1 2025:CGHC:49353 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 189 of 2014 1 - Kanhaiya S/o Late Harishchandra Patel, Occupation – Agriculturist, Aged About 47 Years R/o Kankidipa, Tah. Baramkela, Distt. Raigarh C.G. 2 - Panbudi W/o Baburam Patel, Occupation – Agriculturist, Aged About 64 Years R/o Medara, Tah. Baramkela, Distt. Raigarh C.G. 3 - Indrawati W/o Dayaram Patel Aged About 50 Years, Occupation – Agriculturist/housewife, R/o Gobarsingha, Tah. Baramkela, Distt. Raigarh C.G. 4 - Deep Kunwar W/o Netram Patel Aged About 56 Years, Occupation – Agriculturist R/o Kodpalla, Tah. Bhathali, Distt. Bargarh Orissa. 5 - Nonibai W/o Late Udhdhav Patel Aged About 50 Years, Occupation – Agriculturist, R/o Village- Bar, Tah. Baramkela, Distt. Raigarh C.G. --- Appellants versus 1 - Ghurau S/o Late Harishchandra Patel Aged About 62 Years R/o Kankidipa, Tah. Baramkela, Distt. Raigarh C.G., Chhattisgarh 2 - State Of Chhattisgarh W/o Thru- Collector, Raigarh, Distt. Raigarh C.G., District : Raigarh, Chhattisgarh --- Respondents ____________________________________________________________ For Appellants : Mr. Dhaniram Patel, Advocate For Respondent No.1 : Mr. Harishankar Patel, Advocate For Respondent No.2/State : Mr. Kalpesh Ruparel, P.L. Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 25/09/2025 1. This second appeal U/s.100 of C.P.C. is filed by appellants/plaintiffs questioning legality and sustainability of the impugned judgment and decree dated 27.03.2014, passed in Civil Appeal No.4-A/2013, BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.12.04 18:15:24 +0530 2 whereby, learned Additional District Judge, Sarangarh, District – Raigarh (C.G.) dismissed the appeal filed by appellants/plaintiffs, affirming the judgment and decree dated 23.01.2013, in Civil Suit No.126-A/2011 wherein learned Civil Judge Class -1, Sarangarh, District – Raigarh dismissed the suit of appellants/plaintiffs. 2. The facts relevant for disposal of this appeal are that appellant No.1/plaintiff No.1 and defendant No.1 are sons of late Harishchandra Patel. Plaintiff No.2 is widow of late Harischand Patel and mother of plaintiff No.1, 3, 4, 5 & 6 and defendant No.1. Harishchandra Patel was having agricultural property in his name measuring 1.882 hectares at village Kankideepa, and measuring area 0.818 hectare at village Singhari, P.C. No.43, R.I. Circle Baramkela, Tahsil Sarangarh. One brother along with sisters and widow of Harishchandra Patel filed a suit seeking relief of declaration of their share to the extent of 1/7 of land mentioned in Schedule -A attached to the plaint. Plaintiffs have also sought relief of possession after partition and declaration that order passed by the Commissioner dated 10.02.2010 to be null and void and not binding upon plaintiffs on the ground that Harishchandra Patel, owner of property was in possession of suit property. Plaintiffs and defendant No.1 are legal heirs of late Harischandra Patel. After death of Harishchandra Patel, their names are recorded in revenue records jointly being his legal heirs. There was no family partition between plaintiffs and defendant No.1 at any point of time. It is also pleaded that defendant No.1 was not taking interest in doing the agricultural work, and therefore, to avoid further conflict and to preserve the family's prestige, late Harischandra Patel arranged a 3 family settlement, allowing defendant No. 1 to enjoy the property separately while the plaintiffs have jointly occupied and cultivated the aforementioned suit lands till date.. Defendant No.1 started raising dispute over land separated under family settlement and possession of plaintiffs and in one portion of land have already started raising construction, which made the plaintiffs to file application U/s. 178 of the C.G. Land Revenue Code, 1959 seeking partition of joint holding recorded in name of parties in revenue records. The application filed U/s. 178 was dismissed by Tahsildar recording a finding that mutual partition of property, subject matter of application has already been taken place between the parties about 40 years ago. First appeal and second appeal preferred by plaintiffs also came to be dismissed upholding the order passed by Tahsildar and thereafter, civil suit was filed. 3. The learned trial Court has dismissed the suit observing that the partition has already been taken place between Harishchandra Patel father with his two sons i.e. plaintiff No.1 and defendant No.1 about 40 years ago. Learned trial Court has also held that the suit is barred by limitation. The judgment and decree passed by learned trial Court is put to challenge in an appeal before the First Appellate Court and the First Appellate Court also dismissed the appeal affirming the judgment and decree passed by the learned trial Court by impugned judgment and decree, which made the appellants/plaintiffs to file this appeal. 