Originating Summons No.105 of 2012,Suit No.107 of 2012

27th February, 2017.

Petitioner Counsel: Mr. MADHAV JAMDAR, i/b CHOKSEY & CO.
Respondent Counsel: Mr. D SYLVESTER, i/b DHRU & CO.

Cases Cited:
Prakash & Ors Vs. Phulavati & Ors., 2015 ALL SCR 3568=(2016) 2 SCC 36 [Para 10]

JUDGMENT

JUDGMENT :- One Morarji Cooverji died on 25th May 1965 leaving a Will dated 9th February 1965. His son, Kishore Morarji Bhojraj, the 1st Plaintiff, one of five siblings, obtained Letters of Administration from this Court on 21st March 1969. On 25th June 2005, Champaben, Morarji's widow died in Mumbai. She was survived by three sons, the 1st and 2nd Plaintiffs, and one Hiten Morarji, then unmarried, and two daughters, the 1st Defendant Jaya Hirenchand Karani, and one Nalini Manilal Keria. She married in 1964 and died on 8th April 1999. The 2nd Defendant, Anju Krishnaraj Kollare, is Nalini's daughter. The 3rd Defendant is the 2nd Defendant's father, and Nalini's husband. The parties are governed by the rules of the Mitakshara school.

2. During his lifetime, Morarji had a HUF. It consisted of himself, Champaben, and their three sons (the two Plaintiffs and Hiten Morarji). The HUF owned several immovable properties in Mumbai, Mulund and in Kutch, Gujarat. These properties were listed in the Schedule annexed to the Letters of Administration the 1st Plaintiff obtained.

3. One of these properties was at Mazgaon, Mumbai, a parcel of land admeasuring 2667 square yards. It was sold on 13th December 2007 for an aggregate amount of Rs. 1.45 crores. The parties to this Originating Summons were the Vendors. The purchaser was one Sanghvi Premises Private Limited. The Defendants were given shares in this property on the Plaintiffs' understanding that Morarji's daughters had a share in that property.

4. On 22nd June 1994, the Maharashtra Government enacted the Hindu Succession (Maharashtra Amendment) Act with effect from 22nd June 1994. The amendment to Section 6 of the Hindu Succession Act is material for our purposes. Before the 1994 Maharashtra amendment, Section 6 of the HAS read:

6. Devolution of interest of 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 coparceners property, his interest in the property shall devolve by survivorship upon the surviving members of the coparceners 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 coparceners' 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 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparceners before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. (Emphasis added)

5. The Maharashtra Amendment made material changes to the law of succession and inheritance of female Hindu heirs. Shortly stated, marriage did not end the right of survivorship and a married daughter continue in coparcenery. The Maharashtra amendment inserted Chapter II-A, "Succession by Survivorship", and introduced Sections 29-A, 29-B and 29-C:

Chapter II-A :

Succession by Survivorship

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 the Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a 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 a Joint Hindu Family referred to in clause (i), 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 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 son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased or of the pre-deceased daughter, as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) 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 will or other testamentary disposition;

(iv) Nothing in this Chapter shall apply to a daughter married before the date of commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994;

(v) Nothing in clause (ii) shall apply to a partition which has been effected before the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994.

29-B. Interest to devolve by survivorship on death.

When a female Hindu dies after the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994, having, at the time of her death, an interest in a Mitakshara coparcenary property by virtue of the provisions of Section 29-A, her 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 any child or child of a pre-deceased child, 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.

29-C. Preferential right to acquire property in certain cases.

(1) Where, after the date of commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994, an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others, devolves under section 29-A or section 29-B upon two or more heirs, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased, may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the Court on an application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquired it for the consideration so determined, such person shall be liable to pay all costs of, or incidental to, the application.

(3) If there are two or more heirs proposing to acquire any interest under this section, then the heir who offers the highest consideration for the transfer shall be preferred.

Explanation.-In this section "Court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf."

6. The question arose whether these provisions were retrospective or only retroactive and whether they applied to a daughter married before the date of commencement of the Maharashtra amendment.

7. On 9th September 2005, the Central Government amended Section 6 of the Hindu Succession Act, thus:

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 the same manner as the son;

(b) have the same rights in the coparceners property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparceners 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 subsection (1) shall be held by her with the incidents of coparceners ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, 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 coparceners 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 predeceased 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 so 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 recognize 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 or partition effected by a decree of a court.

8. Thus, the Central amendment did not materially change the Maharashtra Amendment, which was by then held not to be applicable to daughters who married before the date when the Maharashtra Amendment came into force, i.e., 22nd June 1994.

9. According to the Plaintiffs, under incorrect advice or under a mistaken impression of law they agreed that the Defendants would have a share in the sale proceeds of the Mazgaon property. By their Advocates' letter of 25th August 2009 to the Defendants, the Plaintiffs referred to these statutory amendments saying the Defendants had no right in the properties left by Morarji and could claim no share in Champaben's or Hiten's estates either; and, in particular, that the Defendants had no shares in the HUF properties. The letter mentioned the amounts the Defendants received from the sale of the Mazgaon properties.

10. In its decision in Prakash & Ors v Phulavati & Ors., (2016) 2 SCC 36 : [2015 ALL SCR 3568] the Supreme Court held in paragraph 23 that the rights under the Central amendment are available to living daughters of living coparceners as on the date of enactment of the Central Amendment, i.e., 9th September 2005, irrespective of their dates of birth. Dispositions or alienations, including partitions, before 20th December 2004 in accordance with the law applicable before that date remain unaffected. All partitions effected thereafter would be governed by the explanation set out above.

