Madras High Court
A.Ashraffa vs Saraswathi on 20 July, 2021
S.A.No.979 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.07.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
S.A.No.979 of 2012
and
M.P.No.1 of 2012
(Through Video Conferencing)
A.Ashraffa ... Appellant
Vs.
1.Saraswathi
2.S.Sivaraj
3.S.Gunaseelan
4.Deepa ... Respondents
Second Appeal filed under Section 100 of Civil Procedure Code,
1908 against the Judgment and Decree dated 01.03.2012 passed by the
Principal District Court, Erode in A.S.No.68 of 2011 set asiding the
Judgment and Decree dated 11.08.2010 passed by I Additional
Subordinate Court, Erode in O.S.No.18 of 2006.
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For Appellant : Mr.M.Krishnamurthy
For R1 : Mr.N.Manokaran
For R2 to R4 : No appearance
JUDGMENT
The appellant is aggrieved by the impugned Judgment and Decree
dated 01.03.2012 passed by the Principal District Judges Court, Erode
(hereinafter referred to as Appellate Court) in A.S.No.68 of 2011. The
fourth defendant in O.S.No.18 of 2006 is the appellant in this Second
Appeal.
2. Earlier, O.S.No.18 of 2006 was filed by the first
respondent/plaintiff before First Additional Subordinate Judges Court,
Erode (hereinafter referred to as Trial Court) for the following relief:-
i. dividing the suit properties into two equal shares by
metes and bounds with reference to good and bad
soil;
ii. allotting one such share to the plaintiff* and put her
in possession of the same;
iii. appointing a commissioner to divide the suit
property in the aforesaid manner; and
iv. granting a permanent injunction to restrain the
fourth defendant** from trespassing into the suit
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properties to take possession forcibly or interfering
in any manner with the plaintiff’s* peaceful
possession and enjoyment of the same till a
permanent portion worked out between the plaintiff
and the defendants 1 to 4.
(* first respondent; ** appellant)
3. O.S.No.18 of 2006 filed by the first respondent/plaintiff was
dismissed by the Trial Court by its Judgment and Decree dated
11.08.2010.
4. On further appeal by first respondent/plaintiff, the Appellate
Court by the impugned Judgment and Decree dated 01.03.2012 in
A.S.No.68 of 2011 partly reversed the Judgment and Decree dated
11.08.2010 passed by the Trial Court in O.S.No.18 of 2006 dismissing
the aforesaid suit. Operative portion of the impugned Judgment and
Decree of the Appellate Court reads as under:-
29. In the result, the appeal suit is partly allowed.
The judgment and decree passed in O.S.No.18 of
2006 on the file of the First Additional Subordinate
Judge, Erode dated 11.08.2010 are set aside. The suit
in O.S.No.18 of 2006 is partly allowed and a
preliminary decree is passed for partition of the suit
properties into equal shares and allotment of one
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such share to the appellant/plaintiff. The suit, in so
far as the permanent injunction is concerned, is
dismissed. The parties are directed to bear their own
costs throughout.
5. The appellant/fourth defendant purchased the suit schedule
property from the third respondent/second defendant vide Ex.A2 Sale
Deed dated 28.12.2005. The property is an ancestral property. The first
and the second respondents/plaintiff and first defendant are the siblings
born to one Seethappa Gounder who died on 28.09.1993. The first
respondent got married on 26.06.1978. The dispute over the suit schedule
property arises on account of Section 29-A and Section 6 of the Hindu
Succession Act, 1956.
6. Section 29-A was inserted to the Hindu Succession Act, 1956
with effect from 25.03.1989. By a legal fiction, unmarried daughters were
given the same rights as that of male coparcener over the coparcenary
property.
7. Since the first respondent/plaintiff was married to one
Nachimuthu on 26.06.1978, no claim for right over the property was
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made by the first respondent/plaintiff at the time when the Chapter II-A
of the Hindu Succession Act, 1956 was made applicable in Tamil Nadu.
Meanwhile, these ancestral properties had been mortgaged and there
were certain debts which were discharged by the second respondent/first
defendant.
8. In the year 2005, Section 6(1) of the Hindu Succession Act,
1956 was amended by the Parliament with effect from 09.09.2005 which
gave the rights even to the married daughters on par with sons albeit male
coparceners.
