JUDGMENT 1. This second appeal is directed against the judgment & decree dated 13-4-99 passed by the 3rd Additional District Judge, Raipur in Civil Appeal No.6A/98 affirming the judgment & decree dated 6-11-96 passed by the 1st Civil Judge Class- II, Raipur in Civil Suit No.146A/91, whereby learned 1st Civil Judge Class-II has decreed the suit filed on behalf of respondent Derha for partition, possession & means profit of the suit land by declaring him entitled for 1/3rd share. 2. Judgment of the Court is challenged on the ground that the Court below has not considered the important legal issue that after the death of coparcener Phannuram, interest of Phannuram has devolved upon the surviving coparcener appellant No.1 Vishal and thereby, committed illegality. 3. Undisputed facts of the case are that father of appellant No.1 Vishal namely Phannuram, who was a coparcener, died on 22-6-1959 leaving behind his son appellant No.1 Vishal & daughter Kejabai from second wife deceased Ganga Bai and daughter Kesar Bai from first wife deceased Dukalhin Bai. Present respondent Derha is son of deceased Kesar Bai. Parties are governed by Mitakshara school of Hindu Law. Property shown in Schedule A, decree of civil Court i.e. 10.46 acres situated at Village Dhaneli, Patwari Halka No.117 was the ancestral property. According to the case of the respondent/plaintiff and his mother deceased Kesar Bai, deceased Phannuram was member of undivided Hindu family consisting of his nephew Ramnath and elder sister-in-law (Bhabhi) Manbat Bai. 24.64 acres of agricultural land was recorded in the name of undivided Hindu family including the lands shown in Schedule A. After the death of Phannuram in the year 1959, the property was partitioned between the appellants & nephew of Phannuram on 12-3-1964 and the property shown in Scheduled A was given to appellant No.1 Vishal. Respondent Derha & his mother deceased Kesar Bai have contested the claim by filing written statement in which Kesar Bai has specifically alleged that at the time of death of Phannuram, he was member of undivided joint Hindu family consisting of his elder sister-in-law (Bhabhi) & nephew Ramnath. Respondent Derha & his mother deceased Kesar Bai have contested the claim by filing written statement in which Kesar Bai has specifically alleged that at the time of death of Phannuram, he was member of undivided joint Hindu family consisting of his elder sister-in-law (Bhabhi) & nephew Ramnath. The present respondent & his mother have claimed 1/3rd share in the property as successors of Phannuram, but the present appellants have denied the claim of deceased Kesar Bai & her son Derha on the ground that in lieu of the share of Kesar Bai money was paid to Kesar Bai, therefore, she was having no interest over the property left by Phannuram. 4. Both the parties have specifically admitted that at the time of the death of Phannuram, he was member of undivided Hindu family and was also coparcener along with his nephew, and his son Vishal was also in existence. Both the parties had also admitted that the property was a coparcener property. On the basis of pleading and evidence adduced on behalf of the parties, learned 1st Civil Judge Class-II, Raipur has decreed the suit and declared 1/3rd share of Derha i.e. the son of Kesar Bai as successor of Phannuram which was affirmed in the appeal vide the judgment & decree impugned. 5. This appeal was admitted for consideration on the following substantial questions of law: - "(1) Whether the learned courts below erred in law in appreciating the law relating to Hindu Succession Act? (2) Whether the plaintiff is entitled for 1/3 share in house property, mentioned in Schedule `B', as per section 23 of Hindu Succession Act?" 6. I have heard learned counsel for the parties and perused the impugned judgment as also the records of the Courts below. 7. Learned counsel for the appellants submitted that Phannuram, father of the appellants, died on 22-6-1959, he was coparcener along with appellant No.1 Vishal and nephew Ramnath. After the death of Phannuram, his interest in the coparcener property was devolved by survivorship upon the surviving members of the coparcenery i.e. upon Ramnath & Vishal. Daughters of Phannuram were not entitled for any right or interest over the property. Learned counsel further submitted that after the death of Phannuram, interest of Phannuram has been inherited by the sole male member i.e. coparcener Vishal, Kesar Bai & Keja Bai were not entitled for any share over the property. 8. Daughters of Phannuram were not entitled for any right or interest over the property. Learned counsel further submitted that after the death of Phannuram, interest of Phannuram has been inherited by the sole male member i.e. coparcener Vishal, Kesar Bai & Keja Bai were not entitled for any share over the property. 