FAMILY LAW – 2 SUBJECT MOOT 2020-21

BEFORE THE DISTRICT COURT JAIPUR

IN THE MATTER OF:

WIDOW OF CHANDU & BISHNU & ORS

(PLAINTIFF)

V.

MR. BICKY & ORS

(DEFENDANT)

ON THE SUBMISSION TO THE DISTRICT COURT

UNDER SECTION 9 OF CIVIL PROCEDURE CODE, 1908

COUNSEL APPEARING ON BEHALF OF PLAINTIFF

MEMORANDUM ON BEHALF OF PLAINTIFF

SUBMITTED TO
SUBMITTED BY

MISS NIDHI JAIN SHOBHA CHAUHAN

ASTT PROF, SSLG B.A.LL.B(6TH SEM)

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TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................................................3

STATUTES........................................................................................................................................3

CASES CITED...................................................................................................................................3

INDIAN COURTS JUDGMENTS.........................................................................................................3

BOOKS CITED..................................................................................................................................4

STATEMENT OF JURISDICTION......................................................................................................5

STATEMENT OF FACTS...................................................................................................................7

ISSUES RAISED................................................................................................................................8

ARGUMENTS ADVANCED................................................................................................................9

ISSUE 1: WHETHER THE WIDOW OF CHANDU AND BISHNU HAVE A RIGHT TO CLAIM A

SHARE IN UNDIVIDED PROPERTY.

ISSUE 2 : WHETHER TUFAN AND AMEER CAN BE CONSIDERED AS A COPARCENER FOR

CLAIMING A SHARE IN UNDIVIDED PROPERTY.

ISSUE 3: WHETHER THE GIFT MADE BY ROSHESH IN FAVOUR OF BICKY’S CHILDREN IS

VALID.

ISSUE 4: WHETHER THE DAUGHTERS OF KAMLESH ARE ENTITLED TO GET ANY SHARE IN

UNDIVIDED PROPERTY.

SUBMISSIONS TO THE COURT.........................................................................................................

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INDEX OF AUTHORITIES

STATUTES REFERRED:-

 THE CODE OF CIVIL PROCEDURE, 1908.

 THE HINDU MARRIAGE ACT, 1955.
 THE HINDU SUCCESSION ACT, 1956.
 THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956.
 THE HINDU WOMEN’S RIGHT TO PROPERTY ACT 1937

CASES REFERRED:-

1. Baba v. Timma ILR 7 Mad 281.

2. Bakulbhai & Anr v. Gangaram & Anr (1988)SC 787
3. Bharatha Matha & Anr v. R. Vijaya Renganathan & Ors (2010)
4. Bishoo Deo v. Seogeni (1951)SC 180
5. C.Krishna Prasad 97 ITR 493(Para 8.1.2) R.e.f. to Formation and Management HUF
along with Tax Planning by S.R. Kharbanda and PremNath 13th Edition Pg.50
6. Ganachari Veeraiah v. Ganachari Shiva Ranjani AIR 2010 NOC 351(AP)
7. Gur Narain Das v. Gur Tahal Das AIR 1952 SC 225
8. Gurupad Khandappa Magdam v. Heerabhai khandappa Magdam (1981) 129 ITR
440(SC)
9. Heera Lal v. Board of Revenue & Ors AIR 2001 Raj 318,2001(2) WLC 32, 2001 (2)
WLN 201
10. Jayamati Narender a shah(deceased by L.Rs.) & ors v. Narender a AMR itlal shah
AIR 2014 BOM 119
11. K.C. Laxmana v. Chandrappa AIR 2009 Kant 12: (2009) 1 Kar LJ 602
12. Mahamaya Samal v. Draupadi Samal AIR 2007 (NOC) 2368(Ori) R.e.f. to Gupte’s
Hindu Law , vol 2, end Edition , Pg. 1300
13. Mr. Santosh popat chavan v. Mrs. Sulochana @ Raju Chavan 2015(5) ALLMR 604
14. Munnilal Mehta v. Chandeshwar Mahto
15. Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) & Ors v. K. Devi and Ors
(1996) 4 SCC 76

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16. Ponnuchami Servai v. Bal Subramanian AIR 1982 Mad 281