9. As per proviso to Sub-Section (1) to Section 6, the amendment
would not affect or invalidate any disposition or alienation including any
partition or testamentary disposition of property which had taken place
before 20.12.2004. In the background of the above amendment, the first
respondent/plaintiff filed O.S.No.18 of 2006 for partition of the suit
schedule property.
10. During the interregnum, the third respondent/second defendant,
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executed a sale deed and sold the entire extent of 4.13 Acres of land for a
total sale consideration of Rs.7,85,700/- in favour of the appellant/fourth
defendant vide Ex.A2 Sale Deed dated 28.12.2005.
11. This Ex.A2 Sale Deed dated 28.12.2005 precedes Ex.A1
Partition Deed dated 20.05.2005 between the second to fourth
respondents/first to third defendants.
12. In the said suit, the Trial Court had framed the following
issues:-
i. Whether the plaintiff is entitled for ½ share in the
suit properties and for separate possession?
ii. Whether the plaintiff is entitled for the relief of
permanent injunction against the fourth defendant?
iii. Whether it is true that after two weeks from the date
of death of Seethappa Gounder on 28.09.1993, the
plaintiff after receiving Rs.10,000/- had originally
relinquished her right of share in the suit properties
in favour of defendants 1 to 3?
iv. Whether it is true that the first defendant mortgaged
the suit properties with Elavamalai Primary
Agricultural Co-operative Band and obtained a loan
and when the properties were brought for sale for
nonpayment of the land, the defendants 2 & 3 filed
the suit for partition in O.S.No.128/05 and second
defendant settled the loan and on 20.5.05 the
registered partition took place?
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v. Whether it is correct to say that the plaintiff has to
pay court fees u/s. 37(1) of the Tamil Nadu Fees
and Suits Valuation Act since she is not in joint
possession?
vi. Whether it is truethat the fourth defendant
purchased the share of second defendant by sale
deed dated 28.12.2005 and in possession of the
same co-owner and so permanent injunction could
not be claimed against him?
vii.To what other reliefs plaintiff is entitled?
13.The Trial Court has answered the issue against the first
respondent/plaintiff vide Judgment and Decree dated 11.08.2010.
14. The appellant/fourth defendant has filed this Second Appeal
primarily on the ground that the appellant/fourth defendant was a bona
fide purchaser of the suit schedule property and therefore the
appellant/fourth defendant was entitled for protection of the sale effected
by the third respondent/second defendant vide Ex.A2 Sale Deed dated
28.12.2005.
15. Appearing on behalf of the appellant/fourth defendant, the
learned counsel submits that the Appellate Court committed a grave error
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in allowing the appeal and thereby, decreeing the suit as prayed for by the
first respondent/plaintiff.
16. It is submitted that the appellant/fourth defendant had no
knowledge of the alleged dispute between the respondents/plaintiff and
first to third defendants and therefore, he prays for setting aside the
impugned Judgment and Decree of the Appellate Court and restoring the
Judgment and Decree passed by the Trial Court.
17. The learned counsel for the first respondent/plaintiff submits
that as per the decision of the Hon’ble Supreme Court in Rohit Chauhan
Vs. Surinder Singh and Others, 2013 (9) SCC 419, the alleged partition
in Ex.A1 dated 20.05.2005 between the second to fourth respondents/first
to third defendants and the subsequent sale in favour of the
appellant/fourth defendant by the third respondent/second defendant vide
Ex.A2 Sale Deed dated 28.12.2005 were to be declared as null and void
as the third respondent/second defendant was not a party to the alleged
partition in Ex.A1 dated 20.05.2005.
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18. It is further submitted that these documents are not binding on
the first respondent/plaintiff who has been given a statutory protection
under Section 6(1) of the Hindu Succession Act, 1956 which came into
force on 09.09.2005.
19. This Second Appeal was admitted on 23.11.2012 and the
following questions were framed as substantial questions of law for
consideration:-
i. As per Hindu Succession Act, 1956 father, son and
grandson had got each equal share in the ancestral
properties and female members have no right. As
per the Hindu Succession Amendment (Tamil
Nadu) Act, 1990 unmarried daughters alone are
entitled to equal share with that of the male
members. In the above particular case the plaintiff
got married on 26.06.1978 and left for her
husband’s house before the demise of her father
Seethappa Gounder. Therefore, as per the above
Acts of Hindu Succession the plaintiff has no right
to entitle to get any share in the above suit
properties. Moreover, the Hindu Succession
Amendment Act, 2005 is not applicable in this
above particular case and plaintiff has no right to
claim her share with retrospective effect. In these
circumstances decree and judgment passed by the
lower Appellate Court for partition of the suit
properties and allotting 1/6th share to the plaintiff in
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A.S.No.68 of 2011 is valid according to prevailing
Hindu Succession law?
