1 2025:CGHC:18206 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 466 of 2022 1 - Smt. Pilabai W/o Late Halaluram Kosariya Aged About 68 Years Caste Dhimar Agriculturist R/o Main Road Village Govindpur Tahsil Kanker District North Baster Kanker (C.G.) 2 - Deokaran S/o Late Halaluram Kosariya Aged About 46 Years Caste Dhimar Agriculturist R/o Main Road Village Govindpur Tahsil Kanker District North Baster Kanker (C.G.) 3 - Gaukaran S/o Late Kalaluram Kosariya Aged About 43 Years Caste Dhimar Agriculturist R/o Main Road Village Govindpur Tahsil Kanker District North Baster Kanker (C.G.) 4 - Girdhar S/o Late Halaluram Kosariya Aged About 39 Years Caste Dhimar Agriculturist R/o Main Road Village Govindpur Tahsil Kanker District North Baster Kanker (C.G.) 5 - Omprakash S/o Late Halaluram Kosariya Aged About 32 Years Caste Dhimar Agriculturist R/o Main Road Village Govindpur Tahsil Kanker District North Baster Kanker (C.G.) ... Appellants versus 1 - Smt. Murti Meenapal D/o Late Halaluram Kosariya W/o Trilok Meenapal Aged About 50 Years Caste Dhimar R/o Nayapara Gokulpur Tahsil Dhamtari, District : Dhamtari, (C.G.) 2 2 - Smt. Tulsi Dhimar D/o Late Halaluram Kosariya W/o Santosh Dhimar Aged About 36 Years Caste Dhimar, R/o Matth Mandir Chowk Baniyapara Tahsil Dhamtari, District : Dhamtari, (C.G.) 3 - Gauri D/o Late Halaluram Sosariya Aged About 35 Years Caste Dhimar R/o Main Road Govindpur Tahsil Kanker District North Baster Kanker (C.G.) 4 - State Of Chhattisgarh Through Collector Kanker, District North Baster Kanker (C.G.) ... Respondents For Appellant : Mr. Nishant Kumar Sharma, Advocate. For Respondents No. 1 & 2 For Respondent No. 4 : Mr. Hemant Kumar Agrawal, Advocate. : Mrs. Mukta Tripathi, Panel Lawyer Hon'ble Mr. Justice Naresh Kumar Chandravanshi Order on Board 22/04/2025 1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred challenging impugned judgment & decree dated 06.09.2022 passed by First Upper District Judge, North Baster, Kanker in Civil Appeal No. 05/2021 affirming the judgment & decree dated 31.08.2021 passed by First Civil Judge, Class-I, Kanker in Civil Suit No. 41-A/2017, whereby civil suit filed by respondents No. 1 & 2/plaintiffs has been allowed and decree has been granted in their favour. [For the sake of convenience, parties would be referred to as per their status shown and ranking given in the plaint filed before the trial Court] 2. This second appeal has been admitted for hearing on the following substantial question of law :- 3 “ Whether the plaintiffs during the lifetime of their father Halaluram Kosariya can file a suit for partition of the ancestral property, which has been inherited by the Halaluram from his father ?” 3. 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 Ghasiaram. Following genealogy tree would demonstrate relationship among the parties:- ?kafl;kjke ¼e`r½ A gykywjke ¼izfroknh Øa-1½ e`r A ihykckbZ iRuh ¼izfroknh Øa-2½ A&&&&&&&A&&&&&&&A&&&&&&&A&&&&&&&&A&&&&&&&A&&&&&&&A&&&&&&&&A Jherh eqfrZ nsodj.k xkSdj.k Jherh rqylh fxj/kj JherhxkSjh vkseizdk’k y{eh ¼oknuh Øa-1½ ¼izfr-Øa-3½ ¼iz-ok-Øa-4½ ¼oknuh Øa-2½ ¼izfr-Øa-5½ ¼izfr-Øa-8½ ¼izfr-Øa-6½ ¼izfr-Øa-7½ Thus, the plaintiffs and defendants No. 2 to 6 are sons & daughters of original defendant No. 1 Halaluram (now dead), who received the suit property mentioned in paragraph 4 of the plaint situated at village Thelkabod, Tahsil & District Kanker (C.G.) from his father Ghasia Ram, as such, the suit property was ancestral property of the plaintiffs, but they were not given share on suit property by their brothers/defendants, therefore, plaintiffs filed civil suit for grant of their share to the extent of 1 / 10th – 1 / 10th each and also sought relief of declaration of their title and possession after partition of the suit property. 