Whether the benefits of the Hindu Succession Act are available to the appellants therein. The facts of the cited case are as follows: The appellants and the respondents are siblings being daughters and sons of one Ch. Venkata Swamy. The 1st respondent filed a suit for partition impleading his father (D1), his brother (D2) and his two sisters (the appellants-D3 and D4). The A, C, and D schedule properties are coparcenary property. The plaintiff claimed 1/3rd share for him and the defendants 1 and 2 (his father and brother). The preliminary decree granted in March 1999 declared that the plaintiff has got 1/3rd share in the said properties. Before passing the final decree, by 2005 Amendment Act, Section 6 of the Hindu Succession Act, 1956 was substituted. The appellants (D3 and D4) made an application for passing preliminary decree in their favour for partition of A, C and D coparcenary properties into four equal shares and allotment of one such share each to them as the 1st defendant died during the pendency of the suit. The said application was contested by the plaintiff. The trial Court by its order dated 15.06.2009 allowed the application of the appellants (D3 and D4) and had held that they were entitled for re-allotment of shares in the preliminary decree, i.e., they are entitled to 1/4th share each and separate possession in A, C and D schedule properties. The said order was challenged before this Court in an appeal. A learned single Judge of this court allowed the appeal and had set aside the order of the trial court. The appellants (D3 and D4) preferred an appeal by Special Leave before the Honble Supreme Court. While answering the question as to whether the preliminary decree passed by the trial court deprived the appellants/daughters of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed, the Honble Supreme Court had held in favour of the daughters and had set aside the orders of this Court and had restored the order of the trial court. In the result, the appeal is allowed in part and the preliminary decree passed by the trial Court insofar as it related to determination of shares of the sharers is set aside by holding that the plaintiffs 2 and 3 and the 1st defendant are entitled to a 5/16th share each and that the 1st plaintiff is entitled to a 1/16th share in both the plaint A and B schedule properties. Accordingly, a preliminary decree is passed in favour of the plaintiffs and against the 1st defendant for partition of plaint A and B schedule properties into sixteen (16) equal and equitable shares by metes and bounds and according to good and bad qualities and for allotment of a 5/16th share each to the plaintiffs 2 and 3 and the 1st defendant and the remaining 1/16th share to the 1st plaintiff. There shall be no order as to costs.
THE HONBLE SRI JUSTICE K.C.BHANU AND THE HON'BLE SRI JUSTICE M.SEETHARAMA
A.S.No.660 of 2006
01-04-2015
M.Sujatha W/o late M.Bhupati Reddy .Appellants
M.Surender Reddy & others. Respondents
Counsel for the appellants:Sri K.Mahipathi Rao
$Counsel for Respondent 1:Sri B.Mahendra Reddy
<Gist :
>Head Note:
? Cases referred:
2012 (2) ALD 50 (SC)
LAWS (Bom)-2014-8-69
2007 (5) ALT 447
THE HONBLE SRI JUSTICE K.C. BHANU
AND
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI
A.S. No.660 of 2006
JUDGMENT: (per Honble Sri Justice M. Seetharama Murti)
The plaintiffs, who are partly aggrieved of the preliminary decree
in so far as it related to the allotment of smaller extents of shares in the
plaint A and B schedule properties, had preferred this appeal against
the said preliminary decree and the judgment dated 30.06.2006 of the
learned V Additional District Judge (Judge, Fast Track Court), Ranga
Reddy District passed in O.S.No.140 of 2003.
2. We have heard the submissions of the learned counsel for the
appellants/plaintiffs. The respondents 2 and 3 are stated to be not
necessary parties. Though the 1st respondent and the respondents 4 to 6
had put in appearance and are represented by their respective counsel,
none appeared and no arguments were advanced on behalf of the said
respondents, despite listing the matter for hearing the arguments on the
side of the said respondents.
3. In this appeal suit, the parties shall hereinafter be referred to as
appellants/plaintiffs and respondents/defendants for convenience and
clarity.
4. This Court of first appeal being the last court of fact, it is
necessary to refer to the pleadings and the chronology of events leading
to the filing of this first appeal by the plaintiffs, who are partly
successful before the trial court.
5. The plaint averments, which are relevant for consideration,
in brief, are as follows: The 1st plaintiff is the wife of late M. Bhupathi
Reddy. The plaintiffs 2 and 3 are the daughters; and the 1st defendant is
the son, of the said Bhupathi Reddy. The said Bhupathi Reddy died
intestate on 10.07.1999 leaving behind him the plaintiffs and the 1st
defendant. The plaint A schedule properties are the self acquired
separate properties of Bhupathi Reddy and therefore, the plaintiffs and
the 1st defendant are entitled to a 1/4th share each in the plaint A
schedule properties. The plaint B schedule properties are the ancestral
properties, and hence, the 1st defendant and late Bhupathi Reddy had a
50% share each in the said properties. On the intestate death of
Bhupathi Reddy, the plaintiffs and the 1st defendant have become
entitled to a share each in the half share of Bhupathi Reddy in the plaint
B schedule properties. Thus, in the plaint B schedule properties,
which are ancestral properties, the plaintiffs 1 to 3 are entitled to a
1/8th share each and the 1st defendant is entitled to the remaining 5/8th
share. The 1st defendant had wilfully denied the shares of the plaintiffs
in the plaint A and B schedule properties. Taking into consideration
his attitude and as it has become apparent that he is not going to
partition the properties and deliver the legally entitled shares to the
plaintiffs, the plaintiffs had called upon the 1st defendant on 25.09.2003
and 28.09.2003 to partition the properties in the presence of family
elders. However, the 1st defendant had flatly refused to entertain even a
discussion in that regard. Hence, the plaintiffs are constrained to file
the suit for partition against the 1st defendant. The defendants 2 and 3
were impleaded as they are the tenants in some of the properties, i.e.,
in the flats constructed over A schedule property after it was given for
development.
6. The 1st defendant in his written statement while admitting the
relationship had inter alia contended as follows: His father purchased
the plaint A schedule properties also with the income derived from the
ancestral lands and undivided family funds for the benefit of the
coparcenary. Bhupathi Reddy, the father of the plaintiffs 2 and 3, had
performed their marriages during his life time and they were also given
cash and jewellery at the time of their marriages. They both are well
settled. The 2nd plaintiff had acquired citizenship of the United States
of America and the 3rd plaintiff is a Green Card holder and is expecting to
acquire U.S. Citizenship shortly. The material benefits given to the
plaintiffs 2 and 3 were pooled up from out of the joint family assets.
Bhupathi Reddy became sick on account of sudden kidney failure and
since the plaintiffs 2 and 3 are well placed in life, he had wished to give
his interest in the properties to the 1st plaintiff and the 1st defendant.