ii. The plaintiff got married on 26.06.1978 and ousted
from the father’s family and became the member of
the husband’s family and she is not in possession
and enjoyment of the suit properties before or after
the demise of her father Seethappa Gounder who
expired on 28.09.1993 and both the lower trial
court and the lower Appellate Court also admitted
the fact that the plaintiff had never been in
possession of the suit properties. In these
circumstances, how the normal Court fee for
partition paid by the plaintiff in the above suit is
admitted and is it valid according to the prevailing
law?
iii. One Seethappa Gounder, the father of the plaintiff
and the first defendant died intestate on 28.09.1993.
Before that on 26.06.1978, the plaintiff got married
and settled at her husband’s house and she had
never enjoyed separate or joint possession of the
suit properties and she never cared about the
maintenance of the suit properties and she knows
nothing about the same and is not aware of the
developments made in respect of the suit properties.
In these circumstances, the plaintiff invoked the
Hindu Succession Amendment Act, 2005 and filed
a suit O.S.No.18 of 2006 for partition of half share
of the suit properties with retrospective effect after
13 years from the date of demise of her father
Seethappa Gounder on 28.09.1993. Is the suit is
barred by limitation?
20. Defending the impugned Judgment and Decree, the learned
counsel for the first respondent/plaintiff submits that the issue is no
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longer res integra and is covered by the decision of the Hon’ble Supreme
Court in Vineeta Sharma Vs. Rakesh Sharma and Others, 2020 (9)
SCC 1. He specifically drew attention to the paragraph Nos.49, 60 and 81
to 84 which read as under:-
49. It is apparent that unobstructed heritage
takes place by birth, and the obstructed heritage
takes place after the death of the owner. It is
significant to note that under Section 6 by birth, right
is given that is called unobstructed heritage. It is not
the obstructed heritage depending upon the owner's
death. Thus, coparcener father need not be alive on
9-9-2005, date of substitution of provisions of
Section 6.
60. The amended provisions of Section 6(1)
provide that on and from the commencement of the
Amendment Act, the daughter is conferred the right.
Section 6(1)(a) makes daughter by birth a coparcener
“in her own right” and “in the same manner as the
son”. Section 6(1)(a) contains the concept of the
unobstructed heritage of Mitakshara coparcenary,
which is by virtue of birth. Section 6(1)(b) confers
the same rights in the coparcenary property “as she
would have had if she had been a son”. The conferral
of right is by birth, and the rights are given in the
same manner with incidents of coparcenary as that of
a son and she is treated as a coparcener in the same
manner with the same rights as if she had been a son
at the time of birth. Though the rights can be
claimed, w.e.f. 9-9-2005, the provisions are of
retroactive application; they confer benefits based on
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the antecedent event, and the Mitakshara
coparcenary law shall be deemed to include a
reference to a daughter as a coparcener. At the same
time, the legislature has provided savings by adding
a proviso that any disposition or alienation, if there
be any testamentary disposition of the property or
partition which has taken place before 20-12-2004,
the date on which the Bill was presented in the Rajya
Sabha, shall not be invalidated.
81. In Mangammal v. T.B. Raju [Mangammal
v. T.B. Raju, (2018) 15 SCC 662 : (2019) 1 SCC
(Civ) 300] , the Court considered the provisions
made in the State of Tamil Nadu, the State
Government enacted the Hindu Succession (Tamil
Nadu Amendment) Act, 1989, made effective from
25-3-1989, adding Section 29-A in the Hindu
Succession Act, 1956. Section 29-A was held to be
valid regarding succession by survivorship. Section
29-A provided equal rights to daughters in
coparcenary property. The provisions were more or
less similar, except Section 29-A(iv) treated a
married daughter differently. The provisions were
not applicable to the daughters married before the
date of commencement of the Amendment Act,
1989. Thus, married daughters were not entitled to
equal rights. That too, has been taken care of in
Section 6, as substituted by the 2005 Act, and no
discrimination is made against married daughters. In
the said case, Mangammal got married in 1981, and
Indira got married in or about 1984 i.e. before the
1989 Amendment. Therefore, it was held that
because of Section 29-A(iv) of the Amendment Act,
the appellant could not institute a suit for partition
and separate possession as they were not
coparceners. The decisions in Prakash v. Phulavati
[Prakash v. Phulavati, (2016) 2 SCC 36 : (2016) 1
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SCC (Civ) 549] and Danamma [Danamma v. Amar,
(2018) 3 SCC 343 : (2018) 2 SCC (Civ) 385] were
referred, and it was opined that Prakash v. Phulavati
[Prakash v. Phulavati, (2016) 2 SCC 36 : (2016) 1
SCC (Civ) 549] would still hold the value of
precedent for right of a daughter in ancestral
property and only “living daughters of living
coparceners” as on 9-9-2005 would be entitled to
claim a share in the coparcenary property.
