Civil Revision Application No.47 of 2013

24th March, 2014.

Petitioner Counsel: Mr. S.K. SHINDE
Respondent Counsel: Mr. A.N. NAGARGOJE, Mr. A.B. GATNE

Cases Cited:
Ganduri Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr., 2012(1) ALL MR 443 (S.C.) =2011 AIR SCW 6163 [Para 9,12,15]
S. Sai Reddy Vs. S. Narayana Reddy, 1991 AIR SCW 488 [Para 12,15]
Vaishali Satish Ganorkar and Anr. Vs. Satish Keshaorao Ganorkar and Ors., 2012(2) ALL MR 737=2012 (3) Mh.L.J. 669 [Para 14,15]

JUDGMENT

JUDGMENT :- The proceeding is filed against the order made on Exh. 29 in R.C.S. No. 141/2009 by the Civil Judge, Junior Division, Akole, District Ahmednagar. Both the sides are heard.

2. The suit is filed by respondent No. 1 - Smt. Baby against the present applicant and other respondents for relief of partition of Hindu joint family properties and for possession of her share from the properties. The suit is filed in respect of four agricultural lands and three house properties.

3. The applicant/defendant No. 1 is the father of plaintiff. Defendant Nos. 2 to 4 are also daughters of present applicant. It is contended by the plaintiff that the suit properties are the ancestral properties though they are in the hands of defendant No. 1. It is contended that in view of amendment made in Hindu Succession Act, the plaintiff needs to be treated as coparcener along with defendant No. 1 and other defendants and she has right to claim partition and possession of her share.

4. It is the case of plaintiff that to deprive her of her share in the suit properties, the defendant No. 1 has joined hands with other daughters. It is contended that sham sale deed is created by defendant No. 1 in faovur of defendant Nos. 2 and 3 and the properties are shown to be sold to defendant Nos. 2 and 3. It is the case of plaintiff that no consideration was paid by the defendant Nos. 2 and 3 and the alienation was also not for legal necessity. It is the case of plaintiff that the said transaction is not binding on the plaintiff and she learned about the transaction in November 2009. In the suit, she has prayed for giving her 1/5th share in the suit properties.

5. Defendant Nos. 2 and 3 have filed joint written statement. It is their case that defendant No. 1 remains sick and he is required to spend on treatment. It is contended that loan was taken by defendant No. 1 at the time of marriage of plaintiff and that loan was not repaid. It is contended that defendant No. 1 was in need of money for maintenance and for repayment of loan and for that he sold some properties to defendant Nos. 2 and 3. It is their case that out of the consideration received by defendant No. 1, the amount of Rs. one lakh was given to plaintiff and so she has no right to claim anything more.

6. It is the case of defendants that during the lifetime of defendant No. 1, plaintiff has no right to claim partition. Defendant Nos. 3 and 4 have also filed similar written statement.

7. In application filed at Exh. 29, defendant No. 1 requested the Trial Court to frame preliminary issue regarding the right of plaintiff to file such suit. After hearing both the sides, the Trial Court framed issue as follows:-

"Whether the suit is maintainable and the court has jurisdiction to entertain and try the suit ?"

By the order dated 3.1.2013 the issue came to be decided and the Trial Court held that such suit is maintainable.

8. In the present proceeding, both the sides have placed reliance on some reported cases. As the suit is filed on the basis of right given to daughters under section 6 of Hindu Succession Act, 2005, the provision needs to be considered. That section runs as under :-

"6. Devolution of interest in coparcenary property. - (1) On and from the commencement of the Hindu Succession (Amendment) Act, 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 coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary 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 sub-section 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, 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 coparcenary 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 sub-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.

(4) After the commencement of the Hindu Succession (Amendment) Act, 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, 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 had not been enacted.

Explanation. -For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" 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.]

9. For respondent/plaintiff reliance was placed on the case reported as 2011 AIR SCW 6163 : [2012(1) ALL MR 443 (S.C.)] [Ganduri Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr.]. At paragraph Nos. 14 and 15 the Apex Court has made following observations :-

"14. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.

15. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that 'partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court."

10. The facts of the reported case show that plaintiff/son had filed suit against his father, a brother and two sisters. During pendency of the suit father died. The Trial Court held that plaintiff was entitled to 1/3rd share as a coparcener and the preliminary decree was prepared. The final decree was not yet drawn and actual partition by mets and bounds was not done. After coming in to force of Act of 2005, the two sisters applied for giving equal share with the plaintiff in the coparcenery property. The Trial Court gave 1/4th share each to both the sisters. The Apex Court considered the objects and reasons of the Act of 2005 and aforesaid observations came to be made. The Apex Court has observed that the right accrued to a daughter in a joint Hindu property is absolute and due to the Act, on and from September 9, 2005, daughter is entitled to a share in ancestral property and is a coparcener as if she is a son. Thus, retrospective effect was given to the provision and as the property was not yet actually divided, the daughter was held to be entitled to share equal to that of son.