Accordingly, Bhupathi Reddy relinquished his rights in his share of
property in favour of the 1st plaintiff and the 1st defendant by oral
arrangement/partition in the year 1998 when he came over to USA along
with the 1st plaintiff. The plaintiffs 2 and 3 were also present at that
time. Thus, the 1st defendant is having 75% share and the 1st plaintiff is
having remaining 25% share; and the properties were in joint possession
of the 1st defendant and the 1st plaintiff, who is his mother. On the
death of the father on 10.07.1999, the 1st defendant got both A and B
schedule properties. The plaintiffs never demanded for partition of the
properties. The portions of A schedule properties were let out
recently. The plaintiffs 2 and 3 having managed to gain the confidence
of the 1st plaintiff had filed the present suit with a view to knock away
the property. The plaintiffs 2 and 3 have no right in the suit schedule
properties.
7. The tenants, who are the defendants 2 and 3, had filed written
statements pleading about their possession of some of the properties in
A schedule, i.e., flats, as tenants. Therefore, their defence is not
much of relevance for determination of the issues involved in the suit for
partition amongst the family members of Bhupathi Reddy.
8. Basing on the pleadings, the following issues were framed for trial:
1. Whether the family arrangement pleaded by Defendant No.1
is true, valid and binding on the parties?
2. Whether the plaintiffs are entitled to seek partition of the
properties and allotment of one-fourth (1/4th) share to each
of them?
3. To what relief?
During the course of trial before the trial Court, the 1st plaintiff and the
husband of the 3rd plaintiff were examined as PWs1 and 2 and exhibits A1
to A20 were marked on the side of the plaintiffs. The 1st defendant was
examined as DW1 and exhibits B1 to B6 were marked on his side. On
merits, the trial court held that both A and B schedule properties are
ancestral properties and that the plaintiffs 1 to 3 are entitled to a 1/8th
share each and that the 1st defendant is entitled to the remaining 5/8th
share in the said properties.
9. To begin with, it is pertinent to mention that all the three
plaintiffs, who are the mother and sisters of the 1st defendant, had
claimed a 1/4th share each in the plaint A schedule properties stating
that the same are the separate properties of late Bhupathi Reddy and a
1/8th share each in the plaint B schedule properties stating that the
same are the ancestral properties. However, the trial Court had granted
a preliminary decree against the 1st defendant and had directed for the
partition of both the said A and B schedule properties into eight equal
shares and allotment of one such share each, i.e., total three shares to
the three plaintiffs and the remaining five shares to the 1st defendant.
Thus, the trial court had held that both A and B schedule properties
are ancestral properties. Aggrieved of the lesser shares allotted to them
in the plaint schedule properties, the plaintiffs had preferred this first
appeal suit. No appeal or cross appeal is preferred by the 1st defendant.
The defendants 2 and 3, as already noted, are the tenants of flats in A
schedule properties. During the pendency of this appeal, the
respondents 4 to 6, who are tenants in some of the properties, are also
impleaded. Be that as it may, the learned counsel for the plaintiffs/
appellants while submitting that the plaintiffs/ appellants are now not
assailing the findings of the trial court that plaint A schedule properties
are also ancestral property had further contended inter alia that even if
the plaint A and B schedule properties are ancestral properties still
the plaintiffs are entitled to larger shares than granted by the court
below in view of the amendment to Section 6 in Chapter II of the Hindu
Succession Act, 1956 dealing with devolution of interest in coparcenary
property, which came into force with effect from 09.09.2005. Placing
reliance on the said new provision of law of Section 6 as
amended/substituted by Act 39 of 2005 and also on the decision in
Ganduri Koteshwaramma and another v. Chakiri Yanadi and another
he had submitted that since the suit for partition is pending and as no
partition by a registered deed of partition has taken place and as
Bhupathi Reddy had died intestate, the daughters of Bhupathi Reddy,
who are the plaintiffs 2 and 3 have become coparceners in their own
right in the same manner as the son, i.e., the 1st defendant and that they
are entitled to the same rights in the coparcenary property as they would
have had if they had been sons and that therefore, the rights of the
plaintiffs 2 and 3 are on par with the rights of the 1st defendant in the
coparcenary and that in view of the substantive right in favour of the
plaintiffs 2 and 3, they are entitled to larger shares equally along with
the 1st defendant, who is their brother.
10. In view of the facts and the submissions, the points for
determination in this appeal suit are --
(1) Whether the plaintiffs 2 and 3 are entitled to equal
shares along with the 1st defendant in the plaint A
and B schedule ancestral properties in view of the
existing Section 6 of the Hindu Succession Act, which
the Parliament had introduced in the year 2005 and
which came into force with effect from 09.09.2005?
(2) What are the shares to which the plaintiffs 1 to 3 and
the 1st defendant are entitled to in the plaint A and
B schedule properties?
(3) Whether the decree and judgment of the trial court
need modification in respect of the shares of the
plaintiffs 1 to 3 and the 1st defendant in the plaint A
and B schedule properties?
(4) To what relief?
11. POINTS 1 to 3:
11. (a) The facts leading to the present stage of the matter are
already stated supra, in detail. The 1st plaintiff is the wife of Bhupathi
Reddy. The 1st defendant is the son; and the plaintiffs 2 and 3 are the
married daughters of the said Bhupathi Reddy. The 1st defendants
defence is that the plaint A and B schedule properties are the
ancestral properties of the family. The trial court had held that even A
schedule properties are ancestral properties. On careful examination of
the evidence on record on this aspect, we are of the well considered
view that the evidence on record is sufficient to accept the defence of
the 1st defendant that the plaint A schedule properties are also
ancestral properties and therefore, the plaintiffs contention that the
said A schedule property is separate property of late Bhupathi Reddy is
devoid of merit. The plaintiffs are now not disputing the said contention
of the 1st defendant and the finding of the trial court on this aspect and
are conceding that both plaint A and B schedule properties are
ancestral properties.
11. (b) The defence of the 1st defendant that his father orally
relinquished his share in the ancestral immovable properties in his favour
and in favour of his mother and that as per the said arrangement/oral
partition, he is entitled to 75% share and that his mother is entitled to
25% share in the plaint A and B schedule properties and that on the
death of his father he has got the A and B schedule properties, is
untenable and cannot be countenanced as any relinquishment of a right
in immovable property, the value of which exceeds hundred rupees
cannot be oral and in the absence of any registered document, such a
contention cannot be upheld in a court of law. The further contention of
the 1st defendant which was advanced before the trial Court that since
the daughters/plaintiffs 2 and 3 were sufficiently provided with cash and
jewellery at the time of their marriages and that they are well settled
and that as material benefits that were given to them were pooled up
from and out of joint family assets, they are not entitled to a share in
the ancestral properties also cannot be countenanced in a court of law.