4. This second appeal was admitted for hearing on the following substantial question of law :- 4 “Whether the learned Courts below were justified in dismissing the suit filed by the son and daughters claiming partition ignoring the provisions of Section 6 of the Hindu Succession Act, 1956 as amended in the year 2005?” 5. Learned counsel for appellants would submit that in the plaint specific pleading has been made that some property recorded in the name of Harishchandra was given to defendant No.1 under family settlement as he was not working jointly with the family members, however, there was no effective partition between the family members by metes and bounds. There is no order by any Court of law of partition between parties nor holdings of property recorded in name of Harishchandra was separated in the revenue records in name of plaintiffs or defendant No.1. He contended that on the date of passing of order of Tahsildar, Section 6 of the Hindu Succession Act, 1956 (In short ‘the Act of 1956’) came to be amended and by way of amendments, daughters have also been provided equal right and share in the joint Hindu family property. The said provision of Section 6 of the Act of 1956 was not considered by learned both the Courts below. He also referred to the provision of Section 6 (5) of the Act of 1956 to argue that share of daughters have been protected where there is no partition by order of Court or decree prior to the 20.12.2004. The Revenue Courts and the learned both the Courts fell into error in recording a finding of earlier partition prior to coming into force of amended provisions of Section 6 of the Act of 1956 only considering that there was oral partition between family members, which is not sustainable in view of the decision of Hon’ble Supreme Court in case of Vineeta Sharma Vs. Rakesh Sharma & Others, reported in (2020) 9 SCC 1. 5 6. Learned counsel for respondent/defendant No.1 would oppose the submission of learned counsel for appellants and would submit that in the pleadings made in the plaint itself, the plaintiffs have admitted that long time ago about 40 years, defendant No.1 was separated by giving him the separate property out of total property recorded in the name of his father late Harishchandra Patel and since then defendant No.1 is residing separately having separate kitchen and occupation. He is also residing in the separate house since then. This separation of defendant No.1 was admitted by plaintiffs and their witnesses. Once there is an admission that defendant No.1 was separated by the father and at the time of separation, total property recorded in the name of late Harishchandra was made three share out of which only one share was given to defendant No.1, which is not disputed, therefore, it will be deemed that partition between two sons and fathers was affected and it was also acted upon and followed for last 40 years. The Revenue Courts and the learned Courts below have rightly taken into consideration the aforementioned, facts, pleadings and evidence brought in record by respective parties with regard to separation of defendant No.1 with his father and brother and at the time of separation, three shares have already been made. Out of which one share was given to defendant No.1 and 2 share were kept with late Harishchandra and his younger son/plaintiff No.1 on which late Harischandra and plaintiff No.1 continued in possession and were in occupation till date. The dispute arose only when defendant No. 1 started raising construction on his portion of the land, which falls within his share. He contended that partition done between the parties and acted upon prior to December, 2004 is protected under the provisions 6 of Section 6 of the Act of 1956. Learned Courts below has passed the impugned judgment and decree upon appreciation of pleadings and evidence, which is in accordance with law, which does not call for any interference. In support of his contention, he placed reliance upon decision of Hon’ble Supreme Court in case of H. Vasanthi Vs. A. Santha (dead), through LRS. & Others, reported in 2023 LiveLaw (SC) 655. 7. I have heard learned counsel for parties and perused the record of trial Court as well as First Appellate Court. 8. According to the pleading made in the plaint by appellants/plaintiffs, parties to the suit are governed by Mitakshara branch of Banaras school. Property, subject matter of suit is originally owned and recorded in the name of Harishchandra Patel, father of plaintiff No.1, 3 to 6 and defendant No.1 and husband of plaintiff No.2. According to the pleadings of plaint, death of Harishchandra Patel was in the year 1979 and further in para-4 of the plaint it is pleaded that in the lifetime of late Harishchandra Patel, under family settlement, defendant No.1 was separated, however, it is further pleaded that defendant No.1 is in possession and doing agricultural activities separately and plaintiffs jointly according to family settlement. 9. Plaintiffs have examined Kanhaiya, plaintiff No.1 as (P.W.-1), Bharat as (P.W.-2), Ramchandra as (P.W.-3), Madhusudan Verma as (P.W.