Second Appeal No.522 of 2017

28th June, 2018.

Petitioner Counsel: Shri S.C. BHALERAO
Respondent Counsel: Shri Y.N. THENGRE

Cases Cited:
Danamma alias Suman Surpur and anr. Vs. Amar and ors., 2018 ALL SCR 689=2018(3) Mh.L.J. 451 [Para 4,6,7]
Uttam Vs. Saubhag Singh & ors., 2016(3) ALL MR 451 (S.C.)=AIR 2016 SC 1169 [Para 4,6]
Kishore Morarji Bhojraj and anr. Vs. Jaya Hiranchand Karani and ors., 2017(4) ALL MR 827=2017(3) Mh.L.J. 909 [Para 5]

JUDGMENT

JUDGMENT :- In view of notice for final disposal issued earlier the learned counsel for the parties have been heard on the following substantial question of law :

"In the light of provisions of Section 6 of the Hindu Succession Act, 1952 prior to its amendment read with Section 8 of the said Act, whether the first appellate Court was legally justified in coming to the conclusion that the plaintiff was not entitled for a share in the suit property ?"

2. The appellant is the original plaintiff. She is the daughter of one Dadaji and the sister of defendant No.1. It is her case that her father Dadaji was having his self acquired property which was purchased out of his own labour. The defendants were in possession of those properties which included two shops and a residential house. According to the plaintiff she had 1/3rd share in the suit property and she demanded the same from the defendants. As her share was not given, the plaintiff issued a notice and thereafter filed suit for partition and separate possession. In the written statement it was pleaded that the suit properties were ancestral in nature. The plaintiff had infact executed a relinquishment deed and had given up her right in the suit property. She was therefore not entitled for any relief whatsoever.

3. The trial Court recorded a finding that the suit property was the ancestral property of her father Dadaji. It was further held that the defendants had failed to prove execution of a relinquishment deed by the plaintiff. It then held that by virtue of provisions of Section 6 of the Hindu Succession Act, 1956 (for short, the said Act) as amended in the year 2005 she was entitled to a share in the suit property. The suit was accordingly partly decreed and the plaintiff was granted 1/9th share in the suit property.

The appellate Court however allowed the appeal filed by the defendants and held that the plaintiff was not entitled to claim any share whatsoever in the suit property. Being aggrieved the original plaintiff has filed the present appeal.

4. Shri S. S. Bhalerao, learned counsel for the plaintiff submitted that the trial Court had rightly interpreted the provisions of Section 6 of the said Act as amended. The plaintiff by virtue of that amendment, though a daughter was a coparcener and was therefore entitled to seek partition and also claimed a share in the properties of her father. According to him the law in this regard stands settled in view of the decisions in Danamma alias Suman Surpur and anr. vs. Amar and ors. 2018(3) Mh.L.J. 451 : [2018 ALL SCR 689] and Uttam vs. Saubhag Singh and ors. AIR 2016 SC 1169 : [2016(3) ALL MR 451 (S.C.)]. He submitted that by virtue of the amended provisions the plaintiff had a right of a coparcener since birth. The appellate Court by misinterpreting those provisions refused to grant any relief to the plaintiff. It was therefore submitted that the judgment of the trial Court deserves to be restored.

5. Shri Y. N. Thengre, learned counsel for the respondent No.1 supported the impugned judgment. According to him since the father Dadaji had expired on 08/02/2004 and the plaintiff was married much prior to 1993 she was not entitled to any share in the suit property. According to him the appellate Court rightly referred to the provisions of Section 29-A of the said Act as amended and applicable in the State of Maharashtra. The benefit of amended provisions of Section 6 of the said Act would also not be applicable to the plaintiff as their father expired much prior to the amended Act coming into force. In support of his submissions the learned counsel placed reliance on the decision in Kishore Morarji Bhojraj and anr. vs. Jaya Hiranchand Karani and ors. 2017(3) Mh. L.J. 909 : [2017(4) ALL MR 827]. He submitted that no interference was called for in the judgment of the appellate Court.

6. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions. It is not in dispute that the suit property has been held to be ancestral property by both the Courts. The trial Court has recorded a finding that the plaintiff was married in the year 1993. Similarly, the plaintiff's father expired on 08/02/2004. In this backdrop the question to be considered is whether the plaintiff is entitled to any relief in view of provisions of Section 6 of the said Act as amended in the year 2005. In Danamma alias Suman Surpur and anr. [2018 ALL SCR 689] (supra) the Honourable Supreme Court considered the effect of provisions of Section 6 of the said Act as amended. After considering its earlier decision in Uttam [2016(3) ALL MR 451 (S.C.)] (supra) it was held that from the commencement of the amended Act of 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son. The sons and daughters of a coparcener have thus been conferred the right of coparcener by birth. Devolution of coparcenary property is the later stage and a consequence of death of a coparcener. It has thus been held that the right to partition has not been abrogated. That right is inherent and can be availed of by any coparcener and now even by a daughter. The facts of that case indicating that the suit was partitioned was filed in the year 2002. During pendency of said suit the provisions of Section 6 of the said Act were amended. It was observed that the rights of the plaintiffs therefore got crystalized in the year 2005 and the right to a share the coparcenary property was upheld. The ratio of the aforesaid decision squarely applies to the case in hand. Infact the present suit has been filed on 29/09/2007 which is after provisions of Section 6 of the said Act came to be amended. In the case before the Honourable Supreme Court it can be seen that though the suit was filed prior to Section 6 being amended, the right of a daughter in the coparcenary property has been recognized. In the light of this law as laid down, the judgment of the trial Court will have to be restored.

7. The appellate Court did not have the benefit of the judgment in Danamma alias Suman Suprur and anr. [2018 ALL SCR 689] (supra) and it proceeded on the basis that as the plaintiff's father had expired prior to provisions of Section 6 being amended, the plaintiff was not entitled to any relief. As noted above that aspect has lost its relevance in view of provisions of Section 6 of the said Act as amended and interpreted. In that view of the matter the decision relied upon by the learned counsel for the respondent No.1 cannot be made applicable to the case in hand. The right to coparcenary property now having been recognized since birth, the aspect of the plaintiff being married prior to the year 1994 is therefore not found relevant.

8. The substantial question of law as framed is answered by holding that in the light of provisions of Section 6 of the said Act as amended, the appellate Court was not justified in concluding that the plaintiff was not entitled for a share in the suit property. In view of this answer, the judgment of the appellate Court in R.C.A. No.51/2010 dated 13/04/2017 is set aside. The judgment of the trial Court in R.C.S. No.271/2007 dated 04/02/2010 is restored.

The Second Appeal is allowed in aforesaid terms with no order as to costs.

Appeal allowed.