Further, the defence that the father had divided the properties orally
during his visit along with the 1st plaintiff to the USA in the year 1988 and
that every family member has accepted the same also cannot be
countenanced in the absence of any reliable evidence except the self-
serving statement in the evidence of the 1st defendant. The 1st plaintiff,
who is the mother of the 1st defendant, in her evidence, had denied the
oral partition and also family arrangement and the defence of the 1st
defendant. Therefore, the trial Court had rightly disbelieved the
defence of the 1st defendant and had held that the plaint A and B
schedule properties which are ancestral properties are liable for
partition. Having gone through the evidence of PW1 and DW1 in
juxtaposition and keeping in view the legal position we do not find any
reason to disagree with the findings of the trial court recorded against
the 1st defendant. Further, the trial Court had disbelieved and negatived
the defence of the 1st defendant and had held that the plaint schedule
properties are liable for partition. The 1st defendant having not
preferred an appeal or cross appeal against the preliminary decree is not
entitled to seek reversal of the preliminary decree, which is granted
against him and in favour of the plaintiffs and hence, the defence of the
defendant which was advanced before the trial Court need not be
countenanced by this Court.
11. (c) Now, the next question is as to what are the shares to which
all the four sharers, namely, the plaintiffs 1 to 3 and the 1st defendant
are entitled to in the plaint A and B schedule properties. Admittedly,
there is no partition by way of a registered partition deed and Bhupathi
Reddy had died intestate on 10.07.1999 leaving behind him the plaintiffs
and the 1st defendant. Now, the plaintiffs 2 and 3, the daughters of
Bhupathi Reddy, are making claims for larger shares in the plaint A and
B ancestral properties. And, their claims are based on the
new/substituted Section 6 of the Hindu Succession Act, 1956. Therefore,
it is necessary to refer to infra the said provision of law.
11. (d) Section 6 of the Hindu Succession Act, 1956 (the principal
Act, for brevity) as amended/substituted by the Parliament by the
Amendment Act, 2005 (Act 39 of 2005) reads as follows:
"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 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 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 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 (16 of 1908) or partition effected by a
decree of a Court."
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. A plain reading of this provision shows that the
legislature has conferred substantive right in favour of the daughters.
According to this new Section, the daughter of a coparcener shall by
birth become a coparcener in her own rights and liabilities in the same
manner as the son.
11. (e) The incidental question before us is Whether the provision
of Section 6 of the principal Act as substituted by the Amendment Act
2005 inures for the benefit of the plaintiffs 2 and 3, who are the
daughters of late Bhupathi Reddy? For answering this question it is
advantageous to refer to the decision in Badrinarayan Shankar Bhandari
v. Omprakash Shankar Bhandari . A Full Bench of the High Court of
Bombay was constituted on a reference made by a learned Single Judge
of that court to give its opinion on the following questions of law
referred to it:
(a) Whether Section 6 of the Hindu Succession Act, 1956 as amended by
the Amendment Act, 2005 is prospective or retrospective in
operation?
(b) Whether Section 6 of the Hindu Succession Act, 1956 as amended by
the Amendment Act 2005 applies to daughters born prior to
17.6.1956?
(c) Whether Section 6 of the Hindu Succession Act, 1956 as amended by
the Amendment Act, 2005 applies to daughters born after 17.6.1956
and prior to 9.9.2005?
(d) Whether Section 6 of the Hindu Succession Act, 1956 as amended by
the Amendment Act, 2005 applies only to daughters born after
9.9.2005?
(e) Whether the decision of the Division Bench in the case of Vaishali
Ganorkar is per in curium of Gandori Koteshwaramma and others?
The primary issue before the learned Single Judge of that Court was
whether Section 6 of the Hindu Succession Act, 1956 (the Principal Act)
substituted by Section 3 of the Hindu Succession (Amendment) Act, 2005
(the Amendment Act) is prospective or retrospective in operation. The
Full Bench of the Bombay High Court having considered the aspects of old
Hindu law, the relevant provisions of the Principal Act and the reasons
that led to the making of the Amendment Act, the statement of objects
and reasons for amending the Principal Act, the decisions of the Supreme
Court in Ganduri Koteshwaramma (1 supra) and other cited decisions
including the decisions in G.Sekhars case [(2009) 6 SCC 99] and in
Sheeladevis case [(2006) 8 SCC 581], had answered the questions as
follows:
Question (a):
In view of above discussion, in our view the correct legal position
is that Section 6 as amended by the 2005 Amendment Act is
retroactive in nature meaning thereby the rights under Section
6(1)(b) and (c) and under sub-Rule (2) are available to all daughters
living on the date of coming into force of the 2005 Amendment Act
i.e. on 9 September 2005, though born prior to 9 September 2005.
Obviously, the daughters born on or after 9 September 2005 are
entitled to get the benefits of Amended Section 6 of the Act under
clause (a) of sub section (1). In other words, the heirs of daughters
who died before 9 September 2005 do not get the benefits of
amended Section 6.
Question (b), (c) and (d):
In the above view of the matter, so far as questions (b), (c)
and (d) are concerned, we hold that the Amendment Act applies to
daughters born any time provided the daughters born prior to 9th
September 2005 are alive on the date of coming into force of the
Amendment Act i.e. on 9 September 2005. There is no dispute
between the parties that the Amendment Act applies to daughters
born on or after 9 September 2005.
While answering the question (e), the Full Bench of the Bombay High
Court had referred to the ratio in the decision of Ganduri
Koteshwaramma (1 supra), wherein the Supreme Court held that the
amended Section 6 will apply where final decree was not passed before
the date of commencement of the Amended Act 2005 and had held as
under:
We are, therefore, of the view that the binding force of the
Supreme Court in Ganduri Koteshwaramma (supra): (2011)9 SCC-
788 is not weakened by non-consideration of the Supreme Court
decisions in G.Sekhars case (supra): (2009) 6- SCC-99 and in
Sheeladevis case (supra): (2006) 8 SCC-581. We, therefore,
answer question (e) in the affirmative that is to say, the decision of
the Division Bench in Vaishali Ganorkars case (supra): 2012(5)-Bom
C.R-210 is per incuriam the Supreme Court decision in Ganduri
Koteshwaramma (supra): (2011) 9-SCC -788.
Having gone through the Full Bench decision of the Bombay High Court,
though it is of persuasive value, we find ourselves in respectful
agreement with the findings recorded by the Full Bench of the Bombay
High Court.
