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SUPREME COURT OF INDIA
M.M. SUNDRESH, S.V.N. BHATTI, JJ.
Shashidhar And Others – Appellants
Versus
Ashwini Uma Mathad And Another – Respondents
Civil Appeal Nos.3780-3781 OF 2020
Decided on : 08-07-2024
Hindu Law – Partition – Entitlement in a share ascertained after partition is different from share determined in a notional partition – Crux of consideration is Sl. No. 2 is whether properties, more fully described by Trial Court, form part of ancestral property held by coparcenary or are, from beginning, separate and self-acquired property of Propositus and his successors-in-interest by deed of transfer – Flow of title finally into hands of Appellant would show that properties covered by Sl. No. 2 cannot be treated as coparcenary property – Directing division of Sl. No. 2, by preliminary decree, is illegal – Sl. No. 2, described in detail in operative portion of judgment of Trial Court, is not available for partition and must be excluded from preliminary decree impugned in Civil Appeals – Appeals allowed in part. (Paras 12, 13, 18, 19 and 20)
Facts of the case:
Present Civil Appeals are filed against judgment dated 16.10.2019 in R.F.A. No.3052 of 2010 and Cross-objection No. 103 of 2011, on file of High Court of Karnataka, Dharwad Bench.
Findings of Court:
Inclusion of the properties described in Sl. No. 2 as forming part of the coparcenary is untenable and illegal. Record discloses that these properties are separate and are self-acquired by Appellant No. 1 through succession or transfer from mother or sister.
Result : Appeals allowed in part.
Key Points: - The exclusion of Sl. No. 2 from partition is upheld as illegal and not part of coparcenary property. (!) (!) - The judgment distinguishes entitlement after partition from notional partition, and cautions against applying post-partition entitlements to coparcenary shares. (!) - Sl. No. 2 is held to be self-acquired by Appellant No. 1 and not coparcenary property; thus not available for partition. (!) (!) - The trial court's preliminary decree is modified to exclude Sl. No. 2 from partition; other items (Sl. Nos. 1, 3, 4, 5) remain in the decree. (!) - The High Court’s modifications granting broader shares are set aside to the extent they include Sl. No. 2; overall appeal partly allowed. (!) (!) - The court confirms that Sl. Nos. 3 and 4 do not form part of coparcenary and require evidence; certain defects in gift/deed proof affect rights in those items. (!) (!) (!) - The decision discusses evidentiary requirements for transfer deeds (Section 12 Transfer of Property Act, Section 68 Evidence Act) and attestation, impacting proof of self-acquired status. (!) (!) - The crux is whether the properties described in Sl. No. 2 are ancestral or self-acquired based on flow of title and prior transfers. (!) - The case cites and distinguishes Gurupad Khandappa Magdum and related authorities, noting not applying them to extend coparcenary share for Sl. Nos. 1 and 5. (!) (!) - Final outcome: Appeals allowed in part; Sl. No. 2 excluded from partition; preliminary decree revised accordingly. (!)
JUDGMENT :
S.V.N. BHATTI, J.
1. These Civil Appeals are filed against the judgment dated 16.10.2019 in R.F.A. No.3052 of 2010 and Cross-objection No. 103 of 2011, on the file of the High Court of Karnataka, Dharwad Bench.