4. Defendants No. 2 to 6 filed their written statement, in which, they admitted relationship between the parties. They also admitted that suit property was inherited by Halaluram from his father Ghasia Ram, but after death of Ghasia Ram, defendants have perfected their title over the same by 4 way of adverse possession, as even after claim of plaintiffs, share of suit property was not given to them and defendants No. 2 to 6 are in possession on it prior to 34-35 years since death of Ghasia Ram. They have further pleaded that suit property was bequeathed by Halaluram vide registered Will dated 23.03.2015 (Ex.D-1) in favour of defendants No. 2 to 6, as such, the plaintiffs are not entitled to get any relief. 5. Based on pleading of both the parties, learned trial Court framed as many as six issues and recorded evidence adduced by both the parties and after considering the same, granted decree in favour of plaintiffs. First Appeal bearing Civil Appeal No. 05/2021 was dismissed by the appellate Court affirming the judgment & decree passed by the trial Court. Against which, instant second appeal has been preferred by the appellants/defendants questioning the same. 6. Learned counsel appearing for the appellants / defendants would submit that though suit property was obtained by Halaluram from his father Ghasia Ram, but he received the same after death of Ghasia Ram, as such, it became self acquired property of Halaluram, therefore, in the life time of Halaluram, plaintiffs, who are his daughters, cannot claim partition, but instant suit was filed by plaintiffs in life time of Halaluram, therefore, the suit was not maintainable. However, he submits that after filing of civil suit and prior to filing of written statement, Halaluram has died. He further submits that Halaluram has bequeathed suit property in favour of defendants No. 2 to 6 vide registered Will dated 23.03.2015 (Ex.D-1), as such, defendants No. 2 to 6 have obtained absolute right over the suit property, hence, on this count also the plaintiffs are not entitled to get any share on it. He placed reliance upon the judgment of the Supreme Court in the matter of 5 Commissioner of Wealth Tax, Kanpur, etc.etc. vs. Chander Sen etc. 1 , Yudhishter v. Ashok Kumar 2 , Radha Bai vs. Ram Narayan & others3 , State of Bihar & others vs. Sri Radha Krishna Singh and others 4 , The Principal Secretary, Revenue Department, State of Telangana & Another Vs. B. Rangaswamy (Dead) By Lrs. & others 5 and Meenakshiammal (Dead) Through Lrs. And Ors. Vs. Chandrasekaran and others 6 , in support of his submissions. 7. Per contra, learned counsel for respondents No. 1 & 2/plaintiffs would submit that suit property was obtained by Halauram from his father Ghasia Ram, as such, the plaintiffs are grand-daughters of Ghasia Ram, as such, as per Section 6 of the Hindu Succession Act, 1956, they obtained co-parcenary right over the suit property, hence, they are automatically entitled to get partitioned of suit property even in the life time of their father Halalu Ram. He further submits that coparcenary right accrues to the child born in Mitakshara joint family property from his / her birth and vide judgment rendered by Apex Court in that matter of Vineeta Sharma vs. Rakesh Sharma 7 , their Lordships of the Supreme Court have held that, daughters are to be given share in coparcenary property equal to that of a son even in pending proceedings for final decree or in an appeal. As such, the plaintiffs are entitled to file suit for partition even in life time of their father. He further submits that during pendency of civil suit and prior to filing written statement, Halaluram expired, hence, in this count also, plaintiffs entitled to claim their share over the suit 1 (1986) 3 SCC 567 2 AIR 1987 SC 558 3 2020 (19) SCC 513 4 AIR 1983 SC 684 5 2022 (16) SCC 264 6 2005 (1) SCC 280 7 2020 (9) SCC 1 6 property. He further submits that, though defendants have filed Will dated 23.03.2015 (Ex.D-1) allegedly executed by Halaluram in favour of defendants No. 2 to 6, but that has not been proved by plaintiff in accordance with law, as both the attesting witnesses namely Tulsiram (PW-3) and Krishna Jain (PW-4) have clearly stated that while taking their signature on the said document, all the papers / pages were not enclosed with it, rather only the page, in which, their signature was obtained, was there. Even, they have denied that the Will (Ex.D-1) was executed before them. Hence, second appeal filed by the defendants is liable to be rejected. 