11. (f) Before reverting back to the facts of the instant case, it is to
be noted that new Section 6 of the Principal Act extracted supra brings
uniformity in the country. Although the Central Act 39 of 2005 has not
expressly repealed Section 29A, which was introduced in the Hindu
Succession Act by the A P State Amendment Act 13 of 1986, the said
State Law is void to the extent it is repugnant to, or inconsistent with,
the Central Law. In the decision in Damalanka Gangaraju and Others v.
Nandipati Vijaya Lakshmi and others this Court has held that the State
amendment is deemed to be repealed as the Parliament and the State
Legislature made laws related to the same concurrent subject and as a
conflict arises between the two enactments. This Court also held that
the conflict is resolved by Article 254 (1) of the Constitution of India,
which provided that in such cases of conflict the State Law shall be void
to the extent it is repugnant to, or inconsistent with, the Central Law. It
was, therefore, held by this Court that all the daughters have to be
treated as coparceners entitled to equal shares, irrespective of the fact
whether they are majors or minors or their marriages were performed
before 05.09.1985 or subsequent thereto. Hence, the new provision of
Section 6, which is now on the Statute Book, would inure to the benefit
of the plaintiffs 2 and 3, the daughters. Thus, on and from 9th September
2005, the daughter is entitled to a share in the ancestral property and is
a coparcener as if she had been a son. Thus, the right which accrued to
the daughter by virtue of this new provision is an absolute right insofar as
the property of a joint Hindu family governed by Mitakshara law. It is
also to be noted that the present case of the plaintiffs 2 and 3 does not
fall in anyone of the exceptions provided in the proviso appended to sub-
section (1) of Section 6. Only two categories are excepted from
application of the new Section 6 of the Act. The said two categories are
(i) where disposition or alienation including any partition has taken place
before 20th December 2004; and (ii) where testamentary disposition of
property has been made before 20th December 2004. For the purpose of
the new 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. Now that a preliminary decree
is passed by the trial court on 30.06.2006, it cannot be said that the
preliminary decree in the suit granted by the trial court deprived the
appellants/plaintiffs 2 and 3 of claiming the benefits of 2005 Amendment
Act, more particularly, when their suit was instituted in the year 2003
and when no final decree has been passed and as the suit continues until
the final decree is passed and the preliminary decree can be amended, in
case the amendment of the preliminary decree is necessary in the light
of any changed circumstances.
11. (g) The view of this court finds support from the ratio in the
decision in Ganduri Koteshwaramma (1 supra). In this cited case, the
question that fell for consideration before the Supreme Court was
Whether the benefits of the Hindu Succession Act are available to the
appellants therein. The facts of the cited case are as follows: The
appellants and the respondents are siblings being daughters and sons of
one Ch. Venkata Swamy. The 1st respondent filed a suit for partition
impleading his father (D1), his brother (D2) and his two sisters (the
appellants-D3 and D4). The A, C, and D schedule properties are
coparcenary property. The plaintiff claimed 1/3rd share for him and the
defendants 1 and 2 (his father and brother). The preliminary decree
granted in March 1999 declared that the plaintiff has got 1/3rd share in
the said properties. Before passing the final decree, by 2005 Amendment
Act, Section 6 of the Hindu Succession Act, 1956 was substituted. The
appellants (D3 and D4) made an application for passing preliminary
decree in their favour for partition of A, C and D coparcenary
properties into four equal shares and allotment of one such share each to
them as the 1st defendant died during the pendency of the suit. The said
application was contested by the plaintiff. The trial Court by its order
dated 15.06.2009 allowed the application of the appellants (D3 and D4)
and had held that they were entitled for re-allotment of shares in the
preliminary decree, i.e., they are entitled to 1/4th share each and
separate possession in A, C and D schedule properties. The said
order was challenged before this Court in an appeal. A learned single
Judge of this court allowed the appeal and had set aside the order of the
trial court. The appellants (D3 and D4) preferred an appeal by Special
Leave before the Honble Supreme Court. While answering the question
as to whether the preliminary decree passed by the trial court deprived
the appellants/daughters of the benefits of 2005 Amendment Act
although final decree for partition has not yet been passed, the Honble
Supreme Court had held in favour of the daughters and had set aside the
orders of this Court and had restored the order of the trial court.
11. (h) The ratio in the decision squarely applies to the facts of the
case on hand. Therefore, in the plaint A and B schedule properties
which are ancestral joint family coparcenary properties, the two
daughters of Bhupathi Reddy i.e., the plaintiffs 2 and 3, whose cases are
not covered by the excepted categories, are entitled, along with their
brother-the 1st defendant, to an equal share each as the right accrued to
the daughters/the plaintiffs 2 and 3 in the property of a joint Hindu
family governed by Mitakshara law by virtue of Section 6 of the Act is
absolute. As held by the Honble Supreme Court, the declaration in
Section 6 that the daughter of the coparcener shall have same rights and
liabilities in the coparcenary property/ancestral property as she would
have been a son is unambiguous and unequivocal and 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. Therefore, the
findings of the trial Court in the instant suit that the son/the 1st
defendant is entitled to 5/8th share and that the daughters i.e., the
plaintiffs 2 and 3 are entitled to 1/8th share each along with the 1st
plaintiff, the mother, are not correct as the trial court had failed to take
note of the amended new provision of Section 6 of the Act. Probably this
aspect was not brought to the notice of the trial Court. Therefore, if
partition of plaint A and B schedule ancestral properties is to be
effected as per the law now obtaining and applicable, the plaintiffs 2 and
3, who are daughters of late Bhupathi Reddy, are to be placed on par
with the 1st defendant, who is the son of late Bhupathi Reddy.
Accordingly, the shares to which the plaintiffs and the 1st defendant
would be entitled to in the plaint A and B schedule properties are to
be worked out as follows:
The plaint A and B schedule properties should be
partitioned first into four shares by allotting one such
share notionally to the deceased Bhupathi Reddy also. A
th share each out of four such shares is allotable to each
of the plaintiffs 2 and 3, who are the daughters and the
1st defendant, who is the son. The remaining th share
notionally allotted to Bhupathi Reddy is to be again
partitioned amongst his wife, the two daughters and the
son. Therefore, the wife would be entitled to a th
share in the said th share. Thus, the wife of Bhupathi
Reddy, the 1st plaintiff, would be entitled to 1/16th share
in the plaint A and B schedule properties and the
daughters and the son of late Bhupathi Reddy, i.e., the
plaintiffs 2 and 3 and the 1st defendant would be entitled
to a 1/4th + 1/16th share each in the plaint A and B
schedule properties, in view of the settled legal position
obtaining and applicable to the facts of the case.