17. Pushpalatha N.V. v. V. Padma AIR 2010 Karn 124
18. Radhika v. Anguram AIR 2010 AP 377
19. Rameshwari Devi v. State of Bihar 2000
20. Sada Shiv v. Bala AIR 1972 Bom 164
21. Sadhu Singh v. Gurudwara Sahib Narike AIR 2006 SC 3282
22. Sawan Ram v. Kalawati AIR 1967 SC 1761
23. Shnata Ram v. Dargubai
24. Shrinvas Krishnarao Kango v. Narayan Devji Kango & Ors 1954 AIR 379,1955 SCR
1
25. Smt. Gurnam Kaur & Anr v. Puran Singh & Ors 1996 SCC (2) 567
26. Thamma Venkata Subamma v. Thamma Ratamma AIR 1987 SC 1775
27. Thrumurthi Ranayammal v. Thrumurthi Muthamal
28. Udasi Nirwani v. Surajpal Singh (1945) 49 Cal WN 72 CPC
29. Venkatappaya v. Raghavayya AIR 1951 Mad 318
30. Vineeta Sharma v. Rakesh Sharma

BOOKS REFERRED:-
 C.K. TAKWANI, CIVIL PROCEDURE CODE 1908, 8TH EDITION, REPRINT 2017.
 MULLA'S HINDU LAW, FIFTEENTH EDITION.
 MULLA'S HINDU LAW, TWENTY FIRST EDITION
 DR. PARAS DIWAN, FAMILY LAW, 10TH EDITION, REPRINT 2016.
 LAW OF MARRIAGE AND DIVORCE, PARAS DIWAN, SIXTH EDITION.
 CASES AND MATERIALS ON FAMILY LAW,KUSUM, 2ND EDITION

C. JOURNALS REFERRED
1. ALL INDIA REPORTER
2. SUPREME COURT CASES
3. INDIAN LAW REPORTER
4. SUPREME COURT CASES

D. DATABASE REFERRED
1. WWW.SCCONLINE.COM
2. WWW.LEXISNEXIS.COM

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3. WWW.MANUPATRA.COM

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STATEMENT OF JURISDICTION

The Claimant has approached to the Hon’ble District Court of Jaipur by filing a suit under
Section 91of Civil Procedure Code, 1908. The Hon’ble District Court has already allowed the
suit and therefore, the notice has been issued to the concerned parties.

1
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or impliedly barred.
1.[Explanation I].- A suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious rites or
ceremonies.
2.[Explanation II].- For the purposes of this section, it is immaterial whether or not any fees are attached to the
office referred to in Explanation I or whether or not such office is attached to a particular place.].

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STATEMENT OF FACTS

BACKGROUND:

 There was a Hindu Joint Family consisting of mother (Shrutika), father(kamlesh) and
their 4 sons (Bicky Bishnu , Chandu , Roshesh ) and 2 daughters (D1 and D2).
 The 3 Sons and 2 daughters got married, Roshesh remained a bachelor.
 Chandu died in an accident in 2007 and his widow adopted a son named Ameer aged 15
years 2 months in 2008 with the only support of Bishnu and due to this act Roshesh
unilaterally made a gift of his share in the joint family property to bicky’s son and
Daughter i.e., Arvind and Amaira and he also in a will bequeathed the property that he
acquired by his own efforts.
 The relation between Bishnu and his wife got strained and his wife left for her parent’s
house and after that Bishnu got closer to his maid and lived together till 2010 (when
Bishnu died), and their son Tufaan was born posthumously two months later.
 Mother died in 2016 and father died in 2018, therefore Bicky being the eldest son took
over as karta.
PROBLEM ARISES:
 The share of Roshesh which is given as gift to Bicky’s children.
 The entitlement of Tufan’s and Ameer’s share.
 The share of daughters of Kamlesh and Shrutika in the hindu undivided joint family.
 The share of widow of Chandu and Bishnu.

APPROACH BEFORE THE HON’BLE COURT:

 Aggrieved against the gift made to the karta’s children is unjustified and therefore
fearing of the welfare of the their sons claiming their shares in joint family property,
the undivided interest of their husbands which had not been given to them and also a
share in kamlesh’s share and kamlesh’s daughter also being the plaintiff asked for
share in said property.

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ISSUE RAISED

ISSUE 1: WHETHER THE WIDOW OF CHANDU AND BISHNU HAVE A RIGHT TO CLAIM A

SHARE IN UNDIVIDED PROPERTY.

ISSUE 2 : WHETHER TUFAN AND AMEER CAN BE CONSIDERED AS A COPARCENER FOR

CLAIMING A SHARE IN UNDIVIDED PROPERTY.