-4) and in their support exhibited B-1 Kistbandi Khatauni of the year 2009- 2010 as Ex.P-1 and P-2, order dated 10.02.2010 of the Commissioner, Bilaspur Division, Bilaspur as Ex.P-3. Defendant No.1 to prove the pleadings has examined himself as (DW.-1) and Sairam as (D.W.-2). 7 10. Though the property is jointly recorded in the name of plaintiffs and defendant No.1 of both the villages i.e. Kankidipa and Singhari. Kanhaiya (P.W.-1) in his evidence in para-4 has stated that his father in order to avoid dispute, under family settlement, has separated the defendant No.1 and since then defendant No.1 is in separate possession and doing agricultural activities over the land. In cross- examination, this witness in para-9 has admitted that during lifetime of his father, defendant No.1 was given one share of the property at that time, he was minor. His father kept two shares. He also admitted that his father died about 28-30 years ago. In para-10 he also admitted that in family settlement share was given from every agricultural field and all the lands are separated by metes and bounds. In para-13 he also admitted that house in which defendant No.1 is residing separately has been occupied by him since last 40 years. Plaintiffs along with their father were residing in old house situated at village Kankidipa since last 40 years. In para-16, he also admitted that since last 40 years, plaintiff No.1 and his father were in possession and were doing agricultural activities separately and defendant No.1 separately. Even the domestic animals and other agricultural tools of plaintiffs and defendant No.1 are separate. 11. Bharat Lal (P.W.-2) in examination-in-chief has also made similar statement that in family settlement, defendant No. 1 was separated and has been in possession, carrying out agricultural activities independently. He also admitted that father of plaintiffs and defendant No.1 died about 30 years ago and in para-6, he admitted that defendant No.1, Ghurau is residing separately from his father and 8 brothers since about 40 years and is in possession and doing agricultural activities in about 1/3 share of total property. 12. Ramchandra (P.W.-3) in para-6 of his evidence has also admitted that about 40 years ago, defendant No.1 was separated in family settlement. Madhusudan Verma (P.W.-4) is relative of both plaintiffs and defendant No.1. In para-7 of his cross-examination, he admitted that Harishchandra Patel, father of plaintiff No.1, 3 to 5 and defendant No.1, separated defendant No.1 by giving him 1/3 share about 40 years ago. He also admitted that defendant No.1 has constructed house on the agricultural field known as Khichadi Dahar and he is residing separately since then and his kitchen is separate. 13. Defendants have produced certified copy of order dated 17.10.2005 (Ex.D-1) passed by Additional Tahsildar, Baramkela on an application U/s. 178 of the C.G. Land Revenue Code,1959, filed by plaintiffs, whereby the application filed for partition was dismissed. Copy of order dated 23.01.2004 of Additional Tahsildar is placed on record as Ex.D- 2. Statement of Ghurau, defendant No.1 recorded in revenue proceedings before Additional Tahsildar is filed as Ex.D-3. Statement of Vidyadhar Patel as Ex.D-4 and statement of Sairam as Ex.D-5. Order of SDO (R) dated 24.04.2006 as Ex.D-6 and order of Additional District Judge, Sarangarh, District Raigarh in Civil Suit No.3-B/2007 as Ex.D-7, whereby learned Additional District Judge by the said judgment allowed the suit for recovery of amount of Rs.53,657/-. 14. Ghurau (D.W.–1), in his evidence, stated about partition and that he had been in separate possession, for more than last 40 years, since the lifetime of his father. He further stated that his father had separated 9 him by allotting him 1/3 share, while the remaining 1/3 share belonging to his father and 1/3 share of plaintiff No. 1 were kept together by his father and plaintiff No.1 along with the other plaintiffs. Nothing adverse has come in his cross-examination. Similar is statement of Sairam (D.W.-2). 15. In the aforementioned facts of the case, whether the partition already done about 40 years ago under family settlement by metes and bounds, acted upon by parties can be reopened based on the amendment incorporated in Section 6 of the Act of 1956, in the year 2005. 16. True it is that amendment is brought in Section 6 of the Act of 1956. Sub-section 5 of Section 6 of the Act of 1956 envisages that nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. In explanation clause of this provision, provides that ‘partition’ means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court. 17. Earlier to the coming into the provisions under Section 6 of the Act of 1956, in rural areas most of the partition of coparcenary property were being effected mutually by family settlement. It is not a case that partition and separation of coparcenary property is disputed by plaintiffs but an attempt is made to show that defendant No.1 is temporarily separated to meet out the exigency, but from the date of alleged separation of defendant No.1 of about 40 years ago by his father and further that separation is by metes and bounds is admitted by plaintiff No.1 (P.W.