Madhya Pradesh High Court
Choudhary Munnalal Jain vs Geetesh Alias Jitesh on 12 February, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:12769
1 CR-877-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 12 th OF FEBRUARY, 2026
CIVIL REVISION No. 877 of 2024
CHOUDHARY MUNNALAL JAIN
Versus
GEETESH ALIAS JITESH AND OTHERS
Appearance:
Shri Santosh Anand - Advocate for the petitioner.
Shri Manoj Jha Panel Lawyer for the respondent-State.
ORDER
The present revision has been filed arising out of the order dated
31.07.2024 passed by the trial court whereby the application of the
petitioner/plaintiff under Order 7 Rule 11 CPC has been rejected.
2. The aforesaid application was filed on various grounds, including on the
ground that the plaint as it is filed does not disclose any valid cause of action
because the suit has been filed by the plaintiff seeking partition during the lifetime
of their father in the property which even as per the plaintiff assertions is said to be
succeeded by their father from their grandfather and a sale deed executed by the
defendant No. 1 who is father of the plaintiff in favour of the present defendants
No. 2 and 3.
3. The necessary facts for the purpose of disposal of the present petition
are that the suit has been filed by the plaintiffs who are brothers and sisters
challenging the sale deed executed by their own father-defendant No.1 and also
seeking partition of the suit property. The suit has been filed on the assertion that
the grandfather of the plaintiff had purchased the land in the name of defendant
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MISHRA
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No. 1 and therefore, though the land in question has been purchased in the name of
defendant No.1, but actually it becomes a ancestral property succeeded by
defendant No. 1 from his father because the consideration was given by the father
of defendant No. 1 as defendant No.1 was minor at the time of execution of sale
deed. Hence it should be declared that the land has been succeeded by defendant
No. 1 from his father. In other words, the plaintiffs seek declaration that the land
was actually owned by the father of defendant No.1, i.e. the grandfather of the
plaintiffs and seek to challenge the sale deed executed by defendant No. 1 in favor
of defendants No. 2 and 3.
4. The plaint does not contain a single assertion that the land was
coparcenary at any point of time, or that it was so when sale deed was executed by
the defendant No.1. There is a simple assertion in the plaint in various paragraphs
that the defendant No. 1 be declared to have succeeded the land from his father
because the land was purchased by consideration given by his father when the
defendant No. 1 was minor. In paragraph 6 of the plaint there is a categorical
assertion that the property is property of Hindu undivided family and again in the
relief clause the relief has been claimed that it should be declared that this property
is of undivided Hindu family and that each of the plaintiffs as well as the defendant
No. 1 is having 1/5 share in the suit property and further declaration to declare the
sale deed executed by defendant No. 1 in favor of defendants No. 2 and 3 to be
void and not binding on the plaintiffs.
5. The suit has therefore, been filed in the lifetime of father of the
plaintiffs. The plaintiffs are not the sons and daughters of the pre-deceased son of
their grandfather. Even if the plaint assertions are proved in the manner they are
written, then it would be declared that the land in question was purchased by the
grandfather of the plaintiffs in the name of father of the plaintiffs and the father of
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MISHRA
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the plaintiffs has succeeded the land from the grandfather of the plaintiffs.
6. If the line of succession as per Hindu Succession Act is seen then in the
lifetime of their father the plaintiffs could not get any title unless they plead
that there was a coparcenary and they have got a birthright in the property. There
is not a single word in the entire claim that there is a coparcenary and that they
have got a birthright in this property, but there is only a pleading of joint Hindu
property.
7. The sole question that arises for determination in the present case is
whether the suit was maintainable during the lifetime of the father of plaintiffs
seeking partition. The counsel for the petitioner had contended that when a male
Hindu even having interest in Mitaksara coparcenary property, dies intestate after
commencement of Hindu Succession Act, then as per Section 6 (3) of Hindu
Succession Act, the deceased’s interest in coparcenary property would devolve by
intestate succession under Section 8 and not by survivorship under Section 6. It is
therefore argued that even if there is presumed to be any existence of
coparcenary property, then also the plaintiffs could not maintain a suit during the
lifetime of their father because as per plaint assertions, the plaintiffs seek birthright
in the property, theory of which no longer survived even for Hindu males being
sons and irrespective of the amendment of 2005, though the same law would apply
to sons and daughters but even the son cannot file a suit for partition in lifetime of
father and therefore the suit filed by the daughters during lifetime of father must
suffer rejection of plaint being barred by Section 8.
