1 2025:CGHC:18296 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 307 of 2022 Judgment Reserved on : 07/04/2025 Judgment delivered on : 23 /04/2025 1 - Kunwar Singh S/o Late Jagatram Yadav Aged About 84 Years R/o Village - Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 2 - Jaipal Yadav S/o Kunwar Singh Aged About 44 Years R/o Village - Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 3 - Ahiliya Bai Wd/o Ramgopal Yadav Aged About 48 Years R/o Village - Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh. 4 - Minor Ku. Priyanka D/o Late Ramgopal Yadav Aged About 17 Years Through Natural Guardian Mother Ahiliya Bai Wd/o Ramgopal Yadav, R/o Village - Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 5 - Minor Ku. Sushma D/o Late Ramgopal Yadav Aged About 15 Years Through Natural Guardian Mother Ahiliya Bai Wd/o Ramgopal Yadav, R/o Village - Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 6 - Minor Ku. Sulochana D/o Late Ramgopal Yadav Aged About 10 Years Through Natural Guardian Mother Ahiliya Bai Wd/o Ramgopal Yadav, R/o Village - Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 7 - Anita Bai D/o Kunwar Singh Aged About 32 Years R/o Village - Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh. 8 - Lalita Bai D/o Kunwar Singh Aged About 28 Years R/o Village - Rajakampa, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh ... Appellants versus 1 - Sushila Bai D/o Kunwar Singh Caste - Yadav, R/o Village - Ghoramar, Tahsil, Takhatpur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 2 - Indu Bai D/o Kunwar Singh Aged About 40 Years Caste - Yadav, R/o Village Beeja, Tahsil Takhatpur, District Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 2 3 - State Of Chhattisgarh Through - Collector Bilaspur, District Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh ... Respondents For Appellants : Mr. Hanuman Prasad Agrawal, Advocate. For Respondents No. 1 & 2 For Respondent No. 3 : : Mr. Ravindra Sharma, Advocate. Mr. Santosh Soni, Govt. Advocate. (Hon’ble Mr. Justice Naresh Kumar Chandravanshi) C A V Judgment 1. This is defendants’ Second Appeal filed under Section 100 of CPC against the judgment and decree dated 10.01.2022, passed by 7th Upper District Judge, Bilaspur, in Civil Appeal No. 17-A/2019 reversing the judgment and decree dated 26.11.2018 passed by Civil Judge, Class-II, Takhatpur, District Bilaspur, in Civil Suit No. 76-A/2011, whereby the plaintiffs’ suit for declaration of owner-ship, possession and permanent injunction has been decreed in their favour. [For the sake of convenience, parties would be referred to as per their status shown in the plaint filed before the trial Court]. 2. Facts of the case, as projected by the plaintiffs, are that they filed civil suit stating inter alia that both the parties are descendants of late Jagatram. Following genealogy tree would demonstrate relationship among the parties:- txrjke ¼e`r½ vejflag ¼e`r½ dqaoj flag dUgbZ nq[khjke¼e`r½ lq[khjke lxuh ckbZ ¼iRuh½ gjdqaoj¼iRuh& e`r½ lqf’kyk banq ckbZ jkexksiky¼e`r½ t;iky vfurk yfyrk vkfgY;kckbZ¼iRuh½ dq- fiz;adk¼iq=h½ dq- lq"kek¼iq=h½ dq- lqykspuk¼iq=h½ 3 Thus, the plaintiffs are daughters of Sagni Bai, who was first wife of Kunwar Singh (defendant No.1) and defendants No. 2 to 8 are son, daughter, daughter-in-law and grand-daughters, respectively of Harkunwar, who was second wife of Kunwar Singh (defendant No. 1). The defendant No. 1- Kunwar Singh received the suit property mentioned in Schedule “A” attached with the plaint from his father. Due to not having a son from Sagni Bai, without getting divorce, Kunwar Singh had made second wife – late Harkunwar Bai as per Churi rituals prevalent in their Society. Thereafter, Kunwar Singh ousted his first wife – Sagni Bai from his house. In the month of October, 2011, on account of death of Harkunwar Bai, when plaintiffs went to attend rituals and sought partition of suit property, then their father Kunwar Singh (Defendant No. 1) and brother Jaipal told them that partition of suit property has already been done and the same has been given to Ramgopal and Jaipal and thereby they refused to given them their share. At that time, plaintiffs came to know about aforesaid fact, as after alleged illegal partition, suit property has been mutated in the name of Ramgopal and Jaipal, without noticing the plaintiffs. Since suit property is ancestral property of plaintiffs, therefore, claiming their 1/7th share, they filed civil suit seeking relief of title, possession and permanent injunction against the defendants. 