 in the 1966 suit
thereafter filed suit in 2006 submitting inter alia that after the decree
dtd 23.02.1966, there was a further family settlement arrived at
between all the brothers in pursuance whereof said ‘MP’ was D
exclusive owner of certain properties mentioned in the schedule to
the plaint in the 2006 suit – Application filed by ‘SJ’, defendant
no.8 (in the 1966 Suit) seeking impleadment as one of the defendants
in the 2006 suit – During the pendency of the application, ‘SJ’
expired and the appellants, her legal heirs were substituted –
E
Application dismissed – Revision in the High Court – Dismissed –
On appeal, held: In the 1966 suit, in terms of compromise entered
into between the plaintiff, the parents and three brothers, the
properties were mutually divided amongst said six persons – Since
the parents were alive, the proper parties in an action seeking relief
of partition of joint family estate, going by the then prevailing F
principles of Hindu Law, were only the husband, wife and their
sons – Defendant nos.6 to 9 could not, as a matter of right, claim
any share if the joint family properties were to be partitioned –
However, on the death of the parents, if they died intestate, then
under the principles of the 1956 Act, every Class I heir including
G
the daughters, would be entitled to a share in the property left behind
by their parents – It is on this count that the applicant ‘SJ’ claims
entitled to have share in the properties allocated to the parents –
Partition effected pursuant to decree in 1966 suit cannot, in any
way, disentitle ‘SJ’ from claiming a share in the properties of her
H
631
632 SUPREME COURT REPORTS [2019] 5 S.C.R.

A parents – ‘SJ’ was definitely a necessary and proper party to be
impleaded in the subsequent suit filed by ‘MP’ – Due execution of
the Wills, allegedly executed by the parents, is yet to the proved by
the respondents – If the Wills are not proved, the daughters would
be entitled to a share in the properties, being Class-I heirs – Order
passed by the courts below set aside – Application filed u/Or.1 r.10,
B
CPC by SJ’, allowed – Hindu Succession Act, 1956.
Disposing of the appeal, the Court
HELD: 1.1 The earlier suit was filed by a son against his
parents, three brothers and four sisters. In terms of compromise
C entered into between the Plaintiff, the parents and three brothers,
the properties were mutually divided amongst said six persons.
Since ‘AP’ and ‘DJ’ were alive, the proper parties in an action
seeking relief of partition of joint family estate, going by the then
prevailing principles of Hindu Law, were only the husband, wife
and their sons. The daughters in the family, namely, Defendant
D Nos.6 to 9 could not, as a matter of right, claim any share if the
joint family properties were to be partitioned. However, if a
partition takes place between her husband and sons, a wife is
entitled (except in Southern India) to receive a share equal to
that of a son and enjoy that share separately even from her
E husband. Therefore, if the compromise was entered into between
the Plaintiff and Defendant Nos.1 to 5, there was nothing improper
about it. In the circumstances, the absence of any challenge to
the decree in 1966 Suit was irrelevant. As a matter of fact, the
applicant ‘SJ’ could not have challenged the decree in 1966 Suit.
[Para 10][635-F-H; 636-A-C]
F
1.2 On the death of the father and mother, if they died
intestate, then under the principles of the Hindu Succession Act,
every Class I heir including the daughters, would be entitled to a
share in the property left behind by their parents. It is precisely
on this count that the applicant ‘SJ’ claims to be entitled to have
G a share in the properties which were allocated to her parents.
The partition effected pursuant to decree in 1966 Suit cannot, in
any way, disentitle her from claiming a share in the properties of
her father and mother. In the aforesaid premises, ‘SJ’ was
definitely a necessary and proper party to be impleaded in the
H subsequent suit which was filed by ‘MP’. [Para 11][636-C-E]
SHAILNDRA KUMAR JAIN v. MAYA PRAKASH JAIN 633