8 . The respondents/plaintiffs on the contrary had argued that in view of
judgment of the Hon’ble Supreme Court in Srihari Hanumandas Totala vs.
Hemant Vithal Kamat, 2021(9) SCC 99 , the scope of application under Order 7
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Rule 11, CPC is very limited and only the plaint averments are to be seen to
decide application under Order 7, Rule 11, CPC and no assertions of the defendant
can be taken into consideration. Therefore, it is argued that the application under
Order 7, Rule 11 has rightly been rejected by the Trial-Court.
9. Upon hearing the rival parties and on perusal of the record, it is seen
that the Trial-Court has rejected the application on the grounds that it requires to
be adjudicated whether the suit property is an ancestral property or a coparcenary
property and this issue can only be decided after adducing evidence and therefore
it is not appropriate to reject the claim under Order 7, Rule 11, CPC.
10. By way of amendment in Hindu Succession carried out in the year
2005, there has been an amendment in Section 6 also. Section 6, after amendment
reads as under:-
6. Devolution of interest in coparcenary property .–(1) On and from the
commencement of the Hindu Succession (Amendment) Act, 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 in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had
been a son;
(c) be subject to the same liabilities in respect of the said coparcenary 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, 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 coparcenary 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;
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(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 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, 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, 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 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.
(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.]
11. After amendment in the Act of 1955, the sons and daughters have been
placed on equal pedestal. The issue was considered by the Hon’ble Supreme Court
i n Uttam Vs. Saubhag Singh & others 2016 (4) SCC 68 with reference to
amendment of 2005 and it was held by the Hon’ble Supreme Court that upon
death of ancestor after enforcement of Hindu Succession Act 1955, there is a
deemed partition by operation of law immediately before his death, and the
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property ceased to be joint family property and the succesors were merely tenants-
in-common, and not joint family members. It was held as under:-
18. Some other judgments were cited before us for the proposition that joint family
property continues as such even with a sole surviving coparcener, and if a son is born
to such coparcener thereafter, the joint family property continues as such, there being
no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma
Shamrao Agalawe v. Pandurang Miragu Agalawe [Dharma Shamrao
Agalawe v. Pandurang Miragu Agalawe, (1988) 2 SCC 126] , Sheela Devi v. Lal
Chand [Sheela Devi v. Lal Chand, (2006) 8 SCC 581] and Rohit Chauhan v. Surinder
Singh [Rohit Chauhan v. Surinder Singh, (2013) 9 SCC 419 : (2013) 4 SCC (Civ)
377] were cited for this purpose. None of these judgments would take the appellant
any further in view of the fact that in none of them is there any consideration of the
effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar
as it applies to joint family property governed by the Mitakshara School, prior to the
amendment of 2005, could therefore be summarised as follows:
(i) When a male Hindu dies after the commencement of the Hindu Succession Act,
1956, having at the time of his death an interest in Mitakshara coparcenary property,
his interest in the property will devolve by survivorship upon the surviving members
of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act,
making it clear that notwithstanding anything contained in the Act, the interest of a
male Hindu in Mitakshara coparcenary property is property that can be disposed of by
him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to
Section 6, which states that if such a male Hindu had died leaving behind a female
relative specified in Class I of the Schedule or a male relative specified in that class
who claims through such female relative surviving him, then the interest of the
deceased in the coparcenary property would devolve by testamentary or intestate
succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by
Section 6 proviso, a partition is effected by operation of law immediately before his
death. In this partition, all the coparceners and the male Hindu’s widow get a share in
the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male
Hindu leaving self-acquired property or by the application of Section 6 proviso, such
property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family
property has been distributed in accordance with Section 8 on principles of intestacy,
the joint family property ceases to be joint family property in the hands of the various
persons who have succeeded to it as they hold the property as tenants-in-common and
not as joint tenants.
19. Applying the law to the facts of this case, it is clear that on the death of Jagannath
Singh in 1973, the joint family property which was ancestral property in the hands of
Jagannath Singh and the other coparceners, devolved by succession under Section 8
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of the Act. This being the case, the ancestral property ceased to be joint family
property on the date of death of Jagannath Singh, and the other coparceners and his
widow held the property as tenants-in-common and not as joint tenants. This being the
case, on the date of the birth of the appellant in 1977 the said ancestral property, not
being joint family property, the suit for partition of such property would not be
maintainable. The appeal is consequently dismissed with no order as to costs.