11. In the present case, so called alienation took place after 9.9.2005, the date fixed for giving effect to the Act. The provision of section 6 shows that such transaction is not protected by the Act.

12. In the case of Ganduri, [2012(1) ALL MR 443 (S.C.)] cited supra, the Apex Court has referred the case reported as S. Sai Reddy v. S. Narayana Reddy [1991 AIR SCW 488]. The facts of this reported case show that the effect of the Act made by the State of Andhra Pradesh in favour of daughters to make them coparcener was considered. In that case also, suit for partition was filed prior to coming in to force of the said Act and the preliminary decree was drawn. The relevant portion of Andhra Pradesh Act, section 29-A of Hindu Succession Act, 1956 as amended by Andhra Pradesh is as under:-

"29-A. Equal rights to daughter in coparcenary property.- Notwithstanding anything contained in section 6 of this Act-

(i) in a joint Hindu family governed by a mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter :

Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partitin, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter as the case may be;

(iii) ........

(iv) nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act 1986."

The interpretation of the aforesaid provision is made by the Apex Court at paragraph No. 5 as follows :-

"It is obvious that under the aforesaid provision, the difference between daughter and son of the Mitakshara Hindu Family is removed and the daughter is conferred the coparcenary rights in the joint-family property by birth in the same manner and to the same extent as the son. She is, therefore, now entitled to claim partition and her share in the family property. The amending provision is a beneficial legislation which, among other things, is also directed towards eradicating social evils such as dowry and dowry deaths. It also achieves the constitutional mandate of equity between sexes."

13. If the provision as amended by Andhra Pradesh is compared with the provision of section 6 from Central Act, it can be said that the disability which was there in Andhra Pradesh (Amendment) Act only due to the marriage of daughter prior to the date fixed in the Act is not there in the Central Act. Some exceptions are given in the Central Act and only subject to those exceptions the daughter is given right which is equal to that of son in coparcenary property. Thus, the Apex Court has given retrospective effect to the provision of section 6 made in favour of daughter.

14. On the other hand, the learned counsel for the respondent/defendant No. 1 placed reliance on the case reported as 2012 (3) Mh.L.J. 669 : [2012(2) ALL MR 737] [Vaishali Satish Ganorkar and Anr. VS. Satish Keshaorao Ganorkar and Ors.]. At paragraph Nos. 14 and 13 following observations are made by the Division Bench of this Court in respect of section 6 of the Act of 2005.

"14. It may be mentioned, therefore, that ipso facto upon the passing of the Amendment Act all the daughters of a coparcener in a coparcenary or a joint HUF do not become coparceners. The daughters who are born after such dates would certainly be coparceners by virtue of birth, but for a daughter who was born prior to the coming into force of the Amendment Act she would be a coparcener only upon a devolution of interest in coparcenary property taking place.

13. Consequently, until a coparcener dies and his succession opens and a succession takes place, there is no devolution of interest and hence no daughter of such coparcener to whom an interest in the coparcenary property would devolve would be entitled to be a coparcener or to have the rights or the liabilities in the coparcenary property along with the son of such coparcener."

15. In view of observations made by this Court in case of Vaishali, [2012(2) ALL MR 737] cited supra, submission was made for the defendant No. 1/present applicant that the plaintiff has no right to file suit as her father is alive and she was born prior to 9.9.2005. This decision was taken to Apex Court by filing petition for Special Leave to Appeal bearing No. 6118/2012. Operative order came to be produced in this proceeding which shows that the petition came to be dismissed, but the question of law was kept open by the Apex Court. The Division Bench of this Court decided the case of Vaishali, [2012(2) ALL MR 737] cited supra on 30.1.2012. Case of Ganduri, [2012(1) ALL MR 443 (S.C.)] cited supra was decided by Apex Court on 12.10.2011. Both Ganduri's case, [2012(1) ALL MR 443 (S.C.)] and S. Sai Reddy's case cited supra of Apex Court are not referred by the Division Bench of this Court in Vaishali's case, [2012(2) ALL MR 737] cited supra.

16. In view of the observations made by the Apex Court in the cases of Ganduri and S. Sai Reddy, this Court holds that plaintiff has right to file suit for relief of partition in respect of coparcenary properties though she was born prior to 9.9.2005 and the Trial Court has not committed any error in rejecting the application filed by the applicant. No interference is possible in the order made by the Trial Court.

17. In the result, the application stands dismissed.

Application allowed.