IMPORTANT POINT
Succession to Mitakshara coparcenary property – In order to ascertain shares of heirs in property of a deceased coparcener, first step is to ascertain share of deceased himself in coparcenary property.

JUDGMENT :

1. Tried and tested many times over, the issue of succession to Mitakshara coparcenary property continues to raise its head time and again like an undying Hydra of Lerna. The case on hand is one such instance.

2. Phannuram Sahu died on 22.06.1959 with surviving interest in Mitakshara coparcenary properties, being agricultural land admeasuring 24.64 acres in Village Dhaneli along with house properties. He left behind Kesar Bai, a daughter born through his first wife, Dukalhin Bai, along with Vishal and Keja Bai, a son and a daughter born through his second wife, Ganga Bai. Both his wives predeceased him.

3. It was the case of Kesar Bai that a partition was effected on 12.03.1964 amongst Vishal; Ramnath, Phannuram’s nephew; and Manbat Bai, Phannuram’s sister-in-law. Having received Phannuram’s 1/3rd share in the coparcenary properties, Vishal rejected Kesar Bai’s demand for partition and allotment of her individual share therein. Kesar Bai thereupon instituted a partition suit, which came to be numbered as Civil Suit No. 146A of 1991 on the file of the learned First Civil Judge, Division-II, Raipur. Therein, she claimed her share in the coparcenary properties along with mesne profits. During the pendency of the suit, Kesar Bai died on 17.06.1988 and her son, Derha Ram, the present appellant, succeeded to her estate under registered will dated 16.12.1980.

4. Upon considering the issues settled for trial and on the strength of the evidence, oral and documentary, the Trial Court decreed the suit on 06.11.1996, holding that Derha was entitled to 1/3rd share in the suit scheduled agricultural land and a 1/3rd share in two house properties. The Trial Court also held him entitled to mesne profits @Rs.400 per annum from 1979 till separate possession was delivered to him.

5. Aggrieved by the Trial Court’s judgment and decree, Vishal and Keja Bai filed Civil Appeal No. 6A of 1998 before the learned District Judge-III, Raipur. However, by Order dated 13.04.1999, the Appellate Court dismissed the appeal in toto.

6. The matter was then carried in appeal by Vishal and Keja Bai to the High Court of Chhattisgarh in Second Appeal No. 891 of 1999. By judgment dated 31.03.2009, the High Court partly allowed the second appeal and held that Derha would be entitled to 1/6th share in the suit properties, i.e., the agricultural land and two dwelling houses. Aggrieved by the reduction of his share, Derha filed the present appeal by special leave.

7. By Order dated 09.10.2009, this Court directed status quo obtaining as on that date to be maintained by both parties.

8. A feeble attempt was made by the learned counsel for the appellant to contend that the suit properties were not coparcenary properties but were joint properties held by Phannuram and his brothers. However, this argument cannot be countenanced as the original plaintiff, Kesar Bai, had approached the Trial Court contending that the suit properties were ancestral properties. Her son and heir cannot be permitted to take a different stand now, contrary to her pleadings. Further, the argument that Manbat Bai, Phannuram’s sister-in-law, would not have been allotted a share in the partition on 12.03.1964 had the properties been coparcenary properties, needs mention only to be rejected. The said partition was never subjected to challenge and without details as to when Manbat Bai’s husband died, this Court cannot venture an opinion on whether allotment of a share to her in that partition was lawful. In any event, allotment of a share to her would not have the effect of branding the properties in question as being other than coparcenary properties. More so, as Kesar Bai herself filed a suit claiming that the properties in which she wanted a share were ancestral properties.

9. Once it is held that the properties which were the subject matter of the partition suit were coparcenary properties, the only issue that remains is as to how the said properties were to be divided amongst the legal heirs of Ph