1 2025:CGHC:54988 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 140 of 2010 1 - Luraki Bai (Died) Through Legal Heir (a) Prahlad Singh S/o Paduman Singh Aged About 43 Years (b) Ghanshyam Singh S/o Paduman Singh Aged About 32 Years (c) Murlisingh S/o Paduman Singh Aged About 27 Years All R/o Sarnadeeh, Police Station Balrampur , District Surguja Chhattisgarh. ... Appellants versus 1 - Nanda Ram (Died) Through LRs- 1- (A). Raj Banki Wd/o Late Nanda Ram Aged About 75 Years R/o Village Sarnadeeh, Tahsil Balrampur District- Balrampur Chhattisgarh. 1- (B). Indarpati D/o Late Nanda Ram Aged About 50 Years W/o Shri Devnath R/o Village Tangarpahari, Tahsil- Balrampur District- Balrampur Chhattisgarh. 1- (C). Muskarati D/o Late Nanda Ram Aged About 48 Years W/o Shri Madan R/o Village Bodri, Paraswad, Tahsil Bhandariya District- Garhawa Jharkhand 1- (D). Parwati D/o Late Nanda Ram Aged About 46 Years W/o Shri Jwala R/o Village Bhanaura, Tahsil Balrampur District- Balrampur Chhattisgarh. 1- (E). Bindo D/o Late Nanda Ram Aged About 44 Years W/o Shri Gautam R/o Village Sarnadeeh, Tahsil- Balrampur, District- Balrampur Chhattisgarh. 1- (F). Dropati D/o late Nanda Ram, W/o Shri Kamlesh (Died) Through LRs. (i) Arvind S/o Shri Kamlesh Aged About 40 Years R/o Village Obari Tahsil Balrampur District- Balrampur Chhattisgarh. (Ii) Ashish S/o Shri Kamlesh Aged About 38 Years R/o Village Obari, Tahsil Balrampur District- Balrampur Chhattisgarh. 2 - Uday Prasad S/o Late Mahangu Mar Aged About 63 Years R/o Village Sarnadeeh, P.H. No. 20, R.N.M. Balrampur , Tahsil Pal, District Surguja Chhattisgarh. 3 - State of Chhattisgarh Through The Collector , Ambikapur , District Surguja Chhattisgarh. ... Respondent(s) For Appellants : Shri Paras Mani Shrivas, Advocate. For Respondent/defendants Shri Dashrakh Kushwaha, Advocate. For State : Shri Arvind Dubey, Govt. Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2026.01.03 14:07:44 +0530 2 11.11.2025 1. This Second Appeal under Section 100 of Code of Civil Procedure, 1908 has been filed by the plaintiff against the impugned judgment and decree dated 23.03.2010 passed by the Additional District Judge (FTC) Ramanujganj District Surguja, in Civil Appeal No.13-A/2007 whereby the First Appeal filed by plaintiffs No.1&2 was allowed and the judgment and decree dated 16.08.2007 passed by Civil Judge Class-I Ramanujganj, District Surguja, in Civil Suit No.32-A/2006 was set aside. 2. On 02.03.2021 the appeal was admitted for hearing by the court on the following substantial questions of law: “1. Whether the first appellate court was justified in reversing the judgment and decree of the trial court by holding that the plaintiff being married would not get share in the property of father by recording a finding which is perverse to the record. 2. Whether the first appellate court was justified in dismissing the suit as barred by limitation by recording a finding which is perverse to the record?” 3. The admitted fact in the present case are that the plaintiff and defendants No.1&2 are real brother and sister and they governed by Hindu Succession Act, 1956 (in short, The Act, 1956). Their father late Mahangu Mar acquired property of schedule-A & B and at the time of Surguja State Settlement the said properties were recorded in the name of late Mahangu Mar and he was in possession of the same. 4. The plaintiff filed a suit for declaration of her title of 1/3rd share over the suit property of schedule-A&B and permanent injunction over her 1/3rd share of suit property. She pleaded in the plaint that their father died since 30 years back. The suit property was acquired by their father and he was in possession of the same. During his lifetime, their father had 3 partitioned the suit property and parties came in possession of their respective shares of the property which has been shown in schedule- A&B along with plaint. The plaintiff constructed a house and Badi over her share of land and started residing thereon. In the year, 2006 the defendants have stopped her from cultivating the land and claimed that the suit property of schedule-A&B is their own property and when she obtained revenue records, she came to know that the suit property of Schedule-A & B is recorded in the name of defendants No.1&2 alone whereas the plaintiff is also entitled for equal share of the property with them. The name of defendants No.1&2 got mutated without intimation or notice to her and therefore she filed the suit for declaration of her 1/3rd share over the suit property. 