8. On the other hand, judgments of the Courts below have been supported by learned counsel for the respondent. Learned counsel for the respondent submitted that after the death of Phannuram, his property was inherited by surviving members of his family in accordance with Section 8 of the Hindu Succession Act, 1956 (for short `the Act, 1956') i.e. by Vishal, Keja Bai & Kesar Bai. All the three surviving members are entitled for 1/3rd share, each, of the property and the Court below has rightly decreed the suit in favour of Derha, S/o Kesar Bai, entitling him for 1/3rd share over the property. Learned counsel placing reliance in the matter of Gurdev Kaur and others v. Kaki and others1 submitted that the scope of interference in second appeal is limited and the High Court can interfere there under only where substantial questions of law are involved and have been formulated in the memorandum of appeal. Learned counsel also submitted that even before the amendment in the Code of Civil Procedure, the scope of such inference was limited and did not extend to interference with concurrent findings of fact. Learned counsel further submitted that concurrent findings of fact of the two Courts below are not liable to be disturbed on any heavy critical ground and the appellants have not been able to show any substantial question of law involved in this case, therefore, the appeal is liable to be dismissed on this ground alone. Learned counsel further placing reliance in the matter of State Bank of India and others v. S.N. Goyal2 submitted that substantial question of law is a question of law which affects the final decision in a case. A question of law which arises incidentally or collaterally, having no bearing on final outcome, will not be a substantial question of law. Learned counsel further placing reliance in the matter of State Bank of India and others v. S.N. Goyal2 submitted that substantial question of law is a question of law which affects the final decision in a case. A question of law which arises incidentally or collaterally, having no bearing on final outcome, will not be a substantial question of law. Learned counsel also placed reliance in the matter of Chandradatta Shankardatta and others v. Sanatkumar Laxman Prasad and others3 in which it has been held by the M.P. High Court that "on the death of a coparcener, if he is survived by female or male relative as is specified in the proviso to Section 6, by operation of the Explanation I to that proviso, a notional partition is deemed to have been effected immediately before the death of such coparcener, by which the share of the deceased is separated. The share so separated thus devolves, by virtue of the proviso, on the personal heirs of the deceased instead of vesting in the other coparceners by survivorship". Learned counsel further placed reliance in the matter of Shyama Devi (Smt) and others vs. Manju Shukla (Mrs.) and another4 in which the Apex Court has held that in the case of death of a male coparcener leaving behind his widow, four daughters and two sons, proviso along with Expln. I to S. 6 of the Act, 1956 will come into play and interest of the coparcener would devolve by intestate succession under the Act, 1956 upon his heirs. Learned counsel also placed reliance in the matter of Ramabai Padmakar Patil (dead) by LRs and others v. Rukminibai Vishnu Vekhande and others5 in which it has been held by the Apex Court that in case of death of father in 1957 after coming of the Hindu Succession Act in force, mother and daughters would get equal share in the property. Learned counsel further placed reliance in the matter of Bhanwar Singh v. Puran and others6 in which it has been held by the Apex Court that in case of coparcener already separated/partitioned their properties, provision regarding devolution of property in coparcenary property in accordance with Section 6 of the Act, 1956 has no application and all the succeeding heirs succeed to their respective shares not as joint tenants but as tenants-in-common. The property devolves upon them not per stirpes but per capita with the right to alienate the share, particularly when the property has been partitioned and entries made in the revenue record of rights. 9. In this case, according to the pleadings of the appellants & respondent/plaintiff Derha, deceased Phannuram was member of coparcenary with his nephew & son Vishal during his lifetime. Phannuram died on 22-6-1959 leaving behind his one daughter Kesar Bai, mother of respondent Derha, from first wife Dukalhin Bai, one son appellant No.1 Vishal and another daughter Keja Bai from second wife Ganga Bai. Phannuram died in the state of joint-ness i.e. as a member of coparcenary having coparcenary property in which admittedly he was entitled for 1/3rd share of about 8.01 acres of revenue land and dwelling house. According to the case of the plaintiff, the property was partitioned in the year 1964. In case of succession if a male Hindu member of coparcenary property in the Mitakshara dies having an interest in the Mitakshara coparcenary property, his interest will devolve in accordance with Section 6 of the Act, 1956. Section 6 of the Act, 1956 reads thus, "6. Devolution of interest in coparcenary property.-When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.-For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 1.