(Emphasis supplied)
12. The Supreme Court has considered the impact of Hindu Succession
Act 1956 in its judgment in the case of Commissioner of Wealth-tax, Kanpur
etc. v. Chander Sen etc., (1986) 3 SCC 567 : AIR 1986 SC 1753 , and has held as
under:-
“19. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956.
The Preamble states that it was an Act to amend and codify the law relating to
intestate succession among Hindus.
20. In view of the Preamble to the Act i.e., that to modify where necessary and to
codify the law, in our opinion it is not possible when Schedule indicates heirs in Class
I and only includes son and does not includes son’s son but does include son of a
predeceased son, to say, that when son inherits the property in the situation
contemplated by section 8 he takes it as karta of his own undivided family. The
Gujarat High Court’s view noted above, if accepted, would mean that though the son
of a predeceased son and not the son of a son who is intended to be excluded under
section 8 to inherit, the latter would be applying the old Hindu law get a right by birth
of the said property contrary to the scheme outlined in section 8.”
13. The Supreme Court in its judgment in the case of Yudhishter v. Ashok
Kumar, (1987) 1 SCC 204 : AIR 1987 SC 558 , has again considered the question
and has held as under:–
“10. This question has been considered by this Court in Commr. of Wealth Tax,
Kanpur v. Chander Sen, (1986) 3 SCC 567 : AIR 1986 SC 1753, where one of us
(Sabysachi Mukharji, J.) observed that under the Hindu Law; the moment a son is
born, he gets a share in father’s property and becomes part of the coparcanary. His
right accrues to him not on the death of the father or inheritance from the father but
with the very fact of his birth. Normally, therefore, whenever the father gets a
property from whatever source from the grandfather or from any other source, be it
separate property or not, his son should have a share in that and it will become part of
the joint Hindu family of his son and grandson and other members who form joint
Hindu family with him. This Court observed that this position has been affected by
section 8 of the Hindu Succession Act 1956 and, therefore, after the Act, when the son
inherited the property in the situation contemplated by section 8, he does not take it asSignature Not Verified
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Kar of his own undivided family but takes it in his individual capacity.”
14. In view of the aforesaid pronouncements, it is clear that after coming
into force of the Hindu Succession Act, the theory of birthright does not exist and
son gets share in the property only after death of his father. This is because as held
in the case of Uttam (supra) by the Hon’ble Supreme Court, upon death of ancestor
after enforcement of Hindu Succession Act 1955, there is a deemed partition by
operation of law immediately before his death, and the property ceased to be joint
family property and the succesors were merely tenants-in-common, and not joint
family members.
15. The same position has been considered by the Co-ordinate Bench of
this Court in 2002(3) MPLJ 576 (Chandrakanta Vs. Ashok Kumar) .
16. Another Co-ordinates of this Court in case of Uttam Vs.
Saubhagsingh & Others (S.A.No.206/2005) vide order dated 29.10.2013 has held
as under:-
“9. Under Section 8 of Hindu Succession Act, the property of a male Hindu dying
intestate is to devolve according to the provisions of Chapter-II of the Act, firstly upon
the heirs, being the relatives specified in Class-I of the Schedule and if there is no
class I heir then upon Class II heir and so on. In the schedule grand-son has not been
included in the list of class I heirs, whereas son of a predeceased son is included
therein, therefore, grand-son’s birth right on the coparcenary property no longer exists
under the Act and grand-son cannot claim partition during the lifetime of his father.
10. The Supreme court in the matter of Commissioner of Wealth Tax Kanpur etc. Vs.
Chander Sen etc. reported in AIR 1986 SC 1753 while approving the view taken by
this Court in the matter of Shrivallabhdas Modani Vs. Commissioner of Income Tax
MP-I, reported in (1982) 138 ITR 673; Allahabad High court in the matter of
Commissioner of Income tax UP Vs. Ram Rakshpal Ashok Kumar, reported in (1968)
67 ITR 164; the Full Bench judgment of Madras High court in the matter of
Additional Commissioner of Income Tax Vs. P.L. Karuppan Chettiar, reported in
[1978] 114 ITR 523; and judgment of Andhra Pradesh High court in the matter of
Commissioner of Wealth Tax A.P-II Vs. Mukundgirji, reported in 144 ITR 18, has
held that since in Schedule to the Hindu Succession Act, only son is included and
son’s son is not included as Class I heir therefore, the son would inherit the property in
the situation contemplated by Section 8 of the Act not as Karta of his own undivided
family and that one should look only to the Act and not to the pre-existing Hindu law.