1.3 The due execution of the Wills is yet to the proved by A
the Respondents. If the Wills are not proved, the daughters
would be entitled to a share in the properties, being Class-I heirs.
The daughters are, therefore, necessary parties to the
proceedings. In the present case, if the Wills so propounded are
proved, they will chart a course of succession other than the
B
normal mode of succession and to the prejudice of the daughters.
In such an action or proceeding, the daughters being Class I
heirs are necessary and proper parties and are required to be
impleaded. ‘SJ’s’ application to be impleaded as one of the
defendants in the suit, was erroneously rejected by the courts
below. The order passed by the courts below, set aside and the C
application filed under Order 1 Rule 10 CPC by the applicant
‘SJ’ is allowed. [Paras 12, 13][636-F-G; 637-A-B]
Lakshmi Chand Khajuria and Ors. v. Ishroo Devi (1977)
2 SCC 501 : [1977] 3 SCR 400 – referred to.
Mulla on Hindu Law 22nd Edition – referred to. D

Case Law Reference
[1977] 3 SCR 400 referred to Para 10
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3587
of 2019. E
From the Judgment and Order dated 19.07.2018 of the High
Court of Judicature at Allahabad in Civil Revision No. 156 of 2016.
Dinesh K. Garg, Abhishek Garg, Dhananjay Garg, Deepak Mishra,
Advs. for the Appellants.
F
Jitendra Mohan Sharma, Sr. Adv., Ajit Sharma, Adnan Siddiqui,
Sandeep Singh, Pranshu Kaushal, Sudhir Kumar Gupta, Manish Gupta,
Advs. for the Respondents.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J. 1. Leave granted. G

2. This appeal challenges the correctness of the decision dated
19.07.2018 passed by the High Court of Judicature of Allahabad in Civil
Revision No.156 of 2016.

H
634 SUPREME COURT REPORTS [2019] 5 S.C.R.

A 3. One Vinay Prakash Jain filed Suit No.92 of 1966 (“1966 Suit”,
for short) in the Court of Sub-Judge, First Class, Delhi seeking declaration
that certain properties had fallen to his share after a partition between
his father Amba Prasad, his mother Smt. Devi Jain and three brothers,
all of whom were arrayed as Defendant Nos.1 to 5. In the suit four
sisters, including Smt Srikanta Jain were also arrayed as Defendant Nos.6
B
to 9.
4. An order was passed by the trial court on 23.02.1966 in 1966
Suit recording a compromise amongst the parties pursuant to which the
suit was decreed. Relevant portion of the order was as under:
C “The plaintiff has prayed that a declaration be made that
he is the owner of the properties in the plaint of the suit (illegible).
The said properties had fallen in his share in (illegible) between
the plaintiff and defendant Nos.1 to 5. The defendants have today
through their counsel Shri Vijay Kishan, Advocate filed written
statement admitting the claim of the plaintiff. The counsel for the
D defendants has also made a statement in the Court that decree be
passed as prayed for.
In the result, I pass a decree for declaration to the effect
that the plaintiff is the owner and in possession of the properties
mentioned in clause (a) of para No.11 of the plaint. The parties
E be bear their own costs of the suit.
Pronounced.”
5. Defendant No.5 in 1966 Suit i.e. Maya Prakash thereafter filed
Suit No.464 of 2006 in the Court of Civil Judge (Senior Division), Meerut,
F submitting inter alia that after the aforesaid decree dated 23.02.1966,
there was a further family settlement arrived at between all sons of said
Amba Prasad Jain on 05.11.2005 regarding division of house and other
joint properties. This settlement was said to have been arrived at in the
presence of Smt. Chandrakanta Jain, Shri D.P. Jain, Smt. Padamkanta
Jain and Shri Akhilesh Jain. It was claimed that the parties were bound
G by said settlement dated 05.11.2005 and that in pursuance thereof said
Maya Prakash Jain was exclusive owner of certain properties mentioned
in the schedule to the plaint in said suit of 2006.

H
SHAILNDRA KUMAR JAIN v. MAYA PRAKASH JAIN 635
[UDAY UMESH LALIT, J.]

6. An application Ex.92 Ka was preferred by original Defendant A
No.8 in 1966 Suit i.e. Srikanta Jain seeking her impleadment as one of
the defendants in aforesaid Suit No.464 of 2006. It was submitted that
after the death of her parents i.e. Amba Prasad Jain, and Smt. Devi
Jain, the applicant was entitled to the property which was left behind by
the parents and the applicant being a necessary party she ought to be
B
impleaded as one of the defendants in Suit No.464 of 2006. During the
pendency of the application, Smt. Srikanta Jain expired and the appellants,
i.e. her legal heirs were substituted in her place.
7. The application was dismissed by the trial court vide order
dated 10.03.2016. It was observed that the applicant Smt. Srikanta Jain
had knowledge of 1966 Suit but no steps were taken to appeal against C
the decree passed on the basis of oral family partition between her parents
and brothers and as such her application was required to be dismissed.
8. The appellants being aggrieved, preferred Civil Revision No.156
of 2016 in the High Court, which revision was dismissed by the High
Court vide order dated 19.07.2018. It was observed as under: D

