1 2025:CGHC:35339 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 699 of 2015 1. Gorelal Patel S/o Late Nanhu Patel, Aged About 52 Years Caste- Aghariya, Occupation- Agriculture, R/o Village Kapartunga, Police Station And Tahsil- Sarangarh, Civil And Revenue District- Raigarh, Chhattisgarh ...........Defendant No.1 2. Dashrath Patel S/o Late Nanhu Patel, Aged About 50 Years Caste- Aghariya, Occupation- Agriculture, R/o Village Kapartunga, Police Station And Tahsil- Sarangarh, Civil And Revenue District- Raigarh, Chhattisgarh ...........Defendant No.2, ... Appellant(s) versus 1. Smt. Satyawati Patel D/o Late Nanhu Patel, Aged About 47 Years W/o Shri Usatram Patel, Caste- Aghariya, Occupation- Agriculture, R/o Village- Pardhiyapali, Police Station And Tahsil- Baramkela, Civil And Revenue District- Raigarh, Chhattisgarh ...........Plaintiff 2. Smt. Shantibai Patel D/o Late Nanhu Patel, Aged About 47 Years Caste- Aghariya, Occupation- Agriculture, R/o Village Hasaud, Police Station And Tahsil- Sarangarh, Civil And Revenue District- Raigarh, Chhattisgarh ...........Defendant No.5 3. Smt. Nankinoni Patel D/o Late Nanhu Patel, Aged About 45 Years Caste- Aghariya, Occupation- Agriculture, R/o Village Hasaud, Police Station And Tahsil- Sarangarh, Civil And Revenue District- Raigarh, Chhattisgarh ...........Defendant No.6 4. Smt. Malti Patel D/o Late Nanhu Patel, Aged About 41 Years Caste- Aghariya, Occupation- Agriculture, R/o Village Tenduaa, Police Station And Tahsil- Sarangarh, Civil And Revenue District- Raigarh, Chhattisgarh ...........Defendant No.7 5. Smt. Baghanpurhin Patel W/o Late Nanhu Patel, Aged About 70 Years Caste- Aghariya, Occupation- Agriculture, R/o Village MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.09.30 16:15:06 +0530 2 Kapartunga Chhote, Police Station And Tahsil- Sarangarh, Civil And Revenue District- Raigarh, Chhattisgarh ...........Defendant No.3 6. The State Of Chhattisgarh, Through The Collector, Raigarh, Civil And Revenue District- Raigarh, Chhattisgarh ...........Defendant No.4 ... Respondent(s) For Appellant(s) : Mr. Roop Naik, Advocate For Respondent No. 1 : Mr. Kamal Kishore Patel, Ms. Apurva Nigam and Ms. Surmeen Ahmed, Advocates For State Mr. Kishan Lal Sahu, Dy. Government Advocate Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board 23.07.2025 1. The defendants have filed this second appeal against the judgment and decree dated 31.10.2015 passed by the learned Additional District Judge, Sarangarh, District - Raigarh (C.G.) in Civil Appeal No. 8-A/2013 by which the learned appellate Court has affirmed the judgment and decree dated 06.05.2013 passed by the learned Civil Judge, Class-I, Sarangarh, District - Raigarh (C.G.) in Civil Suit No. 81-A/2011 decreeing the suit file by the plaintiff for partition, title an possession. 2. The parties have been described as per their description in Civil Suit No. 81-A/2011. 3. This second appeal has been admitted on 14.07.2017 on following substantial questions of law: “1. Whether the suit property is the ancestral property in the hands of Nanhulal? 2. Whether the Courts below have erred in granting 1/7th share to the plaintiff with regard to the suit property particularly when her father Nanhulal expired in the year 2002 much prior to the enforcement of the Hindu Succession 3 (Amendment) Act, 2005?” 4. Brief facts as reflected from the record are that: (a) The plaintiff filed a suit for partition, title and possession before the learned Civil Judge Class-I, Sarangarh, District - Raigarh (C.G.) for the land situated at village Kapartunga(Chhote), Patwari Halka No. 18, R.N.M. and Tahsil - Sarangarh, District - Raigarh (C.G.) in land account No.-46, total Khasra No. 3, area 0.526 hectare and in land account No. 123 total Khasra No. 23, area 5.050 hectare (hereinafter described as “suit property”) mainly contending that the plaintiff and defendants who are brothers and sister and late Nandulal who was their father in possession of the suit property, doing agricultural work and he expired in the year 2002. The said property was used by the plaintiff and defendants as no partition has been taken place between 7 children of of late shri Nandulal, therefore, the plaintiff and defendants are entitled to get share to the extent of 1/7th part of the suit property. It is also the case of the plaintiff that by committing fraud with the Revenue Officer, the defendants No. 1 and 2 have recorded their names in the revenue records on 01.03.2003. It has also been contended that mutation has been conducted without knowledge of the plaintiff, as such, it is illegality and prayed for partition, title and possession of the suit property. (b) The defendants have filed written statement denying the allegations made in the plaint mainly contending that partition 4 has already been taken place, the defendants No. 2 to 4 have waive their rights and also executed consent letter. It is also the case of the plaintiff that the names of the defendants have been recorded with the consent of the plaintiff as defendants have obtained no objection from them, as such, there are estopped from filing the suit and would pray for dismissal of the suit. (c) The plaintiff to substantiate their case have examined the witnesses and exhibited the documents. The defendants have also examined the witnesses and also exhibited the documents which were in their possession. The learned trial Court on the basis of evidence and material on record has recorded its finding that the suit property is ancestral property belongs to late Nanhulal and no partition has been taken place between them. The learned trial Court has also taken note of the facts that the suit is within limitation and accordingly, it has passed a decree of partition declaring the title of the plaintiffs to the extent of 1/7th of the suit property and they are entitled to get partition and possession to that extent. (d) Being aggrieved with this judgment and decree, the defendants No. 1 