3. Defendants No. 1 to 8 filed their joint written statement, in which, they did not dispute genealogy tree / relationship between the parties. They pleaded that the suit property was not ancestral property of the plaintiffs, rather it was self acquired property of defendant No. 1 – Kunwar Singh. They have pleaded that about 35 years prior, mother of plaintiffs namely Sagni Bai left the company of defendant No. 1 and she had been granted movable property in partition, she has also taken ornaments with her and after selling the same, she had purchased land in the name of her nephew – Sunhar. It is 4 further pleading of defendants that defendant No. 1 had partitioned the suit property and granted it to his sons namely Ramgopal and Jaipal. It is further pleading of defendants that defendant No. 1 had purchased tractor for son of plaintiff No. 1 in lieu of land owned by Ramgopal & Jaipal, margin money was also paid by defendant No. 1. The said Tractor was purchased on loan, but, since loan amount was not paid by son of plaintiff No. 1 -Sushila Bai, therefore, that Tractor was possessed by Finance Company and loan was paid by Ramgopal and Jaipal by selling their land bearing Khasra No. 134, 135 and 280. As such, plaintiffs are not entitled to get relief sought for by them. They further pleaded that the suit filed by them is barred by limitation, therefore, the same is liable to be dismissed. 4. Based on pleading of the parties, the trial Court framed as many as 7 issues, recorded evidence adduced by the parties and after considering the same and contention of the parties, dismissed the civil suit holding therein that the plaintiffs have failed to prove that the suit property is their ancestral property. 5. Being aggrieved & dissatisfied with the same, the plaintiffs preferred first appeal bearing Civil Appeal No. 17-A/2019, which was decreed by the first appellate Court holding therein that the suit property was ancestral property of defendant No. 1 – Kunwar singh, as he received the same in mutual partition from his brothers, which was succeeded by them from their father late Jagatram and thereby, first appellate Court reversed the judgment & decree of the trial Court and allowed the civil appeal filed by plaintiffs granting decree in their favour. Against which, instant second appeal has been preferred by the appellant/defendants No. 1 to 8 challenging the same. 6. This second appeal has been admitted for hearing on the following substantial questions of law :- 5 “1. Whether the First Appellate Court is justified in reversing the finding of the Trial Court or not ? 2. Whether finding recorded by the trial Court and upheld by the First Appellate Court that civil suit is within limitation, is perverse and illegal ? 7. Learned counsel appearing for the appellants/defendants submits that undisputedly the suit property belongs to late Jagatram partition of his lands were effected between his five sons and in that partition, the suit property was fallen in share of defendant No. 1 – Kunwar Singh prior to year 1994 and in the year 1994, Kunwar Singh effected partition between his sons namely Ramgopal and Jaipal on 19.10.1994, thereafter, their names were mutated in the revenue record in the year 1994. But plaintiffs namely Sushila Bai and Indu Bai instituted civil suit on 01.12.2011. He submits that as per amended provision of Section 6 of the Hindu Succession Act [Amendment Act, 2005] declaration of title and partition effected prior to 20.12.2004 cannot be challenged. As such, civil suit filed by plaintiffs is not maintainable, as the same was filed on 1.12.2011, which was beyond the period of 20.12.2004. It is further contended that Kunwar Singh (defendant No.1) had given suit property in share of his sons namely late Ramgopal and Jaipal in the year 1994 and in the same year, suit properties were recorded in their names in the revenue record, but instant civil suit has been filed by the plaintiffs on 01.12.2011. As such, the suit is barred by limitation, but the trial Court and First Appellate Court have wrongly held that suit is within limitation. It is lastly submitted that well reasoned findings recorded by trial Court dismissing the civil suit, have been reversed by the first appellate Court without any cogent reasons. 6 Hence, it is prayed that appeal may be allowed, judgment & decree passed by the first appellate Court may be set-aside and the judgment & decree passed by the trial Court may be restored. 