JUDGMENT : Appellants/plaintiffs (Legal Representatives of the original appellant/plaintiff Girdhari) have preferred this appeal under Section 100 of the Code of Civil Procedure being aggrieved with the judgment and decree dated 16.07.1997 passed by the First Additional District Judge to the Court of District Judge, Tikamgarh in Civil Appeal No. 27-A/1989. 2. The appellate court decided the appeal preferred by the respondents/defendants under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure and reversed the finding given by the trial court in Civil Suit No. 92-A/1988, which was decided vide judgment and decree dated 10.07.1989. 3. This appeal was heard on admission and vide order dated 19.02.1998, this Court admitted the appeal on the following substantial questions of law: 1. Whether, the son, who has separated after partition, can claim a share in the coparcenary property of the father and another son, who remained joint after partition under Section 6 of the Hindu Succession Act? 2. Whether, the suit was rightly held to be barred by limitation by the lower appellate court? Thereafter, by order dated 07.11.1998, the High Court granted stay, recorded undertaking that the respondent Nos.1 and 2 shall not alienate the suit property during pendency of appeal. 4. To adjudicate the appeal on the substantial questions of law framed by this Court, it is necessary to consider the facts of the case in brief, which are as under: 5. The original appellant Girdhari Lodhi and late Nanhe Lodhi were the real brother and they were son of late Tanse Lodhi. Late Nanhe Lodi was unmarried and died without leaving any legal heir and Tanse Lodhi also died. During lifetime of Tanse, who was dealing with the coparcenary property as a Karta of the family, an oral partition took place somewhere in the year 1972 among them and in the said partition, plaintiff Girdhari Lodhi and Tanse were given the land of Village Bachoda and Nanhe was given the land of Village Phuter Chakra. Tanse and Girdhari resided jointly and they formed a joint family. After the death of Tanse in the year 1975, Nanhe sold some portion of the land of Village Bachoda by a registered sale deed dated 12.04.1979 in favour of defendant Nos.1 and 2, who are respondent Nos.1 and 2 herein. 6. A suit was filed by Girdhari for declaration and injunction. After the death of Tanse in the year 1975, Nanhe sold some portion of the land of Village Bachoda by a registered sale deed dated 12.04.1979 in favour of defendant Nos.1 and 2, who are respondent Nos.1 and 2 herein. 6. A suit was filed by Girdhari for declaration and injunction. The declaration was sought that the sale deed executed in favour of defendant Nos.1 and 2 by Nanhe on 12.04.1979 be declared null and void because the land of Village Bachoda owned and possessed by Girdhari, and Nanhe had no right to execute the sale deed in relation to the land of Village Bachoda. As per the plaintiff-Girdhari, by way of an oral partition took place in 1972, one share was given to his father Tanse and him and another was given to Nanhe. The land of Village Bachoda described in para 3 of the plaint came in the share of Tanse and Girdhari and the land of Village Phuter Chakra described in para 4 of the plaint came in the share of Nanhe. As per the plaintiff-Girdhari, after the death of Tanse, Nanhe could not claim any share in the said property because originally the property of Village Bachoda and Phuter Chakra was being managed by Tanse and the said property was partitioned between Tanse, Girdhari and Nanhe and as such they owned and used the property in question and acted on the said partition. Nanhe got the land of Village Phuter Chakra in his share and, therefore, whatever right he had acquired that was over the land which came in his share i.e. Phuter Chakra. Therefore, the plaintiff sought declaration to declare the sale deed executed by Nanhe in respect of the land relating to Village Bachoda null and void. 7. The defendants filed their written statement and denied the averments made in the plaint and taken a stand that the land of village Phuter Chakra purchased by Nanhe by his own and, therefore, the said land was not the part of coparcenary property, but the land of Village Bachoda was the coparcenary property and after the death of Tanse, Nanhe also got share in the said land and as such he executed the sale deed of the said land, which, according to Nanhe, came in his share. The defendants also taken a ground that the suit was barred by time because the sale deed was executed in the year 1979, which was in the knowledge of the plaintiff Girdhari, but, he filed the suit on 27.07.1982. 