82. In Mangammal [Mangammal v. T.B. Raju,
(2018) 15 SCC 662 : (2019) 1 SCC (Civ) 300] , the
Court opined thus : (SCC pp. 667-68, paras 15-17)
“15. Moreover, under Section 29-A of the Act, the
legislature has used the words “the daughter of a
coparcener”. Here, the implication of such wordings
mean both the coparcener as well as daughter should
be alive to reap the benefits of this provision at the
time of commencement of the amendment of 1989.
The similar issue came up for consideration before
this Court in Prakash v. Phulavati [Prakash v.
Phulavati, (2016) 2 SCC 36 : (2016) 1 SCC (Civ)
549] , wherein this Court while dealing with the
identical matter held at para 23 as under : (SCC p.
49)
‘23. Accordingly, we hold that the rights under
the amendment are applicable to living
daughters of living coparceners as on 9-9-2005
irrespective of when such daughters are born.’
16. It is pertinent to note here that recently,
this Court in Danamma v. Amar [Danamma
v. Amar, (2018) 3 SCC 343 : (2018) 2 SCC
(Civ) 385] , dealt, inter alia, with the dispute
of daughter's right in the ancestral property.
In the above case, father of the daughter died
in 2001, yet the court permitted the daughter
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to claim the right in ancestral property in
view of the amendment in 2005. On a perusal
of the judgment and after having regard to
the peculiar facts of Danamma [Danamma v.
Amar, (2018) 3 SCC 343 : (2018) 2 SCC
(Civ) 385] , it is evident that the Division
Bench of this Court primarily did not deal
with the issue of death of the father rather it
was mainly related to the question of law
whether daughter who was born prior to the
2005 Amendment would be entitled to claim
a share in ancestral property or not? In such
circumstances, in our view, Prakash
[Prakash v. Phulavati, (2016) 2 SCC 36 :
(2016) 1 SCC (Civ) 549] , would still hold
precedent on the issue of death of coparcener
for the purpose of right of daughter in
ancestral property. Shortly put, only living
daughters of living coparceners would be
entitled to claim a share in the ancestral
property.
17. Hence, without touching any other aspect
in the present case, we are of the view that
the appellants were not the coparceners in the
Hindu joint family property in view of the
1989 Amendment, hence, they had not been
entitled to claim partition and separate
possession at the very first instance. At the
most, they could claim maintenance and
marriage expenses if situation warranted.”
(emphasis in original)
It is apparent that the question of living
daughter of a living coparcener was not
involved in the matter, once this Court held
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that the married daughters were not entitled
to claim partition and separate possession as
marriage had taken place prior to the
enforcement of the 1989 Amendment, as
observed in para 17 quoted above. However,
this Court opined that the decision in
Prakash v. Phulavati [Prakash v. Phulavati,
(2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] ,
laying down that only living daughters of
living coparceners would be entitled to claim
a share in the ancestral property under
Section 6 of the 1956 Act. The opinion
expressed cannot be accepted for the reasons
mentioned above. Moreover, it was not
necessary to go into the aforesaid question.
83. In Danamma [Danamma v. Amar, (2018) 3
SCC 343 : (2018) 2 SCC (Civ) 385] , a Division
Bench of this Court dealt with the interpretation of
amended provisions of Section 6. The decision in
Anar Devi v. Parmeshwari Devi [Anar Devi v.
Parmeshwari Devi, (2006) 8 SCC 656] was relied
upon. It was observed that the controversy
concerning the interpretation of Section 6 now stands
settled with authoritative pronouncement in Prakash
v. Phulavati [Prakash v. Phulavati, (2016) 2 SCC 36
: (2016) 1 SCC (Civ) 549] which affirmed the view
[M. Prithviraj v. Leelamma N., 2007 SCC OnLine
Kar 553] taken by the High Court as well as a Full
Bench in Badrinarayan Shankar Bhandari v.