ISSUE 3: WHETHER THE GIFT MADE BY ROSHESH IN FAVOUR OF BICKY’S CHILDREN IS

VALID.

ISSUE 4: WHETHER THE DAUGHTERS OF KAMLESH ARE ENTITLED TO GET ANY SHARE IN

UNDIVIDED PROPERTY.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE WIDOW OF CHANDU AND BISHNU HAS A RIGHT TO CLAIM A SHARE

IN UNDIVIDED PROPERTY.

Under Section 10 Rule 4(i)2, a widow of a predeceased son takes equally with the other heirs
in class 1. Such a widow would take a share along with other heirs in branch of the
predeceased son.

Coming to the facts of the present case, the widow of Chandu and Bishnu has a right to claim
a share in undivided property as they are the widow of the predeceased Chandu and Bishnu
who are the son of the kamlesh. And both the widows can claim a share on behalf of their
minor sons.

According to Hindu Women’s Right to Property Act, 1937, a Hindu widow has a right to
obtain the entitlement to which her husband was entitled to in the coparcenery property in
which he is a member or in his self acquired property. Therefore she can demand a partition
of her share from the other shares or coparceners.

Moving further to the Section 3 of the Hindu Women’s Right to Property Act, 1937 which
states the ‘Devolution of property’.

(ii) When a Hindu governed by any school of Hindu law other than the Dayabagha School or
by customary law dies having at the time of his death an interest in a Hindu joint family
property , his widow shall, subject to the provisions of sub section (3), have in the property
the same interest as he himself had.

(iii) Any interest devolving on a Hindu widow under the provisions of this section shall be
the limited interest known as a Hindu woman’s estate, provided however that she shall have
the same right of claiming portion as a male owner.

By referring the above section in the present case it can be easily inferred that after the death
of the husband, all the rights and share in property of the predeceased husband transfers to his
wife and hence she is entitled to get the share of her predeceased husband. Hence the widows
2
The Hindu Succession Act, 1956

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of Bishnu and Chandu are entitled to get the share of their predeceased husband in the
undivided property of the kamlesh.

Jayamati Narender A Shah(Deceased By L.Rs.) & Ors V. Narender A AMR Itlal Shah 3 it was
held that wife cannot demand partition of joint family property she would get a share only if
the partition is demanded by her husband or sons and property is partitioned. However, as an
exception it has been said that widow can demand for the partition which her deceased
husband was entitled to .

4
Mr. Santosh popat chavan v. Mrs. Sulochana @ Raju Chavan it was held that the right
having been given to a widow or mother or women under the Act of 1956, she cannot be told
that though she has a right to get share, but she cannot file a suit for recovery of share of her
deceased husband as she has no right to file a suit when a right is given, the remedy has to be
there namely:

Remedy to file a suit for partition which cannot be depend upon the desire or demand of other
coparceners in the family to have the partition in the joint family property.

Sadhu Singh v. Gurudwara Sahib Narike5 it was held that if a male dies leaving behind only
his widow after coming into force of the Act, she would be the sole heir and would inherit the
property absolutely.

When deceased had died leaving behind Class I heirs, property would devolve on them by
way of testamentary or intestate succession and not by way of survivorship, in the instant
case the deceased had not left any will, so inheritance would be made by intestate
succession.6

Gurupad Khandappa Magdam v. Heerabhai khandappa Magdam7 it was held that section
3(2) of the Hindu Women’s Right to property Act 1937 did provide that in the event of the
death of the coparcener, the widow is entitled to husband’s share in the property, which
would get vested on her immediately upon his death and therefore does not devolve by
survivorship. If the deceased had left son or sons her share will be limited to what her
husband would have got on a further deemed partition between her husband and his sons.
3
Jayamati Narender a shah(deceased by L.Rs.) & ors v. Narender a AMR itlal shah AIR 2014 BOM 119
4
Mr. Santosh popat chavan v. Mrs. Sulochana @ Raju Chavan 2015(5) ALLMR 604
5
Sadhu Singh v. Gurudwara Sahib Narike AIR 2006 SC 3282
6
Mahamaya Samal v. Draupadi Samal AIR 2007 (NOC) 2368(Ori) R.e.f. to Gupte’s Hindu Law , vol 2, end
Edition , Pg. 1300
7
(1981) 129 ITR 440(SC)

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The petitioners while claiming a share in the property has also claimed the right of their
minor sons. As according to Hindu law no distinction is made between a major coparcener
and a minor coparcener in respect of their rights in joint family property the minor coparcener
has a right to partition. A suit for partition may be filed on behalf of the minor by his next
friend or guardian.8

ISSUE 2 : WHETHER TUFAN AND AMEER CAN BE CONSIDERED AS A COPARCENER FOR

CLAIMING A SHARE IN UNDIVIDED PROPERTY.

