1

2026:CGHC:768

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment reserved on 13.10.2025

Judgment delivered on 06/01/2026

FA No. 199 of 2014

1.Smt. Jamuna Singh W/o Late Ishwar Singh Aged About 32

Years R/o Alankar Complex, Mahatma Gandhi Nagar, Ward

No. 26, Near State Bank of India, Bhilai, Tah. And Distt. Durg

C.G.,

... Appellant

versus

1.Smt. Kamla Bai W/o Late Jagannath Singh Aged About 70

Years R/o Mahatma Gandhi Nagar, Alankar Complex, Ward

No. 26, Camp-2, Near State Bank of India, Bhilai, Tah. & Distt.

Durg CG.

2.Smt. Rekha Singh W/o Late Tanja Rathore R/o Mahatma

Gandhi Nagar, Alankar Complex, Ward No. 26, Camp-2, Near

State Bank Of India, Bhilai, Tah. & Distt. Durg C.G.,

3.Anita Lal W/o Shatruhan Lal R/o Village- Baloudi, Tah. & Distt.

Durg C.G.y

4.Sunita W/o M.A. Quraishi R/o Mahatma Gandhi Nagar,

Alankar Complex, Ward No. 26, Camp-2, Near State Bank Of

India, Bhilai, Tah. And Distt. Durg C.G.

... Respondents

For Appellant :Mr. Rajneesh Singh Baghel, Advocate

For Respondents :Mr. Parag Kotecha & Mrs. Bhavika Kotecha,

Advocates

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SB: Hon’ble Mr. Justice Parth Prateem Sahu

C A V Order

1.Plaintiff/appellant has filed this appeal under Section 96 of the

Code of Civil Procedure, 1908 (henceforth ‘the Code of 1908’)

questioning the legality and sustainability of the judgment and

decree dated 26.11.2014 passed by learned 3

rd

Additional

District Judge, Durg in Civil Suit No.69A/2012 dismissing civil

suit of plaintiff/appellant herein.

2.Facts relevant for disposal of this appeal are that plaintiff filed

a suit for declaration that plaintiff and defendant No.1 are

entitled for equal share in disputed house, defendants No.2 to

4 are not having right or title over suit property/house;

partition and permanent injunction restraining the defendants

from interfering with possession of house to be received by

plaintiff in partition. It is further prayed that plaintiff is already

in possession of 1260 sq. ft. area of house, possession of

remaining area of house constructed over 595 sq. ft. land be

granted, pleading that the plaintiff got married with Ishwar

Singh son of defendant No.1, they performed love marriage

and from their marriage, they were blessed with three children

namely Gaurav, aged about12 years, Harsh, aged about 9

years, and Tajdhan Singh aged about 6 years. Plaintiff along

with her children was residing in a part of house situated near

Alankar Complex. After death of husband of defendant No.1,

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and father of defendants No.2 to 4, defendants are residing in

another portion of suit house. During lifetime of their father,

defendant No.2 to 4 got married, however, defendant No.2

after death of her husband came to her mother-in-law

(defendant No.1). Similarly, defendant No.3 also used to visit

frequently to her mother-defendant No.1. Defendant No.4

performed marriage with a person of other caste, therefore,

she is not having any right, title over the property of her father

Late Jagannath. Husband of plaintiff died in the year 2008.

Plaintiff along with her children resided in house of her

husband in which defendant No.1 is also residing

unauthorizedly. After death of her husband, plaintiff was in

continuous occupation, however, defendants are making all

attempts to oust her from the house and part of the shop.

Proceeding under Section 145 of Criminal Procedure Code,

1973 was also filed before the Sub-Divisional Magistrate

which was decided against plaintiff on 10.3.2011. In plaint it is

also pleaded that cause of action arose for filing of suit after

passing of order dated 10.3.2011 by the Sub-Divisional

Magistrate.