Omprakash Shankar Bhandari [Badrinarayan
Shankar Bhandari v. Omprakash Shankar Bhandari,
2014 SCC OnLine Bom 908 : AIR 2014 Bom 151] .
In Danamma [Danamma v. Amar, (2018) 3 SCC 343
: (2018) 2 SCC (Civ) 385] , the Court further opined
: (SCC pp. 356-57, paras 23 & 25-27)
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“23. Section 6, as amended, stipulates that on
and from the commencement of the Amendment
Act, 2005, the daughter of a coparcener shall by
birth become a coparcener in her own right in
the same manner as the son. It is apparent that
the status conferred upon sons under the old
section and the old Hindu Law was to treat
them as coparceners since birth. The amended
provision now statutorily recognises the rights
of coparceners of daughters as well since birth.
The section uses the words in the same manner
as the son. It should therefore be apparent that
both the sons and the daughters of a coparcener
have been conferred the right of becoming
coparceners by birth. It is the very factum of
birth in a coparcenary that creates the
coparcenary, therefore the sons and daughters
of a coparcener become coparceners by virtue
of birth. Devolution of coparcenary property is
the later stage of and a consequence of death of
a coparcener. The first stage of a coparcenary is
obviously its creation as explained above, and is
well recognised. One of the incidents of
coparcenary is the right of a coparcener to seek
a severance of status. Hence, the rights of
coparceners emanate and flow from birth (now
including daughters) as is evident from sub-
sections (1)(a) and (b).
***
25. Hence, it is clear that the right to partition
has not been abrogated. The right is inherent
and can be availed of by any coparcener, now
even a daughter who is a coparcener.
26. In the present case, no doubt, suit for
partition was filed in the year 2002. However,
during the pendency of this suit, Section 6 of
the Act was amended as the decree was passed
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by the trial court only in the year 2007. Thus,
the rights of the appellants got crystallised in
the year 2005 and this event should have been
kept in mind by the trial court as well as by the
High Court [Danamma v. Amar, 2012 SCC
OnLine Kar 9178] . This Court in Ganduri
Koteshwaramma v. Chakiri Yanadi [Ganduri
Koteshwaramma v. Chakiri Yanadi, (2011) 9
SCC 788 : (2011) 4 SCC (Civ) 880] , held that
the rights of daughters in coparcenary property
as per the amended Section 6 are not lost
merely because a preliminary decree has been
passed in a partition suit. So far as partition
suits are concerned, the partition becomes final
only on the passing of a final decree. Where
such situation arises, the preliminary decree
would have to be amended taking into account
the change in the law by the amendment of
2005.
27. On facts, there is no dispute that the
property which was the subject-matter of
partition suit belongs to joint family and
Gurulingappa Savadi was propositus of the said
joint family property. In view of our aforesaid
discussion, in the said partition suit, share will
devolve upon the appellants as well. Since,
Savadi died leaving behind two sons, two
daughters and a widow, both the appellants
would be entitled to 1/5th share each in the said
property. The plaintiff (Respondent 1) is son of
Arun Kumar (Defendant 1). Since, Arun Kumar
will have 1/5th share, it would be divided into
five shares on partition i.e. between Defendant
1 Arun Kumar, his wife Defendant 2, his two
daughters Defendants 3 and 4 and son/plaintiff
(Respondent 1). In this manner, Respondent 1-
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plaintiff would be entitled to 1/25th share in the
property.”
84. In Danamma [Danamma v. Amar, (2018) 3
SCC 343 : (2018) 2 SCC (Civ) 385] , it is pertinent
to mention that Gurulingappa, propositus of a Hindu
joint family and the father of living daughter
coparcener died in 2001, before the 2005
Amendment Act came into force, leaving behind two
daughters, son and a widow. Daughters were given
equal rights by this Court. We agree with certain
observations made in paras 23 and 25 to 27 (supra)
but find ourselves unable to agree with the earlier
part approving the decision in Prakash v. Phulavati
[Prakash v. Phulavati, (2016) 2 SCC 36 : (2016) 1
SCC (Civ) 549] and the discussion with respect to
the effect of the statutory partition. As a matter of
fact, in substance, there is a divergence of opinion in
Prakash v. Phulavati [Prakash v. Phulavati, (2016)
2 SCC 36 : (2016) 1 SCC (Civ) 549] and Danamma
[Danamma v. Amar, (2018) 3 SCC 343 : (2018) 2
SCC (Civ) 385] with respect to the aspect of living
daughter of a living coparcener. In the latter case, the
proposition of the living daughter of a living
coparcener was not dealt with specifically. However,
the effect of reasons given in para 23 had been
carried out to logical end by giving an equal share to
the daughter.
