CASE DETAILS v. VISHAL & Anr.

Hindu Succession Act, 1956 – ss.6, 8 – One ‘P’ died in 1959 with surviving interest in Mitakshara coparcenary properties – He left behind ‘K’ (appellant’s mother), a daughter born through his fi rst wife and ‘V’ and ‘KB’, a son and a daughter born through his second wife – In a suit fi led by ‘K’ (since deceased) claiming her share in the coparcenary properties, Trial Court decreed the suit holding that the appellant was entitled to 1/3rd share therein – First appeal fi led by ‘V’ and ‘K’ was rejected – Second appeal fi led by them, partly allowed by High Court – Legality: Held: In order to ascertain the shares of the heirs in the property of a deceased coparcener, the share of the deceased himself in the coparcenary property is to be ascertained – Explanation 1 to s.6 provides a fi ctional expedient that his share is deemed to be the share in the property that would have been allotted to him if a partition had taken place immediately before his death – Thus, ‘P’ who had two brothers would have been entitled to 1/3rd share in the coparcenary properties, if a partition had been eff ected before his death – Such a partition was actually eff ected in 1964 and P’s 1/3rd share was allotted to his only son, ‘V’ who however, was a coparcener in his own right in a separate coparcenary with his father and would be entitled to a share in that coparcenary property by birth – Thus, he would be entitled to 937 938 SUPREME COURT REPORTS [2023] 11 S.C.R. a half-share by birth in the 1/3rd share of the coparcenary properties allotted as P’s share – The other half-share therein belonged to ‘P’ and as he died intestate, it would fi rstly devolve upon his Class I heirs, in terms of s.8 – His Class 1 heirs, as on the date of his death, were ‘K’, ‘V’ and ‘KB’, his three children – His half-share would therefore be divided equally amongst them, i.e. 1/6th each – Thus, in the 1/3rd share of ‘P’ in the coparcenary properties, ‘V’ would be entitled to 4/6th share (1/2+1/6) therein, while ‘K’ and ‘KB’ would each get 1/6th share therein, being entitled to lay claim only to the half-share of ‘P’ – No reason to interfere with the order of the High Court. [Paras 11 and 13] Practice and Procedure – Stand contrary to pleadings of original plaintiff – Impermissibility: Held: Appellant’s argument that suit properties were not coparcenary properties but were joint properties held by coparcener ‘P’ and his brothers, cannot be countenanced as the original plaintiff -‘K’ (appellant’s mother, P’s daughter born through his fi rst wife) had approached the Trial Court contending that the suit properties were ancestral properties – Her son and heir cannot be permitted to take a diff erent stand now, contrary to her pleadings – Hindu Law. [Para 8] LIST OF CITATIONS AND OTHER REFERENCES