“Since, as noticed above, the suit where from this revision arises
basically seeks implementation of an earlier decree in Suit No.92
of 1966, which determined the shares of the parties thereto, upon
acceptance of an alleged oral partition between them, and since
admittedly the parties to the suit are only those whose shares are E
to be separated, the Court below has committed no illegality in
rejecting the impleadment application, on a finding that revisionist
are not necessary parties In the proceedings.”
9. We heard Shri D.K. Garg, learned Advocate for the appellants
and Shri Jitender Mohan Sharma, learned Senior Advocate for the F
respondents.
10. The earlier suit was filed by a son against his parents, three
brothers and four sisters. In terms of compromise entered into between
the Plaintiff, the parents and three brothers, the properties were mutually
divided amongst said six persons. Since Amba Prasad Jain and Smt. G
Devi Jain were alive, the proper parties in an action seeking relief of
partition of joint family estate, going by the then prevailing principles of
Hindu Law, were only the husband, wife and their sons. The daughters

H
636 SUPREME COURT REPORTS [2019] 5 S.C.R.

A in the family, namely, Defendant Nos.6 to 9 could not, as a matter of
right, claim any share if the joint family properties were to be partitioned.
However, it is well settled1 that if a partition takes place between her
husband and sons, a wife is entitled (except in Southern India) to receive
a share equal to that of a son and enjoy that share separately even from
her husband2. Therefore, if the compromise was entered into between
B
the Plaintiff and Defendant Nos.1 to 5, there was nothing improper about
it. In the circumstances, the absence of any challenge to the decree in
1966 Suit was irrelevant. As a matter of fact, the applicant Srikanta Jain
could not have challenged the decree in 1966 Suit.
11. On the death of the father and mother, if they died intestate,
C then under the principles of the Hindu Succession Act, every Class I
heir including the daughters, would be entitled to a share in the property
left behind by their parents. It is precisely on this count that the applicant
Srikanta Jain claims to be entitled to have a share in the properties which
were allocated to Amba Prasad Jain and Smt. Devi Jain. The partition
D effected pursuant to decree in 1966 Suit cannot, in any way, disentitle
her from claiming a share in the properties of her father and mother. In
the aforesaid premises, Srikanta Jain was definitely a necessary and
proper party to be impleaded in the subsequent suit which was filed by
Maya Prakash Jain.
E 12. It was, however, contended by Mr. Jitender Mohan Sharma,
learned Senior Advocate appearing for Respondent No.1 that the father
and the mother, namely, Amba Prasad Jain and Smt. Devi Jain had left
behind Wills under which their properties had devolved upon the sons
exclusively. The due execution of the Wills is yet to the proved by the
Respondents. If the Wills are not proved, the daughters would be entitled
F to a share in the properties, being Class-I heirs. The daughters are,
therefore, necessary parties to the proceedings. In the present case, if
the Wills so propounded are proved, they will chart a course of succession
other than the normal mode of succession and to the prejudice of the
daughters. In such an action or proceeding, the daughters being Class I
G heirs are necessary and proper parties and are required to be impleaded.
13. Thus, considering the matter from any perspective, the applicant
Srikanta Jain was a necessary and proper party. Her application to be

1
See: Lakshmi Chand Khajuria and Ors vs. Ishroo Devi – (1977) 2 SCC 501 para 14
2
H Mulla on Hindu Law – 22
SHAILNDRA KUMAR JAIN v. MAYA PRAKASH JAIN 637
[UDAY UMESH LALIT, J.]

impleaded as one of the defendants in the suit, was erroneously rejected A
by the courts below. We, therefore, allow this appeal, set aside the order
passed by the courts below, and allow the application Ext.92 Ka filed
under Order 1 Rule 10 CPC preferred by the applicant Srikanta Jain in
Suit No.464 of 2006. No costs.
B
Divya Pandey Appeal disposed of.

C

D

E

F

G

H