Second Appeal No.791 of 2009

17th December, 2009

Petitioner Counsel: Mr. S. P. BRAHME
Respondent Counsel: Mr. A. P. BHANDARI,Mr. R. M. PARDESHI

Cases Cited:
Lata @ Bhagyashree Arunkumar Sangole Vs. Madhukar Rajaram Ganjare, 2008(5) ALL MR 302=2008(6) Bom.C.R. 445 [Para 8,15]
Smt. Bagirathi Vs. S. Manivanan, 2008(6) ALL MR (JOURNAL) 36=AIR 2008 Madras 250 [Para 8]
G. Sekar Vs. Geetha, 2009 ALL SCR 2476 : (2009)6 SCC 99 [Para 11,14]
Sheela Devi Vs. Lal Chand, 2007 ALL SCR 1632 : (2006)8 SCC 581 [Para 11]
Sugalabai Vs. Gundappa A. Maradi, ILR 2007 Karnataka 4790 [Para 12]
Smt. Kaushalyabai Biharilal Pateriya (Dead through L.Rs.) Vs. Hiralal Bhagwandas Gupta (Dead through L.Rs.), 2007(2) ALL MR 679 [Para 13]

JUDGMENT

JUDGMENT :- This appeal is heard finally at the preliminary stage and is being decided on consideration of the single substantial question of law involved therein.

2. There is no dispute about the relationship between the parties. There is also no dispute about the fact that the suit properties comprising of three (3) agricultural lands and a house property are the ancestral properties of the family and were held as such by deceased Dashrathsing. He died in 1998. Both the plaintiffs (Respondents) are the married daughters of deceased Dashrathsingh. They were born to his first wife by name Chandrakaur. There is no dispute about the fact that after death of said Chandrakaur, he had performed second marriage with the defendant No.1 (appellant No.1). The defendants Nos.2 and 3 (appellants No.2 and 3) are the sons born out of the second marriage.

3. The plaintiffs' case in the trial Court was that they are entitled to claim partition and separate possession in respect of the suit properties as the legal heirs of deceased Dashrathsing. They demanded partition but the step mother i.e. the defendant No.1 declined to effect the same. Consequently, they sought partition and separate possession to the extent of their 1/5th share each. They also sought mesne profits of Rs.2,000/- per year.

4. By filing their written statement (Exh.22), the defendants (appellants) disputed right of the plaintiffs to seek partition. They contended that the plaintiffs were not concerned with the suit properties which were self-acquired by Dashrathsing. They contended that the plaintiffs were married long back and, therefore, had no right to claim partition and separate possession. They submitted that after death of Dashrathsing, mutation entries were effected in their favour and thus they have acquired ownership of the suit properties. They sought dismissal of the suit with compensatory costs of Rs.5,000/- (Rupees five thousand).

5. The parties went to trial over issues struck by the trial Court vide Exh.23. The trial Court came to the conclusion that the plaintiffs were entitled to seek partition in respect of the suit properties as sought. The trial Court also held that they were entitled to recover Rs.8,000/- (Rupees eight thousand) towards damages and wrongful occupation of the suit properties to the extent of their due shares for the period between 1998 till 2000. Consequently, the suit came to be decreed. The first appellate Court confirmed the partition decree while dismissing the Civil Appeal No.80/2005.

6. The substantial question of law involved in this appeal is as follows :

"Whether in the facts and circumstances of the present case, the plaintiffs (Respondents) were entitled to separate shares by way of partition though they were married before 1994 and Whether the legal fiction created by amended Hindu Succession (Amendment) Act, 2005 is retrospectively applicable ?"

7. Heard counsel.

8. Mr. Brahme S. P. would submit that the succession had opened in the year 1998 when Dashrathsing died. He would submit that juxta-position at the time of the death of Dashrathsing ought to be considered. He contended that when there was no amendment of the Hindu Succession Act, at the relevant time, the division of shares was immediate without deference of the rights. He contended that the plaintiffs were the married daughters of deceased Dashrathsing and because their marriages were performed before commencement of the Maharashtra Amendment to the Chapter II of the Hindu Succession Act, 1956 vide Maharashtra Act No.39 of 1994, which came into effect on 22.6.1994, they were not entitled to any separate share in the ancestral properties of Dashrathsing. He seeks to rely on certain observations in "Lata @ Bhagyashree Arunkumar Sangole Vs. Madhukar Rajaram Ganjare & others", 2008(6) Bom.C.R. 445 : [2008(5) ALL MR 302] and "Smt. Bagirathi and others Vs. S. Manivanan and Another", (AIR 2008 Madras 250 : [2008(6) ALL MR (JOURNAL) 36]). He argued that on the death of Dashrathsing, the suit properties devolved on the defendants (appellants) by application of Section 6 read with Section 8 of the Hindu Succession Act. They could not be, therefore, divested of the suit properties only because of subsequent amendment in the Hindu Succession Act, by virtue of the amending Act No.39 of 2005. As against this, Mr. Bhandari and Mr. Pardeshi, learned advocates supported the impugned judgments.

9. Before I proceed to consider the legal aspects of the matter, it may be stated that the question has to be looked from two angles. First, it is necessary to examine whether the plaintiffs (respondents) would be entitled to seek partition in respect of the dwelling house of the family. Secondly, it is necessary to examine whether they are entitled to seek partition in respect of the suit lands. This bifurcation of focal points is necessary. Whether omission of Section 23 creates void till the enactment of Section 23-A also needs to be examined.