The petitioners claimed in the present case states that Tufan and Ameer can be considered as
a coparcener for claiming a share in undivided property as Tufan being the illegitimate son
of predeceased Bishnu is entitled for share under Section 16 of Hindu Marriage Act 1956 and
Ameer being the adoptive son of Chandu is entitiled for share under Hindu Adoption and
Maintenance Act 1955.

(a) That Ameer can be considered as a coparcener for claiming a share in undivided property.

The expression ‘son’ used in Class I heir of the schedule has not been defined in the Act. It
includes both natural son and a son adopted in accordance with the law relating to adoption
among Hindus in force at the time of the adoption.9

Coming to the present case

The Supreme Court in a case10, held that when a widow adopts a male heir, he would be a
member of the family from the date of death of adoptive father.

Since the passing of Hindu Adoptions and Maintenance Act in 1956, there is no distinction
between the rights of a natural born, legitimate son and those of an adopted son and hence
adopted son can also demand partition and his share will be same as the natural born son.

Sawan Ram v. Kalawati11 the Supreme Court held that under section 5(1) of the Act, the
words used are adoption “by or to a Hindu”. Adoption to a Hindu was intended, according to
the court to cover cases where an adoption is made by one person while the adopted child
becomes the child of another person also. In a case where a widow adopted a son, the actual
adoption is by he female but the adoption would not only be to herself but also to her
8
Bishoo Deo v. Seogeni (1951)SC 180
9
Mulla Hindu Law 20th Edition Volume II S.A. Desai Lexis Nexis Butterworths
10
C.Krishna Prasad 97 ITR 493(Para 8.1.2) R.e.f. to Formation and Management HUF along with Tax Planning
by S.R. Kharbanda and PremNath 13th Edition Pg.50
11
Sawan Ram v. Kalawati AIR 1967 SC 1761

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deceased son. Referring to Section 12 of the Act, it was pointed out that from the date of the
adoption, all the ties of the child in the family of birth are severe and new ties are created in
the adoptive family, and it is well recognised that a married female belongs to the family of
her husband and accordingly, the adopted child must belong to the same family.

It is well established proposition of law that when a coparcener dies his individual interest
devolves on surviving coparceners by survivorship. Moment the widow of a coparcener
adopts the son , the adopted son becomes the coparcener with the surviving coparceners of
the adoptive father and consequently acquires the same interest which his adoptive father
would have in the property had been living. This was on account of Doctrine of relating back.
The child adopted by the widow of the coparcener became the child of the deceased
coparcener from the date of the death of the coparcener.12

When a widow succeeds to her husband’s estate as heir and then make an adoption, the
adopted son is held entitled, as preferential heir, to divest her of the estate. The Privy Council
dissented from this view , and held that the coparcenery must be held to subsist so long as
there was in existence a widow of a coparcerier capable of bringing a son into existence by
adoption, and if she made an adoption , the rights of the adopted son would be same as if he
had been in existence at the time when his adoptive father died, and that his title as
coparcener would prevail as against the title of any person claiming as heir of the last
coparcener. On the adoption by the Hindu widow, the adopted son acquires all the rights of
an aurasa son and those rights relate back to the date of the death of the adoptive father.13

In the present case

(b) That Tufan can be considered as a coparcener for claiming a share in undivided property.
Section 16 of Hindu Marriage Act,1955, relates to the legitimacy of children of void
marriages. One effect of the above mentioned Section is that sons and daughters of parents,
covered by it, are to be deemed to be the legitimate children of their parents and entitled to
succeed to the property of such parents as if they were born in lawful wedlock.14

An illegitimate son is entitled to have equal share as that of legitimate son in the joint family
property.15

12
Heera Lal v. Board of Revenue & Ors AIR 2001 Raj 318,2001(2) WLC 32, 2001 (2) WLN 201
13
Shrinvas Krishnarao Kango v. Narayan Devji Kango & Ors 1954 AIR 379,1955 SCR 1
14
Mulla Hindu Law 20th Edition Volume II S.A. Desai Lexis Nexis Butterworths
15
Udasi Nirwani v. Surajpal Singh (1945) 49 Cal WN 72 CPC

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The Hindu Marriage Act confers legitimacy on children born out of void marriage to enable
them to inherit the property of their parents.16

Sada Shiv v. Bala17 it was held that the illegitimate son succeeds to his estate as a
coparcenerwith the legitimate son of his father with a right of survivorship and he is entitled
to enforce the partition equally as legitimate son.