8. The trial court framed as many as four issues and four additional issues. The trial court vide judgment and decree dated 10.07.1989 partly allowed the suit and declared that the plaintiff Girdhari owned and possessed the land belonging to village Bachoda and also directed the defendants not to interfere in the land belonging to Village Bachoda. The trial court also declared the sale deed executed by late Nanhe in respect of the land of Village Bachoda as null and void because Nanhe had no share in the said land as after getting the coparcenary property partitioned among Tanse, Girdhari and Nanhe, the land of Village Phuter Chakra came in the share of Nanhe and the land of Village Bachoda came in the share of Tanse and Girdhari, who formed a joint family and as such after the death of Tanse, Nanhe had no share in the said property. 9. An appeal was preferred by the defendants namely, Chakki and Rajaram challenging the judgment and decree dated 10.07.1989 passed by the trial court in the civil suit. 10. The appellate court reversed the judgment and decree passed by the trial court and dismissed the suit holding that the same is barred by time as the plaintiffs had knowledge about the sale deed dated 12.04.1979 and the suit was filed on 27.07.1982. The appellate court has also reversed the finding of the trial court with regard to the declaration made by the trial court in favour of the plaintiffs. The appellate court has given finding that when partition took place between Tanse, Girdhari and Nanhe, the land of village Bachoda came in the share of Tanse and Girdhari and, therefore, when Tanse died, his share should be divided into two equal share between his two sons namely Girdhari and Nanhe. The appellate court has given finding that when partition took place between Tanse, Girdhari and Nanhe, the land of village Bachoda came in the share of Tanse and Girdhari and, therefore, when Tanse died, his share should be divided into two equal share between his two sons namely Girdhari and Nanhe. The appellate court also said that Tanse, Girdhari and Nanhe belonged to Hindu community and as such they governed by Mitakshara Law and as per the Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act of 1956’), since the total land before partition was apparently the property of Tanse, therefore, as per the provision of Section 6 of the Act of 1956, after the death of Tanse, his property should have been divided into two equal share between his two sons namely Girdhari and Nanhe. The appellate court, therefore, observed that the sale deed executed by Nanhe in respect of the land of Village Bachoda is proper and as such reversed the finding given by the trial court in that regard. 11. Shri Tiwari appearing for the appellant has submitted that the finding regarding oral partition of 1972 since approved by both the courts below, as such, it is clear that the property, which was being managed by Tanse, though his parental property, but, with the consent of coparcenars namely Tanse, Girdhari and Nanhe the said property partitioned into two shares. One share was given to Nanhe i.e. the land of Village Phuter Chakra and other was given jointly in favour of Tanse and Girdhari i.e. land of Bachoda. He has submitted that since this partition has not been disputed and approved by both the courts below, therefore, the finding given by the appellate court of further dividing the said property after the death of Tanse is contrary to law. He submits that after the partition took place in the year 1972 of a coparcenary property, Tanse and Girdhari formed a joint family and, therefor, after the death of Tanse, the said share of the property cannot be further divided. He has further submitted that the appellate court has also erred in dismissing the suit holding the same as barred by time. He has further submitted that the appellate court has also erred in dismissing the suit holding the same as barred by time. For justifying his submission, learned counsel for the appellants has placed reliance upon a judgment reported in 1988-II MP Weekly Note 244-Abdul Aziz vs. Abdul Gaffar in which the High Court has observed that there would be no limitation for filing the suit to challenge the void and sham sale deed. 12. Since nobody appeared on behalf of the respondents to rebut the submission made by the learned counsel for the appellant, therefore, on the basis of submission made by the learned counsel for the appellant and after perusal of record, I am of the opinion that there is no quarrel between the parties with regard to partition of coparcenary property of Village Bachoda and Phuter Chakra among Tanse, Girdhari and Nanhe. It is also an admitted position that in the said partition Nanhe got the land of village Phuter Chakra as per his share and Girdhari and Tanse got the land of village Bachoda in their share and as such they formed a joint family and separated Nanhe from their family and it is clear that after the death of Tanse, Nanhe being a separated son would not get any share over the said property and as such finding given by the appellate court reversing the finding of the trial court is, therefore, not sustainable in the eyes of law. 13. The existing factual position of the case would be governed by Section 6 of the Act of 1956, which reads as under:- [6. Devolution of interest in coparcenary property.?