ANAR DEVI AND ORS. versus PARMESHWARI DEVI AND ORS.

Citation: [2006] SUPP. 6 S.C.R. 370 · Decided: 18-09-2006 · Supreme Court of India · Bench: B.N. AGRAWAL, P.P. NAOLEKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
ANAR DEVI AND ORS. 
v. 
PARMESHWARI DEVI AND ORS. 
SEPTEMBER 18. 2006 
B 
[B.N. AGRAWAL AND P.P. NAOLEKAR. JJ.] 
Hindu Succession Act, 1956: 
s.6, Explanation /-Devolution of interest in coparcena1y property--
C Father and his adopted son constitllling Mitakshara coparcenwy---Father 
having two daughters also-On the death of father, daughters claiming 213 
share in property---Held, in view of s.6 and Explanation I thereto, notion{ll 
partition of the suil properlies be/ween father and his adopted son has to be 
assumed immediate(v before the death of the father and that being so his 
D undivided interest in suit property, which was half, devolved on his death 
upon his three children. i.e. 1he adopled son and 1he 1wo daughters in equal 
proportion-Adopted son would get half of the entire property which right he 
acquired on the date of adoption and one third of the remaining half which 
devofred upon :1i111 by succession-Thus, each of the two daughters was entitled 
to one-sl\/h share in the property and the remaining properties would go to 
E the adopted son-Hindu law-Mitakshara coparcenary-Devolution of 
interest-Interpretation of statutes-Statutory fiction-Interpretation of 
Stale of Bombay v. l'andurang Vinayak Chaphalkar & Ors .. ( 1953( 4 
SCR 773 and Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, 
F AIR (1978) SC 1239, relied on. 
East End Dwelling Co. ltd v. Finsbury Borough Council, (1952) Appeal 
Cases 109, referred to. 
Mui/a. Principles on Hindu law, referred to. 
G 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4171 of2006. 
H 
From the Final Judgment and Order dated 26.4.2004 of the High Court 
of Judicature for Rajasthan, Jaipur in D.B. Special Appeal (Writ) No. 276/ 
2004. 
370 
ANAR DEVI v. PARMESHWARI DEVI 
371 
WITH 
C.A. No. 4172/2006. 
Sushi! Kumar Jain, Puneet Jain, Sarad Singhania, Rani Masheshwari 
and Pratibha Jain for the Appellants. 
A 
Aruneshwar Gupta, Gen. Naveen Kumar Singh, Mukul Sood, Kumar B 
Kartikay, Shiva Pujan Singh, Ved Pal Shastri and Siddharth Singh for the 
Respondents, 
The Order ofthe Court was delivered by 
C.A. No. 4171 of2006@ S.L.P. (C) No. 15677 of2004: 
c 
Heard learned counsel for the parties. 
Leave granted. 
A suit was filed before the Sub-Divisional Officer by the respondents 
for partition of suit properties claiming two-third share therein. In the plaint, D 
it was plaintiffs' clear-cut case that the partition suit was filed for partition 
of notional share ofNagar Mal. Undisputedly, the suit properties were ancestral 
one in the hands ofNagar Mal, who adopted one Nemi Chand as his son, and 
after adoption both of them constituted a Mitakshara coparcenary under Hindu 
Law. Further it was undisputed that Nagar Mal died in the year 1989 intestate 
in the state of jointness with his adopted son leaving behind him, his adopted E 
son Nemi Chand and the plaintiffs, who were his two daughters. 
The trial court by misconstruing the provisions of law, passed an ex-
parte decree for partition of one-third share of each one of the plaintiffs 
instead of one-sixth share. Against the decree of trial Court, when the matter F 
was taken in appeal, the appellate authority reversed the same after recording 
a finding that the property was ancestral one, but remitted the matter as the 
decree was passed ex-parte. Against the order of remand, the matter was 
taken to the Board of Revenue, which reversed the order of remand and 
restored the decree passed by trial Court after recording a finding that each 
of the plaintiffs was entitled to one-third share in the suit properties. The said G 
judgment has been confirmed in writ by a learned single Judge of the High 
Court and the same has been upheld in appeal by the Division Bench. Hence, 
this appeal by special leave. 
In order to appreciate the point involved in the present case it would 
be useful to refer to the provisions of Section 6 of the Hindu Succession Act, H 
372 
SUPREME COURT REPORTS [20061 SUPP. 6 S.C.R. 
A 1956 (in short "the Act"), as it stood prior to its amendment by Hindu 
Succession (Amendment) Act, 2005, and the same run thus: 
··s. 6 - Devolution of interest in coparcenary property-When a male 
Hindu dies after the commencement of this Act. having at the time 
of his death an interest in a Mitakshara coparcenary property. his 
B 
interest in the property shall devolve by survivorship upon the 
surviving members of the coparcenary and not in accordance with 
this Act: 
Provided that. if the deceased

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