In the case of Bakulbhai & Anr v. Gangaram & Anr 18 the appellant and the respondent lived
together as husband and wife for number of years and that appellant No.2 was their child. The
court held that although the marriage was ineffective in the eyes of law that took place
between appellant and respondent , but the status of their child is that of a legitimate son
under Section 16(1) of the Hindu Marriage Act,1955.

19
Further in the case of Smt. Gurnam Kaur & Anr v. Puran Singh & Ors The court held that
Section 16 of the Hindu Marriage Act, 1955 as amended by the Amendment Act 68 of 1976
reaches as under “ Notwithstanding that a marriage is null and void under Section 11 any
child of such marriage would be legitimate whether such child is born before or after the
amendment and whether or not a decree of nullity is granted in respect of that marriage under
this Act and whether or not the marriage is held to be valid otherwise than on a petition under
this Act.

In the case of Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) & Ors v. K. Devi
and Ors20 the Supreme Court held that Hindu Marriage Act , a beneficial legislation , has to
be interpreted in a manner which advances the object of the legislation. The court also
recognized that the said Act intends to bring about social reforms and further held that
confernment of social status of legitimacy on innocent children is the purpose of this section.

In the case of Bharatha Matha& Anr v. R.Vijaya Renganathan & Ors21 it was held that in
view of provisions of Section 16 of the Hindu Marriage Act, 1955 the two children born out
of the live-in- relationship were entitled to inherit the property of their father.

16
Gur Narain Das v. Gur Tahal Das AIR 1952 SC 225
17
Sada Shiv v. Bala AIR 1972 Bom 164
18
Bakulbhai & Anr v. Gangaram & Anr (1988)SC 787
19
Smt. Gurnam Kaur & Anr v. Puran Singh & Ors 1996 SCC (2) 567
20
Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) & Ors v. K. Devi and Ors (1996) 4 SCC 76
21
Bharatha Matha & Anr v. R. Vijaya Renganathan & Ors (2010)

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Rameshwari Devi v. State of Bihar22 the court held that under Section 16 of the Hindu
Marriage Act , children of void marriage are legitimate. Under the Hindu Succession Act,
1956, property of a male hindudying estate devolve firstly by his widow and son and son’s
son and if son dies then his widow is entitled of the share.

Shanta Ram v. Smt . Dargubai23 the Bombay High Court observed that the children of void
marriages would be deemed legitimate, irrespective of the decree of nullity although they
would not require the right to succession to the same extent as is available to the children of
valid marriage.

“ The wordings of Section 16 of the Hindu Marriage Act, in so far as it is relevant to a

marriage void under Section 11, lead to an anomalous and starting position which could not
have been contemplated by the legislature. The position and status of a child of void
marriage should obviously be the same whether the marriage is declared nullity under
section 11 or otherwise”24.

ISSUE 3: WHETHER THE GIFT MADE BY ROSHESH IN FAVOUR OF BICKY’S CHILDREN IS

VALID.

The legal position that a gift by a coparcener of his undivided interest in the coparcenery
property without the consent of the other coparcener is void.

Referring to the above mentioned statement the gift made by Roshesh in favour of Bicky’s
children is not valid because Roshesh allotted his share to Bicky’s children without the
consent of other coparceners since the property is the undivided property and until the
partition is not enforeced of the undivided property the deed will be void. Therefore the gift
provided by the Roshesh to Bicky’s children is void.

A settled law that a coparcener can make a gift of his undivided interest in the coparcenery
property to another coparceners or to the stranger with a prior consent of all the coparceners
such a gift is legal and valid.25

It is not competent to an individual member of a Hindu family to alienate by way of gift his
undivided share or any portion thereof; and such an alienation, if made is void in toto.26

22
Rameshwari Devi v. State of Bihar 2000
23
Shnata Ram v. Dargubai
24
Thrumurthi Ranayammal v. Thrumurthi Muthamal
25
Thamma Venkata Subamma v. Thamma Ratamma AIR 1987 SC 1775
26
Baba v. Timma ILR 7 Mad 281.