8. Per contra, learned counsel appearing for the respondents No. 1 & 2 / plaintiffs would submit that undisputedly, suit property was owned by father (late Jagatram) of defendant No. 1-Kunwar Singh and after death of Jagatram, it was mutated in the name of Kunwar Singh (defendant No.1) and his brothers. It is further contended that in mutual partition effected between brothers of defendant No. 1 – Kunwar Singh, suit property was obtained by him in his share. He further submits that though suit property was recorded in the name of defendnats namely late Ramgopal and Jaipal in the revenue records in the year 1994 on the strength of alleged partition effected by their father Kunwar Singh (defendant No. 1), but that partition was not a valid partition, as in that partition except late Ramgopal and Jaipal, none other share-holders were given their share and even Kunwar Singh (defendant No.1) himself was not kept his own share only to deprive the plaintiffs from suit property. He further submits that Section 6 (5) of the Hindu Succession Act, 1956 only protect registered partition or partition effected by a decree of Court between the parties, but in the guise of said provision, illegal partition cannot be protected by invoking the aforesaid provisions. In the instant case, since no valid partition was effected by Kunwar Singh between his sons & daughters, therefore, such illegal partition can not be protected under aforesaid provision. He further submits that alleged partition / mutation was effected without noticing / informing plaintiffs and they came to know first time in the month of October, 2011 about aforesaid fact. 7 Thereafter, they filed civil suit on 01.12.2011, which is well within the period of limitation. Therefore, learned first appellate Court has rightly reversed the judgment & decree passed by the trial Court, decreeing the suit filed by plaintiffs in their favour, hence, he prayed that the second appeal filed by the defendants is liable to the dismissed. 9. I have heard learned counsel appearing for the parties and perused the record of trial Court as well as first appellate court with utmost circumspection. 10. Plaintiff – Sushila Bai (PW-1) has deposed that the suit property was owned by her grandfather – Late Jagatram and in the partition effected between defendant No. 1 – Kunwar Singh and his brothers, the suit property was fallen in the share of her father Kunwar Singh. This fact has also been supported by Sukhiram (PW-2), who is brother of defendant No. 1 - Kunwar Singh. 11. Though, defendant No. 1 – Kunwar Singh (DW-1) and defendant No. 2 – Jaipal Yadav (DW-2) have stated in their examination-in-chief that the suit property was self acquired property of defendant No. 1 -Kunwar Singh, but in cross-examination, they have admitted the suggestion of plaintiffs’ counsel that suit property was obtained by defendant No. 1 – Kunwar Singh in partition held between his brothers. Defendant No.1 has also admitted that he had obtained suit property from his father. 12. The plaintiffs have filed certified copy of ‘ukekarj.k iath’ (Ex.P-9) to (Ex.P-12), which show that after death of Jagatram, as per Ex.P-9, his lands were mutated in the name of his sons namely Amar Singh, Kunwar Singh (defendant No.1), Kanhai Ram, Dukhi Ram and Sukhiram. Perusal 8 of entries made in ‘ukekarj.k iath’ (Ex.P-10) to (Ex.P-12) shows that Kunwar Singh and his brothers had mutually partitioned their lands between them and, thereafter, they were cultivating their respective lands to their share. Aforesaid documents further demonstrates that on 19.10.1994, on the basis of mutual partition earlier effected between them, they got separated their shares in revenue records (ukekarj.k iath ) and at the time of that ’[kkrk caVokjk’ , defendant No. 1 – Kunwar Singh instead of getting record his share in his name directly got recorded suit lands of his share in the name of his sons namely Ramgopal and Jaipal without giving share to the plaintiffs and himself. Aforesaid facts specifically shows that partition effected by defendant No. 1 – Kunwar Singh between his two sons namely Late Ramgopal and Jaipal was not a valid partition, as despite being ancestral property, he did not give any share to his daughters (plaintiffs), whereas they were having coparcenary / successory rights on it as per judgment of the Supreme Court in the matter of Vineeta Sharma vs. Rakesh Sharma 1 , wherein the Supreme Court has held that daughters shall also have co-parcenary right and inherit ancestral property equally as male heir, irrespective that the father was alive or not. Thus, from the oral and documentary evidence adduced by the parties, it is very well proved that the suit property was ancestral property of the plaintiffs, as such, being daughter of defendant No. 1, they inherited suit property as coparcener. 