21. I have considered the arguments advanced by the learned
counsel for the appellant/fourth defendant and the learned counsel for the
first respondent/plaintiff. I have perused the evidence on record.
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22. Though this Court had reproduced the draft question appended
along with the Memorandum of Appeal as substantial questions of law at
the time of admission of this Appeal, the substantial questions of law that
fall for consideration in this Second Appeal are as follows:-
i. Whether the first respondent/plaintiff had no right
to claim partition under Section 29-A of the Hindu
Succession Act, 1956 as was made applicable in
Tamil Nadu?
ii. Whether the 2005 amendment to Section 6 of the
Hindu Succession Act, 1956 conferred any fresh
right on the first respondent/plaintiff?
iii. Whether the unregistered partition deed in Ex.A1
dated 20.05.2005 and the registered sale vide
Ex.A2 dated 28.12.2005 would put the first
appellant/plaintiff to any advantage and thereby to
the disadvantage to the appellant/fourth defendant?
iv. Whether the First Appellate Court was correct in
concluding that the first respondent/plaintiff was
entitled to 1/6th share in the suit schedule property?
23. A coparcenary property means the property which consists of
ancestral property and a coparcener would mean a person who shares
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equally with others in inheritance in the estate of common ancestor.
“Coparcenary” is a narrower body than the joint Hindu family and
before the commencement of the Hindu Succession (Amendment)
Act, 2005, only male members of the family used to acquire by birth
an interest in the coparcenary property. A coparcener has no definite
share in the coparcenary property but he has an undivided interest
in it and it enlarges by deaths and diminishes by births in the family.
It is not static”.
24. In Gowli Buddanne Vs. CIT, Mysore, Bangalore, AIR 1966
SC 1523, it was held that the concept of coparcenary was narrower body
than a joint family thus:-
“6. A Hindu joint family consists of all persons
lineally descended from a common ancestor and
includes their wives and unmarried daughters. A
Hindu coparcenary is a much narrower body than
the joint family: it includes only those persons who
acquire by birth an interest in the joint or
coparcenary property, these being the sons,
grandsons, and great-grandsons of the holder of the
joint property for the time being. Therefore there
may be a joint Hindu family consisting of a single
male member and widows of deceased
coparceners.”
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25. In Rohit Chauhan Vs. Surinder Singh and Others, 2013 (9)
SCC 419, the Hon’ble Supreme Court held as under:-
11. We have bestowed our consideration to
the rival submissions and we find substance in the
submission of Mr Rao. In our opinion coparcenary
property means the property which consists of
ancestral property and a coparcener would mean a
person who shares equally with others in
inheritance in the estate of common ancestor.
Coparcenary is a narrower body than the joint
Hindu family and before the commencement of the
Hindu Succession (Amendment) Act, 2005, only male
members of the family used to acquire by birth an
interest in the coparcenary property. A coparcener
has no definite share in the coparcenary property
but he has an undivided interest in it and one has to
bear in mind that it enlarges by deaths and
diminishes by births in the family. It is not static. We
are further of the opinion that so long, on partition
an ancestral property remains in the hand of a
single person, it has to be treated as a separate
property and such a person shall be entitled to
dispose of the coparcenary property treating it to be
his separate property but if a son is subsequently
born, the alienation made before the birth cannot be
questioned. But, the moment a son is born, the
property becomes a coparcenary property and the
son would acquire interest in that and become a
coparcener.