The points are accordingly answered holding that the 1st plaintiff who is
the wife of Bhupathi Reddy is entitled to 1/16th share in the plaint A
and B schedule properties and that the plaintiffs 2 and 3, who are the
daughters and the 1st defendant, who is the Son, of Bhupathi Reddy are
entitled to 1/4th + 1/16th share each (5/16th share each) in plaint A and
B schedule properties. As a sequel, it must be held that the
preliminary decree granted by the trial Court is to be modified
accordingly in respect of the shares of the plaintiffs and the 1st
defendant. The points are accordingly answered in favour of the
plaintiffs/appellants.
12. POINT NO.4:
In the result, the appeal is allowed in part and the preliminary
decree passed by the trial Court insofar as it related to determination of
shares of the sharers is set aside by holding that the plaintiffs 2 and 3
and the 1st defendant are entitled to a 5/16th share each and that the 1st
plaintiff is entitled to a 1/16th share in both the plaint A and B
schedule properties. Accordingly, a preliminary decree is passed in
favour of the plaintiffs and against the 1st defendant for partition of
plaint A and B schedule properties into sixteen (16) equal and
equitable shares by metes and bounds and according to good and bad
qualities and for allotment of a 5/16th share each to the plaintiffs 2 and 3
and the 1st defendant and the remaining 1/16th share to the 1st plaintiff.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this appeal shall stand
closed.
_______________
K.C. BHANU, J
________________________
M. SEETHARAMA MURTI, J
01st April 2015
A.S.No.660 of 2006
01-04-2015
M.Sujatha W/o late M.Bhupati Reddy .Appellants
M.Surender Reddy & others. Respondents
Counsel for the appellants:Sri K.Mahipathi Rao
$Counsel for Respondent 1:Sri B.Mahendra Reddy
<Gist :
>Head Note:
? Cases referred:
2012 (2) ALD 50 (SC)
LAWS (Bom)-2014-8-69
2007 (5) ALT 447
THE HONBLE SRI JUSTICE K.C. BHANU
AND
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI
A.S. No.660 of 2006
JUDGMENT: (per Honble Sri Justice M. Seetharama Murti)
The plaintiffs, who are partly aggrieved of the preliminary decree
in so far as it related to the allotment of smaller extents of shares in the
plaint A and B schedule properties, had preferred this appeal against
the said preliminary decree and the judgment dated 30.06.2006 of the
learned V Additional District Judge (Judge, Fast Track Court), Ranga
Reddy District passed in O.S.No.140 of 2003.
2. We have heard the submissions of the learned counsel for the
appellants/plaintiffs. The respondents 2 and 3 are stated to be not
necessary parties. Though the 1st respondent and the respondents 4 to 6
had put in appearance and are represented by their respective counsel,
none appeared and no arguments were advanced on behalf of the said
respondents, despite listing the matter for hearing the arguments on the
side of the said respondents.
3. In this appeal suit, the parties shall hereinafter be referred to as
appellants/plaintiffs and respondents/defendants for convenience and
clarity.
4. This Court of first appeal being the last court of fact, it is
necessary to refer to the pleadings and the chronology of events leading
to the filing of this first appeal by the plaintiffs, who are partly
successful before the trial court.
5. The plaint averments, which are relevant for consideration,
in brief, are as follows: The 1st plaintiff is the wife of late M. Bhupathi
Reddy. The plaintiffs 2 and 3 are the daughters; and the 1st defendant is
the son, of the said Bhupathi Reddy. The said Bhupathi Reddy died
intestate on 10.07.1999 leaving behind him the plaintiffs and the 1st
defendant. The plaint A schedule properties are the self acquired
separate properties of Bhupathi Reddy and therefore, the plaintiffs and
the 1st defendant are entitled to a 1/4th share each in the plaint A
schedule properties. The plaint B schedule properties are the ancestral
properties, and hence, the 1st defendant and late Bhupathi Reddy had a
50% share each in the said properties. On the intestate death of
Bhupathi Reddy, the plaintiffs and the 1st defendant have become
entitled to a share each in the half share of Bhupathi Reddy in the plaint
B schedule properties. Thus, in the plaint B schedule properties,
which are ancestral properties, the plaintiffs 1 to 3 are entitled to a
1/8th share each and the 1st defendant is entitled to the remaining 5/8th
share. The 1st defendant had wilfully denied the shares of the plaintiffs
in the plaint A and B schedule properties. Taking into consideration
his attitude and as it has become apparent that he is not going to
partition the properties and deliver the legally entitled shares to the
plaintiffs, the plaintiffs had called upon the 1st defendant on 25.09.2003
and 28.09.2003 to partition the properties in the presence of family
elders. However, the 1st defendant had flatly refused to entertain even a
discussion in that regard. Hence, the plaintiffs are constrained to file
the suit for partition against the 1st defendant. The defendants 2 and 3
were impleaded as they are the tenants in some of the properties, i.e.,
in the flats constructed over A schedule property after it was given for
development.
6. The 1st defendant in his written statement while admitting the
relationship had inter alia contended as follows: His father purchased
the plaint A schedule properties also with the income derived from the
ancestral lands and undivided family funds for the benefit of the
coparcenary. Bhupathi Reddy, the father of the plaintiffs 2 and 3, had
performed their marriages during his life time and they were also given
cash and jewellery at the time of their marriages. They both are well
settled. The 2nd plaintiff had acquired citizenship of the United States
of America and the 3rd plaintiff is a Green Card holder and is expecting to
acquire U.S. Citizenship shortly. The material benefits given to the
plaintiffs 2 and 3 were pooled up from out of the joint family assets.
Bhupathi Reddy became sick on account of sudden kidney failure and
since the plaintiffs 2 and 3 are well placed in life, he had wished to give
his interest in the properties to the 1st plaintiff and the 1st defendant.
Accordingly, Bhupathi Reddy relinquished his rights in his share of
property in favour of the 1st plaintiff and the 1st defendant by oral
arrangement/partition in the year 1998 when he came over to USA along
with the 1st plaintiff. The plaintiffs 2 and 3 were also present at that
time. Thus, the 1st defendant is having 75% share and the 1st plaintiff is
having remaining 25% share; and the properties were in joint possession
of the 1st defendant and the 1st plaintiff, who is his mother. On the
death of the father on 10.07.1999, the 1st defendant got both A and B
schedule properties. The plaintiffs never demanded for partition of the
properties. The portions of A schedule properties were let out
recently. The plaintiffs 2 and 3 having managed to gain the confidence
of the 1st plaintiff had filed the present suit with a view to knock away
the property. The plaintiffs 2 and 3 have no right in the suit schedule
properties.
7. The tenants, who are the defendants 2 and 3, had filed written
statements pleading about their possession of some of the properties in
A schedule, i.e., flats, as tenants. Therefore, their defence is not
much of relevance for determination of the issues involved in the suit for
partition amongst the family members of Bhupathi Reddy.