(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,? The existing factual position of the case would be governed by Section 6 of the Act of 1956, which reads as under:- [6. Devolution of interest in coparcenary property.?(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,? (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenery property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,? (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation. - For the purposes of this subsection, 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. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect? (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted. Explanation. - For the purposes of clause (a), the expression “son”, “grandson” or “greatgrandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. Explanation. - For the purposes of clause (a), the expression “son”, “grandson” or “greatgrandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.? For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]” Explanation 2 of Section 6 deals with the position and clarifies that the separated son would not get share in the property of Hindu Mitakshara coparcener, who had taken the share in the property, which was already partitioned before his death. 14. Various High Courts of the country have also considered the aforesaid aspect. The High Court of Andhra Pradesh in the case of Ganta Appalanaidu v. Ganta Narayanamma and others reported in AIR 1972 AP 258 while dealing with the same issue in paragraph 5 has observed as under:- “5. Explanation 2 to section 6 also does not help the defendants in the present case. According to the proviso to Section 6 the interest of a male Hindu in coparcenary property shall not devolve by survivorship if there is a female relative specified in class (1) of the Schedule or a male relative specified in that class who claims through such female relative. That is to say, even though the property is coparcenary property which should devolve on the surviving coparceners in accordance with the main provision of Section 6, it shall not so devolve if there is a female relative specified in class (1) etc. In such an event, the property shall devolve by testamentary or intestate succession as the case may be. Explanation 2 provides that a separated member of the coparcenary cannot take advantage of the proviso to claim a share in property. An example will make the position clear. Suppose A dies leaving a divided son B, an undivided son C and a widow D. At the time of his death A and C alone are members of a coparcenary. Explanation 2 provides that a separated member of the coparcenary cannot take advantage of the proviso to claim a share in property. An example will make the position clear. Suppose A dies leaving a divided son B, an undivided son C and a widow D. At the time of his death A and C alone are members of a coparcenary. On A's death his half share in the coparcenary property shall not go by survivorship to C since there is a female relative specified in Class 1. It shall devolve by intestate succession. The two sons and the widow will be heirs but Explanation 2 excludes the divided son B. The result therefore is that the half share of A in the coparcenary property shall devolve by intestate succession on C, his undivided son and D, his widow. That is all the effect of the explanation. Where property which ought to devolve by survivorship on an undivided coparcener under the main provision of Section 6 devolves on the heirs as if on intestacy because of the existence of the female relative etc. mentioned in the proviso to Section 6. the explanation provides that the divided coparcener, nonetheless, shall not claim as an heir. The explanation does not, however, prevent a divided son from claiming succession on intestacy if there is no person on whom the property can devolve by survivorship in accordance with the provisions of Section 6. Section 8 applies to every case of Hindu dying intestate leaving no one on whom the property can devolve by survivorship. (emphasis supplied) Further in the case of Basavalingamma (deceased by L.R.’s) and others reported in AIR 1984 Karnataka 27 also the High Court observed as under:- “13. It is an equally well established principle of Shastric law that if a coparcener separates from the coparcenary voluntarily, he would not then be entitled to claim any right by survivorship on the death of any of the remaining coparceners living in undivided status. It is that principle which is in my considered view, embodied in explanation, stating that any female heir claiming through a separated deceased coparcener would not be entitled to claim any share on the death of one of the remaining coparceners. (emphasis supplied) 14. The learned