5. The defendants No.1&2 contested the claim of plaintiff; filed their written statement jointly; denied the plaint averment and pleaded that their father died since 50 years back. There was no partition of the property during the lifetime of their father and plaintiff was not allotted any share by their father. The plaintiff got married with one Pradumn Mar since 55 years back and since then she is residing with her husband. After death of their father, the suit property was recorded in the name of defendants No.1&2 as per their succession and it cannot be expected from the plaintiff that she was not in knowledge of the entire facts as she was also residing at same village along with her husband. The plaintiff was never in possession of suit land or any part thereof. Her marriage was performed prior to 1956 and she is residing with her husband and as per the Act, 1956 she has no right or title over the suit property and therefore the suit is liable to be dismissed. 4 6. Based on the pleadings, the trial court framed issues and proceeded for recording evidence of the parties. During trial, the plaintiff examined herself as PW-1, Ghunsi Prasad, PW-2, Butan Singh, PW-3 and relied upon documents Ex.P/1 to P/4 which are Khasra Panchsala and B-1, P/5 is the record of Surguja State Settlement. The defendants have examined Uday Ram, DW-1, Ramdas, DW-2 and Sadhu Charan, DW- 3 but has not relied upon any documents in their favour. 7. After appreciation of oral as well as documentary evidence led by the parties, the trial court held the plaintiff entitled for 11.12 percent of property of schedule-A&B which comes to 0.417 Hect. which includes the house and Badi which were in possession of plaintiff and restrained the defendants from possession of plaintiff over the said part of property. The trial court also held that the plaintiff could not prove partition by their father between the parties with respect to suit property and except the house and Badi, the plaintiff is not in possession of other property. It was also held that plaintiff married prior to 1956, but her title could not be affected by her marriage prior to 1956 and instead of 1/3rd share she is entitled for 11.12 percent of the property in her share. 8. Against the judgment and decree passed by the trial court, the defendants No.1&2 filed a first appeal before the first appellate court, however, the plaintiff did not challenge the judgment and decree by which she was allowed to be title and possession holder of only 11.12 percent of the share of the suit property. The first appeal filed by the defendants was allowed by the first appellate court and the judgment and decree passed by the trial court was set aside which is under challenge in the present Second Appeal which is admitted on the 5 substantial questions of law which are set out in the earlier paragraph of this judgment. 9. Leaned counsel appearing for the appellant/plaintiff would submit that the plaintiff is coparcenar in the family and having right over the suit property from her birth and she cannot be denied from her share over the suit property even if she is not in actual physical possession of the same. Being coparcenar of the suit property, she is in constructive possession along with other coparcenar of the property, but she has been deprived of her share by defendant No.1&2. Once it has been held that plaintiff is coparcenar of the suit property, she can claim her right at any time as there is no limitation prescribed to claim her right in the coparcenary property. The judgment and decree passed by the first appellate court is erroneous for the reason that the period of litigation of 12 years has been considered by the first appellate court and held that since the plaintiff has not filed her suit within 12 years, the suit is barred by limitation. Even when she married prior to 1956, for that reason alone her status as coparcenar in the coparcenary property could not have been diluted as she was daughter of Mahangu Mar. In support of her submissions, she rely upon the judgment passed by the Supreme Court in Vineeta Sharma Vs. Rakesh Sharma, 2020(9)SCC-1, and would submit that the well reasoned judgment and decree passed by the trial court is erroneously set aside by the first appellate court which is liable to be set aside and the judgment and decree of trial court may be restored. 10. On the other hand, learned counsel appearing for the respondents/defendants opposes the submissions made by the counsel for the plaintiff and submits that at the time when the Act, 1956 6 came in force, the plaintiff was already married and as such she was not coparcenar of the family. Since 1956 the land was in possession of defendants No.1&2 and they are cultivating the same. In such a long time from 1956 till 2006 she has not claimed any part of the property. Her right from the suit property was ousted after her marriage and there was no partition between the parties by their father. The plaintiff has not disclosed as to which property she obtained in partition allegedly done by their father. It is only a served served statement that in the year 2006 the defendants stopped her from cultivating the suit land. She did nothing to get her name mutated in the revenue records for such a long time as from 1957 till 2007 the lands were recorded in the name of defendants. Limitation to file the suit provided under Article 65 of the Limitation Act, 1963 is of 12 years, but the plaintiff has not filed her suit within the limitation period and the suit is barred by limitation which has rightly been considered by the first appellate court. Prior to 1956 the plaintiff married and her right over the ancestral property was extinguished and she had no right or title over the suit property. The judgment and decree passed by the first appellate court is strictly in accordance with law and needs no interference. 