8. Basing on the pleadings, the following issues were framed for trial:
1. Whether the family arrangement pleaded by Defendant No.1
is true, valid and binding on the parties?
2. Whether the plaintiffs are entitled to seek partition of the
properties and allotment of one-fourth (1/4th) share to each
of them?
3. To what relief?
During the course of trial before the trial Court, the 1st plaintiff and the
husband of the 3rd plaintiff were examined as PWs1 and 2 and exhibits A1
to A20 were marked on the side of the plaintiffs. The 1st defendant was
examined as DW1 and exhibits B1 to B6 were marked on his side. On
merits, the trial court held that both A and B schedule properties are
ancestral properties and that the plaintiffs 1 to 3 are entitled to a 1/8th
share each and that the 1st defendant is entitled to the remaining 5/8th
share in the said properties.
9. To begin with, it is pertinent to mention that all the three
plaintiffs, who are the mother and sisters of the 1st defendant, had
claimed a 1/4th share each in the plaint A schedule properties stating
that the same are the separate properties of late Bhupathi Reddy and a
1/8th share each in the plaint B schedule properties stating that the
same are the ancestral properties. However, the trial Court had granted
a preliminary decree against the 1st defendant and had directed for the
partition of both the said A and B schedule properties into eight equal
shares and allotment of one such share each, i.e., total three shares to
the three plaintiffs and the remaining five shares to the 1st defendant.
Thus, the trial court had held that both A and B schedule properties
are ancestral properties. Aggrieved of the lesser shares allotted to them
in the plaint schedule properties, the plaintiffs had preferred this first
appeal suit. No appeal or cross appeal is preferred by the 1st defendant.
The defendants 2 and 3, as already noted, are the tenants of flats in A
schedule properties. During the pendency of this appeal, the
respondents 4 to 6, who are tenants in some of the properties, are also
impleaded. Be that as it may, the learned counsel for the plaintiffs/
appellants while submitting that the plaintiffs/ appellants are now not
assailing the findings of the trial court that plaint A schedule properties
are also ancestral property had further contended inter alia that even if
the plaint A and B schedule properties are ancestral properties still
the plaintiffs are entitled to larger shares than granted by the court
below in view of the amendment to Section 6 in Chapter II of the Hindu
Succession Act, 1956 dealing with devolution of interest in coparcenary
property, which came into force with effect from 09.09.2005. Placing
reliance on the said new provision of law of Section 6 as
amended/substituted by Act 39 of 2005 and also on the decision in
Ganduri Koteshwaramma and another v. Chakiri Yanadi and another
he had submitted that since the suit for partition is pending and as no
partition by a registered deed of partition has taken place and as
Bhupathi Reddy had died intestate, the daughters of Bhupathi Reddy,
who are the plaintiffs 2 and 3 have become coparceners in their own
right in the same manner as the son, i.e., the 1st defendant and that they
are entitled to the same rights in the coparcenary property as they would
have had if they had been sons and that therefore, the rights of the
plaintiffs 2 and 3 are on par with the rights of the 1st defendant in the
coparcenary and that in view of the substantive right in favour of the
plaintiffs 2 and 3, they are entitled to larger shares equally along with
the 1st defendant, who is their brother.
10. In view of the facts and the submissions, the points for
determination in this appeal suit are --
(1) Whether the plaintiffs 2 and 3 are entitled to equal
shares along with the 1st defendant in the plaint A
and B schedule ancestral properties in view of the
existing Section 6 of the Hindu Succession Act, which
the Parliament had introduced in the year 2005 and
which came into force with effect from 09.09.2005?
(2) What are the shares to which the plaintiffs 1 to 3 and
the 1st defendant are entitled to in the plaint A and
B schedule properties?
(3) Whether the decree and judgment of the trial court
need modification in respect of the shares of the
plaintiffs 1 to 3 and the 1st defendant in the plaint A
and B schedule properties?
(4) To what relief?
11. POINTS 1 to 3:
11. (a) The facts leading to the present stage of the matter are
already stated supra, in detail. The 1st plaintiff is the wife of Bhupathi
Reddy. The 1st defendant is the son; and the plaintiffs 2 and 3 are the
married daughters of the said Bhupathi Reddy. The 1st defendants
defence is that the plaint A and B schedule properties are the
ancestral properties of the family. The trial court had held that even A
schedule properties are ancestral properties. On careful examination of
the evidence on record on this aspect, we are of the well considered
view that the evidence on record is sufficient to accept the defence of
the 1st defendant that the plaint A schedule properties are also
ancestral properties and therefore, the plaintiffs contention that the
said A schedule property is separate property of late Bhupathi Reddy is
devoid of merit. The plaintiffs are now not disputing the said contention
of the 1st defendant and the finding of the trial court on this aspect and
are conceding that both plaint A and B schedule properties are
ancestral properties.
11. (b) The defence of the 1st defendant that his father orally
relinquished his share in the ancestral immovable properties in his favour
and in favour of his mother and that as per the said arrangement/oral
partition, he is entitled to 75% share and that his mother is entitled to
25% share in the plaint A and B schedule properties and that on the
death of his father he has got the A and B schedule properties, is
untenable and cannot be countenanced as any relinquishment of a right
in immovable property, the value of which exceeds hundred rupees
cannot be oral and in the absence of any registered document, such a
contention cannot be upheld in a court of law. The further contention of
the 1st defendant which was advanced before the trial Court that since
the daughters/plaintiffs 2 and 3 were sufficiently provided with cash and
jewellery at the time of their marriages and that they are well settled
and that as material benefits that were given to them were pooled up
from and out of joint family assets, they are not entitled to a share in
the ancestral properties also cannot be countenanced in a court of law.
Further, the defence that the father had divided the properties orally
during his visit along with the 1st plaintiff to the USA in the year 1988 and
that every family member has accepted the same also cannot be
countenanced in the absence of any reliable evidence except the self-
serving statement in the evidence of the 1st defendant. The 1st plaintiff,
who is the mother of the 1st defendant, in her evidence, had denied the
oral partition and also family arrangement and the defence of the 1st
defendant. Therefore, the trial Court had rightly disbelieved the
defence of the 1st defendant and had held that the plaint A and B
schedule properties which are ancestral properties are liable for
partition. Having gone through the evidence of PW1 and DW1 in
juxtaposition and keeping in view the legal position we do not find any
reason to disagree with the findings of the trial court recorded against
the 1st defendant. Further, the trial Court had disbelieved and negatived
the defence of the 1st defendant and had held that the plaint schedule
properties are liable for partition. The 1st defendant having not
preferred an appeal or cross appeal against the preliminary decree is not
entitled to seek reversal of the preliminary decree, which is granted
against him and in favour of the plaintiffs and hence, the defence of the
defendant which was advanced before the trial Court need not be
countenanced by this Court.
