Smt. Rajkumari Gupta Vs Baishtam @ Vaishtam Kolta

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2025:CGHC:48503

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NAFR

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Reserved on 01.07.2025 Delivered on 22.09.2025

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HIGH COURT OF CHHATTISGARH, BILASPUR

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SA No. 575 of 2017

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1 - Smt. Rajkumari Gupta W/o Shri Shrivatsram Gupta, Aged About 59 Years R/o Village Chhichhor Umariya, Tahsil Pusaur, District Raigarh, Chhattisgarh, Chhattisgarh

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2 - Smt. Nirmati Pradhan W/o Shri Basant Pradhan, Aged About 56 Years R/o Village Mahloi, Tahsil Pusaur, District Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh

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3 - Smt. Chandrika @ Chandrakanti Pradhan W/o Shri Gautam Pradhan, Aged About 52 Years R/o Village Kuakunda, Post Kanaktura, Tahsil Lakhanpur, District Jharsugda Odisha ..............Plaintiffs, District : Jharsuguda *, Orissa

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... Appellant(s)

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versus

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1 - Baishtam @ Vaishtam Kolta S/o Late Shri Mohno @ Mohan Kolta, Aged About 65 Years R/o Village Navapara A, Tahsil Pusaur, District Raigarh, Chhattisgarh, Chhattisgarh

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2 - Parmanand Kolta S/o Late Shri Benudhar Kolta, Aged About 54 Years R/o Village Navapara A, Tahsil Pusaur, District Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh

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3 - Sachchidanand Kolta S/o Late Shri Benudhar Kolta, Aged About 53 Years R/o Village Navapara A, Tahsil Pusaur, District Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh

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4 - (Deleted) Smt. Tulsibai Kolta As Per Honble Court Order Dt. 13/09/2022

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5 - Chhabilo Bai Kolta D/o Late Shri Benudhar Kolta, Aged About 52 Years R/o Village Navapara A, Tahsil Pusaur, District Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh

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6 - The State Of Chhattisgarh, Through The Collector, Raigarh, DistrictRaigarh, Chhattisgarh ................Defendants, District : Raigarh, Chhattisgarh

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---- Respondent(s)

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--------------------------------------------------------------------------------------------------For Appellants : Mr. Roop Naik, Advocate For R 1 to 3 : Mr. B.P. Sharma and Mr. Sameer Oraon, Advocates For State : Mr. K.L. Sahu, Dy. Govt. Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas

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CAV Judgment

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1. This is plaintiffs’ Second Appeal filed under Section 100 of the C.P.C. challenging the judgment and decree dated 25.07.2017 passed by the learned Third Additional District Judge to the First Additional District Judge Raigarh District – Raigarh in Civil Appeal No. 9A/2015, by which learned Additional District Judge has partly allowed the appeal and modified the judgment and decree dated 22.01.2015 passed by the First Civil Judge Class –I, Raigarh, District – Raigarh in Civil Suit No. 120-A/2013 applying notional partition between brothers and late Mohno and since held that Late Mohno is entitled for 1/3rd share over suit property, the appellants are entitled to get 1/5th share each from the share of Mohno.

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2. The present appeal was admitted on 14.05.2018 on the following substantial questions of law :-

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Whether late Mohno was sole owner of questioned land which is not ancestral property then his daughters have equal rights like

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as sons after his death prior to enactment of Hindu Succession (Amendment) Act, 2005?

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2. Whether the questioned land has not been partitioned between

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the parties / joint share holder prior to enactment of Hindu Succession (Amendment) Act, 2005 and looking to the facts and circumstances of the case the principle of notional partition is applicable?

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3. Whether the partition is maintainable in the eye of law if it has been done without consent and information the persons interested / joint share holder specially their name has been mutated in revenue record after death of their father late Mohno?

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3. For the sake of convenience, the parties shall be referred to as per their status shown in Civil Suit before the trial Court.

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4. The plaint averments, in brief, are that plaintiffs filed a civil suit before the First Civil Judge, Class I, Raigarh contending that :- A. Late Mohno alias Mohan was father of plaintiffs and defendants. Defendant No. 1 Bastam and defendant No. 2 Benudhar were born from the wedlock of Mohno and his first wife Satya Bai. After death of Satya Bai, Mohno was married to Lalo Bai for the second time, from whom the plaintiffs were born. Mohno had land situated at village Navapara Khasra No. 28, total area 13.526 hectares, which is described in Schedule A attached with the plaint (hereinafter referred to as ‘Suit Land’). After death of Mohno, the names of the plaintiffs and the defendants were jointly registered in revenue record which was recorded till the year 1999-2000. According to the plaintiffs the partition of the suit land has never been done. The defendants have partitioned the land described in Schedule "A" into three separate parts without the knowledge of the plaintiffs as described in Schedule B, C and D.