-1) in his evidence, the separation is not a 10 temporarily arrangement but it is a partition giving separate portion of coparcenary property. 1/3 is kept by father and 1/3 each is given to other two sons. But as plaintiff No.1 is residing with his father they were in possession of 2/3 share of property as per evidence available in record. 18. Hon’ble Supreme Court in case of A. Raghavamma v. A. Chenchamma, reported in 1963 SCC OnLine SC 37 has held thus :- “25. Now we shall proceed to deal with the will, Ex. A-2(a), on which strong reliance is placed by the learned Advocate- General in support of his contention that on January 14, 1945, that is, the date when the Will was executed Chimpirayya must be deemed to have been divided in status from his grandson Subbarao. A will speaks only from the date of death of the testator. A member of an undivided coparcenary has the legal capacity to execute a will; but he cannot validly bequeath his undivided interest in the joint family property. If he died an undivided member of the family, his interest survives to the other members of the family, and, therefore, the will cannot operate on the interest of the joint family property. But if he was separated from the family before his death, the bequest would take effect. So, the important question that arises is whether the testator in the present case, became separated from the joint family before his death. * * * 27. The main question of law that arises is whether a member of a joint Hindu family becomes seperated from the other members of the family by mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge of the other member of the family. In this context a reference to Hindu law texts 11 would be appropriate, for they are the sources from which Courts evolved the doctrine by a pragmatic approach to problems that arose from time to time. The evolution of the doctrine can be studied in two parts, namely, (1) the declaration of the intention, and (2) communication of it to others affected thereby. On the first part the following texts would throw considerable light. They are collated and translated by Viswanatha Sastri, J., who has a deed and abiding knowledge of the sources of Hindu law in Adiyalath Katheesumma v. Adiyalath Beechu [ILR 1930 Mad 502] ; and we accept his translations as correct and indeed learned counsel on both sides proceeded on that basis. Yajnavalkya, Chapter II, Section 121. “In land, corrody (annuity, etc.), or wealth received from the grandfather, the ownership of the father and the son is only equal”. Vijnaneswara commenting on the said sloka says: “…And thus though the mother is having menstrual courses (has not lost the capacity to bear children) and the father has attachment and does not desire a partition, yet by the will (or desire) of the son a partition of the grandfather's wealth does take place.” (Setlur's Mitakshara, pp. 646-48). Saraswati Vilase, placitum 28. “From this it is known that without any speech (or explanation) even by means of a determination (or resolution) only, partition is effected, just as an appointed daughter is constituted by mere intention without speech.” Viramitrodaya of Hitra Misra (Chapter II, Pl. 23). “Here too there is no distinction between a partition during the lifetime of the father or after his death and partition at the desire of the sons may take place or 12 even by the desire (or at the will of a single coparcener). Vyavahara Mayukha of Nilakantabhatta : (Chapter IV, Section iii-I). “Even in the absence of any common (joint family) property, severance does indeed result by the mere declaration “I am separate from thee” because severance is a particular state (or condition) of the mind and the declaration is merely a manifestation of this mental state (or condition).” The Sanskrit expressions “sankalpa” (resolution) in Saraswati Vilas, “akechchaya” (will of single coparcener) in Viramitrodaya “budhivisesha” (particular state or condition of the mind) in Vyavahara Mayukha, bring out the idea that the severance of joint status is a matter of individual direction. The Hindu law texts, therefore, support the proposition that severance in status is brought about by unilateral exercise of discretion. 