2025:CGHC:42152 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 117 of 2014 1 - (Deleted) Smt. Nirmala Dwivedi (Died) As Per Honble Court Order Dated 26-07-2022 And 23-02-2023 2 - Chandra Prakash Dwivedi S/o Late Ramavatar Aged About 52 Years R/o Mandir Chowk, Sindhi Colony Road, Jarhabhatha, P.S. Civil Lines, Bilaspur, Distt. Bilaspur C.G., District : Bilaspur, Chhattisgarh 3 - Sudhindra Kumar Sharma S/o Late Ramavatar Aged About 50 Years R/o C.I. 10, Near Cancer Hospital, Bhilai, P.S. Bhilai Nagar, Distt. Durg C.G., District : Durg, Chhattisgarh 4 - Shashikiran Mishra W/o Sachchidanand Mishra Aged About 49 Years D/o Ramavatar Dwivedi, R/o Bargaon, P.S. Berla, Tah. Bemetara, Distt. Durg C.G., Now Distt. Bemetara C.G., District : Bemetara, Chhattisgarh 5 - Sunita Joshi W/o Dipak Joshi Aged About 46 Years D/o Ramavatar Dwivedi, R/o Nagar Nigam, Rajnandgaon, P.S. Rajnandgaon, Distt. Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh 6 - Smt. Subhra Tiwari W/o Manoj Aged About 46 Years D/o Ramavatar Dwivedi, R/o 116, Trimurti Chowk, Sundar Nagar, P.S. Amanaka, Raipur, Distt. Raipur C.G., District : Raipur, Chhattisgarh 7 - Smt. Kanti Devi Dwivedi (Died) W/o As Per Honble Court Order Dated 21-06-2022. 8 - Dr. Banwali Prasad Sharma S/o Ramanuj Dwivedi Aged About 52 Years R/o C-11, Agye Nagar, P.S. Civil Lines, Bilaspur, Distt. Bilaspur C.G., District : Bilaspur, Chhattisgarh 9 - Onkar Prasad Sharma S/o Ramanuj Dwivedi Aged About 49 Years R/o B-238, N-53, N.T.P.C., Vidhyut Nagar, P.S. Vidhyut Nagar, Sidhi M.P., District : Sidhi, Madhya Pradesh 10 - Smt. Indumati Gauraha W/o Ramavatar Aged About 49 Years R/o KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.09.17 10:57:22 +0530 C-12, Agye Nagar, P.S. Civil Lines, Bilaspur, Distt. Bilaspur C.G., District : Bilaspur, Chhattisgarh 11 - Smt. Indra Sharma W/o Munendra Sharma Aged About 46 Years D/o Ramanuj, R/o E.W.S.-9, Nehru Nagar, P.S. Civil Lines, Bilaspur, Distt. Bilaspur C.G., District : Bilaspur, Chhattisgarh 12 - Smt. Manju Diwan W/o Mukesh Dhar Aged About 44 Years R/o Aadiwasi Shala, Pendra, P.S. Pendra, Distt. Bilaspur C.G., District : Bilaspur, Chhattisgarh ... Appellant(s) versus 1 - Smt. Rama Shukla (Died) Through Legal Heirs- As Per Honble Court Order Dated 25-03-2022. 1.1 - (A) Deleted (Sumant Shukla) As Per Honble Court Order Dated 25-03-2022 1.2 - (B) Mahendra Kumar Shukla S/o Sumant Shukla Aged About 53 Years R/o Village Padarbhatta, Tehsil And District Mungeli (Chhattisgarh), District : Mungeli, Chhattisgarh 1.3 - (C) Shesh Narayan Shukla S/o Sumant Shukla Aged About 51 Years R/o Village Padarbhatta, Tehsil And District Mungeli (Chhattisgarh), District : Mungeli, Chhattisgarh 1.4 - (D) Keshav Shukla S/o Sumant Shukla Aged About 49 Years R/o Village Padarbhatta, Tehsil And District Mungeli (Chhattisgarh), District : Mungeli, Chhattisgarh 1.5 - (E) Smt. Surekha Pandey W/o Gopal Pandey Aged About 40 Years R/o Yadunandan Nagar, Tifra, Tehsil And District Bilaspur (Chhattisgarh), District : Bilaspur, Chhattisgarh 2 - Smt. Shyama Pandey W/o Late Chudamani Aged About 63 Years D/o Late Ram Sahay, R/o Lawan, Tah. Balauda Bazar, Distt. Raipur, Now Distt. Balauda Bazar-Bhatapara C.G., District : Balodabazar- Bhathapara, Chhattisgarh 3 - Smt. Ratna Pandey D/o Late Ram Kumar Aged About 61 Years R/o Munibava Gali, Jabdapara, P.S. City Kotwali, Bilaspur, Distt. Bilaspur C.G., District : Bilaspur, Chhattisgarh 4 - Rukmani Diwan W/o Anildhar Diwan Aged About 54 Years R/o Opposite Pallav Bhawan, Ring Road No. 02, Vasundhara Nagar, P.S. Civil Lines, Bilaspur, Distt. Bilaspur C.G., District : Bilaspur, Chhattisgarh 5 - Akhilesh Diwan S/o Late Rajendra Dhar Aged About 36 Years R/o 2g Block-2, Sector-2, Sadak C.H. 2, Bhilai, Distt. Durg C.G., District : Durg, Chhattisgarh 6 - Ajiteshdwar Diwan S/o Rajendra Dhar Aged About 33 Years R/o Opposite The House Of Sahu Postman, Ward No. 2, Imalibhatha, P.S. Mahasamund, Distt. Mahasamund C.G., District : Mahasamund, Chhattisgarh 7 - State Of Chhattisgarh S/o Thru- The Collector, Distt. Bilaspur C.G., District : Bilaspur, Chhattisgarh ---- Respondents For Appellants : Shri R.S.Patel, Advocate For R1(a to d), R2to4: Shri H.B. Agrawal, Sr. Advocate with Ms. A. Sandhya Rao, Advocate For R5&6 : Shri Viprasen Agrawal, Advocate For State : Shri K.L. Sahu, Dy. Govt. Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 20.08.2025 1. This appeal has been preferred by the defendants under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 28.02.2014 passed by the learned Additional District Judge, Mungeli (C.G.) in Civil Appeal No.13- A/2001, whereby the first appellate Court has rejected the appeal filed by the plaintiffs and affirmed judgment and decree dated 28.06.2013 passed by the Civil Judge, Class-I, Mungeli, (C.G.) in Civil Suit No. 45-A/2009 whereby the suit filed by the plaintiffs has ben decreed to the extent that the plaintiffs are entitled for 1/7th share of the suit property. 2. The appeal has been admitted on 22.08.2014 for consideration on the following substantial question of law :- (1) “Whether both the Courts below were justified in holding 1/7th share of daughter in the light of judgment of Supreme Court in the matter of Rohit Chauhan Vs. Surinder Singh and Others, reported in (2013) 9 SCC 419 in-alienating respondents i.e. daughter/sisters are also entitled for equal share in the light of amended Section 6 of the Hindu Succession Act, 1956.” 3. The description of the parties to this appeal shall be referred to hereinafter as per their description in the civil suit. 4. Brief facts reflected from the record that :- A. Plaintiffs filed a suit before the learned Civil Judge, Class II, Mungeli mainly contending that the plaintiffs and defendants are brothers and sisters and they are governed by Hindu Law. Ramavtar, Ramanuj, Rajendradhar are son of Ram Sahay and Rama Shukla, Shyama Pandey, Ratna Pandey and Rukmani are daughter of Ram Sahay. Ram Sahay owned property situated at village Badara, Tahsil Pathariya, District Mungeli measuing 23.971 Ha as described in Schedule A and a house as described in Schedule B of the plaint (hereinafter referred to as suit property) which he received in his lifetime in partition from his brothers. During the lifetime of Late Shri Ram Sahai, his wife Ramkali had died. After the death of Ram Sahay, the suit property was divided among the plaintiffs and defendants except defendant No. 15 in which the plaintiffs and defendant No. 13 and 14 got 1/7th share of the suit property separately, which has been objected by defendants No. 1 to 12. Therefore, suit has been filed for partition of the property described in Schedule A and B and restraining defendants No. 1 to 12 to create hindrance in their share till the partition is effected between the parties. B. The defendants No. 1 to 12 have filed written statement denying the allegation made in the plaint mainly contending that the suit property was divided before Panchas through a written partition deed dated 27/03/1977 between late Ram Sahay and his two sons Ramavtar Dwivedi and Ramanand Dwivedi. At the time of his death, late Ram Sahay, in the presence of both the parties, again divided the share received by him between his two sons Ramavtar and Ramanuj Dwivedi for which plaintffs have no objection. It has been further contended that on the occasion of marriage of the plaintiffs, many valuable movable properties have been given to them as dowry and compensation for their share in the suit property. From the share given to Ramavtar and Ramanuj in 1977 defendants No. 1 to 12 have received their share, as such prayed