11. I have heard the counsel for the parties, perused the record of trial court and gone through the evidence available on record. 12. The relationship between plaintiff and defendants is not in dispute that she is the real sister of defendants No.1&2. It is also not in dispute that the suit property was acquired by their father late Mahangu Mar and at the time of Surguja State Settlement the suit land was recorded in the name of Mahangu Mar. The plaintiff has filed document Ex.P/1 to P/4 which shows that the suit land was recorded in the name of defendants 7 No.1&2. It is the case of plaintiff that their father partitioned the suit property during his lifetime and share was also allotted to the plaintiff, however, there is no document with respect to any partition between the parties and there is no document that the name of plaintiff was ever recorded in any part of the land even after alleged partition by their father. The plaintiff has admitted in her evidence that her father gave her House and Badi since 40 years back and except this house and Badi no other property was given to her. She also admits that the remaining part of land is in possession of the defendants. The plaintiff’s witnesses Ghunsi Prasad, PW-2 and Butan Singh, PW-3 though have admitted that the suit property was partitioned between defendant No.1&2, but have stated that the plaintiff has constructed her House over a small portion of the land of her father. From the evidence of DW- 1 also the house and Badi of plaintiff over 25-30 dismil of land is admitted. The defendant No.3 Sadhucharan Singh have also admitted in the evidence that the father of the party had given land to the plaintiff to construct her house. Thus, from the evidence of parties it is clearly established that over some part of the property the plaintiff is in possession by constructing House and Badi and she is not in possession of any other part of the suit property. Though no specific date of death of Mahangu Mar is brought on record by the parties and they on their own apprehension stated that Mahangu Mar died 30-40 years back. The trial court has also held that Mahangu Mar died on or about 1957 i.e. after coming into force of the Act, 1956. The trial court has also considered while granting decree in favour of plaintiff that over the self acquired property of Mahangu, his sons are having 1/3rd share of the property along with his father Mahangu Mar and since the father 8 of parties died in the year, 1957, the 1/3rd share of Mahangu Mar again be divided in three share between the plaintiff and defendants No.1&2 and thus, plaintiff is only entitled for 11.12 percent of the suit property of schedule-A&B which comes to 0.417 Hect. out of total suit land of 3.75 Hect. 13. The First Appellate court while passing its judgment considered that the plaintiff had married prior to 1956 and resided at her matrimonial house and therefore she could not inherit the property of her father and her right over the property was extinguished. It was also considered that the plaintiff married 50-60 years back i.e. in the year 1951-52 and she has no right or title over the suit property, however, it also comes on record and it has been held by the courts below that father of parties Mahangu Mar died in the year 1957 and at that time The Act, 1956 already came into force. The plaintiff is the daughter of Mahangu Mar and also is in possession of some part of the land of her father over which she constructed a House and Badi. In the matter of Vineeta Sharma (Supra) the Supreme Court has held that daughters are also coparcenar in the joint family property right from their birth. Under proviso to Section 6 before amendment made in the year 2005 in Hindu Succession Act, 1956, in case a coparcenar died leaving behind female relative of Class-1 heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Section 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. In the said judgment of Vineeta (Supra) the Supreme Court observed in para 60,61, 70,71,73 and summarized its finding in para 137 as under: 9 “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. 61. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act. 70. Under the proviso to section 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Section 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to section 6 as it stood before amendment. 71. 