3.Defendants have filed written statement to plaint denying all

adverse pleadings made therein. In proceeding under

Section 145 CrPC (for short ‘CrPC’) defendant No.1

specifically stated and pleaded that plaintiff after breaking

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open lock of house forcefully entered into the house. In

additional pleadings, defendants have pleaded that though

plaintiff has pleaded that she had performed love marriage

with son of defendant No.1, there is no specific pleading with

regard to date and year of marriage and when she started

residing in the house of defendant No.1 as her daughter-in-

law. Plaint is defective and therefore prays for its dismissal.

4.It was also pleaded that there is no specific pleading as to

place of birth of three children named in plaint. Plea of

marriage of plaintiff with son of defendant No.1 in absence of

specific proof and evidence is not acceptable. Status of

plaintiff to be daughter-in-law of defendant No.1 is denied on

the ground that plaintiff has not produced evidence with

regard to her title and right on the property prior to 2008 or

thereafter (after death of her husband). It was further pleaded

that plaintiff and her children are not having any right, title

over the suit property. After forcible entry of plaintiff in house

of defendant No.1, FIR was lodged based on which Crime

bearing No.542/2009 was registered. Proceeding under

Section 145 CrPC was decided on 10.3.2011 against plaintiff

pursuant to which eviction warrant was also issued against

her. Status of plaintiff is of encroacher on the property of

defendant No.1.

5.Learned trial Court based on the pleadings made by

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respective parties has formulated 08 issues for consideration

which includes the issue relating to entitlement of plaintiff over

half share of suit property; whether property marked in the

map attached with plaint with red portion was received by

plaintiff in partition; whether defendants be restrained from

interfering with possession of plaintiff on the property marked

with red ink in the map attached with plaint; whether plaintiff is

encroacher over the suit property and whether the suit is

properly valued or not, along with other issues.

6.Learned trial Court while appreciating oral and documentary

evidence on record had held the plaintiff to be an encroacher

over the suit property and entitlement of plaintiff over half

portion of suit property and her entitlement to get half share in

the suit property to be not proved. Issue with regard to

possession of plaintiff after partition on the suit property is

also not found proved. Accordingly the suit was dismissed.

7.Learned counsel for plaintiff/appellant would submit that

finding recorded by learned trial Court is perverse to the

evidence available on record. He contended that learned trial

Court has not discussed about status of plaintiff as pleaded in

plaint and stated in evidence of her being wife of Late Ishwar

Singh,son of defendant No.1. Learned trial Court failed to

appreciate the fact that property, subject matter of suit,

originally belonged to Late Jagannath Singh from whom the

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plaintiff being daughter-in-law and defendant No.1 being

widow, had derived title. Learned trial Court also committed

error in disbelieving document Ex.P-14, which is settlement /

compromise executed between the parties of which

defendants are also signatories. Learned trial Court erred in

concluding that plaintiff failed to prove her right and title over

suit property and further that property possessed by plaintiff

was received by her in mutual partition based on settlement

deed. Considering the order passed by the Sub-Divisional

Magistrate in the proceeding under section 145 CrPC as one

of the grounds to dislodge claim of plaintiff, is erroneous as

the proceeding under Section 145 CrPC is summary in nature

and it does not decide the question of right and title of a party.

It can only by a regular civil suit.

8.Learned counsel for defendants/respondents herein

supported the impugned judgment and decree passed by

learned trial Court. He submits that from the oral and

documentary evidence available in record it is clearly

appearing that plaintiff forcibly entered into the house

possessed by her and therefore in the proceeding under

Section 145 CrPC the Sub-Divisional Magistrate passed the

order against plaintiff and consequent thereto eviction warrant

was also issued against plaintiff. Learned trial Court rightly

held the status of plaintiff to be an encroacher. Judgment and

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decree passed by learned trial Court is based on proper

appreciation of pleadings and evidence on record and

therefore, it does not call for any interference.

9.Heard learned counsel for respective parties and also

perused the record of learned trial Court.