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B. It has been further contended that the defendants with an intention to deprive the plaintiffs of their legal rights have partitioned the suit land. Since, the plaintiffs and defendants Vaishtam and Venu Gopal are children born from two wives of Mohno, therefore, being the legal heirs of Mohno, each plaintiff has 1/5th share in Mohno's property and the plaintiffs are entitled to get separate possession of the land shown in Schedule "A" by dividing 1/5-1/5 share of it. The plaintiffs came to know about the partition in June 2011. When they requested the defendants to partition the land shown in Schedule A, they refused it, which has necessitated the plaintiffs to file this suit for partition and mesne profit. In this case, Venudhar's son Sagar Kolta has not been added as a party, because Venudhar has given him the land of village Sodekela in the division during his lifetime and he is separately occupying that land.

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D. Defendants No. 1 to 4 and 6 filed written statement denying the allegation levelled in the plaint contending that the plaintiffs are not the children of Late Mohno. Mohno has never married Lalo Bai. The plaintiffs do not get any right over the suit property merely because their names are recorded in the revenue records. The plaintiffs are not the legal heirs of Mohno, hence they are not entitled to any kind of partition of the suit property. This claim for partition has been filed by the plaintiffs without seeking a declaration, which is not tenable. The suit has been filed almost 24 years since Mohno died, therefore, the suit is barred by limitation. The plaintiffs do not have any possession of the suit land. It has been further contended that the plaintiffs have not

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properly evaluated the suit and no proper court fee has been affixed on it and prayed for dismissal of the suit. Defendant No. 5 did not file written statement.

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5. On the pleadings of the parties, learned trial Court has framed as many as 7 issues.

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6. The plaintiffs to substantiate their case examined Nirmati as PW/1, Rishikesh Pradhan as PW/2, Hemsagar as PW/3, Gulan Sanwara as PW/4 and Rajkumar Sidar as PW/5 and exhibited documents namely Adhikar Abhilekh Panjiyan as Ex.P/1, Kishtabandi Khataunis Ex.P/2 to P/5, Dakhil Kharij as Ex.P/6 to P/10. The Defendants examined defendant No.1 as DW/1 and Gopal Chouhan as DW/2 and exhibited document namely certificate from Sarpanch as Ex.D/1.

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7. Learned trial court considering the evidence, material on record allowed the suit and recorded its finding that the partition shown in Schedule B,C and D is not binding upon the plaintiffs, the plaintiffs are entitled for 1/5th-1/5th share of the suit property. This judgment and decree was assailed by the defendants before the First Appellate Court by filing appeal under Section 96 of the CPC contending that the learned trial Court has miserably failed to appreciate the evidence, material on record. Learned first appellate court after re-appreciating the evidence and materials on record, partly allowed the appeal and recorded its finding that when Late Mohno expired, at that time, the Hindu Succession Act, 1956 was in force, therefore, on the date of death of Late Mohno, defendant No. 1, defendant No. 2 who and late Mohno inherit the right to the extent of 1/3rd and on the share of Mohno, his

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daughters have right to the extent of 1/5th share (each daughter). This judgment is being challenged by the plaintiffs by filing second appeal before this Court.

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8. Learned counsel for the appellants would submit that learned trial Court has rightly passed the judgment and decree, however, the judgment passed by the learned first appellate Court is bad in law and suffers from perversity. The daughters are entitled for equal share in the property of their parents. Learned first appellate Court has failed to appreciate that the suit property has not been partitioned through registered deed of partition or decree of any count till the enactment of Hindu Succession (Amendment) Act, 2005 (hereinafter ‘the Amendment Act, 2005’) has come into force. Therefore, the partition has to be governed by the Amendment Act, 2005 and would pray for allowing the second appeal.

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9. On the other hand, learned counsel for the respondents No. 1 to 3 would submit that the learned first appellate Court has passed reasoned order, no error of law could be said to have been committed by the learned first appellate Court which warrants interference by this Court. He would further submit that since, late Mohno expired in 1987-88, therefore, Act of 1956 would be applicable in the present case. He would further submit that it is well settled position of law that since father of the appellants died prior to 2005 therefore, partition between the parties has automatically taken place. He would further submit that for the application of Amendment Act, 2005 it is mandatory that father and the daughter both should be alive. Therefore, the judgment

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passed by the learned first appellate Court applying notional partition to the extent of 1/3rd each and thereafter, grant of share of the daughter from the share of Late Mohno is just and proper. On this ground, he would pray for dismissal of the appeal. To substantiate his submission he would refer to the judgment of the Hon’ble Supreme Court in case of Prasanta Kumar Sahoo and Others vs. Charulata Sahu and Others {(2023) 9 SCC 641}.

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10. I have heard learned counsel for the parties, perused the documents with utmost satisfaction.

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11. Since the substantial questions of law framed by this Court are interconnected and move around examination of law with regard to effect of the Amendment Act, 2005 and consideration for deciding all the questions of law is requiring same consideration therefore, all the questions of law are decided analogously.