11. (c) Now, the next question is as to what are the shares to which
all the four sharers, namely, the plaintiffs 1 to 3 and the 1st defendant
are entitled to in the plaint A and B schedule properties. Admittedly,
there is no partition by way of a registered partition deed and Bhupathi
Reddy had died intestate on 10.07.1999 leaving behind him the plaintiffs
and the 1st defendant. Now, the plaintiffs 2 and 3, the daughters of
Bhupathi Reddy, are making claims for larger shares in the plaint A and
B ancestral properties. And, their claims are based on the
new/substituted Section 6 of the Hindu Succession Act, 1956. Therefore,
it is necessary to refer to infra the said provision of law.
11. (d) Section 6 of the Hindu Succession Act, 1956 (the principal
Act, for brevity) as amended/substituted by the Parliament by the
Amendment Act, 2005 (Act 39 of 2005) reads as follows:
"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 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 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 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 (16 of 1908) or partition effected by a
decree of a Court."
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. A plain reading of this provision shows that the
legislature has conferred substantive right in favour of the daughters.
According to this new Section, the daughter of a coparcener shall by
birth become a coparcener in her own rights and liabilities in the same
manner as the son.
11. (e) The incidental question before us is Whether the provision
of Section 6 of the principal Act as substituted by the Amendment Act
2005 inures for the benefit of the plaintiffs 2 and 3, who are the
daughters of late Bhupathi Reddy? For answering this question it is
advantageous to refer to the decision in Badrinarayan Shankar Bhandari
v. Omprakash Shankar Bhandari . A Full Bench of the High Court of
Bombay was constituted on a reference made by a learned Single Judge
of that court to give its opinion on the following questions of law
referred to it:
(a) Whether Section 6 of the Hindu Succession Act, 1956 as amended by
the Amendment Act, 2005 is prospective or retrospective in
operation?
(b) Whether Section 6 of the Hindu Succession Act, 1956 as amended by
the Amendment Act 2005 applies to daughters born prior to
17.6.1956?
(c) Whether Section 6 of the Hindu Succession Act, 1956 as amended by
the Amendment Act, 2005 applies to daughters born after 17.6.1956
and prior to 9.9.2005?
(d) Whether Section 6 of the Hindu Succession Act, 1956 as amended by
the Amendment Act, 2005 applies only to daughters born after
9.9.2005?
(e) Whether the decision of the Division Bench in the case of Vaishali
Ganorkar is per in curium of Gandori Koteshwaramma and others?
The primary issue before the learned Single Judge of that Court was
whether Section 6 of the Hindu Succession Act, 1956 (the Principal Act)
substituted by Section 3 of the Hindu Succession (Amendment) Act, 2005
(the Amendment Act) is prospective or retrospective in operation. The
Full Bench of the Bombay High Court having considered the aspects of old
Hindu law, the relevant provisions of the Principal Act and the reasons
that led to the making of the Amendment Act, the statement of objects
and reasons for amending the Principal Act, the decisions of the Supreme
Court in Ganduri Koteshwaramma (1 supra) and other cited decisions
including the decisions in G.Sekhars case [(2009) 6 SCC 99] and in
Sheeladevis case [(2006) 8 SCC 581], had answered the questions as
follows:
Question (a):
In view of above discussion, in our view the correct legal position
is that Section 6 as amended by the 2005 Amendment Act is
retroactive in nature meaning thereby the rights under Section
6(1)(b) and (c) and under sub-Rule (2) are available to all daughters
living on the date of coming into force of the 2005 Amendment Act
i.e. on 9 September 2005, though born prior to 9 September 2005.
Obviously, the daughters born on or after 9 September 2005 are
entitled to get the benefits of Amended Section 6 of the Act under
clause (a) of sub section (1). In other words, the heirs of daughters
who died before 9 September 2005 do not get the benefits of
amended Section 6.
Question (b), (c) and (d):
In the above view of the matter, so far as questions (b), (c)
and (d) are concerned, we hold that the Amendment Act applies to
daughters born any time provided the daughters born prior to 9th
September 2005 are alive on the date of coming into force of the
Amendment Act i.e. on 9 September 2005. There is no dispute
between the parties that the Amendment Act applies to daughters
born on or after 9 September 2005.
While answering the question (e), the Full Bench of the Bombay High
Court had referred to the ratio in the decision of Ganduri
Koteshwaramma (1 supra), wherein the Supreme Court held that the
amended Section 6 will apply where final decree was not passed before
the date of commencement of the Amended Act 2005 and had held as
under:
We are, therefore, of the view that the binding force of the
Supreme Court in Ganduri Koteshwaramma (supra): (2011)9 SCC-
788 is not weakened by non-consideration of the Supreme Court
decisions in G.Sekhars case (supra): (2009) 6- SCC-99 and in
Sheeladevis case (supra): (2006) 8 SCC-581. We, therefore,
answer question (e) in the affirmative that is to say, the decision of
the Division Bench in Vaishali Ganorkars case (supra): 2012(5)-Bom
C.R-210 is per incuriam the Supreme Court decision in Ganduri
Koteshwaramma (supra): (2011) 9-SCC -788.
Having gone through the Full Bench decision of the Bombay High Court,
though it is of persuasive value, we find ourselves in respectful
agreement with the findings recorded by the Full Bench of the Bombay
High Court.
11. (f) Before reverting back to the facts of the instant case, it is to
be noted that new Section 6 of the Principal Act extracted supra brings
uniformity in the country. Although the Central Act 39 of 2005 has not
expressly repealed Section 29A, which was introduced in the Hindu
Succession Act by the A P State Amendment Act 13 of 1986, the said
State Law is void to the extent it is repugnant to, or inconsistent with,
the Central Law. In the decision in Damalanka Gangaraju and Others v.
Nandipati Vijaya Lakshmi and others this Court has held that the State
amendment is deemed to be repealed as the Parliament and the State
Legislature made laws related to the same concurrent subject and as a
conflict arises between the two enactments. This Court also held that
the conflict is resolved by Article 254 (1) of the Constitution of India,
which provided that in such cases of conflict the State Law shall be void
to the extent it is repugnant to, or inconsistent with, the Central Law. It
was, therefore, held by this Court that all the daughters have to be
treated as coparceners entitled to equal shares, irrespective of the fact
whether they are majors or minors or their marriages were performed
before 05.09.1985 or subsequent thereto. Hence, the new provision of
Section 6, which is now on the Statute Book, would inure to the benefit
of the plaintiffs 2 and 3, the daughters. Thus, on and from 9th September
2005, the daughter is entitled to a share in the ancestral property and is
a coparcener as if she had been a son. Thus, the right which accrued to
the daughter by virtue of this new provision is an absolute right insofar as
the property of a joint Hindu family governed by Mitakshara law. It is
also to be noted that the present case of the plaintiffs 2 and 3 does not
fall in anyone of the exceptions provided in the proviso appended to sub-
section (1) of Section 6. Only two categories are excepted from
application of the new Section 6 of the Act. The said two categories are
(i) where disposition or alienation including any partition has taken place
before 20th December 2004; and (ii) where testamentary disposition of
property has been made before 20th December 2004. For the purpose of
the new 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. Now that a preliminary decree
is passed by the trial court on 30.06.2006, it cannot be said that the
preliminary decree in the suit granted by the trial court deprived the
appellants/plaintiffs 2 and 3 of claiming the benefits of 2005 Amendment
Act, more particularly, when their suit was instituted in the year 2003
and when no final decree has been passed and as the suit continues until
the final decree is passed and the preliminary decree can be amended, in
case the amendment of the preliminary decree is necessary in the light
of any changed circumstances.