13. Though, suit property bearing Khasra No. 857/3/d, area 0.336 hectare situated at village Bahurta, Tahsil Takhatpur is not mentioned in ukekarj.k iath (Ex.P-12) and as per registered sale-deed (Ex.D-1) dated 1 2020 (9) SCC 1 9 12.03.1981, land bearing Khasra No. 218, area 1.70 hectare, situated at village Rajakampa, Tahsil Takhatpur, District Bilaspur was purchased by defendant No. 1 – Kunwar Singh from Sukhni Bai and her son Ramcharan @ Santosh, but no evidence has been brought on record by defendants to prove the fact that those lands were acquired by defendant No. 1 – Kunwar Singh from his self earning or self acquired property, rather it has been proved that he had obtained 3.206 hectare suit property in his share in the partition of his ancestral property and no other source of income of Kunwar Singh (defendant No.1) has been proved, therefore, on the basis of preponderance of probabilities, it is proved that those suit properties were obtained / purchased by defendant No.1 – Kunwar singh from the income of his ancestral property fallen in his share, therefore, aforesaid two properties are also found to be ancestral property of the plaintiffs. As such, finding recorded by learned first appellate Court that plaintiffs are not entitled to get share in aforesaid two properties is perverse & illegal, hence, the same is liable to be and is hereby set aside and it is held that plaintiffs are also entitled to get share on aforesaid two properties i.e. Khasra No. 857/3/d area 0.336 hectare situated at village Bahuratha, Tahsil Takhatpur and Khasra No. 218, area 1.70 situated at village Rajakampa , Tahsil Takhatpur, District Bilaspur. 14. It is admitted / proven fact between the parties that during life time of Sagni Bai (first wife), her husband Kunwar Singh (defendant No.1) performed second marriage (pwM+h 'kknh) with Harkunwar without getting divorce from his first wife Sagni Bai. It is also admitted fact that the plaintiffs are daughters of defendant No. 1 – Kunwar Singh born from his first wife Sagni Bai and defendants are son, daughters & grand daughters 10 of Kunwar Singh (defendant No.1) born from his second wife late Harkunwar. Since defendant No.1 performed second marriage with Harkunwar during subsistence of his first marriage, therefore, that second marriage of defendant No. 1 was void, as such, defendant No. 2 to 8 are not entitled to get share of suit property, which is ancestral property of plaintiffs and defendant No. 1, as they (defendants No. 2 to 8) are son, daughters and grand daughters born from invalid marriage of defendant No. 1 – Kunwar Singh & Harkunwar. 15. In the case Jinia Keotin and others vs. Kumar Sitaram Manjhi and others 2 Hon’ble Supreme Court has held that children born of void or voidable marriage are not entitled to claim inheritance in ancestral coparcenary property, but entitled to claim inheritance in property of parents only. In aforesaid case, contention made on behalf of children born of void / voidable marriage was as under :- “ It was contended on behalf of the appellants that once the children born out of void and illegal marriage have been specifically safeguarded under Section 16 as amended by the Central Act 68 of 1976, there is no justification to deny them equal treatment on par with the children born of wife in lawful wedlock by countenancing claims for inheritance even in the ancestral coparcenary property. It was also contended by the learned counsel that inasmuch as but for the Hindu Marriage Act, 1955 there was no prohibition for a Hindu to have more than one wife and it is by virtue of the said Act such marriages became unlawful or void, once the legislature by amendment of Section 16 chosen to 2 (2003) 1 SCC 730 11 legitimatise the children born of such void marriages, the prohibition must be held to have been relaxed and the stigma wiped out so as to render the progeny, legitimate for all purposes and, therefore, the provisions of Section 16(3) of the Act also should be construed keeping in view the totality of circumstances and the object and purpose of the legislation in respect of right to inherit property also like the children born out of lawful wedlock. Hon’ble Supreme Court while rejecting the contention and dismissing the appeal held as under :- “ Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children are concerned to the properties of the parents only. Though Section 16 was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub- section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, "any rights in or to the property of any person, other than the parents, in any case where, but 12 for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents." In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. 