1. This second appeal involves following substantial
(i) Whether the plaintiff who is a daughter would have
the benefit of the amended provisions as amended by the
Central Act of 2005 in Hindu Succession Act ?
sa426.10.odt
(ii) The plaintiff is born prior to 1956. The defendant
No. 1 is also born prior to 1956. The father of the
plaintiff and defendant No. 1 died in the year 1990. In
such circumstances, whether the provisions of the
Central Amendment in the year 2005, to the Hindu
Succession Act, would be available to the plaintiff ?
2. Parties are referred to as Plaintiff and Defendants.
3. Plaintiff is the real sister of Defendant No. 1 and daughter
of Tapiram. Plaintiff filed suit for partition and separate possession
in respect of five properties as described in paragraph No. 1 of the
plaint. She claims that these properties are ancestral properties of
Plaintiff and Defendants. It is also claimed that out of the ancestral
properties, their father had purchased some of the properties but in
the name of himself and Defendant No. 1. It is also claimed that
Plaintiff came to know about the revenue record indicating name of
defendants in respect of the suit properties, she sought partition.
Since, it was refused, suit for partition and separate possession came
to be filed.
4. Defendants filed written statement at Exhibit 16 denying
the contentions raised by Plaintiff with regard to the properties being
sa426.10.odt
joint family properties. It is claimed that during the life time of father
of Plaintiff and Defendant No. 1, there was an oral partition in
respect of the land and the house. It is claimed that the subject land
and house came to the share of Defendant No. 1 and as against this,
father of Plaintiff and Defendant No. 1 performed marriage of
daughters. It is also claimed that amount received from father's
employment at the time of retirement was also paid to the daughters.
It is specifically claimed in paragraph no. 3 of the written statement
that on the basis of partition in the year 1974, revenue record was
mutated in favour of Defendant No. 1 vide Mutation Entry No. 1209.
In paragraph No. 5 of the written statement, it is claimed that inspite
of knowledge about the said mutation entry, no objection is raised by
the Plaintiff in that regard and as such she has no right to take any
exception thereto now. In paragraph No. 10, it is specifically pleaded
by Defendant No. 1 that their father had no sufficient income to
purchase properties though he was employed. It is further
specifically claimed by Defendant No. 1 that he used to do labour
work and out of said income, in the year 1962, his father purchased
Gat No. 106 but since this Defendant was minor, it was purchased in
his name. Thus, there is specific pleading with regard to Gat No. 106
sa426.10.odt
being self-acquired property. On these amongst other contentions,
suit was opposed.
5. Learned Trial Court decreed the suit in respect of three
properties more particularly described in paragraph Nos. 1B to 1C.
Plaintiff has not take exception to the said decree. As such, rejection
of partition in respect of remaining two properties has attained
finality.
6. Learned counsel for Appellant/Defendant No. 1 submits
that though the Hon'ble Supreme Court in case of Vineeta Sharma
vs. Rakesh Sharma and others, (2020)9 Supreme Court Cases 1
has held that right of a daughter in the co-parcernary property is by
birth however, there is no complete embargo for taking stand of oral
partition. It is his submission that in Paragraph No. 137(5) of the
said judgment, the Hon'ble Supreme Court has held that in
exceptional cases where plea of oral partition is supported by public
documents and partition is finally evinced in the same manner as if
it had been affected by the decree of Court, it may be accepted.
According to him, in the instant case, theory of oral partition is
supported by mutation entry. It is his further submission that the
sa426.10.odt
Hon'ble Supreme Court in this judgment has not taken into
consideration the issue as to the right of a daughter who is born
prior to 1956. So also, the effect of Maharashtra Amendment in
Section 29A of Hindu Succession Act has not been considered, when
admittedly, Plaintiff married prior to 1994. To buttress his
submissions, he placed reliance on judgment of Division Bench of
Karnataka High Court in case of Pushpalatha N. Vs. V.V.Padma,
2010(3) AIR KANT HCR 225, wherein in Paragraph No. 56 of the
said judgment it is held that there was no intention either under the
unamended act or the act after amendment to confer any such right
on a daughter of a co-parcener who was born prior to 17.6.1956. It
is his submission that since these two aspects were not decided by
the Hon'ble Supreme Court, it is open for the Appellant herein to
make submissions in that regard and these issues deserve
consideration.
7. It is his submission that there is specific pleading in the
written statement with regard to the oral partition which, according
to him, gets support from 7/12 extracts at Exhibits 34 to 36. It is his
submission that the present case is clearly covered by observations of
Hon'ble Supreme Court in case of Vineeta Sharma (supra) in
sa426.10.odt
Paragraph No. 137.5. It is his further submission that these aspects
are not taken into consideration by the Courts below and as such
these substantial questions of law are involved herein. He has also
placed reliance on judgment of Hon'ble Supreme Court in Paragraph
Nos. 16 and 17 in case of Danamma Alias Suman Surpur and
another vs. Amar and others, (2018) 3 Supreme Court Cases 343 in
order to submit that in the said judgment also the daughters were
not considered as co-parcener and this judgment has been upheld by
Hon'ble Supreme Court in case of Vineeta Sharma (supra).