11. (g) The view of this court finds support from the ratio in the
decision in Ganduri Koteshwaramma (1 supra). In this cited case, the
question that fell for consideration before the Supreme Court was
Whether the benefits of the Hindu Succession Act are available to the
appellants therein. The facts of the cited case are as follows: The
appellants and the respondents are siblings being daughters and sons of
one Ch. Venkata Swamy. The 1st respondent filed a suit for partition
impleading his father (D1), his brother (D2) and his two sisters (the
appellants-D3 and D4). The A, C, and D schedule properties are
coparcenary property. The plaintiff claimed 1/3rd share for him and the
defendants 1 and 2 (his father and brother). The preliminary decree
granted in March 1999 declared that the plaintiff has got 1/3rd share in
the said properties. Before passing the final decree, by 2005 Amendment
Act, Section 6 of the Hindu Succession Act, 1956 was substituted. The
appellants (D3 and D4) made an application for passing preliminary
decree in their favour for partition of A, C and D coparcenary
properties into four equal shares and allotment of one such share each to
them as the 1st defendant died during the pendency of the suit. The said
application was contested by the plaintiff. The trial Court by its order
dated 15.06.2009 allowed the application of the appellants (D3 and D4)
and had held that they were entitled for re-allotment of shares in the
preliminary decree, i.e., they are entitled to 1/4th share each and
separate possession in A, C and D schedule properties. The said
order was challenged before this Court in an appeal. A learned single
Judge of this court allowed the appeal and had set aside the order of the
trial court. The appellants (D3 and D4) preferred an appeal by Special
Leave before the Honble Supreme Court. While answering the question
as to whether the preliminary decree passed by the trial court deprived
the appellants/daughters of the benefits of 2005 Amendment Act
although final decree for partition has not yet been passed, the Honble
Supreme Court had held in favour of the daughters and had set aside the
orders of this Court and had restored the order of the trial court.
11. (h) The ratio in the decision squarely applies to the facts of the
case on hand. Therefore, in the plaint A and B schedule properties
which are ancestral joint family coparcenary properties, the two
daughters of Bhupathi Reddy i.e., the plaintiffs 2 and 3, whose cases are
not covered by the excepted categories, are entitled, along with their
brother-the 1st defendant, to an equal share each as the right accrued to
the daughters/the plaintiffs 2 and 3 in the property of a joint Hindu
family governed by Mitakshara law by virtue of Section 6 of the Act is
absolute. As held by the Honble Supreme Court, the declaration in
Section 6 that the daughter of the coparcener shall have same rights and
liabilities in the coparcenary property/ancestral property as she would
have been a son is unambiguous and unequivocal and 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. Therefore, the
findings of the trial Court in the instant suit that the son/the 1st
defendant is entitled to 5/8th share and that the daughters i.e., the
plaintiffs 2 and 3 are entitled to 1/8th share each along with the 1st
plaintiff, the mother, are not correct as the trial court had failed to take
note of the amended new provision of Section 6 of the Act. Probably this
aspect was not brought to the notice of the trial Court. Therefore, if
partition of plaint A and B schedule ancestral properties is to be
effected as per the law now obtaining and applicable, the plaintiffs 2 and
3, who are daughters of late Bhupathi Reddy, are to be placed on par
with the 1st defendant, who is the son of late Bhupathi Reddy.
Accordingly, the shares to which the plaintiffs and the 1st defendant
would be entitled to in the plaint A and B schedule properties are to
be worked out as follows:
The plaint A and B schedule properties should be
partitioned first into four shares by allotting one such
share notionally to the deceased Bhupathi Reddy also. A
th share each out of four such shares is allotable to each
of the plaintiffs 2 and 3, who are the daughters and the
1st defendant, who is the son. The remaining th share
notionally allotted to Bhupathi Reddy is to be again
partitioned amongst his wife, the two daughters and the
son. Therefore, the wife would be entitled to a th
share in the said th share. Thus, the wife of Bhupathi
Reddy, the 1st plaintiff, would be entitled to 1/16th share
in the plaint A and B schedule properties and the
daughters and the son of late Bhupathi Reddy, i.e., the
plaintiffs 2 and 3 and the 1st defendant would be entitled
to a 1/4th + 1/16th share each in the plaint A and B
schedule properties, in view of the settled legal position
obtaining and applicable to the facts of the case.
The points are accordingly answered holding that the 1st plaintiff who is
the wife of Bhupathi Reddy is entitled to 1/16th share in the plaint A
and B schedule properties and that the plaintiffs 2 and 3, who are the
daughters and the 1st defendant, who is the Son, of Bhupathi Reddy are
entitled to 1/4th + 1/16th share each (5/16th share each) in plaint A and
B schedule properties. As a sequel, it must be held that the
preliminary decree granted by the trial Court is to be modified
accordingly in respect of the shares of the plaintiffs and the 1st
defendant. The points are accordingly answered in favour of the
plaintiffs/appellants.
12. POINT NO.4:
In the result, the appeal is allowed in part and the preliminary
decree passed by the trial Court insofar as it related to determination of
shares of the sharers is set aside by holding that the plaintiffs 2 and 3
and the 1st defendant are entitled to a 5/16th share each and that the 1st
plaintiff is entitled to a 1/16th share in both the plaint A and B
schedule properties. Accordingly, a preliminary decree is passed in
favour of the plaintiffs and against the 1st defendant for partition of
plaint A and B schedule properties into sixteen (16) equal and
equitable shares by metes and bounds and according to good and bad
qualities and for allotment of a 5/16th share each to the plaintiffs 2 and 3
and the 1st defendant and the remaining 1/16th share to the 1st plaintiff.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this appeal shall stand
closed.
_______________
K.C. BHANU, J
________________________
M. SEETHARAMA MURTI, J
01st April 2015
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