14. A person, who for the time being is the
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sole surviving coparcener as in the present case
Gulab Singh was, before the birth of the plaintiff,
was entitled to dispose of the coparcenary property
as if it were his separate property. Gulab Singh, till
the birth of plaintiff Rohit Chauhan, was competent
to sell, mortgage and deal with the property as his
property in the manner he liked. Had he done so
before the birth of plaintiff, Rohit Chauhan, he was
not competent to object to the alienation made by his
father before he was born or begotten. But, in the
present case, it is an admitted position that the
property which Defendant 2 got on partition was an
ancestral property and till the birth of the plaintiff
he was the sole surviving coparcener but the
moment plaintiff was born, he got a share in the
father's property and became a coparcener. As
observed earlier, in view of the settled legal
position, the property in the hands of Defendant 2
allotted to him in partition was a separate property
till the birth of the plaintiff and, therefore, after his
birth Defendant 2 could have alienated the property
only as karta for legal necessity. It is nobody's case
that Defendant 2 executed the sale deeds and release
deed as karta for any legal necessity. Hence, the sale
deeds and the release deed executed by Gulab Singh
to the extent of entire coparcenary property are
illegal, null and void. However, in respect of the
property which would have fallen in the share of
Gulab Singh at the time of execution of sale deeds
and release deed, the parties can work out their
remedies in appropriate proceeding.
26. The Hon’ble Supreme Court recently in Vineeta Sharma Vs.
Rakesh Sharma and Others, 2020 (9) SCC 1 has answered all the issue
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that arise for consideration on account of substantial questions of law
Nos.1 to 3. The Hon’ble Supreme Court has held as follows:-
56. The daughter is treated as a coparcener in
the same manner as a son by birth with the same
rights in coparcenary property and liabilities.
However, the proviso of sub-section (1) contains a
non obstante clause providing that nothing
contained in the sub-section shall affect or
invalidate any disposition or alienation including
any partition or testamentary disposition of the
property which had taken place before 20-12-2004.
57. It is apparent from the provisions of
Section 6 that the discrimination with the daughter
has been done away with, and they have been
provided equal treatment in the matter of
inheritance with Mitakshara coparcenary. In several
States viz. Andhra Pradesh, Tamil Nadu, Karnataka
and Maharashtra, the State Amendments in the 1956
Act were made to extend equal rights to daughters in
Hindu Mitakshara coparcenary property. An
amendment was made on 30-7-1994 by the insertion
of Section 6-A by Karnataka Act 23 of 1994 in the
1956 Act. In the State of Andhra Pradesh, the
amendment was made w.e.f. 5-9-1985, Tamil Nadu
w.e.f. 25-3-1989 and Maharashtra w.e.f. 26-9-1994
by the addition of Section 29-A in the 1956 Act. In
Kerala, the Act was enacted in 1975.
58. Before the amendment, Section 6 provided
that on the death of a male Hindu, a coparcener's
interest in Mitakshara coparcenary shall devolve by
survivorship upon the surviving members of the
coparcenary under the uncodified Hindu law and
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not in accordance with the mode of succession
provided under the 1956 Act. It was provided by the
proviso to Section 6, in case a male Hindu of
Mitakshara coparcenary has left surviving a female
relative of Class I heir or a male relative who claims
through such female relative of Class I. The
Schedule containing categories of Class I heirs is
extracted hereunder:
“THE SCHEDULE
(See Section 8)
HEIRS IN CLASS I AND CLASS II
Class I
Son, daughter, widow; mother; son of a predeceased
son; daughter of a predeceased son, son of a
predeceased daughter, daughter of a predeceased
daughter; widow of a predeceased son, son of a
predeceased son of a predeceased son; daughter of
a predeceased son of a predeceased son; widow of a
predeceased son of a predeceased son; son of a
predeceased daughter of a predeceased daughter,
daughter of a predeceased daughter of a
predeceased daughter, daughter of a predeceased
son of a predeceased daughter, daughter of a
predeceased daughter of a predeceased son.”
59. In view of the provisions contained in
Section 6 when a coparcener is survived by a female
heir of Class I or male relative of such female, it was
necessary to ascertain the share of the deceased, as
such, a legal fiction was created. Explanation I
provided legal fiction of partition as if it had taken
place immediately before his death, notwithstanding
whether he had the right to claim it or not. However,
a separated Hindu could not claim an interest in the
coparcenary based on intestacy in the interest left by
the deceased.
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60. The amended provisions of Section 6(1)
provide that on and from the commencement of the
Amendment Act, the daughter is conferred the right.
Section 6(1)(a) makes daughter by birth a
coparcener “in her own right” and “in the same
manner as the son”. Section 6(1)(a) contains the
concept of the unobstructed heritage of Mitakshara
coparcenary, which is by virtue of birth. Section
6(1)(b) confers the same rights in the coparcenary
property “as she would have had if she had been a
son”. The conferral of right is by birth, and the
rights are given in the same manner with incidents
of coparcenary as that of a son and she is treated as
a coparcener in the same manner with the same
rights as if she had been a son at the time of birth.