8. Learned counsel for Plaintiff/contesting Respondent
supported the impugned judgment.
9. At the outset it needs mention that, parties are at
ad-idem to the position that Plaintiff and Defendant No. 1 were born
prior to 1956 and their father Tapiram died in 1990. Thus,
relationship between Plaintiff and Defendant No. 1 as real brother
and sister is admitted. It is the case of Plaintiff that the suit
properties are ancestral joint family properties and there is no
partition effected with regard to the same. As against this, it is the
case of Defendant No. 1 in paragraph Nos. 3 and 5 of the written
sa426.10.odt
statement that there was partition in the year 1974 and pursuant to
the same his name was entered into revenue record vide mutation
entry No. 1209. However, in paragraph No. 10 there is specific
averment made by this Defendant claiming that Gat No. 106 is his
self-acquired property and only for the reason that he was minor at
the relevant time, it was purchased by his father in his own name.
Thus, it is clear that insofar as Gat No. 106 is concerned, it is not a
case of Defendant No. 1 that it is a joint family property and
pursuant to partition, the same been transferred into his name. In
the light of this specific case of Defendant No. 1, merely on the basis
of mutation entries and recording of name of Defendant No. 1 in two
properties and name of Defendant No. 2 and father of Plaintiff and
Defendant No. 1 in one property will not be sufficient to accept the
proof of factum of partition.
10. It is pertinent to note that neither in the pleadings nor in
the evidence, this Defendant specifically states or even atleast
approximately/around when in 1974, oral partition has taken place.
Neither Defendant No. 1 in his evidence nor his step sister who was
examined by him makes any whisper about the same. Since there is
presumption of jointness of Hindu undivided family, once Defendant
sa426.10.odt
No. 1 comes with a specific plea of partition, initial burden would be
on him to prove that there was partition oral or otherwise. The
evidence as it appears from record is not sufficient to hold that there
was partition of the suit property and that the Defendant No. 1 has
failed to prove factum of previous partition. This Court, while
entertaining second appeal, cannot and is not inclined to interfere
into the findings of facts recorded by both the Courts below.
11. Now, the question remains as to whether in view of
Section 29A of Maharashtra Amendment to Hindu Succession Act,
the Plaintiff has no right to seek partition, as sought to be canvassed
on behalf of Appellant. It would be relevant to reproduce said
provision for the sake of convenience.
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
sa426.10.odt
right to claim by survivorship ; and shall be subject to the
same liabiliiies and disabilities in respect thereto as the
son;
(ii) at a partition in a Joint Hindu Family referred to in
clause (/), 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 p/e-dec eased son
or of such pre-deceased daughter :Provided further that
the share allotable to the pre-deccased child of a pre-
dcccased 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 son or of the pre-dec :ased 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 ;
- 10 -
sa426.10.odt
(iv) nothing in this Chapter shall apply to a daughter
married before, the date of the commencement of the
Hindu Succession (Maharashtra Amendment) Act, 1994;
(v) nothing in clause (ii) shall apply to a partition which
has been effected before tho date of the commencement of
the Hindu Succession (Maharashtra Amendment) Act,
1994.
12. Perusal of the said provision indicates that a right was
created in favour of a female Hindu and she was treated as a co-
parcener with a rider that she is not married prior to coming into
force of the Amendment Act of 1994 and that partition is not already
effected. In this backdrop, provision of amended Section 6 becomes
relevant which reads as under :-
6. Devolution of interest in coparcenary property.―
(1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005 (39 of 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 coparcenery property as
she would have had if she had been a son;
- 11 -
sa426.10.odt
(c) be subject to the same liabilities in respect of the said
coparcenery property as that of a son, and any reference
to a Hindu Mitakshara coparcener shall be deemed to
include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including
any partition or testamentary disposition of property
which had taken place before the 20th day of December,
2004.
(2) Any property to which a female Hindu becomes entitled
by virtue of sub-section (1) shall be held by her with the
incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any
other law for the time being in force, as property capable
of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the
Hindu Succession (Amendment) Act, 2005 (39 of 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
coparcenery 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) x x x
- 12 -
sa426.10.odt
(c) x x x
(4) x x x
(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.
13. This provision clearly indicates that in a joint Hindu
family governed by Mitakshara law a daughter of a co-parcener shall
by birth become a co-parcener in her own right in the same manner
as the son and it does not depend upon marital status of the
daughter.