16. In reference case of Revanasiddappa and another vs. Mallikarujun and others 3 , issue in reference before Supreme Court was that : “whether a child who is conferred with legislative legitimacy under Section 16(1) or 16(2) is, by reason of Section 16(3), entitled to the ancestral/coparcenary property of the parents or is the child merely entitled to the self-earned/separate property of the parents ? ” In aforesaid case, Hon’ble Supreme Court while considering various judgments and relevant provisions of Hindu Marriage Act, 1955 and Hindu Succession Act, 1956 in respect of joint Hindu family governed by 3 (2023) 10 SCC 1 13 Mitakshara law has held that, child born from void or voidable marriage conferred legitimacy under Section 16 of Hindu Marriage Act, is not a coparcenar in Hindu Mitakshra joint family. However, such child would be entitled to share of parents in coparcenary property in accordance with mandate of Section 6 of Hindu Succession Act, 1956. It was further held that child conferred legitimacy under Section 16 of the Hindu Marriage Act has rights only in exclusive and absolute property of parents, such child cannot seek partition of ancestral / joint family / coparcenary property, in which, parents have share, during life time of parents. After detailed discussion, Hon’ble Supreme Court answered reference by formulating conclusion in paragraph 81 in following terms, which is reproduced below :- “81.1. In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending Act 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment; 81.2 In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child ‘begotten or conceived’ before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage 14 if a decree of dissolution had been passed instead of a decree of nullity; (81.3) While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub- section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in sub- section (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person; (81.4) While construing the provisions of Section 3(1)(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956. In other words, a child who is legitimate under sub- section (1) or sub-section (2) of Section 16 of the HSA would, for the purposes of Section 3(1)(j) of the HSA 1956, fall within the ambit of the explanation ‘related by legitimate kinship’ and cannot be regarded as an ‘illegitimate child’ for the purposes of the proviso; (81.5) Section 6 of the HSA 1956 continues to recognize the institution of a joint Hindu family governed by the Mitakshara law and the concepts of a coparcener, the acquisition of an interest as a coparcener by birth and rights in coparcenary property. By the substitution of 15 Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6; (81.6) Section 6 of the HSA 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of Section 6 with effect from 9 September 2005 by the Amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary. The exception to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased in a Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship. In terms of sub-section (3) of Section 6 as amended, on a Hindu dying after the commencement of the Amending Act of 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of Section 6, the rule of devolution by testamentary or intestate succession of the interest of a deceased Hindu 16 in the property of a Joint Hindu family governed by Mitakshara law has been made the norm; (81.7) Section 8 of the HSA 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate. Section 10 provides for the distribution of the property among heirs of Class I of the Schedule. Section 15 stipulates the general rules of succession in the case of female Hindus dying intestate. Section 16 provides for the order of succession and the distribution among heirs of a female Hindu; (81.8) While providing for the devolution of the interest of a Hindu in the property of a Joint Hindu family governed by Mitakshara law, dying after the commencement of the Amending Act of 2005 by testamentary or intestate succession, Section 6 (3) lays down a legal fiction namely that ‘the coparcenary property shall be deemed to have been divided as if a partition had taken place’. According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition; (81.9) For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the 17 death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; and (81.10) The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above. 