28. Though in the beginning there appeared to be a conflict of views, the later decisions correctly interpreted the Hindu law texts. This aspect has been considered and the law pertaining thereto precisely laid down by the Privy Council in a series of decisions : see Suraj Narain v. Iqbal Narain [(1912) ILR 35 All 80 (PC)] ; Giria Bai v. Sadashiv Dhundiraj [(1916) ILR 43 Cal 1031 (PC)] ; Kawal Narain v. Budh Singh [(1917) ILR 39 All 496 (PC)] ; and Bamalinga Annavi v. Naravana Annavi [(1922) ILR 45 Mad 489 (PC)] . In Syed Kasam v. Jorawar Singh [(1922) ILR 50 Cal 84 (PC)] the Judicial Committee, after reviewing its earlier decision laid the settled law on the subject thus: “It is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara, a severance of estate is effected by an unequivocal declaration on the 13 part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place….” So far, therefore, the law is well settled, namely, that a severance in estate is a matter of individual discretion and that to bring about that state there should be an unambiguous declaration to that effect are propositions laid down by the Hindu law texts and sanctioned by authoritative decisions of Courts. But the difficult question is whether the knowledge of such a manifested intention on the part of the other affected members of the family is a necessary condition for constituting a division in status. Hindu law texts do not directly help us much in this regard, except that the pregnant expressions used therein suggest a line of thought which was pursued by Courts to evolve concepts to meet the requirements of a changing society. The following statement in Vyavahara Mayukha is helpful in this context: “…severance does indeed result by the mere declaration” ‘I am separate from thee’ because severance is a particular state (or condition) of the mind and the declaration is merely a manifestation of this mental state (or condition).” One cannot declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others. “Others” must necessarily be those affected by the said declaration. Therefore a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. The process of manifestation may vary with circumstances. This idea was expressed by learned Judges by adopting different terminology, but they presumably found it as implicit in the concept of declaration. Sadasiva Iyer, J., in Soun-dararaian v. Arunachalam Chetty 14 [(1915) ILR 39 Mad 159 (PC)] said that the expression “clearly expressed” used by the Privy Council in Suraj Narain v. Iqbal Narain [(1912) ILR 35 All 80 (PC)] meant “clearly expressed to the definite knowledge of the other coparceners”. In Girja Bai v. Sadashive Dhundiraj [(1916) ILR 43 Cal 1031 (PC)] the Judicial Committee observed that the manifested intention must be “clearly intimated” to the other coparceners. Sir George Lownles in Bal Krishna v. Ram Ksishna [(1931) ILR 53 All 300 (PC)] took it as settled law that a separation may be effected by clear and unequivocal declaration on the part of one member of a joint Hindu family to his coparceners of his desire to separate himself from the joint family. Sir John Wallis in Babu Ramasray Prasad Choudhary v. Radhika Devi [(1935) 43 LW 172 (PC)] again accepted as settled law the proposition that “a member of a joint Hindu family may effect a separation in status by giving a clear and unmistakable intimation by his acts or declaration of a fixed intention to become separate.…” Sir John Wallis, C.J., and Kumaraswami Sastri, J. in Kamepalli Avilamma v. Mannem Venkataswamy [(1913) 33 MLJ (746)] were emphatic when they stated that if a coparcener did not communicate, during his life time, his intention to become divided to the other coparceners, the mere declaration of his intention, though expressed or manifested, did not effect a severance in status. These decisions authoritatively laid down the proposition that the knowledge of the members of the family of the manifested intention of one of them to separate from them is a necessary condition for bringing about that member's severance from the family. But it is said that two decisions of the Madras High Court registered a departure from the said rule. The first of them is the decision of Madhavan Nair, J. in Rama Ayyar v. Meenakshi Ammal [(1930) 33 LW 15 384] . There, the learned Judge held that severance of status related back to the date when the communication was sent. The learned Judge deduced this proposition from the accepted principle that the other coparceners had no choice or option in the matter. But the important circumstance in that case was that the testator lived till after the date of the service of the notice. If that was so, that decision on the facts was correct. We shall deal with the doctrine of relating back at a later stage. The second decision is that of a Division Bench of the Madras High Court, consisting of Varadachariar and King, JJ., in Narayana Rao v. Purushotama Rao [ILR 1938 Mad 315, 318] . There, a testator executed a will disposing of his share in the joint family property in favour of a stranger and died on August 5, 1926. The notice sent by the testator to his son on August 3, 1926 was in fact received by the latter on August 9, 1926. It was contended that the division in status was effected only on August 9, 1926, when the son received the notice and as the testator had died on August 5, 1926 and the estate had passed by survivorship to the son on that date the receipt of the notice on August 9, 1926 could not divest the son of the estate so