10.From perusal of pleadings made in plaint as also written

statement it is appearing that claim of plaintiff of partition and

possession of suit property to the extent of half share is

based on her marriage with Late Ishwar Singh, son of

defendant No.1 as they performed love marriage and from

their wedlock they were blessed with three children.

Defendant No.1 was having one son and three daughters.

Husband of plaintiff and son of Defendant No.1 died in the

year 2008. Defendants have denied marriage of plaintiff with

Late Ishwar Singh and birth of three children from their

wedlock. Learned trial Court has not framed any specific

issue to decide the status of plaintiff to be widow of Late

Ishwar Singh, son of defendant No.1.

11.Plaintiff in support of pleadings made in plaint has exhibited

15 documents in all. Ex.P-1 is self-assessment property tax

which is in the name of Sunita Singh (defendant No.4,

daughter of defendant No.1). Ex.P-2 is affidavit before the

Notary Public; Ex.P-3 is challan of deposit of tax. Ex.P-4 is

self-assessment property tax from the year 2003-04 to

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2009-10. Plaintiff submitted jaccha-bachha card prepared

under the National Vaccination Mission in the particulars as

mentioned in Ex.P-5, in which name of mother is mentioned

as Jamuna Bai, husband name is mentioned as Ishwar Singh

and expected date of delivery is 21.9.2006. Progress card in

the name of Gaurav Singh issued by the Headmaster,

Government New Primary School Camp-2 Bhilai, Durg is

Ex.P-6 in which date of birth of Gaurav Singh is mentioned as

26.1.2001 and his father’s name is mentioned as Ishwar

Singh Bais. Ex.P-7 is progress card of Harsh Kumar Singh of

the academic year 2010-11 and in which his father’s name is

mentioned as Late Ishwar Singh Bais and date of birth as

‘13.1.2004’. Result of KG-1 of Taj Dhanshri issued by

Principal, Adarsh Vidya Niketan, Camp-2, Power House,

Bhilai District Durg is Ex.P-8 in which father’s name is

mention as Late Ishwar Singh and date of birth of child is

mentioned as 9.10.2006. Death certificate of late Ishwar

Singh is filed as Ex.P-9 in which date of registration is

mentioned as 07.05.2008 and it was stated to be issued on

20.5.2008. Electricity bill in the name of Jamuna Bai

(Plaintiff) is filed as Ex.P-10 and Ex.P-11, which are of the

month December 2011 and July 2012, and address in these

bills is mentioned as “MG Nagar, Camp-2 Bhilai”. Plaintiff has

also filed voter identity card issued by the Election

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Commission of India in which name of elector is mentioned as

Jamuna Bai (plaintiff) and husband’s name is mentioned as

Ishwar Singh. This card appears to have been issued on

27.5.2002. Ration card is filed as Ex.P-13 in which name of

head of family is mentioned as Ishwar Singh son of

Jagannath and details of family members of the card holder is

mentioned as under:-

“(i) Ishwar Singh son of Jagannath Singh

(ii) Jamuna Singh wife of Ishwar Singh

(iii) Gaurav Singh son of Ishwar Singh

(iv) Harsh Singh son of Ishwar Singh

(v) Aditya Singh son of Ishwar Singh”

12.Settlement deed with the title “sulahnama” is filed as Ex.P-14,

it bears signature of defendant No.1, plaintiff, defendant No.2

to 4 and under the head of witnesses, signature of several

persons with their details are also mentioned. Property tax

payment receipt of Municipal Corporation Bhilai issued in the

name of plaintiff Jamuna Bai dated 13.7.2010 is produced as

Ex.P-15.

13.Plaintiff examined herself as PW-1, Satish Thosar as PW-2,

Smt. Rukhmani Sharma as PW-3, Smt. Meena Singh as PW-

4, Smt. Archana Chatterjee as PW-5.

14.In order to prove the pleadings in written statement,

defendants have produced 38 documents. Ex.D-1 is valuation

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report. Ex.D-2 is the order dated 15.1.2013 passed by the

High Court in MA No.114/2013 which was filed against the

order of temporary injunction passed in favour of plaintiff.