Counsel for the appellants, however, presented a different gloss to the explanation to the proviso. (emphasis supplied) 14. The learned Counsel for the appellants, however, presented a different gloss to the explanation to the proviso. He invited my attention to the peculiar wordings of the explanation. He submitted that the legislature in its wisdom has used the word ‘a person’ in the context “Nothing contained in the proviso to 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”. He submitted before me that if it were the intention of the legislature that ‘a person’ referred to therein should refer to a coparcener, the legislature would have used the word ‘a coparcener’ instead of using the word ‘a person’. There is no doubt some semblance of force in the submission so made. The clause further qualifies the person. It states: “a person who separated himself from the coparcenary”. Having regard to the structure of the clause and its grammatical syntax, it was not necessary for the legislature to use the term a coparcener instead of ‘a person’. The reason is not far to seek. A female heir would have no occasion to separate herself from the coparcenary, because even under the amended law a female is never given a status of a coparcener. The definition of coparacenary is left unchanged. The same concept is retained in the amended Hindu Law as in the Shastric Law. The question of separating from the coparcenary arises only when a person is a member of the coparcenary. A person who is never given status as a coparcener has no occasion to separate himself or herself from the coparcenary. The sentence has to be read as a whole and reading the sentence as a whole and in its proper gramatical setting, I am satisfied that the explanation speaks of ‘a coparcener’ who has separated himself from the coparcenary before the death of the deceased or any of his heirs and it does not refer to a female heir who has separated from the coparcenary. The view that I am taking finds full support in an earlier Division Bench decision of this Court in the case M.V. Shivaji Rao Kore v. Rukminiyamma [A.I.R. 1973 Mys. 113.]. The view that I am taking finds full support in an earlier Division Bench decision of this Court in the case M.V. Shivaji Rao Kore v. Rukminiyamma [A.I.R. 1973 Mys. 113.]. His Lordship Justice E.S. Venkataramiah, J. as he then was of this court, who spoke for the Bench, discussing the scheme of Section 6 has observed thus: “Explanation 2. Only reproduces the law which was already in force before the Act cameinto force as understood by some High Courts in India. A son who is divided from a family was not entitled to claim a share in the property of the father on his death if there were undivided son or sons living with him at the time of his death. Explanation 2 does no more than incorporating the same principle of law in the Act. It states that the proviso to Section 6 would not enable 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 estate of the deceased. It declares that the disability which a divided member was suffering from continues to be operative even after the Act comes into force. The principle underlying the said view of law is that persons who continue to remain joint with other members of the family should be preferred in the matter of intestate succession to a person who has gone out of the family by taking away his share. Probably that was considered to be in consonance with the notions of the joint family system prevailing in India. The said disability was a consequence of a voluntary act on the part of the separated member.” Elaborating the point, further, His Lordship at the end of the next para has observed thus: “Explanation 2 should be confined only to those cases where a coparcener has gone out of the family on account of his voluntary act and should not be extended to cases where by operation of law certain persons become entitled to a share of the joint family property of a deceased coparcener.” Thus, His Lordship specifically draws a distinction between female heirs getting share by operation of law and a coparcener who has voluntarily separated from the coparcenary. His Lordship has very clearly laid down that Explanation-2 to Section 6 would not apply to the case of a female heir who by operation of law gets a share in the estate of the deceased coparcener. It is no doubt true that this Court in the case Neelawwa v. Basappa [A.I.R. 1982 Karnataka at page 126.] has ruled that with regard to the calculation of the quantum of share of the female heirs, M.V. Shivaji Rao's case does not hold the field as it is not in consonance with the decision of the Supreme Court in the case Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [ (1978) 3 SCC 383 : A.I.R. 1978 S.C. at page 1239.] . But, so far as the explanation offered and the light shed on the interpretation of Section 6 and proviso read with explanation-2 is concerned, the ruling stands and I am bound by it.” (emphasis supplied) 15. Thus, from a thoughtful consideration of the facts and circumstances of the case and the cases cited above, it is clear that the appellate court acted wrongly and erroneously reversed the finding given by the trial court in respect of the decree of declaration made in favour of the plaintiff relating to land of Village Bachoda. Therefore, the said part of the judgment of the appellate court is hereby set aside and the finding given by the trial court in the civil suit granting decree of declaration in favour of the plaintiff is maintained. 