NDLI: Derha Vs. Vishal & Anr.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	8 Hindu Succession Act 1956 – ss.6
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Hindu Succession Act, 1956 (30 of 1956)
Case(s) Referred	Referred Case 0
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Issue for consideration: High Court, whether justifi ed in partlyallowing the second appeal and reducing the appellant’s share holding thathe would be entitled to 1/6th share in the suit properties.Hindu Succession Act, 1956 – ss.6, 8 – One ‘P’ died in 1959 withsurviving interest in Mitakshara coparcenary properties – He leftbehind ‘K’ (appellant’s mother), a daughter born through his fi rstwife and ‘V’ and ‘KB’, a son and a daughter born through his secondwife – In a suit fi led by ‘K’ (since deceased) claiming her share in thecoparcenary properties, Trial Court decreed the suit holding that theappellant 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 byHigh Court – Legality:Held: In order to ascertain the shares of the heirs in the property of adeceased coparcener, the share of the deceased himself in the coparcenaryproperty is to be ascertained – Explanation 1 to s.6 provides a fi ctionalexpedient that his share is deemed to be the share in the property that wouldhave been allotted to him if a partition had taken place immediately beforehis death – Thus, ‘P’ who had two brothers would have been entitled to 1/3rdshare in the coparcenary properties, if a partition had been eff ected beforehis death – Such a partition was actually eff ected in 1964 and P’s 1/3rd sharewas allotted to his only son, ‘V’ who however, was a coparcener in his ownright in a separate coparcenary with his father and would be entitled to ashare in that coparcenary property by birth – Thus, he would be entitled to a half-share by birth in the 1/3rd share of the coparcenary properties allottedas P’s share – The other half-share therein belonged to ‘P’ and as he diedintestate, it would fi rstly devolve upon his Class I heirs, in terms of s.8 – HisClass 1 heirs, as on the date of his death, were ‘K’, ‘V’ and ‘KB’, his threechildren – 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 thehalf-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 originalplaintiff – Impermissibility:Held: Appellant’s argument that suit properties were not coparcenaryproperties 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 Courtcontending that the suit properties were ancestral properties – Her sonand heir cannot be permitted to take a diff erent stand now, contrary to herpleadings – Hindu Law. [Para 8]
Judge	Hon'ble Mr. Justice Sanjay Kumar
Neutral Citation	2023 INSC 785
Petitioner	Derha
Respondent	Vishal & Anr.
SCR	[2023] 11 S.C.R. 937
Judgement Date	2023-09-01
Case Number	4494

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Derha Vs. Vishal & Anr.

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