Family Law

Derha v. Vishal

(2023) 10 SCC 524

Facts

Phannuram Sahu died intestate on 22 June 1959 while holding an interest in Mitakshara coparcenary property consisting of agricultural land and houses.
He left three children:
Kesar Bai, a daughter from his first wife;
Vishal, a son from his second wife;
Keja Bai, another daughter from his second wife.
Phannuram’s two wives had predeceased him.
In 1964, a partition took place between Vishal, Phannuram’s nephew and another relative. Phannuram’s share was allotted to Vishal.
Kesar Bai demanded her share, but Vishal refused.
She filed a partition suit. After her death, her son Derha continued the proceedings under her registered will.
The Trial Court granted Derha a one-third share. The High Court reduced it to one-sixth.
Derha appealed to the Supreme Court seeking restoration of the larger share.

How should Phannuram’s interest in the coparcenary property be calculated under the unamended Section 6 HSA?
Whether his daughters were entitled to inherit part of his interest.
Whether Derha was entitled to a one-third or only a one-sixth share.

Under the old Section 6 HSA, a male coparcener’s interest ordinarily devolved by survivorship.
However, where he left a female Class I heir, such as a daughter, his interest devolved by succession under the Act.
Explanation 1 required the court to:
assume a notional partition immediately before the coparcener’s death;
calculate the deceased’s share;
distribute that share among his Class I heirs under Section 8.
A son who was already a coparcener receives:
his own share by birth at the notional partition; and
an additional share as an heir of the deceased.
A daughter under the law then prevailing inherited only from the deceased father’s calculated share.

Phannuram had two brothers. Therefore, at the first level, his branch was treated as holding one-third of the larger coparcenary property.
Within Phannuram’s branch, Vishal was already a coparcener by birth.
A notional partition between Phannuram and Vishal therefore had to be assumed:
Vishal received one-half of Phannuram’s branch share by birth;
the remaining one-half represented Phannuram’s personal interest.
Phannuram’s remaining interest then devolved equally upon his three Class I heirs:
Vishal;
Kesar Bai;
Keja Bai.
Vishal therefore received two distinct benefits:
his existing birth share;
an inheritance share from his father.
The daughters received only their respective inheritance portions from Phannuram’s calculated interest.
The Court rejected Derha’s attempt to treat Kesar Bai as directly entitled to one-third of the entire coparcenary property.
The legal fiction of notional partition had to be worked out before applying intestate succession.
Once that process was followed, the High Court’s reduction of Derha’s entitlement was correct.

The Supreme Court dismissed Derha’s appeal.
Vishal was entitled to his birth share plus an inheritance share.
Kesar Bai and Keja Bai were each entitled only to their respective shares in Phannuram’s calculated interest.
The High Court’s determination granting Derha the reduced one-sixth share was upheld.
Use this case for: calculation of shares under the old Section 6 where a deceased coparcener leaves both a son and daughters.