and 2 have filed first appeal before the first appellate Court who by impugned judgment and decree dated 31.10.2015 has dismissed the appeal. The learned first appellate Court while dismissing the appeal has recorded its finding in paragraph 14 that the Exhibit D/1 the document pertains to waiver which is required to be registered as per the 5 Section 17 of the Registration Act, 1908, as such, in absence of any registration though the document has been exhibited as Exhibit D/1, it has no evidentiary value and accordingly, it has dismissed the first appeal. (e) Being aggrieved with this judgment and decree, the defendants No. 1 and 2 have preferred this second appeal which has been admitted by this Court on 14.07.2017 on the aforesaid substantial questions of law. 5. Mr. Roop Naik, learned counsel for the appellants would submit that learned trial Court has erred in applying the provisions of Hindu Succession (Amendment) Act, 2005 (in short “Act of 2005”) as the same has been enacted in the year 2005 and prior to enactment of Act of 2005, father of the plaintiff and defendants Nanhulal was expired, therefore, partition has also been taken place, as such, it cannot be said that the Act of 2005 will be applicable and even there is no intention of legislature to give the effect retrospectively also, therefore, he would pray for answering the substantial question of law No. 2 in favour of the defendants and would pray for allowing the appeal. So far as substantial question of law No. 1 is concerned, he would further submit that the parties have admitted in respect of the property that its belong to Nanhulal and no further evidence either by the plaintiff or defendants brought on record that the property does not belongs to Nanhulal, accordingly, he would pray for substantial question of law No. 1 to be answered positively. 6. Per contra learned counsel for the respondents would support the judgment and decree passed by the learned trial Court and affirmed 6 by the first appellate Court is in accordance with law. He would further submit that Section 6 of the Act of 2005 provides that the daughter will be treated as coparcener in the Hindu family right from the birth also and there will be no rider that the father of the plaintiff and defendants expired before the year 2005 and he would submit that this issue is no more res integra as the Hon’ble Supreme Court in case of Vineeta Sharma vs. Rakesh Sharma & Others reported in 2020 (9) SCC 1 in paragraph 130.6 has taken note of the fact which type of partitions are permissible under the amendment Act for not considering the benefits of Amendment Act, 2005. Accordingly to the law laid down by the Hon’ble Supreme Court, it is quite vivid that either registered partition and partition by decree of the Court is permissible for not partitioning of the properties of Hindus in view of Amendment Act, 2005, except these two contingencies the partition is permissible even before passing of the Act of 2005. He would further submit that there is no such provisions has been brought on record by which prohibits application of Act of 2005 in the present facts and circumstances of the case, therefore, the finding recorded by the trial Court that the partition has not been taken place cannot be found faulty and would pray for dismissal of the appeal. 7. I have heard learned counsel for the parties and perused the record of both the Courts below with utmost circumspection. 8. Considering the facts and submissions made by the parties, it is not in dispute that Nanhulal expired in the year 2002 and Hindu Succession (Amendment) Act, 2005 made effective from 2005. To 7 appreciate the point whether amendment Act, 2005 will be applicable in the factual matrix of the case, it is expedient for this Court to extract Section 6 of the Hindu Succession Act, 1956 as amended in the year 2005 which reads as under: “Section 6. Devolution of interest in coparcenary property. [(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, (a) by birth become a coparcener in her own right the same manner as the son; (b) have the same rights in the coparcenery property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and, (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased 8 son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.--For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub- section shall affect (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted. Explanation--For the purposes of clause (a), the expression son, grandson or great-grandson shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005). (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 purposes 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.]” 9. The Hon’ble Supreme Court in case of Vineeta Sharma (Supra) has examined the legality of the Hindu Succession (Amendement) 9 Act, 2005 has held in paragraphs Nos. 60, 68, 69, 73, 75 and 80 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 10 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 11 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. From perusal of the provisions and law laid down by the Hon’ble Supreme Court in case of Vineeta Sharma (Supra), it is quite vivid that under the contingencies where the partition can be allowed by the Court i.e. decree of partition passed by the Court or a registered partition which is not the situation in the present facts and circumstances and only alleged oral partition was preferred, but no such contingencies which are required to be proved even for oral partition before the trial Court for has been produced by the defendants, therefore, the finding of trial Court and affirmed by the first appellate Court which cannot be held to be suffers from perversity or illegality warrant interference by this Court. 11. In view of the above, the second appeal deserves to be dismissed and accordingly, it is dismissed. No order as to costs. 12. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Manish