10. The succession opened when Dashrathsing died in the year 1998. There was Maharashtra Amendment Act applicable to the Succession Act, at the relevant time. The Plaintiffs being daughters of Dashrathsing were entitled to claim shares equivalent to the sons.

11. In "G. Sekar Vs. Geetha and others", (2009)6 Supreme Court Cases 99 : [2009 ALL SCR 2476], the Apex Court distinguished retrospective aspects from prospective aspects of the Hindu Succession (Amendment) Act, 2005. The Apex Court considered temporal effect of the Amendment Act. The Apex Court observed :

"The title by reason of Section 8 of the Act devolved absolutely upon the daughters as well as the sons of Govinda Singh. They had, thus, a right to maintain a suit for partition. Section 23 of the Act, however, carves out an exception in regard to obtaining a decree for possession inter alia in a case where dwelling house was possessed by a male heir. Apart therefrom, the right of a female heir in a property of her father, who has died intestate is equal to her brother. Section 23 of the Act merely restricts the right to a certain extent. It, however, recognises the right of residence in respect of the class of females who come within the purview of the proviso thereof. Such a right of residence does not depend upon the date on which the suit has been instituted but can also be subsequently enforced by a female, if she comes within the purview of the proviso appended to Section 23 of the Act."

The Apex Court further considered sub-section (5) of Section 6 of the Amendment Act. It is necessary to reproduce sub-section (5) of Section 6 as follows :

"6.(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."

The logic behind such specific sub-section (5) gives clue to interpret the provision appropriately. It is pertinent to notice that the expression "partition" is given narrow meaning so as to include only those partitions which are brought about by registered deed of partition or by virtue of a decree of the Court. Obviously, there was no scope left to plead oral partition so as to deprive a woman from claiming her share. Thus, where there is no registered partition deed or there is no decree of the Court for partition, the amended provision shall apply. The Apex Court held that judgment in "Sheela Devi Vs. Lal Chand", (2006)8 SCC 581 : [2007 ALL SCR 1632], was inapplicable for the reason that in that case the succession had opened in 1989 and the rights were already vested in co-parceners.

12. The Apex Court in various cases held that the Central enactment shall prevail over the State enactment if the subjects are covered by the same list in which the State as well as the Union have powers to legislate. Such a conflict between Article 254 of the Constitution of India with a similar amended provision of Section 6-A(d) of the Karnataka Amendment Act, 1990 was considered by the learned Single Judge of the Karnataka High Court in "Sugalabai Vs. Gundappa A. Maradi and Others" ILR 2007 Karnataka 4790. The learned Single Judge held that where Section 6-A(d) of the State Act was repugnant to the Central Act of 2005 and the Central Act was later in point of time, such repugnancy has to be removed. It is held that Central enactment will prevail as far as position of married daughters is concerned and change of law will have to be applied to the pending matters.

13. A Division Bench of this Court in "Smt. Kaushalyabai Biharilal Pateriya (Dead through L.Rs.) Vs. Hiralal Bhagwandas Gupta (Dead through L.Rs.)" 2007(2) ALL MR 679, held that the appellate Court is entitled to take into consideration any change in the law. It is needless to say that the Amendment Act of 2005 is required to be taken note of while deciding the present appeal and was required to be considered by the Court below.

14. Having regard to the rival submissions and the settled legal position, I have no hesitation in holding that though the Respondents were having right to claim share in respect of the dwelling house, yet, as observed in "G. Sekar Vs. Geetha and others", [2009 ALL SCR 2476] (supra). Section 23 of the Act carves out an exception in regard to obtaining a decree for possession.

15. In other words, the amendment in respect of such a right to the extent of share in a dwelling house can not have retrospective application and the right in a dwelling house cannot be translated into action unless the male heir would give up possession of the same. Thus, there is no apparent inconsistency between the view expressed by this Court in "Lata @ Bhagyashree Arunkumar Sangole Vs. Madhukar Rajaram Ganjare and others", [2008(5) ALL MR 302] (supra) and the cases referred to by Mr. Bhandari A.P. The Hindu Succession Amendment Act, 2005, will be retrospectively applicable, however, in case of agricultural properties left by deceased Dashrathsing. Therefore, the impugned judgment and decree is legal and proper only to the extent of agricultural land, however, the impugned decree is not legal and proper to the extent of allotment of the shares to the plaintiffs in respect of the dwelling houses. In fact, no reasons are ascribed by the Courts below as to how they are entitled to the share in the dwelling houses. The married daughters have right of residence if they are found to be estranged i.e. abandoned by the respective husband. The plaintiffs were not entitled to any separate share in the dwelling house in view of clear embargo U/s.23 of the Hindu Succession Act. The appeal succeeds, therefore, partly to the extent of the decree granted in respect of the dwelling houses.

16. In the result, the appeal is partly allowed. The suit (RCS No.67 of 2000) be deemed as dismissed in respect house properties described in claim clause Nos.D and E. The partition decree in respect of agricultural lands shown in claim clauses A, B and C is, however, maintained and the appeal is dismissed to the extent of such decree. No order as to costs in the circumstances of the present case.

Appeal partly allowed.