2. The Respondents filed O.S. No.73 of 2004 in the Court of the Additional Civil Judge, Hubli, for partition of suit properties and allot half of one-third to each of the Respondents in all the suit properties. The suit properties are stated thus:
| Sl. No. | Sy. No./CTS No. & Ward No. | Extent | Village | Remarks |
| 1. | CTS No.290 | - | Mantur | Residential |
| 2. | CTS No.1108 Ward No.III1 [Sl. No. 2 depicts one survey number and a small extent of 87. sq. yds. But the parties admit that Sl. No. 2 covers more than one survey number as detailed in the judgment of the Trial Court.] | 87 Sq. Yds. | Hubli | -do |
| 3. | CTS No.92A 5A, Ward No.III | 616.2/ | Hubli | -do |
| 4. | CTS No.92A 5A, Ward No.III | 200.2/- | Hosur Hubli | -do |
| 5. | Block No.168/4 | 13A03 Gs. | Shiraguppi Bhandlwad Village, Tq.Hubli | Agricultural land |
3. The family genealogy of the parties is reproduced hereunder:
4. The Respondents are the daughters of Appellant No. 1 through his first wife, Uma. It is an admitted case that Appellant No. 1 and the said Uma got divorced, and thereafter, Appellant No. 1 married Appellant No. 2. Appellant Nos. 3 and 4 are the daughters of Appellant Nos. 1 and 2. The case of the Respondents is that the parties to the suit constitute a Hindu coparcenary, and the suit properties are held by the coparcenary. Therefore, the Respondents, being coparceners, are entitled to a share in the suit properties. The demand of the Respondents for the partition of ancestral properties made to Appellant No. 1 either has been postponed or avoided. Therefore, the Respondents, by filing O.S. No.73/2004, claimed half of the one-third share in the suit properties and prayed for passing a preliminary decree to that effect. Defendant No. 1 contested the suit for partition. Among other things, the objections to the claim for partition are that Appellant No. 1, while admitting the paternity of the Respondents, joins the issue of whether the suit properties are ancestral properties and whether the Respondents have a share in it. The Defendant No. 1 admits that Sl. Nos. 1 and 5 alone are ancestral properties. The propositus died on 21.07.1991, leaving Appellant Nos. 1 to 3 and the propositus’s daughter, Rajeshwari, as heirs. On the demise of the propositus, the property covered by Sl. Nos. 1 and 5 are notionally partitioned into three shares. Appellant No. 1, his mother and his sister are entitled to one share each. Appellant No. 1, either by gift deed or will executed by his siblings, acquired the share inherited by them from the common propositus. Therefore, the properties/shares acquired by Appellant No. 1 by way of gift, will, etc., do not belong to or become coparcenary property in which the Respondents can claim a share. In other words, the admissible share is to be worked out in the one-third share inherited by Appellant No. 1 in the notional partition of Sl. Nos. 1 and 5. The property described in Sl. No. 4 in the schedule is the self-acquired property of Appellant No. 2, having received the said property from his sister, Rajeshwari. The property in Sl. No. 2 belongs to the paternal aunt of the propositus, and the paternal aunt gifted the property in favour of the propositus. The propositus, in turn, gifted the property in favour of his daughter, Rajeshwari, who died on 18.02.2003, and before her demise, Rajeshwari bequeathed the property in Sl. No. 2 in favour of Appellant No. 1. The claim of the Respondents for a share in Sl. No. 2, as coparcenary property, is misconceived and untenable.
5. The Trial Court, on a full-fledged trial, decreed the suit in part and granted a preliminary decree as follows:
“Th
AI
Partition – Entitlement in a share ascertained after partition is different from share determined in a notional partition.
The court established that ancestral property retains its coparcenary character despite partition, affirming the rights of legitimate heirs under Hindu law.
The central legal point established in the judgment is the distinction between ancestral and self-acquired properties under the Hindu Succession Act, and its implications on the entitlement for parti....
The central legal point established in the judgment is the distinction between obstructed and unobstructed heritage under the Hindu Succession Act, 39/2005, and its impact on the entitlement of femal....
The court affirmed that ancestral property remains so despite partition, and daughters are entitled to equal shares under the Hindu Succession Act, 1956, as amended.
The court reaffirmed that daughters have equal rights as sons in ancestral properties, emphasizing the applicability of Section 6 of the Hindu Succession Act.
Daughters have equal rights and shares in ancestral joint family properties under Section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act, 2005.
Daughters were denied coparcener status under old inheritance laws but still claimed joint family property rights; trial court granted them shares based on family law principles.
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