vested in him and the will was, therefore, not valid. Varadachariar, J., delivering the judgment of the Bench observed thus: “It is true that the authorities lay down generally that the communication of the intention to become divided to other coparceners is necessary, but none of them lays down that the severance in status does not take place till after such communication has been received by the other coparceners.” After pointing out the various anomalies that might arise in accepting the contention advanced before them, the learned Judge proceeded to state: 16 “….It may be that if the law is authoritatively settled, it is not open to us to refuse to give effect to it merely on the ground that it may lead to anomalous consequences; but when the law has not been so stated in any decision of authority and such a view is not necessitated or justified by the reason of the rules, we see no reason to interpret the reference to ‘communication’ in the various cases as implying that the severance does not arise until notice has actually been received by the addressee or addressees.” We regret our inability to accept this view. Firstly, because, as we have pointed out earlier, the law has been well settled by the decisions of the Judicial Committee that the manifested intention should be made known to the other members of the family affected thereby; secondly, because there would be anomalies on the acceptation of either of the views. Thirdly, it is implicit in the doctrine of declaration of an intention that it should be declared to somebody and who can that somebody be except the one that is affected thereby. * * * 34. The third question falls to be decided in this appeal. It is this : what is the date from which severance in status is deemed to have taken place? Is it the date of expression of intention or the date when it is brought to the knowledge of the other members? If it is the latter date, is it the date when one of the members first acquired knowledge or the date when the last of them acquired the said knowledge or the different dates on which each of the members of the family got knowledge of the intention so far as he is concerned? If the last alternative be accepted, the dividing member will be deemed to have been separated from each of the members on different dates. The acceptance of the said principle would inevitably lead to confusion. If the first alternative be 17 accepted, it would be doing lip service to the doctrine of knowledge, for the member who gets knowledge of the intention first may in no sense of the term be a representative of the family. The second alternative may put off indefinitely the date of severance, as the whereabouts of one of the members may not be known at all or may be known after many years. The Hindu law texts do not provide any solution to meet these contingencies. The decided cases also do not suggest a way out. It is, therefore, open to this Court to evolve a reasonable and equitable solution without doing violence to the principles of Hindu law. The doctrine of relation back has already been recognized by Hindu law developed by courts and applied in that branch of the law pertaining to adoption. There are two ingredients of a declaration of a member's intention to separate. One is the expression of the intention and the other is bringing the expression to the knowledge of the person or persons affected. When once the knowledge is brought home — that depends upon the facts of each case — it relates back to the date when the intention is formed and expressed. But between the two dates, the person expressing the intention may lose his interest in the family property; he may withdraw his intention to divide; he may die before his intention to divide is conveyed to the other members of the family : with the result his interest survives to the other members. A manager of a joint Hindu family may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and common sense demands that a limitation which avoids the confusion of titles must be placed on it. What would be more equitable and reasonable than to suggest that the doctrine should not affect vested rights? By imposing such a limitation we are not curtailing the scope of any well established Hindu law doctrine, but we 18 are invoking only a principle by analogy subject to a limitation to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the contrary, saves vested rights. As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate the right accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved. 19. Hon’ble Supreme Court in case of V. Kalyanswamy (dead) by Legal Representatives & Another Vs. L. Bakthavatsalam (dead) by Legal Representatives & Ors., reported in (2021) 16 SCC 543 while considering the issue of partition, its implication, took note of the decision of Privy Council in case of Girja Bai Vs. Sadashiv Dhundiraj (AIR 1916 PC 104) and observed thus :- “135. It is now apposite to notice the judgment of the Privy Council