for dismissal of the suit. 5. Learned trial Court on the basis of evidence and materials on record decreed the suit vide its judgment dated 28.06.2013 and recorded its finding that the plaintiffs and defendants are co- owner of the suit property to the extent of 1/7th share, after them, the legal heirs will be entitled to the extent of 1/42th share. Accordingly, it has partitioned the suit property. Being aggrieved with the judgment and decree, the defendants preferred civil appeal before the District Judge, Mungeli. Learned first appellate Court dismissed the appeal. Aggrieved with the impugned judgment and decree, defendants have preferred present Second Appeal before this Court which has been admitted on the substantial question of law as stated above. 6. Learned counsel for the appellants would submit that Section 6 of the Hindu Succession Act, 1956 is applicable in the present case as the original owner of the property expired prior to 2005. The case is not governed by the amended Act therefore, the finding recorded by the learned trial Court affirmed by the learned first Appellate Court is perverse and contrary to the law. He would further submit that on the basis of the judgment and decree, the partition has already been taken place therefore, the case cannot be reopened, as such, he would pray for allowing the appeal. 7. On the other hand, learned Senior Advocate assisted by Ms. Rao, counsel for the respondents would submit that the learned first appellate Court has rightly dismissed the appeal by affirming the judgment and decree passed by the learned trial Court, therefore, it does not call for any interference by this Court. He would further submit that the issue in the present case is squarely covered with the judgment passed by the Hon’ble Supreme Court in case of Vineeta Sharma vs Rakesh Sharma {(2020) 9 SCC 1}. He would further submit that in view of the judgment of the learned trial Court affirmed by the learned First Appellate Court the partition has already been taken place and they are in possession of their respective shares, therefore, nothing remains to be adjudicated upon by this Court and would pray for dismissal of the appeal. 8. I have heard learned counsel for the parties and perused the record. 9. Considering the rival submission made by the learned counsel for the parties and also considering the facts of the case and the facts and law that the daughters are coparcener, they are entitled to inherit the suit property and they have acquired right from their birth in respect of ancestral property in view of amendment made in Section 6 of the Hindu Succession (Amendment) Act, 2005. The amended Act has come up for consideration before the Hon’ble Supreme Court in Vineeta Sharma (supra) wherein in paragraph Nos. 60, 68, 69, 73, 75 and 80 has Hon’ble Supreme Court has held as under :- 60. The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son." Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. 68. 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). 69. 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). 73. It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise. 75. 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. 80. 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. 10. In light of the judgment passed by the Hon’ble Supreme Court, I am of the view that no illegality or irregularity has been committed by the learned trial Court or learned First Appellate Court in granting share in partition to the daughters, therefore, the appeal is liable to be dismissed. The substantial question of law framed by this Court is answered against the appellants and in favour of the respondents. Consequently, the present Second Appeal is dismissed. 11. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Deshmukh