Madhya Pradesh High Court
Dwarka Prasad Gautam vs Smt. Radharani Alias Ramkali Mishra on 7 July, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:49371
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 7 th OF JULY, 2026
CIVIL REVISION No. 295 of 2026
DWARKA PRASAD GAUTAM AND OTHERS
Versus
SMT. RADHARANI ALIAS RAMKALI MISHRA AND OTHERS
Appearance:
Shri Mohammad Aadil Usmani - Advocate for the applicants.
ORDER
As per Office note respondent No. 1/ plaintiff has been served who has
chosen not to appear before this Court. This court therefore, proceeds to hear
the case.
2. The present revision under Section 115 CPC has been filed being
aggrieved by the order passed by the trial Court whereby the application for
rejection of the plaint has been rejected. It is contended that a partition suit
has been filed for partition by the daughter in the life time of his father
seeking partition and separate possession during life time of father. An
application for rejection of plaint was filed by defendant No. 1 being father
of the plaintiff on the ground that suit has been filed during life time of the
defendant No. 1 which is in violation of Section 8 of Hindu Succession Act.
3. 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 relied on
various judgments of this court and of the Hon’ble Supreme Court to contend
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MISHRA
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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.
4. Upon hearing the petitioner 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.
5. 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,–
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(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;
(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-
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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.]
6. 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 in 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 befor his death, and the 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 orSignature Not Verified
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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 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)
7. 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 undividedSignature Not Verified
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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.”
8. 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 as
Kar of his own undivided family but takes it in his individual capacity.”
9. 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.
10. The same position has been considered by the Co-ordinate
Bench of this Court in 2002(3) MPLJ 576 (Chandrakanta Vs. Ashok Kumar) .
11 . Another Co-ordinates of this Court in case of Uttam Vs.
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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.
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 theSignature Not Verified
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MISHRA
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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.”
The aforesaid judgment of this Court has been upheld by the Apex Court in case
of Uttam Vs. Saubhag Singh & Others (supra).
12. 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.
13. 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
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Hindu male, for partition during his lifetime.
14. 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 with liberty to file a fresh suit after
arising of a valid cause of action.
(VIVEK JAIN)
JUDGE
MISHRA
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MISHRA
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