17. Thus, from perusal of the aforesaid case law, it has been settled by the Apex Court that, children born from null and void marriages would be entitled to rights in or to the absolute property of the parents and not other persons and they also cannot claim partition during life time of parents. 18. In the instant case, it is proved that plaintiffs are daughters of defendant No. 1- Kunwar Singh born from his first wife – Sagni Bai, but since in her life time during subsistence of first marriage, Kunwar Singh 18 (defendant No.1) performed second marriage with Harkunwar, therefore, that second marriage was void under Section 11 of the Hindu Marriage Act, 1955, therefore, the defendants No. 2 to 8 are not a coparcener of suit property, hence, they are not entitled to get equal share on the suit property as of plaintiffs, rather they are entitled to get share from the share of their father / grand-father – Kunwar Singh (defendant No.1). In other words, applying aforesaid law laid down by Hon’ble Supreme Court, being ancestral property, the suit property ought to have been divided between the plaintiffs and his father Kunwar Singh and each of them would have got 1/3rd share and only from the 1/3rd share received by Kunwar Singh, defendant Nos. 2 to 8 would have got their share. 19. Though, each of the plaintiffs are entitled to obtain 1 / 3rd share of suit property, but they themselves have claimed only 1/7th – 1/7th share on it. The plaintiffs’ claim of a less share implies that they have waived their remaining right / shares. Further, it is settled law that relief not found on pleading should not be granted. And if a Court considers or grants relief, for which no prayer or pleading was made, it could lead a miscarriage of justice. [ See : Akella Lalitha Vs. Konda Hanumantha Rao & another4] 20. In the case of Bachhaj Nahar Vs. Nilima Mandal and another 5 , Hon’ble Supreme Court has held that it is a fundamental rule that in a civil suit, relief to be granted can be only with reference to the prayer made in the pleadings. Relevant paragrah 23 of the judgment is reproduced below :- 4 Civil Appeal No. 6325-6326 of 2015, decided on 28.07.2022 5 (2008) 17 SCC 491 19 “23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non- joinder of causes of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of Rs.one lakh, the court cannot grant a decree for Rs. Ten lakhs. In a suit for recovery possession of property `A', court cannot grant possession of property `B'. In a suit praying for permanent injunction, court grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.” 21. Further, in the case of Manohar Lal (D) by Lrs. vs. Ugrasen (D) by Lrs. and others 6 Hon’ble Supreme Court has emphasized that decisions cannot be based on the grounds outside the pleadings and relief not asked for, cannot be granted without any amendment to the plaint. 22. Therefore, though each of the plaintiffs are entitled to get 1/3rd share over the suit property, but they have claimed only 1/7th share for 6 AIR 2010 SC 2210 20 each, hence, they cannot be given more share, than what they have claimed. 23. So far as contention of learned counsel for the appellant with regard to maintainability of Civil Suit filed by plaintiffs in respect of Section 6(5) of the Hindu Succession Act, 1956 is concerned. Aforesaid provisions reads thus :- “6. Devolution of interest in coparcenary property. (1) ……………… xxx xxx xxx xxx xxx xxx (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. - For the purpose of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court. 24. A bare perusal of aforesaid provision specifically shows that if partition was effected between the parties vide registered partition deed or by a decree of a court prior to 20.12.2004, then, such partition cannot be challenged under the provisions contemplated in Section 6 of the Act, 1956, meaning thereby if partition is not effected vide registered partition deed or a decree of a court, then that partition is not protected under Section 6 (5) of the Act, 1956. 