A pre-1956 coparcener’s undivided interest devolves by survivorship when other coparceners survive.

The plaintiffs sought a declaration that they were co-sharers in possession of the suit land and that the revenue entries showing the exclusive ownership and possession of the defendants were illegal, along with consequential injunction or, alternatively, possession.

The property originally belonged to Guljari, whose four sons—Bilkhi, Kharka, Lojan and Likhan Haara—were alleged by the plaintiffs to have inherited it equally. The plaintiffs claimed through Kaulan Devi, the daughter of Kharka, whereas the defendants claimed that Kaulan Devi had predeceased Kharka and therefore acquired no interest in the property.

The Trial Court found that Kaulan Devi died on 24 March 1952, before Kharka’s death on 4 April 1952, and held that the property devolved by survivorship under the traditional Mitakshara Hindu law applicable before the commencement of the Hindu Succession Act, 1956. It dismissed the suit.

The First Appellate Court agreed that Kaulan Devi had predeceased Kharka but held that Kharka was the sole surviving coparcener and that his property devolved by succession upon his heirs under paragraph 43 of Mulla’s Hindu Law. It consequently decreed the plaintiffs’ suit.

The defendants filed the present second appeal, which was admitted on three substantial questions of law.

Whether the interest of a coparcener who died before the commencement of the Hindu Succession Act, 1956, without leaving a male heir, devolved by survivorship upon the surviving coparceners or by succession upon his legal heirs?

Whether the suit challenging the revenue entries was maintainable when those entries had been incorporated pursuant to an earlier judgment and decree, including a compromise entered into on behalf of the minor plaintiffs through their legal guardian?

Whether the First Appellate Court misread the evidence and incorrectly applied the principles governing succession to the estate of a coparcener who died before the commencement of the Hindu Succession Act, 1956?

Under the traditional Mitakshara law, applicable to the deaths occurring before the Hindu Succession Act, 1956, an undivided interest in coparcenary property ordinarily devolves by survivorship upon the surviving coparceners rather than by succession upon the deceased coparcener’s heirs.

Mulla’s Hindu Law distinguishes between an undivided coparcenary interest, which passes by survivorship, and separate or self-acquired property, which devolves by succession; succession may also apply where the deceased was the sole surviving coparcener.

A coparcenary is characterised by unity of ownership, common possession and a fluctuating, undivided interest; no coparcener can claim a definite share until partition.

The Court relied on Manohar Lal Ganeriwal v. Bhuri Bai, (1973) 3 SCC 432, for the principle that property held by a purported sole surviving coparcener does not automatically become separate property while the joint family continues, and on SBI v. Ghamandi Ram, (1969) 2 SCC 33, for the incidents of Mitakshara coparcenary, including collective ownership and devolution of a deceased member’s interest by survivorship.

A compromise entered into by a minor through a duly authorised legal guardian, with court permission, is binding unless appropriately challenged; a party who does not challenge such decree after attaining majority cannot subsequently dispute consequential revenue entries.

The Court accepted the concurrent finding that Kaulan Devi had predeceased Kharka; however, the absence of a male heir did not by itself make Kharka the sole surviving coparcener.

The First Appellate Court had failed to account for the evidence, including mutation Ext. D4, showing that Sardha, Gayana and Bilkhi survived Kharka and that the mutation had been attested in their favour.

Since other members of the coparcenary were alive and there was no evidence of partition or disruption, Kharka’s interest remained part of the undivided coparcenary and devolved by survivorship, not succession under paragraph 43 of Mulla’s Hindu Law.

The Court also held that the plaintiffs were bound by the earlier compromise decree: the record showed that their legal guardian had acknowledged the compromise and that the court had granted permission to compromise on behalf of the minors. As the decree was never challenged after the plaintiffs attained majority, they could not maintain a subsequent challenge to the mutation based on that decree.

It further held that the earlier compromise decree and the revenue entries founded upon it were binding on the plaintiffs, rendering their challenge unsustainable.

The appeal was allowed; the First Appellate Court’s judgment and decree were set aside, and the Trial Court’s judgment dismissing the plaintiffs’ suit was restored.