Preliminary order passed in the proceeding under Section

145 CrPC dated 30.8.2009 is produced as Ex.D-3. Final order

passed in the proceeding under Section 145 CrPC dated

10.3.2011 is Ex.D-4. Order sheet of proceeding under Section

145 CrPC dated 10.3.2011 is Ex.D-5. Letter of compliance of

the order dated 10.3.2011 issued by the Sub-Divisional

Magistrate is filed as Ex.D-6. Copy of voters list is filed as

Ex.D-30. Copy of FIR registered on 19.6.2009 against the

plaintiff for alleged commission of offence under Sections

448, 294, 506, 323 of IPC is filed as Ex.D-37.

15.Defendants have examined defendant No.1 as DW-1, Sunita

Bai Kohle as DW-2, Rajendra Sharma as DW-3; defendant

No.4 as DW-4; defendant No.3 as DW-5; defendant No.2 as

DW-6.

16.Plaintiff has not filed any document to prove her marriage with

Late Ishwar Singh, son of defendant No.1. However, she has

placed on record other documents in which relation of plaintiff

and her children with Late Ishwar Singh is shown as husband

and father respectively. Progress cards which are placed in

original bear signature of Headmaster of Govt. Naveeen

Prathmik Shala, Camp-2 Bhilai and Headmaster of Adarsh

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Vidya Niketan. Camp-2 Bhilai. Ration card bears name of

Ishwar Singh to be head of family and in description of family

members of card holder, name of plaintiff and her children is

also mentioned. Ishwar Singh is shown to be son of Late

Jagannath Singh. Jagannath Singh to be father of Ishwar

Singh and husband of defendant No.1 and father of

defendant No.2 to 4 is not in dispute. In fact, in the pleadings

description of defendants is not disputed wherein name of

defendant No.1 is shown to be widow of Late Jagannath

Singh.

17.From the aforementioned facts, name of Ishwar Singh as

mentioned in ration card produced by plaintiff as Ex.P-13, it is

appearing that Ishwar Singh, which is mentioned therein and

son of defendant No.1, is one and the same person. Further,

against the details of other family members in ration card,

name of plaintiff and her children are mentioned. Copy of

sulahnama (Ex.P-14), which is filed by plaintiff, also bears

signature of defendants. Plaintiff in her evidence, stated

about execution of sulahnama on 20.5.2010. She also stated

that in that document signature of plaintiff, defendants and

other local residents are present.

18.Smt. Meena Singh (PW-4) in examination-in-chief stated that

defendant No.1 is her aunt (younger sister of her mother) and

plaintiff is wife of Late Ishwar Singh (son of defendant No.1).

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Marriage of plaintiff with Ishwar Singh was performed at

Bamleshwari Temple, Dongergarh and after marriage, plaintiff

was residing along with her mother-in-law. She also stated

that settlement between plaintiff and defendant

No.1/defendants was recorded in writing in presence of local

residents. This witness was cross-examined by counsel for

defendants. She was not put any specific question with

regard to relationship of plaintiff with Ishwar Singh, execution

of settlement deed, but normal questions not relating to the

facts in issue involved in the case and sated by witnesses

were posed to her.

19.Smt. Archana (PW-5) in her cross-examination has stated that

her house is situated in Sector-2 Bhilai and shop at Camp-2

Bhilai. Her husband used to sit in shop. She further clarified

that she also used to sit in shop. Her elder son is studying in

Class 12

th

and daughter in Class 10

th

. In her shop, she is

having facility of photocopy, internet, fax, mobile recharge

voucher and business of online mobile recharge. She stated

that plaintiff used to come to her shop for recharge of mobile

phone and distance of house of plaintiff from her shop to be

about five meters. However, she stated that she was not

present at the time of marriage of plaintiff with Ishwar Singh

and further, that she is not aware as to in whose presence

and at which place their marriage was solemnized. No

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question is posed to this witness about settlement deed

though she clearly and specifically stated in Para-4 of her

examination-in-chief that settlement deed was recorded

through local residents.

