SMT. SHYAMA DEVI AND ORS. versus MRS. MANJU SHUKLA AND ANR.

Citation: [1994] SUPP. 3 S.C.R. 362 · Decided: 12-09-1994 · Supreme Court of India · Bench: R.M. SAHAI · Disposal: Disposed off

Judgment (excerpt)

A 
SMT. SHYAMA DEVI AND ORS. 
v. 
· MRS. MANW SHUKLA AND ANR. 
SEPTEMBER 12, 1994 
B 
[R.M. SARAI ANDN.P. SINGH, JJ.] 
Hin¢u Succession Act, 1956 : 
Section 6 Explanation I-Partition of Coparcenery propeny-Presump-
C tion of deemed partition just prior to the death of Coparcene,-Shares to legal 
representatives-Adjudication of-Courts below to adjudicate according-
ly-Directions issued. 
A suit for partition was filed by 'D' in the year 1965 and a preliminary 
decree was passed on 24.1.1975 in respect of the properties in dispute. 
D Though there were two defendants J and G and both of them filed appeal 
before the High Court, the present appeals are confined to the branch of 
J. The appellant is wife of J and the first respondent is the daughter of J. 
On 5.5.1980, a petition of compromise was filed on behalf of D, J and 
E 
G before the High Court. Respondent No. 1 filed an application for 
impleading her as a party, she being the daughter of J. The said applica-
tion was rejected. The High Court disposed of the appeal in terms of the 
petition of compromise. Thereafter J died leaving behind his widow (the 
appellant), two sons and four daughters including Respondent No.1. 
During the preparation of the final decree the respondent No.1 filed a 
F 
petition claiming one-third share in the properties. The application was 
allowed by the District Judge. 
Appellant preferred a Civil Revision Petition and the High Court felt 
that death of J. the application filed on behalf of Respondent No.1 was 
maintainable but the Trial court should decide afresh as regards her 
G share, after hearing all the parties concerned. Against this, Respondent 
filed a Special Leave Petition. This Court disposed of the Petition and 
directed the trial Court to allot the shares of each legal representatives in 
respect of the share of J as per Hindu Law without reference to the Will 
alleged to have been left by J. However, the question of validity of the Will 
H of J bequeathing his property to the appellant was left open. Accordingly 
362 
i 
S. DEVI v. M.SHUKIA 
363 
the Additional District Judge directed the Commissioner to divide the A 
property as per the decree and to submit his proposals after hearing the 
parties concerned. However, he observed that the question of family settle· 
ment dated 17.7.1981 alleged by the appellant was still open for adjudica-
tion. 
Respondent preferred a Civil Revision and the High Court allowed B 
the same and directed the Additional District Judge to make a fresh 
adjudication of the objections filed by the parties to the report of the 
Commissioner. 
In these appeals, the appellant contended that in the order passed C 
on the earlier Special leave Petition, the family settlement was not rejected 
or held invalid and as such the same has to be taken into consideration. 
It was also contended that the properties left behind by J were to be shared 
by his legal representatives in accordance with the Hindu Succession Act, 
the respondent cannot get one-third share, since the said properties would 
devolve upon his widow (appellant), his two sons of four daughters includ- D 
ing the Respondent • 
. The Respondent contended that since there was a partition, it should 
be deemed that there was no Mitakshara Coparcenery property in exist· 
ence when J Died. 
E 
Disposing of the appeals, this Court 
HELD : 1.1. Admittedly the parti~on suit in ~ich preliminary decree 
was passed on 24.1.1975, the partition sought for was by D representing one 
of the three branches. It is nobody's case that at that stage or any time later F 
there was inter se partition between J and his sons, who were members of 
coparcenery. As such it has to be assumed that on the date of death J was a 
member of coparcenery, and Section 6 of the Hindu Succession Act, 1956 as 
well as Explanation I to the said section was applicable to the interest of J 
in the coparcenery properties at the time of his death. (369-B-C] 
1.2 As J died leaving behind his widow (the appellant) and four 
daughters, who shall be deemed to be the family relatives specified in Class 
I of the Schedule to the Act, the proviso to Section 6 shall come into play 
G 
and the interest of J shall devolve according to the said proviso by way of 
intestate succession under the Act. The claim of the execution of a Will H 
364 
SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R. 
A 
made by the appellant is not to be taken into account at this stage in view 
of the earlier order date

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