-For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein." 10. According to Section 6 of the Act, 1956 if a coparcener having interest in the Mitakshara coparcenary property dies, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary and not in accordance with Section 6 of the Act, 1956. This is a common rule for succession in case of death of coparcener. According to the common rule, if a coparcener dies having an interest in the Mitakshara coparcenary property, his interest will devolve upon the other surviving coparceners. But according to the proviso to Section 6 of the Act, 1956, if such coparcener dies leaving behind surviving female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property, then his interest will devolve by testamentary or intestate succession, as the case may be, in accordance with the Act, 1956 and not by survivorship. This proviso is exception to general rule which says that if a coparcener dies having an interest in the Mitakshara coparcenary property leaving behind the surviving female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased, his interest will not devolve by survivorship, but in accordance with the provisions of the Act, 1956. 11. 11. In this case, according to pleading & evidence of both the parties, Phannuram was member of coparcenary property having interest in the property, he died in the year 1959 when the Act, 1956 was in force leaving behind surviving female relatives i.e. two daughters Kesar Bai & Keja Bai who are female relatives shown in the Schedule which reads as follows: - THE SCHEDULE (See section 8) HEIRS IN CLASS I AND CLASS II Class I Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre- deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre- deceased son of a pre-deceased son. Class II I. Father. II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister. III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter. IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter. V. Father's father; father's mother. VI. Father's widow; brother's widow. VII. Father's brother; father's sister. VIII. Mother's father; mother's mother. IX. Mother's brother; mother's sister. Explanation.-In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood. 12. In this case, at the time of death of Phannuram, two daughters & one son were alive, therefore, on his death, his property will devolve in accordance with the provisions of the Act, 1956 and not by survivorship. 13. As has been held by the Apex Court in the matter of State Bank (supra), substantial question of law means any question of law which affects the final decision in a case and not arises incidentally or collaterally, having no bearing on final outcome. Para 13 of the said judgment reads thus, "Second appeals would lie in cases which involve substantial questions of law. The word "substantial" prefixed to "question of law" does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. The word "substantial" prefixed to "question of law" does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. "Substantial questions of law" means not only substantial questions of law of general importance, but also substantial questions of law arising in a case as between the parties. In the context of Section 100 CPC, any question of law which affect the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the High Court concerned so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower Court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned), but the lower Court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the High Court concerned) and the same has been followed by the lower Court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case. Be that as it may." 14. In this case, substantial question of law for determination of the suit was whether after the death of Phannuram his interest will devolve by survivorship upon the surviving members of the coparcenary property or by testamentary or intestate succession under the Act, 1956. 15. According to Section 6 of the Act, 1956, Phannuram died leaving behind surviving female relative specified in class I of the Schedule i.e. wife, therefore, the property of Phannuram will devolve in accordance with the provisions of the Act, 1956 and not upon the surviving members of the coparcenary property. In accordance with Explanation 1 to Section 6 of the Act, 1956, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. 16. In the instant case, at the time of death of Phannuram other coparcener (his nephew) i.e. son of brother namely Ramnath, his son Vishal and wife i.e. relative specified in class I of the Schedule were alive. As has been held in the cases of Shyama Devi (supra) & Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others7, the Court is required to decide the share on the basis of notional partition and the share on succession after the death of coparcener. Para 4 of the judgment of Gurupad's case (supra) reads as follows: - "Another Division Bench of the Bombay High Court in Rangubai Lalji v. Laxman Lalji, 68 Bom LR 74 : (AIR 1966 Bom 169) had already reconsidered and dissented from the earlier Division Bench judgment in Shiramabai Bhimgonda, (AIR 1964 Bom 263). Para 4 of the judgment of Gurupad's case (supra) reads as follows: - "Another Division Bench of the Bombay High Court in Rangubai Lalji v. Laxman Lalji, 68 Bom LR 74 : (AIR 1966 Bom 169) had already reconsidered and dissented from the earlier Division Bench judgment in Shiramabai Bhimgonda, (AIR 1964 Bom 263). In these two cases, the judgment of the Bench was delivered by the same learned Judge, Patel J. On further consideration the learned Judge felt that Shiramabai was not fully argued and was incorrectly decided and that on a true view of law, the widow's share must be entertained by adding the share to which she is entitled at a notional partition during her husband's lifetime and the share which she would get in her husband's interest upon his death. In the judgment under appeal, the High Court has based itself on the judgment in Rangubai Lalji endorsing indirectly the view that Shiramabai was incorrectly decided." 