20.Defendant No.1 denied execution of settlement deed dated

20.5.2010. In cross-examination, she admitted that two of her

daughters have performed love marriage and further shown

her unawareness on the point whether her son Ishwar had

performed love marriage or not. She also stated that she was

not present in the marriage of Ishwar Singh. She also denied

relationship of Meena (PW-4) with her to be daughter of her

elder sister. She shown her unawareness about preparation

of settlement deed, however, she admitted her signature in

settlement deed Ex.P-14 (wrongly mentioned as Ex.D-14 in

deposition sheet because Ex.D-14 is the document issued by

Chhattisgarh State Electricity Board). She also stated that

she is not aware whether her daughter has signed the

settlement deed or not.

21.Sunita, daughter of defendant No.1, is examined as DW-4.

She stated that document Ex.D-3, Ex.D-4 and Ex.D-8

produced by them bear name of husband of plaintiff Jamuna

Singh as Ishwar Singh. She stated that in Ex.P-14 her

signature is appearing but it is not of her. She also stated that

it is wrong to say that signature is not of her.

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22.Defendant No.3-Anita Lal, who was examined as DW-5, has

denied settlement alleged to have arrived at between the

parties. She also denied her signature. Defendant No.2

Rekha Bai is examined as DW-6. She has shown her

unawareness about execution of settlement deed in presence

of residents of that area. She stated that her brother Ishwar

Singh was running business of tent house in the name of their

mother. She stated that it is correct to say that she is having

no knowledge about marriage of her brother, if he has

performed anywhere. However, she stated that her brother

has not performed marriage. She denied her signature in

Ex.P-14.

23.It is well settled that preponderance of probabilities is a legal

standard of proof, mainly in civil cases, meaning a fact is

considered true if an evidence shows it is more likely then not

to have happened, outweighing the opposite. It is like a

balance scale where the evidence for one side weights more

heavily even slightly than other proving the claim is more

plausible than not. It is like tipping the scale of justice which

is slightly in favour of one side, not needing absolute proof. It

is about considering a fact to be more plausible or probable

based on evidence.

24.In case of Dr. N. G. Dastane Vs. Mrs. S. Dastane reported in

(1975) 2 SCC 326, Hon'ble Supreme Court held as under :-

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“24. The normal rule which governs civil proceedings

is that a fact can be said to be established if it proved

by a preponderance of probabilities. This is for the

reason that under the Evidence Act, Section 3, a fact

is said to be proved when the court either believes it

to exist considers its existence so probably that a

prudent man ought, under the circumstances of the

particular case, to act upon the supposition that it

exists. The belief regarding the existence of a fact

may thus be founded on a balance of probabilities. A

prudent man faced with conflicting probabilities

concerning a fact-situation will act on the supposition

that the fact exists, if on weighing the various

probabilities he inks that the preponderance is in

favour of the existence of the particular fact. As a

prudent man, so the court applies this test for finding

whether a fact in issue can be said to be proved. The

first step in this process is to fix the probabilities, the

second to weigh them, though the two may often

intermingle. The impossible is weeded out at the first

stage, the improbable a the second. Within the wide

range of probabilities, the court has often a difficult

choice to make but it is this choice which ultimately

determines where the preponderance of probabilities

lies. Important issue like those which affect the status

of parties demand a closer scrutiny than those like the

loan on a promissory note: "the nature and gravity of

an issue necessarily determines the manner of

attaining reasonable satisfaction of the truth of the

issue "Per Dixon, J. In Wright vs. Wright (1948) 77

C.L.R. 191 at p. 210; or as said by Lord Denning, "the

degree of probability depends on the subject-matter.