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12. For better understanding the issue raised in this appeal, it is expedient for this Court to extract the provisions of Section 6 of the Hindu Succession (Amendment) Act, 2005 which are as under:-

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6. Devolution of interest in coparcenary property. —

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(1)On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

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(a)by birth become a coparcener in her own right in the same manner as the son;

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(b)have the same rights in the coparcenary property as she would have had if she had been a son;

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(c)be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

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Provided that nothing contained in this sub-section shall affect

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or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

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(2)Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

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(3)Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

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(a)the daughter is allotted the same share as is allotted to a son;

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(b)the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and(

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c)the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the predeceased son or a pre-deceased daughter, as the case may be.

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(4)After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect—

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(a)the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

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(b)any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

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(5)Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

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13. The plaintiffs’ witness PW/1 Nurmati Pradhan in her examination in chief by way of affidavit has specifically contended that in the suit property described in Schedule A,B,C,D she along with her brother’s legal heirs names were recorded and without any declaration they are not entitled to partition the suit property. The said evidence remains unrebutted in extensive crossexamination. On the contrary, in paragraph 28 she has admitted that between Sagru Kolta and his father Venudhar no partition has taken place and in that land no person has been given the share. She has again stated in paragraph 29 that no partition has taken place. The other witnesses examined by the plaintiffs have also supported the case. The defendants’ witness Baishtam Kolta in cross-examination has admitted in paragraph 12 that name of his brother and himself have been recorded in the revenue record with the consent of the plaintiffs, but he has admitted that he has not submitted any documents with regard to the consent given by the plaintiffs. He has also admitted that they have not given any notice to the plaintiffs and any document wherein the plaintiffs’ signature are present has not been filed. He has also admitted that he and Benudhar have obtained three accounts of land situated at Mohle without intimation and consent of the plaintiff.

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14. The learned trial Court on appreciation of evidence has recorded its finding in paragraph 9 that the defendants without information to the plaintiffs have divided the suit property in their name without any right, therefore, the plaintiffs and Baishtam and

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Benudhar are 5 legal heirs of Mohno. Therefore, each of them is entitled to get 1/5th share of the suit property and accordingly, they are entitled to get separate possession to their extent of share. The learned trial Court in paragraph 11 has also recorded its finding that before application of the Amendment Act, 2005 no partition has been taken place as no evidence to this effect was placed on record by the defendants despite having burden to prove the factum of partition lies upon them. The learned first appellate Court without assigning any reason on wrong application of law has partly allowed the appeal and passed the judgment and decree. The judgment and decree passed by the first appellate Court is against the law laid down by the Hon’ble Supreme Court in case of Vineeta Sharma vs Rakesh Sharma and Others {(2020) 9 SCC 1 wherein Hon'ble the Supreme Court has held as under:-

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Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of section 6(1) (a) and 6(1). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).

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The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3).

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It was argued that in case Parliament intended that the incident of birth prior to 2005 would be sufficient to confer the status of a coparcener, Parliament would need not have enacted the proviso to section 6(1). When we read the provisions conjointly, when right is given to the daughter of a coparcener in the same manner as a son by birth, it became necessary to save the dispositions or alienations, including any partition or testamentary succession, which had taken place before 20.12.2004. A daughter can assert the right on and from 9.9.2005, and the proviso saves from invalidation above transactions.

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A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of "living coparcener", as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted section 6, the expression 'daughter of a living coparcener' has not been used. Right is given under section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.

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Resultantly, we answer the reference as under:

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137.1 The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

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137.2 The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

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137.3 Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

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137.4 The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

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137.5 In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

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We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months.

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15. The Hon’ble Supreme Court again in case of Prasanta (Supra) has considered the law laid down by the Hon’ble Supreme Court

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and has held that the daughters are entitled to get equal share at par with sons in the ancestral as well as the self acquired properties of the father.

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16. Considering the facts, evidence and law on the subject, it is held that the daughters are entitled to get equal share like a son after their father’s death even prior to enactment of Amendment Act, 2005 as no partition has been taken place between the parties. It is also held that since alleged partition as claimed by the defendants without information and consent of the persons interested / joint share holders is nullity in the eyes of law, accordingly, all the substantial questions of law framed by this Court are answered in favour of the appellant-plaintiffs and against the respondent-defendants. Consequently, the judgment and decree passed by the 3^rd Additional District to the First Additional District Judge, Raigarh is set aside and the judgment and decree passed by the learned trial Court dated 22.01.2015 in Civil Suit No. 120-A/2013 is restored.

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17. Accordingly, the Second Appeal is allowed.

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18. A decree be drawn up accordingly.

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(Narendra Kumar Vyas) Judge

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KISHOREKUMARDESHMUKH Digitallysigned byKISHOREKUMARDESHMUKHDate:2025.09.2217:58:53+0530 Deshmukh

Smt. Rajkumari Gupta v. Baishtam @ Vaishtam Kolta

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Smt. Rajkumari Gupta v. Baishtam @ Vaishtam Kolta

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