17. In the light of Explanation 1 to the proviso to Section 6 of the Act, 1956, in case of notional partition in accordance with clause 305 of the Principles of Hindu Law every coparcener is entitled to a share upon partition along with widow of deceased. In this case, no widow was alive, therefore, interest of Phannuram was liable for partition between Phannuram and his son Vishal, as such, Vishal was entitled to + share just before the death of Phannuram and after the death of Phannuram, his share would devolve upon his heirs specified in the Schedule and Section 8 of the Act, 1956. 18. Appellant No.1 Vishal, his sister Keja Bai through second wife of Phannuram namely Ganga Bai & Kesar Bai, daughter of Phannuram through his first wife Duklalhin Bai, were the heirs of Phannuram at the time of his death, therefore, they will take equal share i.e. 1/3rd each of deceased Phannuram's interest i.e. each successor will take 1/3rd of half of the coparcenary property. After the death of Kesar Bai, her interest will devolve upon her son respondent Derha, therefore, at present Derha is entitled for 1/3rd of half i.e. 1/6th of the total share/interest of deceased Phannuram. Likewise, appellant No.2 Keja Bai would get 1/6th share. After the death of Kesar Bai, her interest will devolve upon her son respondent Derha, therefore, at present Derha is entitled for 1/3rd of half i.e. 1/6th of the total share/interest of deceased Phannuram. Likewise, appellant No.2 Keja Bai would get 1/6th share. Vishal would get 1/2 share on notional partition and 1/6th share after the death of his father, total 1/2 + 1/6 = 4/6 = 2/3 share of the interest of his father Phannuram over the coparcenary property. 19. Admittedly, deceased Kesar Bai, original plaintiff, was a female member as specified in class I of the Schedule of the Act, 1956. Special provision relating to dwelling houses is made in Section 23 of the Act, 1956. Section 23 of the Act, 1956 reads thus, "Special provision respecting dwelling house.-Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling- house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow." 20. In the light of the provisions of Section 23 of the Act, 1956, deceased Kesar Bai, original plaintiff, was entitled for residence/dwelling house, as a widow daughter of Phannuram, along with other members, but she was not entitled for separate share. In this case, Kesar Bai also died and her son Derha, who is a male member specified in the Schedule of the Act, 1956, has been impleaded as party, he is entitled for separate share of dwelling house in accordance with the provisions of Sections 8, 14, 15 & 23 of the Act, 1956. 21. In this case, Kesar Bai also died and her son Derha, who is a male member specified in the Schedule of the Act, 1956, has been impleaded as party, he is entitled for separate share of dwelling house in accordance with the provisions of Sections 8, 14, 15 & 23 of the Act, 1956. 21. On the basis of pleadings & evidence adduced on behalf of the parties, learned 1st Civil Judge Class-II, Raipur, had decreed the suit filed on behalf of Kesar Bai, who died subsequently and Derha was made as a plaintiff, and declared that Derha is entitled for 1/3rd share in the suit property and also the dwelling house, and that he is also entitled for the means profit. This was affirmed by the appellate Court vide the judgment & decree impugned. Both the Courts below have failed to consider the special provisions contained in Section 6 of the Act, 1956, relating to the death of a coparcener governed by the Mitakshara school of Hindu law leaving behind female member shown in the Schedule of the Act, 1956 and declared that Derha is entitled for 1/3rd share upon the property of Phannuram, and thereby committed illegality. Judgments & decrees of the Courts below are against the law and same are not sustainable under the law. Derha, S/o deceased Kesar Bai, is entitled only for 1/6th share of the suit property i.e. the agricultural land & the suit house, he is not entitled for 1/3rd share in the suit property or in the dwelling house. 22. For the foregoing reasons, the first substantial question of law is decided as positive and the second one is decided as negative with the explanation that plaintiff Derha is entitled for 1/6th share in the house property and the suit land (revenue land). Accordingly, the appeal is partly allowed. Judgments & decrees of both the Courts below are hereby modified and it is decreed that respondent Derha is entitled for 1/6th share over the suit property i.e. agricultural land & dwelling house shown in Schedules A & B of the plaint. 23. Parties shall bear their costs of the suit as well as of both the appeals. 24. Decree be drawn up accordingly. 25. Copy of the decree be sent to the Collector for partition of the revenue paying land under Section 54 of the Code of Civil Procedure, 1908. 23. Parties shall bear their costs of the suit as well as of both the appeals. 24. Decree be drawn up accordingly. 25. Copy of the decree be sent to the Collector for partition of the revenue paying land under Section 54 of the Code of Civil Procedure, 1908. Partition of the dwelling house may be affected by issuance of Commission for partition.