In proportion as the offence is grave, so ought the

proof to be clear". Blyth vs. Blyth (1966) 1 A.E.R. 534

at 536. But whether the issue is one of cruelty or of a

loan on a pronote, the test to apply is whether on a

preponderance of probabilities the relevant fact is

proved. In civil cases this, normally, is the standard of

proof to apply for finding whether the burden of proof

is discharged".

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25.The doctrine of preponderance of probabilities was discussed

in the judgment titled Postgraduate Institute of Medical

Education and Research Vs. Jaspal Singh, (2009) 7 SCC 330

which reads as under :-

"17. In Syad Akbar Vs State of Karnataka (1980) 1

SCC 30 this curt dealt with in details the distinction

between negligence in civil law n din criminal law.

It has been held that there is marked difference as

to the effect of evidence, namely, the proof, in civil

and criminal proceedings. In civil proceedings, a

mere preponderance of probability is sufficient,

and the defendant is not necessarily entitled to the

benefit of every reasonable doubt; but in criminal

proceedings, the persuasion of guilt must amount

to such a moral certainty as convinces the mind of

the court, as a reasonable man, beyond all

reasonable doubt".

26.In the case of M. Siddiq (Dead) Through Legal

Representatives (Ram Janambhumi Temple Case) vs.

Mahant Suresh Das and others, reported in (2020) 1 SCC

1, Hon'ble Supreme Court held as hereunder:-

“721. The law recognises that within the standard of

preponderance of probabilities, there could be different

degrees of probability. This was succinctly summarised

by Denning, L.J. in Bater v. Bater, 1951 P. 35 (CA)

where he formulated the principle thus: (p. 37)

"... So also in civil cases, the case must be

proved by a preponderance of probability,

but there may be degrees of probability

within that standard. The degree depends

on the subject-matter." (emphasis

supplied)

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725. The Court recognised that within the standard

of preponderance of probabilities, the degree of

probability is based on the subject-matter involved.

726. In State of U.P. v. Krishna Gopal, [State of

U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988

SCC (Cri) 928], this Court observed: (SCC p. 314,

para 26)

"26. The concepts of probability, and the

degrees of it, cannot obviously be

expressed in terms of units to be

mathematically enumerated as to how many

of such units constitute proof beyond

reasonable doubt. There is an unmistakable

subjective element in the evaluation of the

degrees of probability and the quantum of

proof. Forensic probability must, in the last

analysis, rest on a robust common sense

and, ultimately, on the trained intuitions of

the Judge."

27.In view of discussions made above and applying the doctrine

of preponderance of probabilities to the facts of present case.

Where plaintiff’s case is that she performed love marriage

with Late Ishwar Singh (son of defendant No.1), she

produced ration card (Ex.P-13) mentioning name of card

holder as Ishwar Singh and in the name of other family

members, name of plaintiff and her children are mentioned,

document of school of her children mentioning name of their

father as Ishwar Singh, in the opinion of this Court, plaintiff

has proved the fact of her marriage with Late Ishwar Singh on

the touchstone of preponderance of probabilities.

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28.Learned trial Court erred in observing that both the parties

failed to produce documents relating to title of property in

dispute. Said finding is contrary to oral evidence brought on

record by respective parties. The house, subject matter of

suit, was constructed by Late Jagannath Singh, husband of

defendant No.1 and father of Late Ishwar Singh (husband of

plaintiff). In the aforementioned facts of case and evidence

available on record, when the Court applying the doctrine of

preponderance of probabilities held the plaintiff to be married

wife of Late Ishwar Singh, she is also entitled for share in the

property left behind by her father-in-law through her husband.

Therefore, finding recorded by learned trial Court that plaintiff

failed to prove that she is entitled for partition of suit property

is not sustainable. She may not be entitled for one-half

share, but being wife of Late Ishwar Singh son of Late

Jagannath Singh, she is entitle for some share in the suit

property. Consequently, findings recorded on Issue No.1 and

2 are set aside.

