IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3046 of 2008 (O & M) Date of decision: 18.02.2010 Arun Kumar ..Plaintiff-Appellant Versus Birkhi and others ..Defendent-Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI Present:- Mr.Kulwant Singh, Advocate for Mr.Ashish Aggarwal, Advocate for the appellant . . . AJAY TEWARI. J (ORAL) This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the appellant that the property of Bhim Singh had to devolve upon him alongwith other reversioners by virtue of coparcenary and that the inheritance of the suit property in favour of the wife and daughter of Bhim Singh was illegal and had no effect on his rights. The following questions have been proposed:- (i) Whether the courts below have ignored the well established principles of law that mere sanctioning of mutation does not confer any title and it does not amount to decision of title of person in whose favour mutation is sanctioned in view of law laid down by the Division Bench of this Hon'ble Court in Gram Sabha Salina's case 1982 PLJ 261 (DB) ? (ii) Whether the provisions of Section 6 of the Hindu Succession Act, 1956 have been misinterpreted by the courts below in as much in holding that in view RSA No.3046 of 2008 (O & M) -2- of Section 6, the female is entitled to equal share in the ancestral property and whether it has been ignored that under Section 6, the females are entitled to the share on the principle of notional partition only and not an equal share ? (iii) Whether the suit of the plaintiff-appellant ought to have been decreed in view of the finding returned by both the courts below that in view of the evidence on the record it is undisputed that the suit land is ancestral property ? (iv) Whether the finding that merely because the appellant has not challeged the mutations entered earlier in favour of the female heirs, therefore, he cannot claim the suit property to be ancestral coparcenary property is illegal and unsustainable in law? (v) Whether the finding of the trial court that the plaintiff has not challenged the decree by which one of the female heir had given the share of the suit land to the coparceners is also illegal and unsustainable in law? (vi) Whether the impugned judments and decrees are patently illegal, ultra-vires, void and without jursidiction and are liable to be set-aside ? (vii) Whether grave and manifest injustice has been caused to the appellant in the matter ? Learned counsel has argued only Question No.(ii) and stated that as per the provisions of Section 6, if a male Hindu who has interest in coparcenary property dies, the inheritance of his share would be RSA No.3046 of 2008 (O & M) -3- governed by survivorship and not by the provisions of The Hindu Succession Act. However, learned counsel has failed to notice the proviso to Section 6 (as it existed before the amendment of 2005), which is reproduced as under:- "Proviso (3) to Section 6 of the Act:- 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 dividied 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 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 woud 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" The Courts below have rightly found that under the said proviso, the daughters and wife of Bhim Singh---being family relatives specified in Clause (i) of the Schedule (--) would have equal right to inheritance along with the sons. It also deserves to be mentioned that Bhim Singh died way back in the year 1971 while the appellant was born only in the year 1983. Thus, on the date on which the succession had opened, the appellant was not even born, let alone the member of coparcenary. In these circumstances, the appellant's case has to fail even RSA No.3046 of 2008 (O & M) -4- under the provisions of main Section 6 as well as under the proviso hereinabove quoted. Accordingly, by holding all the questions proposed against the appellant, this appeal stands dismissed. Since the main case has been decided, the Civil Miscellaneous Application, if any, stands disposed of. February 18, 2010 (AJAY TEWARI) Sukhpreet JUDGE