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MISHRA
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Referring to Section 8 of the Act, it is held that son’s son get excluded and the son
alone inherits the property to the exclusion of his son. In the judgment of this Court in
the matter of Shrivallabhdas Modani (supra) which has been approved by the Supreme
court in the above judgment, it was held by this Court that son’s son is not mentioned
as Class I heir in the Schedule and therefore, he cannot get any right in the property of
his grand-father under the Act. The right of son’s son in his grand-father ‘s property
during the lifetime of his father which existed under the Hindu law as in force before
the Act is not saved expressly by the Act, and therefore, the earlier interpretation of
Hindu law giving a right by birth in suchproperty has ceased to have effect. It was
further held that Section 8 of the Act should be taken as a selfcontained provision
laying down the scheme of devolution of the property of a Hindu dying intestate. The
Allahabad High court in the matter of Commissioner of Income Tax UP Vs. Ram
Rakshpal Ashok Kumar (supra) has held that in case of assets of business left by
father in the hands of his son, it would be governed by Section 8 of the Act and he
would take in his individual capacity. The Madras High court in the matter of
Additional Commissioner of Income Tax Vs. P.L. Karuppan Chettiar (supra) had held
that by reason of Section 8 of the Act, the son’s son gets excluded and the son alone
inherits the property to the exclusion of his son and that the statutory provision
contained in the Act must prevail in view of the unequivocal intention in the statute
itself, expressed in Section 4(1). The Andhra Pradesh High court in the matter of
Commissioner of Wealth Tax A.P-II Vs. Mukundgirji (supra) had taken the view that
the properties which devolved upon heirs mentioned in Class I of Schedule under
Section 8 of the Act constituted the absolute properties and the son’s son will have no
right by birth in such properties. The Supreme court in the matter of Chander Sen
(supra) has approved the above view of this Court as well as Allahabad, Andhra
Pradesh and Madras High Courts. The contrary view of the Gujarat High court has
been dis-approved by the Supreme court.
11. In the matter of Yudhishter Vs. Ashok Kumar, reported in AIR 1987 SC 558
referring to the earlier judgment in the case of Chander Sen (supra) it has been held by
the Supreme Court that the property which devolved upon the father on the demise of
the grand-father cannot be said to be HUF property in the hands of the father vis-a-vis
his own sons. In the matter of Sheela Devi and others Vs. Lal Chand and another
reported in (2006) 8 SCC 581, it has been further clarified by the Supreme court by
holding that prior to the commencement of the Act as per the Mitakshara law usage
once a son was born he used to acquire an interest in the coparcenary property as an
incident of his birth, but now the Act would prevail over the Hindu law. In that case
son’s son was born prior to the commencement of 1956 Act therefore, it was held that
he would retain his share of the property as a coparcener even after the
commencement of the 1956 Act, while father who had died in 1889, his share
will devolve upon his heirs according to the provisions of the Act. The Single Bench
of this Court in the matter of Chandrakanta and another Vs. Ashok Kumar and others,
reported in 2002(3) MPLJ 576 has also held that after coming into force of Hindu
Succession Act, the theory of birth right does not exist and the son gets share in the
property only after death of his father. Similar view has also been taken by another
Single Bench judgment in the matter of Babulal and others Vs. Ramkali Bai & others,
reported in ILR[2012] MP 1271.”
Signature Not Verified
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MISHRA
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The aforesaid judgment of this Court has been upheld by the Apex Court in
case of Uttam Vs. Saubhag Singh & Others (supra) .
17. In view of the above, it is clear that suit for partition of properties
succeeded by father in the joint family would not lie at the instance of either son or
at the instance of daughter in the lifetime of father. Nothing has been pleaded in
the plaint, whether the defendant No.1-father had already inherited the suit
properties upon death of his father prior to 1955, so as to project basic facts for
continuation of coparcenary or continued application of Section-6 of the Act of
1955. On the contrary, the father of defendant No.1 is pleaded to have expired
about five years prior to 2019, when the suit was filed.
18. Consequently. it has to be held that the suit was barred by law and the
application under Order 7 Rule 11 of CPC has erroneously been rejected by the
trial court by not dismissing a suit filed by children of a Hindu male, for
declaration of share and partition during his lifetime.
19. Consequently, the petition deserves to be and is hereby allowed. The
impugned order passed by the trial court is set aside. The plaint filed by the
respondent/plaintiff stands rejected.
(VIVEK JAIN)
JUDGE
MISHRA
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
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