in Girja Bai v. Sadashiv Dhundiraj [Girja Bai v. Sadashiv Dhundiraj, 1916 SCC OnLine PC 31 : (1915-16) 43 IA 151 : AIR 1916 PC 104] . In the said case, one of the members of a joint Mitakshara Hindu family served a notice expressing his desire to get partitioned his one-third share. Thereafter, he instituted the suit for partition. During the pendency of the suit, the plaintiff died survived by his widow. She moved for substitution. This was opposed by the defendants on the ground that at the time of his death, the plaintiff was an undivided member of a joint Hindu family and that on his death, his share passed to them by survivorship. This is despite the fact that earlier on, in the suit, the defendants had admitted the plaintiffs' claim and contended that they were willing to divide the estate and that the suit was premature. The Court referred to the earlier judgment of the Privy Council in Suraj Narain v. 19 Iqbal Narain [Suraj Narain v. Iqbal Narain, 1912 SCC OnLine PC 50 : (1912-13) 40 IA 40 : (1913) 11 All LJ 172] . 136. It is relevant to notice what the Court proceeded to lay down : (Girja Bai case [Girja Bai v. Sadashiv Dhundiraj, 1916 SCC OnLine PC 31 : (1915-16) 43 IA 151 : AIR 1916 PC 104] , SCC OnLine PC) “25. It appears to their Lordships that the appellate court has, in this case, confused the two considerations to which reference has been made above viz. the severance of status which is a matter of individual volition, with the allotment of shares which may be effected by different methods : by private agreement, by arbitrators appointed by the parties, or, in the last resort, by the court.”” 20. Hon’ble Supreme Court in case of Vineeta Sharma (supra) has considered the amended provisions of Section 6 of the Act of 1956 and observed that daughters are having birth right in coparcenary property. Hon’ble Supreme Court has also taken note of the exception as carved out under Section 6 (5) of the Act of 1956 and observed that the intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. While taking into consideration the law earlier prevailed with respect to the partition where an oral partition was recognised Hon’ble Supreme Court further observed that provisions of Section 6(5) of the Act of 1956 are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, 20 and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. 21. In the case at hand, the plaintiffs who are brothers, mother and sisters of defendant No.1 had set-up a case in the plaint before the trial Court that during lifetime of Harischandra Patel, father of plaintiffs No.1, 3 to 6 and defendant No.1 by way of family arrangement, defendant No.1 was separated. Death of Harischandra Patel as per the pleadings made in the plaint is of the year 1979, from which, it is appearing that separation by way of family arrangement of defendant No.1 is prior to 1979. According to the pleadings made in the plaint for the first time, application seeking partition U/s. 178 of the C.G. Land Revenue Code, 1959 was filed only in the year 2003-2004, which came to be dismissed vide order dated 17.10.2005 and the appeals filed against which also came to be dismissed. Civil suit was filed only on 30.08.2010. From the aforementioned dates and events as pleaded in the plaint by plaintiffs themselves, application for partition for the first time after separation of defendant No.1 was filed after about 25 years of separation and death of their father, Harischandra Patel. 22. Except plaintiff No.1, other plaintiffs No.2 to 6 have not entered into the witness box to prove the pleadings made in the plaint. In evidence it has come that father of plaintiff No.1, 3 to 6 and defendant No.1 has made three share of coparcenary property. One share was given to defendant No.1, one share was kept by father and one share was given to plaintiff No.1. In evidence, plaintiff No.1 (P.W.-1) admitted that 21 since last 40 years, they are residing separately. Similar is the evidence of other plaintiffs’ witnesses as also the defendant No.1 with regard to separation/partition of defendant No.1 by family settlement about 40 years ago. 23. In the aforementioned facts of the case and the exception as carved out under Section 6 (5) of the Act of 1956 and observation made by Hon’ble Supreme Court in case of Vineeta Sharma (supra) to consider the claim of oral partition, I am of the view that in the peculiar facts of the case as discussed above more particularly the case as set-up in the plaint, in the opinion of this Court, the present case will fall under Sub-section 5 of Section 6 of the Act of 1956 as amended w.e.f. 09.09.2005, therefore, learned Courts below have not committed any error in dismissing the suit filed by the plaintiffs and also the appeal. Accordingly question of law framed is decided. 24. For the foregoing discussions made here-in-above, this appeal beings sans merit is liable to be and it is hereby dismissed. 25. Decree be drawn accordingly. Sd/- (Parth Prateem Sahu) Judge Balram