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Derha vs. Vishal & Anr.

Civil Appeal · 2023 INSC 785Decided 1 Sept 2023
Civil Appeal No. 4494 of 2010
C.T. Ravikumar · Sanjay Kumar · Aniruddha Bose

Background

Phannuram Sahu died in 1959 leaving coparcenary (ancestral joint family) agricultural and house property. He was survived by a daughter, Kesar Bai (from his first wife), and a son, Vishal, and daughter, Keja Bai (from his second wife). A 1964 family partition gave Phannuram's 1/3rd share entirely to his son Vishal, and Kesar Bai sued for her share, a claim later carried on by her son Derha (the appellant) after her death. The trial court gave Derha 1/3rd share; the first appellate court upheld this; but the Chhattisgarh High Court in second appeal cut it down to 1/6th.

Decision Breakdown

The Supreme Court applied Section 6 (as it stood pre-2005 amendment) and Section 8 of the Hindu Succession Act, 1956, along with the "notional partition" principle from Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum. Phannuram's own 1/3rd coparcenary share had to first be notionally carved out as of his death; within that, his son Vishal was entitled to a half-share purely by birth as a coparcener, while the remaining half devolved equally among Phannuram's three Class I heirs (Kesar Bai, Vishal, Keja Bai), giving each daughter only 1/6th of the original 1/3rd share, and Vishal a combined 4/6th share. This matched exactly what the High Court had already worked out, so the Supreme Court dismissed the appeal and left the High Court's division undisturbed.

Lesson Learnt

When a coparcener dies leaving daughters as well as a son, the son does not simply inherit the father's full share: the father's notional share must first be split via a fictional partition, with the son taking his birthright half separately and the remaining half shared equally among all children, which mathematically favours the son but still guarantees daughters a defined share under Hindu succession law.

Official source (sci.gov.in)View Judgment (PDF)

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