11. Mr Jamdar for the Plaintiffs make it clear that the Plaintiffs do not seek a return of what the Defendants received on sale of the Mazgaon property. It is however clear from the provisions of law set out before that neither Defendant No. 1, a daughter of Morarji and Champaben, and who married in 1959, nor Nalini who married in 1964, would have had any rights to that property. They would not have received any part of the sale consideration but for the incorrect premise and understanding on which all proceeded. Anju, Defendant No. 2, is the daughter of Nalini, and Defendant No.3 is here father. If Nalini herself could not have received a share, Defendants Nos. 2 and 3 could not have succeeded to any such share either.

12. The present Originating Summons places the following questions for determination:

(a) Whether the Maharashtra Amendment Act in Hindu Succession Act came in force in 1994 gave any right to the Defendant No. 1 and heirs of the deceased Nalini, the Defendant Nos. 2 and 3?

(b) Whether the Defendants received the amount under the Agreement for Sale dated 13th December, 2007 was as per the Maharashtra Amendment Act that came in force on 22nd June, 1994 and/or the Central Amendment Act to the Hindu Succession Act came in force on 9th September, 2005?

(c) Whether the Defendants could be treated as coparceners under the provisions of the Hindu Succession Act that came into force on 22nd June 1994 and 9th September 2005?

(d) Whether the Defendant No. 1 and the heirs of Nalini, the Defendant Nos. 2 and 3 had any right to claim any property of the HUF of the Plaintiffs?

(e) Whether on the death of Champaben and Hiten, the deceased son of late Morarji Cooverji, the Defendants have any right to claim any share of the properties under the HUF?

(f) Whether the amount paid under the Agreement for Sale dated 13th December, 2007 to the Defendants was the payment under the mistaken provision of law?

(g) Whether the Plaintiffs are bound to recognise the Defendants as sharers in respect of other properties of the HUF?

(h) Whether the Defendants have any right over and upon the properties left by the said deceased Morarji Cooverji under the Will dated 9th September 1965?

(i) Whether the married daughters of the deceased Morarji, the Defendant No. 1 married in the year 1959 and the deceased Nalini married in the year 1964, the daughters are entitled to claim any share in the HUF property as per law?

(j) Whether the Defendants have any claim over and properties in the HUF belonging to the Plaintiffs?

13. In view of the Supreme Court decision in Phulwati, question (c) must be answered in the negative. That decision makes it clear that there are two primary requirements for the amendment to apply, viz., that the daughter and coparcener in question were both alive on 9th September 2005. Morarji having died in 1965, the second requirement is not met; and as regards Nalini, who died in 1999, neither requirement is met.

14. As a result, questions (a) and (b) must consequently be answered in the negative. The answer to Question (d) follows on Question (c) and must also be answered in the negative.

15. Question (e) relates only to the division of HUF property. As regards the personal estates of Morarji, Champaben and Hiten, a slightly different consideration would arise. The reason is that Morarji bequeathed his personal estate equally between his widow Champaben and his three sons Kishore, Ramesh and Hiten, each of whom took a one-fourth share. To this extent, his one-fourth share in the HUF also devolved on these four legatees. Champaben died intestate and was survived by her five children. The quarter share in Morarji's estate that she received as a legacy, including his one-quarter share in the HUF, would thus pass in five equal shares to her five children. Jaya (Defendant No.1) and Nalini, the two married daughters, would have received through their mother a one-twentieth share each in Morarji's estate including a one-twentieth share in his one-quarter share of the HUF, i.e., a 1/80th share in the HUF.

16. The same result is achieved if one considers it this way: Morarji's 1/4th share in the HUF was divided between four legatees, each thus taking a 1/16th share in the HUF. On Champaben's death, that bequeathed 1/16th would have devolved on her five heirs, giving each a 1/80th share in the HUF. Nalini's 1/80th share would be divided between her two heirs, Defendants Nos.2 and 3, each thus taking a 1/160th share in the HUF properties. None of the Defendants would receive this as coparceners in the HUF but only as inheritance from Champaben.

17. Question (f ) in the Originating Summons is not within the frame of what can be determined in an Originating Summons. In any case, Mr Jamdar's statement on instructions that does not press for a return of any amount received by Defendants Nos. 1 to 3 is sufficient.

18. As regards Question (g), the 1st Defendant and Nalini would succeed only to a 1/80th share as described above flowing from the will dated 9th February 1965 of Morarji and Champaben's intestacy. Defendants Nos. 2 and 3 would take a 1/160th share each.

19. Question (h) is directed to the personal estate of Morarji other than his share in the HUF. On the same reasoning, Defendant No.1 and Nalini would receive a 1/20th share in Morarji's estate: 1/4th being left to Champaben, and that 1/4th then devolving in five equal shares on Champaben's and Morarji's five children. Defendants Nos. 2 and 3 would get one-half of Nalini's 1/20th share, i.e., a 1/40th share in Morarji's personal properties and estate. This would come down to them through Champaben.

20. Questions (i) and (j) are already answered above. The only share the Defendants would have in the HUF properties would be the fractional shares they inherited through Champaben, who was the legatee of one-fourth of Morarji's one-fourth share in the HUF.

21. Mr Sylvester for the Defendants has not disputed the legal position as placed by Mr Jamdar.

22. The Originating Summons is disposed of in these terms. No costs.

23. For convenience, the chart tendered by Mr Jamdar on 6th February 2017 is taken on record and marked "X" for identification.

Ordered accordingly.