14. In order to decide the effect of the Central amendment to
section 6 of the Act, when Section 29A of Maharashtra Amendment
Act, is not repealed and to appreciate submissions made by learned
counsel for Appellant in that regard, it would be necessary to
consider Article 254 of the Constitution. It reads thus :-
- 13 -
sa426.10.odt
254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States
(1) If any provision of a law made by the Legislature of
a State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or
to any provision of an existing law with respect to one
of the matters enumerated in the Concurrent List,
then, subject to the provisions of clause (2), the law
made by Parliament, whether passed before or after the
law made by the Legislature of such State, or, as the
case may be, the existing law, shall prevail and the law
made by the Legislature of the State shall, to the
extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with
respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to
the provisions of an earlier law made by Parliament or
an existing law with respect to that matter, then, the
law so made by the Legislature of such State shall, if it
has been reserved for the consideration of the
President and has received his assent, prevail in that
State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with
respect to the same matter including a law adding to,
- 14 -
sa426.10.odt
amending, varying or repealing the law so made by the
Legislature of the State.
15. This Article would apply in case of inconsistency between
laws made by Parliament and Legislature of State. A plain reading of
both provisions of amended Section 6 of the Act and Section 29A of
Maharashtra Amendment, 1994 indicates that they are inconsistent
to the extent, that, the daughter married prior to 1994 (before
commencement of Amended Act) was excluded from consideration as
a co-parcener whereas Central Amendment to Section 6 does not
make it qualified/conditional. As per this provision, irrespective of
factum of marriage of the daughter, she would be considered as
coparcener.
16. As per Clause (1) of above Article, in respect of matters
from concurrent list, the law made by Parliament, whether passed
before or after law made by Legislature of State or as case may be
existing law, shall prevail and the law made by Legislature of State, to
the extent of repugnancy be void. Clause (2), however, provides that,
where the State Legislature has made a law repugnant to the
provisions or earlier law made by Parliament and it has received
assent of the President, the same shall prevail in the State.
- 15 -
sa426.10.odt
17. In the instant case, Maharashtra Amendment 1994 i.e.
State Legislature is enacted prior in time and since the Central
amendment to Section 6 of the Act being at later point of time, Clause
(1) would come in play and to the extent of repugnancy, and the
Central amendment would prevail. Thus, this Court has no
hesitation to hold that the provisions of amendment to Section 6 of
the Act would prevail over State amendment and that the marriage of
the daughter prior to 1994, would not become embargo in recognising
her status as a coparcener.
18. The submission of learned counsel for the Appellant
about non-consideration/decision on the point of applicability of
Section 29A of Maharashra Amendment, 1994, by Hon'ble Supreme
Court in judgment of Vineeta Shrama (supra), is not also acceptable
for the reason that not only Maharashtra Amendment Act, 1994 but
also similar provisions made by other states, are duly considered
therein. In paragraph No. 57 of the judgment, a reference can be
found about the cognizance being taken by Hon'ble Supreme Court of
the said State amendments. Discussion by referring to Mangammal
vs. T. B. Raju's case, (2018) 15 SCC 662, amply makes it clear that
- 16 -
sa426.10.odt
the conclusions finally recorded in judgment of Vineeta Sharma
(supra) are on due consideration of all relevant provisions and the
judgments passed earlier. This judgment (Vineeta Sharma),
therefore, rests all the issues as of now concerning to amendment of
2005 to Section 6 of the Act.
19. Learned counsel for Appellant submits that since Plaintiff
is born prior to 17.06.1956, she would not be entitled to become
coparcener. Reliance placed by him on judgment of Division Bench of
Karnataka High Court in case of Pushpalatha (supra) to support this
submission is wholly misplaced. First of all, the said judgment has
been passed prior to the judgment of Hon'ble Supreme Court in case
of Vineeta Sharma (supra). Now, law on the point of the applicability
of the provisions of Section 6 is crystalized. It is necessary to note
the conclusions drawn therein which read thus :-
"137. Resultantly, we answer the reference as under :-
137.1 The provisions contained in substituted Section 6 of
the Hindu Succession Act, 1956 confer status of
coparcener on the daughter born before or after the
amendment in the same manner as son with same rights
and liabilities.
- 17 -
sa426.10.odt
137.2 The rights can be claimed by the daughter born
earlier with effect from 9-9-2005 with savings as provided
in Section 6(1) as to the disposition or alienation, partition
or testamentary disposition which had taken place before
the 20th day of December, 2004.
137.3 Since the right in coparcenary is by birth, it is not
necessary that father coparcener should be living as on 9-
9-2005.
