Unproved Oral Partition Does Not Defeat Daughter’s Coparcenary Rights: Chhattisgarh High Court

The appeal arose from a suit for partition filed by the plaintiff claiming share in ancestral agricultural land.

A Bench of Justice Bibhu Datta Guru held, “In the absence of proof of a legally recognised partition, the plaintiff No.1 continues to be a coparcener in the ancestral property and is entitled to seek partition and separate possession. The denial of such right on the basis of an unproved oral partition gives rise to a substantial question of law warranting interference under Section 100 of the Code of Civil Procedure.”

Advocate Parag Kotecha appeared for the Appellants and Advocate Sanjay Patel appeared for the Respondents.

The Court set aside the concurrent judgments of the trial court and the first appellate court, which had dismissed the suit by applying the proviso to Section 6(1) of the Act.

The Court held, “From a plain reading of Section 6(1) of the Act, 1956, as amended by Act No.39 of 2005 on 09.09.2005, it is evident that a daughter of a coparcener becomes a coparcener by birth in the same manner as a son and is entitled to the same rights and liabilities in the coparcenary property. The object of the amendment is to remove gender-based discrimination and to confer equal coparcenary rights upon daughters.”

The defendants resisted the claim on the ground that the property had already been partitioned orally prior to the statutory cut-off date and that the plaintiff had been allotted land and a portion of the house during the lifetime of her father.

Rejecting this contention, the High Court observed that the proviso to Section 6(1) protects only those partitions which were effected either by a decree of a competent court or by a registered instrument prior to 20 December 2004. The Court noted that no registered partition deed or decree had been produced and that the partition pleaded by the defendants was admittedly oral in nature.

Relying on the Supreme Court’s decision in Vineeta Sharma v. Rakesh Sharma, 2020 the Court reiterated that a plea of oral partition cannot be accepted, as the statute recognises partition only when it is effected by a registered deed or by a decree of a court, except in rare cases supported by public documents, which were absent in the present case.

The Court held, “In the present case, the partition pleaded by the respondents is admittedly oral in nature. No registered partition deed has been produced, nor is there any decree of partition passed by a competent Court prior to the cut-off date. The alleged partition, relied upon by the respondents, is neither registered nor proved in accordance with law and, therefore, cannot be treated as partition in consonance with the provisions of sub-Section (1) of Section 6 of the Act, 1956.”

The Court further held that the alleged allotment of land and a portion of the house to the plaintiff during her father’s lifetime, even if accepted, could not be construed as a complete and final partition, but appeared to be only an arrangement for maintenance and residence.

The High Court also rejected the defendants’ plea that the marriage between the plaintiff’s parents had been dissolved by customary divorce, observing, “it is the trite law that the burden is on the party asserting such custom to specifically plead and strictly prove that the custom permits dissolution of marriage. In the present case, no such evidence has been placed on record.”

Holding that the denial of the daughter’s statutory right on the basis of an unproved oral partition was legally unsustainable, the Court concluded that the plaintiff continued to be a coparcener in the ancestral property and was entitled to seek partition and separate possession.

Accordingly, the appeal was allowed, the impugned judgments were set aside.

Cause Title: Amrika Bai v. Bhagwati Bai & Ors., [2026:CGHC:5150]

Appearance:

Appellants: Advocate Parag Kotecha

Respondents: Advocates Sanjay Patel, Lekhram Dhruv

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