25. In the instant case, it is proved from the evidence available on record that defendant No. 1 – Kunwar Singh has not effected partition between his successors vide registered sale-deed or a decree of court, rather alleged partition was completely invalid partition, as plaintiffs were not given any share in the suit property. In lieu of their share, defendant No. 1 has allegedly purchased Tractor in the name of son of plaintiff No. 1 – Sushila Bai and she also taken ornaments in lieu of her share, but the same has also not been proved. 21 Eventually, no share has been given to the plaintiffs by their father Kunwar Singh (defendant No.1) of their ancestral property, therefore, contention raised by learned counsel for the defendants that the civil suit filed by the plaintiffs is not maintainable in view of provisions contained in Section 6 (5) of the Act, 1956 is completely misconceived. Therefore, the same is not sustainable. rather as has been discussed in preceding paragraphs, the suit land is ancestral property of plaintiffs and defendant No. 1, as such, plaintiffs also inherited suit property and, therefore, they are entitled to get their share. 26. As per pleading of plaintiffs and deposition of plaintiff No.1 – Sushila Bai, when the plaintiffs had gone to participate rituals on account of death of her step mother Harkunwar Bai in the month of October, 2011 to their parental home and sought partition of suit property, then defendants No. 1 & 2 told them that the partition of the suit property has already been done, then they first time, came to know about aforesaid fact. Defendant No. 1 - Kunwar Singh (DW-1) and Jaipal (DW-2) have not deposed that the alleged partition/ mutation of the suit land was done in the year 1994 in the name of late Ramgopal and Jaipal, which was well within the knowledge of plaintiffs. Revenue documents (Ex.P-9) to (Ex.P-12) also did not contain the fact that prior to such partition/ mutation, any notice was issued / served to the plaintiffs, rather it is found that to deprive plaintiffs from their share, defendant No. 1 in a secretive manner, got mutated the suit property in the name of only his two sons namely late Ramgopal and Jaipal, therefore, finding recorded by the trial Court as well as by the first appellate that the plaintiffs first time came to know about alleged invalid partition / mutation in the month of October, 2011 and the suit was filed by the plaintiffs on 01.12.2011, as such, the civil suit is well within the limitation period is just & proper. Even otherwise, as per Article 110 of the Schedule of Limitation Act, 1963 “12 years” limitation has been prescribed for filing civil suit by a person excluded from a joint 22 family property to enforce right of share therein, from the date when the exclusion becomes known to the plaintiffs. Therefore, finding recorded by the trial Court and upheld by first appellate Court that suit has been filed within the limitation period is well within the premise of law, which do not call for any interference of this Court. 27. Thus, though each of the plaintiffs are entitled to get 1/3rd share of suit property, but they themselves have claimed less share i.e. 1/7th – 1/7th to be granted to them and thereby they have waived their remaining share on it. Therefore, granting 1/7th share of the suit property to each of the plaintiffs by learned appellate Court is found to be valid in view of above discussion. As such, the same is hereby affirmed. 28. In view of foregoing discussion, it is found that first appellate Court has not committed any error of law in granting 1 / 7th share each to both the plaintiffs over the suit property by reversing the finding of the trial Court, and finding recorded by First Appellate Court upholding the finding of trial Court that the civil suit filed by the plaintiffs is well within the limitation period is also in accordance with law. Consequently, judgment & decree passed by the first appellate Court is upheld and the second appeal filed by the appellants/defendants deserves to be dismissed. 29. Accordingly, both the substantial questions of law are answered in favour of plaintiffs and against the defendants. Consequently, second appeal is dismissed. 30. A decree be drawn up accordingly. Sd/- (Naresh Kumar Chandravanshi) Judge AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.04.24 11:38:59 +0530 23