29.From the pleadings and evidence of respective parties, it is

appearing that the parties to suit belong to Hindu family and

therefore, right to share in the property will be governed by

the Hindu Succession Act. In case at hand, plaintiff is

claiming her right over the property through her husband Late

Ishwar Singh, who was son of Late Jagannath Singh.

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Defendant No.1 is widow of Late Jagannath Singh.

Defendants No.2, 3 and 4 are daughters of Late Jagannath

Singh. As deceased Jagannath Singh was survived by widow,

son and three daughters, the daughters have also accrued

right to share of property as of son in accordance with

provisions of Section 6 of the Hindu Succession Act.

30.In case of Vineeta Sharma vs Rakesh Sharma, reported in

(2020) 9 SCC 1, Hon’ble Supreme Court has held in

categorical terms that the daughter shall have the same equal

rights in ancestral property like a son. Relevant paras of the

said decision are quoted herein below for ready reference:-

“56. The daughter is treated as a coparcener in the

same manner as a son by birth with the same rights in

coparcenary property and liabilities. However, the

proviso of sub-section (1) contains a non-obstante

clause providing that nothing contained in the sub

section shall affect or invalidate any disposition or

alienation including any partition or testamentary

disposition of the property which had taken place

before 20.12.2004.

60. The amended provisions of Section 6(1) provide

that on and from the commencement of the

Amendment Act, the daughter is conferred the right.

Section 6(1)(a) makes daughter by birth a coparcener

"in her own right" and "in the same manner as the

son." Section 6(1)(a) contains the concept of the

unobstructed heritage of Mitakshara coparcenary,

which is by virtue of birth. Section 6(1)(b) confers the

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same rights in the coparcenary property "as she would

have had if she had been a son". The conferral of right

is by birth, and the rights are given in the same

manner with incidents of coparcenary as that of a son

and she is treated as a coparcener in the same

manner with the same rights as if she had been a son

at the time of birth. Though the rights can be claimed,

w.e.f. 9.9.2005, the provisions are of retroactive

application; they confer benefits based on the

antecedent event, and the Mitakshara coparcenary law

shall be deemed to include a reference to a daughter

as a coparcener. At the same time, the legislature has

provided savings by adding a proviso that any

disposition or alienation, if there be any testamentary

disposition of the property or partition which has taken

place before 20.12.2004, the date on which the Bill

was presented in the Rajya Sabha, shall not be

invalidated.

85. The right to claim partition is a significant basic

feature of the coparcenary, and a coparcener is one

who can claim partition. The daughter has now

become entitled to claim partition of coparcenary w.e.f.

9.9.2005, which is a vital change brought about by the

statute. A coparcener enjoys the right to seek

severance of status. Under section 6(1) and 6(2), the

rights of a daughter are pari passu with a son. In the

eventuality of a partition, apart from sons and

daughters, the wife of the coparcener is also entitled to

an equal share. The right of the wife of a coparcener to

claim her right in property is in no way taken away".

31.According to evidence available on record, Late Jagannath

Singh died in the year 2005 leaving behind his widow

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defendant No.1, three daughters (defendant No.2, 3 and 4)

and son Ishwar Singh, husband of plaintiff. Hence, by

applying notional partition to the property, subject matter of

suit, as provided under Section 8 of the Hindu Succession

Act, it is to be partitioned between owner of property Late

Jagannath Singh, son and three daughters of Late Jagannath

i.e. one-fifth share to each. Defendant No.1, widow of Late

Jagannath, will get share of her husband, as the property

subject matter of suit, is a dwelling house (part of which is

also used for commercial purpose). Plaintiff is held entitle for

share of her husband Ishwar Singh i.e. one-fifth, in the suit

property.

32.For the foregoing discussions, findings recorded by learned

trial Court on Issue Nos.1, 2, 3, 4, 5, 7 and 8 are not

sustainable and the same are accordingly set aside. Suit filed

by plaintiff/appellant is allowed in part. A decree be drawn up

accordingly.

Sd/-

(Parth Prateem Sahu)

Judge

roshan/-