66. As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said principle of administration of Mitakshara coparcenary carried forward in statutory provisions of section 6. Even if a coparcener had left behind female heir of Class I or a male claiming through such female Class I heir, there is no disruption of coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastric Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution. 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 10 the permissible degrees; a person is to be treated as coparcener and not otherwise. 137. Resultantly, we answer the reference as under: 137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. 137.2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004. 137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005. 137.4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. 137.5. In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.” 14. True it is that plaintiff could not file any document with respect to mutation of her name in the revenue records along with defendants No.1&2 and has been held that their father died in the year 1957 and thereafter the lands were recorded in the name of defendants No.1&2 and since then the plaintiff did nothing to get her name also mutated in the revenue records along with defendants No.1&2. It is not only a case where she has not claimed her mutation in the revenue records, but she has not claimed any part of the property after death of her father except saying that her father has given her share over the property and she is in possession thereof. The admitted and un- rebutted facts in the present case is that, in some part of the property that comes about 25-30 dismil the plaintiff had constructed her house 11 and Badi and is in possession thereof. The defendants have also not claimed that the House and Badi was the property of their share and have not claimed possession of the same. Once the plaintiff is held to be coparcenar in the suit property along with her brothers, her constructive possession is presumed along with other members of the family i.e. the defendant No.1&2 and in such situation there is no limitation to claim her right over the property. Even when she married prior to 1956, she being the daughter of Mahangu Mar, who died in the year 1957 and at the time of coming into force of The Act, 1956, her status was coparcenar of the property being daughter of Mahangu Mar, her right cannot be extinguished and it cannot be said that since she has not claimed the property within 12 years, her right is extinguished from the suit property or she ousted from the suit property. Therefore, the judgment and decree passed by the first appellate court appears to be erroneous keeping in view the law laid by the Supreme Court in Vineeta Sharma (Supra). 15. The trial court after considering the evidence available on record found the plaintiff entitled for 11.12 percent of the suit land and not 1/3rd share of total suit land and protected the possession of plaintiff over which she constructed her House and Badi. Though the claim of plaintiff was for 1/3rd share of the total suit property of schedule-A&B, but she was allotted a limited share over the property to the extent of her possession. The said judgment and decree passed by the trial court granting decree for less property than her claim, she has not challenged the said judgment and decree and remain satisfied with the declaration of her title over that part of the land over which she constructed House and Badi. Therefore, even if this court finds her 12 entitled for declaration of title over the suit property to the extent of 1/3rd share, her entitlement could be restricted to the property of her possession over which she constructed house and Badi as has been held by the trial court. 16. Accordingly, the substantial question of law No.1 is answered in negative and held that the first appellate court was not justified in reversing the judgment and decree of the trial court by holding that the plaintiff being married would not get share in the property of father and the said finding is perverse in view of judgment of Supreme Court in Vineeta Sharma (Supra). The substantial question of law No.2 is also answered in negative and held that the first appellate court was not justified in dismissing the suit of plaintiff holding it barred by limitation as the plaintiff is a coparcenar along with defendant No.1&2 and is in possession of some part of the property and also having constructive possession over other part of the property along with her brothers and to claim the right over the coparcenary property, the limitation does not come on her way to claim her right. 17. As a fallout and consequence of the aforesaid discussion, the appeal filed by the appellant/plaintiff is allowed. The judgment and decree passed by the first appellate court is set aside and the judgment and decree passed by the trial court is restored. The parties shall bear their own costs. 18. An appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge inder