8. I have learned counsel appearing the parties and perused the record of trial Court as well as appellate Court. 9. Undisputedly, both the parties are descendants (grand sons & grand daughers) of Ghasia Ram and their father Halaluram Kosariya was the son of Ghasia Ram. It is also not in dispute that suit property was succeeded by Halaluram Kosariya from his father Ghasia Ram, as such, suit property became coparcenary property of plaintiffs in view of amended provisions of Section 6 of the Hindu Succession Act [Amendment Act, 2005] and judgment rendered by the Supreme Court in the matter of Vineeta Sharma vs. Rakesh Sharma (supra), wherein the Supreme Court has specifically held that daughters are also entitled to get equal share and coparcenary right on the ancestral property as of son or male member. 10. Thus, on the strength of amended provisions of Section 6 of the Hindu Succession Act, 1956 and judgment rendered by the Supreme Court in the matter of Vineeta Sharma vs. Rakesh Sharma, contention of learned counsel for the appellant that suit property was not coparcenary property of plaintiffs or they were not having coparcenary / successory right over the suit 7 property, is not sustainable. 11. It was further contention of learned counsel for the appellants/defendants that since suit property was inherited by Halaluram Kosairya after death of his father Ghasia Ram, therefore, it was self acquired property of Halaluram Kosariya, is also not sustainable, because, though after partition, immovable property obtained by a person, became his self acquired property so long only, his children are not borne, as soon as a child is born, the property becomes a coparcenary property. 12. In the case of Rohit Chauhan v. Surinder Singh & Ors. 8 , Hon’ble Supreme Court has held as under :- “11. ……………..In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the Joint Hindu family and before commencement of Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the 8 (2013) 9 SCC 419 8 coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.” 13. In the instant case, since plaintiffs are real daughters of Halaluram Kosariya, who obtained suit property from his father Ghasia Ram, therefore, on the strength of amended provision of Section 6 of Hindu Succession Act, 1956, they obtained coparcenary right on the suit property by their birth, as such, they were also entitled to claim their share over suit property, even in life time of Halaluram. Both the courts below have held that alleged Will dated 23.03.2015 (Ex.D-1) allegedly executed by Halaluram in favour of defendants No. 2 to 6 has not been proved in accordance with law and even it has also not been proved by attesting witnesses namely Tulsiram (PW-3) and Krishna Jain (PW-4). Having considered evidence of both the attesting witnesses, particularly, their statements made in cross-examination, I do not find any illegality or infirmity in the finding recorded by both the courts below disbelieving the alleged Will (Ex. D-1) executed by Halaluram Kosariya in favour of defendants No. 2 to 6. 14. Counsel for the appellants/defendants have referred various case laws, but they are not helpful in facts situation of instant case, as most of them are dealing with provisions of Section 6 of the Hindu Succession Act, 1956 prior to amendment of 2005 and facts of other cases are not simillar to the facts situation of the case in hand, hence, those cases are not helpful to the defendants in instant case. 9 15. In view of foregoing discussion, I do not find any perversity or illegality in granting decree by both the courts below in favour of the plaintiffs. Hence, the same are hereby affirmed. 16. Accordingly, substantial question of law is answered in favour of plaintiffs and against the defendants. Consequently, second appeal fails and is hereby dismissed. 17. A decree be drawn up accordingly. Sd/- (Naresh Kumar Chandravanshi) Judge amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.05.03 12:08:59 +0530