16. As far as the finding given by the appellate court dismissing the suit saying that the same was barred by time is concerned, from perusal of the judgment and decree passed by the trial court, it is clear that the trial court did not fram any issue with regard to limitation and even after passing the decree when appeal was preferred by the defendants, they did not raise any ground that the trial court has committed error in not framing the issue of limitation or committed any error in not dismissing the suit on the ground of limitation. Therefore, dismissing the suit by the appellate court without there being any dispute with regard to point of limitation and without giving any opportunity to appellant/plaintiff to make his submission on the said point does not appear to be just and proper. Therefore, dismissing the suit by the appellate court without there being any dispute with regard to point of limitation and without giving any opportunity to appellant/plaintiff to make his submission on the said point does not appear to be just and proper. Even otherwise, in the case of Abdul Aziz (supra) on which the learned counsel for the appellant has placed reliance the High Court has held as under: “In my view, Art. 59 of the Limitation Act is not attracted in the present case. A void and sham document which is said to be executed in violation of law need not be cancelled because it does not exist at all in the eye of law. The parties to the document do not intent to make the document operative. The declaration sought for in such cases is only that the document is not binding on the parties. The right of the plaintiff is not effected by failure to get the document cancelled or set aside (please see: Chandhala Bewa v. Madhab Panda and other AIR 1961 Orissa 100, Mt.Basant Kaur v. Ramsingh AIR 1939 Lahore 544). In this view of the matter, Article 59 of the Limitation Act had no application. The suit in fact is based on title for possession and incidently a declaration sought for that the document executed by the plaintiff was not binding on him. What is to be seen in the plaint is not the form but the substance. The crucial date in the suit would be the date when the defendant took possession of the land. The execution of the sale deed in favour of the defendant would be of no consequence. The doctrine of ‘pari delicto’ is attracted only where the cause of action itself is founded on some illegal or fraudulent transaction to which according to the averments in the plaint both the plaintiff and the defendant were parties. In other words, it must be shown that the plaintiff could not sustain his action except upon the of illegality committed by him. Here the plaintiff’s suit based on title and the help of the Court was not sought to effectuate an illegal or fraudulent purpose but rather to enforce the plaintiff’s title which was based on the ground that the sale deed in favour of the defendant was bogus document. Here the plaintiff’s suit based on title and the help of the Court was not sought to effectuate an illegal or fraudulent purpose but rather to enforce the plaintiff’s title which was based on the ground that the sale deed in favour of the defendant was bogus document. It is the defendant who would claim title on the basis of the said document which the plaintiff has to prove to be bogus, void, ineffective and not binding on him. (Please see Dalchand v. Baburam and others AIR 1981 All. 335 ).” 17. Hence, as per the view taken by the High Court and as has been observed hereinabove that Nanhe had no right to execute the sale deed in respect of the land belonged to village Bachoda, dismissing the suit by the appellate court on the ground of limitation is also not proper and valid and the finding given in that regard is contrary to law, illegal and is liable to be set aside and accordingly the said finding is also set aside. 18. In view of the above, the substantial questions law framed by this Court are accordingly answered. The impugned judgment and decree dated 16.07.1997 passed in Civil Appeal No. 27-A/1989 by I Additional District Judge to the Court of District Judge, Tikamgarh is hereby set aside restoring the judgment and decree dated 10.07.1989 passed by the trial court in Civil Suit No. 92-A/1988. 19. The appeal is accordingly allowed. No order as to cost.