137.4 The statutory fiction of partition created by the
proviso to Section 6 of the Hindu Succession Act, 1956 as
originally enacted did not bring about the actual partition
or disruption of coparcernary. The fiction was only for the
purpose of ascertaining share of deceased coparcener
when he was survived by a female heir, of Class I as
specified in the Schedule to the 1956 Act or male relative
of such female. The provisions of the substituted Section 6
are required to be given full effect. Notwithstanding that a
preliminary decree has been passed, the daughters are to
be given share in coparcenary equal to that of a son in
pending proceedings for final decree or in an appeal.
137.5 In view of the rigour of provisions of the Explanation
to Section 6(5) of the 1956 Act, a plea of oral partition
cannot be accepted as the statutory recognised mode of
partition effected by a deed of partition duly registered
under the provisions of the Registration Act, 1908 or
- 18 -
sa426.10.odt
effected by a decree of a court. However, in exceptional
cases where plea of oral partition is supported by public
documents and partition is finally evinced in the same
manner as if it had been affected (sic effected) by a decree
of a court, it may be accepted. A plea of partition based
on oral evidence alone cannot be accepted and to be
rejected outrightly.
138. We understand that on this question, suits/appeals
are pending before different High Courts and subordinate
courts. The matters have already been delayed due to
legal imbroglio caused by conflicting decisions. The
daughters cannot be deprived of their right of equality
conferred upon them by Section 6. Hence, we request that
the pending matters be decided, as far as possible, within
six months.
139. In view of the aforesaid discussion and answer, we
overrule the view to the contrary expressed in Prakash v.
Phulvanti and Mangammal v. T. B. Raju. The opinion
expressed in Danamma v. Amar is partly overruled to the
extent it is contrary to this decision. Let the matters be
placed before appropriate Bench for decision on merits.
20. Thus, the law now settled by Hon'ble Supreme Court
leaves no scope to hold that amended provision of Section 6 of the
Act, would not apply to the daughters born prior to 17.06.1956, since
- 19 -
sa426.10.odt
application of amended provision is held to be retrospective.
Recognition of status of coparcener is by birth. Pertinently, there is
practically a substitution of Section 6 of the Act and that the
Legislature in its wisdom, thought it appropriate not to amend partly
but to substitute the said provision altogether. In view of this, with
utmost respect, this Court does not agree with the said observations
made in judgment of Pushpalatha (supra). Moreover, neither there is
any express bar created for enforcement of right of a coparcener to a
female who is born prior to 1956 nor even by implication, it can be
held so. Moreover, having regard to the aim/object of the
amendment, no such interpretation can be entertained.
21. Even otherwise, a bare look at the said provision shows
that from date of commencement of amended Act, 2005, the daughter
shall be considered as a coparcener by birth in her own rights in the
same manner as a son. Thus, this provision leaves no room
whatsoever to exclude the daughters who are born prior to
17.06.1956. To hold so would amount to re-writing of the Statute,
which is not permissible in law.
- 20 -
sa426.10.odt
22. Thus, there cannot be any dispute made with regard to
the position of law that by virtue of amended Section 6 of the Hindu
Succession Act, a daughter irrespective of her date of birth has
become co-parcener in her own right in the same manner as the son.
Similarly, unless Defendants are in a position to bring case in the
exception as contemplated by Paragraph Nos. 137.2 and 137.5 of the
judgment as recorded above, there is no embargo to decree a suit for
partition, initiated by daughter.
23. Admittedly, case of Defendant is not covered by Clause
137.2 of the judgment of Vineeta Sharma, since no case is sought to
be made out to that effect. Learned counsel for Appellant has placed
reliance on judgment of Hon'ble Supreme Court in case of Digambar
Adhar Pathal vs. Devram Girdhar Patil and another, 1995 Supp(2)
Supreme Court Cases 428 to submit that claim of Defendant of oral
partition is supported by revenue record and the same is sufficient to
prove the factum of previous partition of suit properties. Such
submission could have been accepted provided that it was not the
case of Defendant himself that the subject property standing in his
name is his self-acquired property and not ancestral property.
- 21 -
sa426.10.odt
24. Here in this case, as recorded hereinabove, there is
specific case of Defendant No. 1 that property Gat No. 106 is his self-
acquired property. As such, the theory sought to be canvassed now
before this Court about there being documentary evidence in the
form of 7/12 extracts indicating that there was partition, cannot be
accepted.
25. In view of the above discussion and having regard to the
law settled by the Hon'ble Supreme Court in case of Vineeta Sharma
(supra), the substantial questions of law as recorded hereinabove are
answered in negative.
26. In the result, Appeal stands dismissed. Parties to bear
their own cost.
27. At this stage, learned counsel for Appellant seeks
continuation of interim order for a period of six weeks.
28. Learned counsel for Respondents opposed continuation
thereof.
- 22 -
sa426.10.odt
29 . Interim relief is in force since 2010. Hence, there is no
reason not to continue the same for a period of six weeks. Hence,
interim relief is continued for six weeks from today.
( R. M. JOSHI)
Judge
dyb