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In the case of Munnilal Mehta v. Chandeshwar Mahto27 , the gifts by a coparcener of his
coparcenery interest prior to partition is void and unenforceable. The gift of coparcener of
their coparcenery property in joint family property without the consent of other coparceners
is void.

No coparcener can dispose of his undivided interest in coparcenery property by gift. Such
transactions being void altogether. The donor however can make a gift of his interest with the
consent of the other coparcener.28

Seeing the present case with the another way it can be contended , that at the time of making
the gift deed, the family was joint and the property was joint family property, which means
that the partition of the property had not takenplace.In such circumstances, a coparcener
cannot predict the exact share of his or he will life. Hence the share which doesnot belong to
the donor cannot be transferred further to any other person by either of the ways.

K.C. Laxmana v. Chandrappa29 According to the Mitakshara law as applied in all states no
coparcener can dispose of his undivided interest in coparcenary property by gift.

The transaction regarding disposal of undivided interest in coparcenary property by gift is

void altogether, there is no estoppels or other kind of personal bar which precludes the donor
from asserting his right to recover the transferred property.30

ISSUE 4 : WHETHER THE DAUGHTERS OF KAMLESH ARE ENTITLED TO GET ANY SHARE

IN UNDIVIDED PROPERTY.

In the case of Pushpalatha N.V. v. V. Padma31 In the light of Art 254(1) of the constitution ,
the state amendments in so far as they are inconsistent with the Central Amendments and the
Central Amendment would prevail over them even though it was passed later in point of time
that all the daughters would be coparceners immaterial that they are married or unmarried.

In the case of Radhika v. Anguram32 the court holding that presently all daughters irrespective
of their marital status are coparceners in the same manner as sons made the following
observation: Daughter’s marriage would not put an end to to the right of the daughter to

27
Munnilal Mehta v. Chandeshwar Mahto
28
Ponnuchami Servai v. Bal Subramanian AIR 1982 Mad 281
29
K.C. Laxmana v. Chandrappa AIR 2009 Kant 12: (2009) 1 Kar LJ 602
30
Venkatappaya v. Raghavayya AIR 1951 Mad 318
31
Pushpalatha N.V. v. V. Padma AIR 2010 Karn 124
32
Radhika v. Anguram AIR 2010 AP 377

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coparcenary property which she acquired by birth. There cannot be a distinction between a
son and a daughter on grounds of marital status.

In the case of Ganachari Veeraiah v. Ganachari Shiva Ranjani33 it was held that the right of
the married daughter to demand a partition of the coparcenary property after the amendment
of 2005 is absolute and not subject to any rider. The right to ask for partition of coparcenary
property cannot be defeated.

The Supreme Court recently in the case of Vineeta Sharma v. Rakesh Sharma (Civil
Appeal Diary No.32601 of 2018) held that daughters would hold equal coparcenary rights in
Hindu Undivided Family (HUF) properties even if they were born before the 2005
amendment to the Hindu Succession Act, 1956 (Act) and regardless of whether their father
coparcener had died before the amendment. Need of this judgment arose to bring the clarity
on the scope and application of amended section 6 of the Act which deals with devolution of
interest in coparcenary property and to resolve the ambiguity in the interpretation of said
section on account of two conflicting judgments passed by the Supreme Court in the case of
Prakash & Ors. v. Phulavati & Ors. [(2016)2SCC36] (Phulavati Case)
and  Danamma@ Suman Surpur & Anr. v. Amar & Ors. [(2018) 3 SCC 343] (Danamma
Case).

Hence it is clear that the daughters of Kamlesh are entitled for partition as coparceners.They
cannot be denied to plead for claiming partition after the death of their father.

33
Ganachari Veeraiah v. Ganachari Shiva Ranjani AIR 2010 NOC 351(AP)

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PRAYER

In the light of the issues raised, arguments advanced, authorities cited, it is respectfully
prayed before the Hon’ble District Court to adjudge & declare that:

 The widow of Chandu and Bishnu may have a right to claim a share in undivided
property.
 Tufaan and Ameer may be considered as a coparcener for claiming a share in
undivided property
 The gift made by Roshesh in favour of Bicky’s children may not be valid.
 The daughters of Kamlesh may be entitled to get any share in undivided property.

And / Or

Any other order which deems fit in the interest of Justice, Equity & Good Conscience.

Counsel for Plaintiff

Date: 8th April 2021

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18