Though the rights can be claimed, w.e.f. 9-9-2005,
the provisions are of retroactive application; they
confer benefits based on the antecedent event, and
the Mitakshara coparcenary law shall be deemed to
include a reference to a daughter as a coparcener.
At the same time, the legislature has provided
savings by adding a proviso that any disposition or
alienation, if there be any testamentary disposition
of the property or partition which has taken place
before 20-12-2004, the date on which the Bill was
presented in the Rajya Sabha, shall not be
invalidated.
61. The prospective statute operates from the
date of its enactment conferring new rights. The
retrospective statute operates backwards and takes
away or impairs vested rights acquired under
existing laws. A retroactive statute is the one that
does not operate retrospectively. It operates in
futuro. However, its operation is based upon the
character or status that arose earlier. Characteristic
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or event which happened in the past or requisites
which had been drawn from antecedent events.
Under the amended Section 6, since the right is
given by birth, that is, an antecedent event, and the
provisions operate concerning claiming rights on
and from the date of the Amendment Act.
65. Section 6(2) provides that when the female
Hindu shall hold the property to which she becomes
entitled under Section 6(1), she will be bound to
follow the rigours of coparcenary ownership, and
can dispose of the property by testamentary mode.
66. With respect to a Hindu who dies after the
commencement of the 2005 Amendment Act, as
provided in Section 6(3) his interest shall pass by
testamentary or intestate succession and not by
survivorship, and there is a deemed partition of the
coparcenary property in order to ascertain the
shares which would have been allotted to his heirs
had there been a partition. The daughter is to be
allotted the same share as a son; even surviving
child of predeceased daughter or son are given a
share in case the child has also died then the
surviving child of such predeceased child of a
predeceased son or predeceased daughter would be
allotted the same share, had they been alive at the
time of deemed partition. Thus, there is a sea-change
in substituted Section 6. In case of death of
coparcener after 9-9-2005, succession is not by
survivorship but in accordance with Section 6(3).
The Explanation to Section 6(3) is the same as
Explanation I to Section 6 as originally enacted.
Section 6(4) makes a daughter liable in the same
manner as that of a son. The daughter,
granddaughter, or great-granddaughter, as the case
may be, is equally bound to follow the pious
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obligation under the Hindu law to discharge any
such debt. The proviso saves the right of the creditor
with respect to the debt contracted before the
commencement of the 2005 Amendment Act. The
provisions contained in Section 6(4) also make it
clear that provisions of Section 6 are not
retrospective as the rights and liabilities are both
from the commencement of the Amendment Act.
67. The proviso to Section 6(1) and Section
6(5) saves any partition effected before 20-12-2004.
However, Explanation to Section 6(5) recognises
partition effected by execution of a deed of partition
duly registered under the Registration Act, 1908 or
by a decree of a court. Other forms of partition have
not been recognised under the definition of
“partition” in the Explanation.
69. The effect of the amendment is that a
daughter is made coparcener, with effect from the
date of amendment and she can claim partition also,
which is a necessary concomitant of the
coparcenary. Section 6(1) recognises a joint Hindu
family governed by Mitakshara law. The
coparcenary must exist on 9-9-2005 to enable the
daughter of a coparcener to enjoy rights conferred
on her. As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose
daughter is conferred with the rights is alive or not.
Conferral is not based on the death of a father or
other coparcener. In case living coparcener dies
after 9-9-2005, inheritance is not by survivorship
but by intestate or testamentary succession as
provided in substituted Section 6(3).
In re : Effect of enlargement of daughter's rights
70. Under the proviso to Section 6 before the
amendment made in the year 2005 in case a
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coparcener died leaving behind female relative of
Class I heir or a male descendant claiming through
such Class I female heir, the daughter was one of
them. Section 6, as substituted, presupposes the
existence of coparcenary. It is only the case of the
enlargement of the rights of the daughters. The
rights of other relatives remain unaffected as
prevailed in the proviso to Section 6 as it stood
before amendment.
74. The argument raised that if the father or
any other coparcener died before the 2005
Amendment Act, the interest of the father or other
coparcener would have already merged in the
surviving coparcenary, and there was no coparcener
alive from whom the daughter would succeed. We
are unable to accept the submission because it is not
by the death of the father or other coparcener that
rights accrue. It is by the factum of birth. It is only
when a female of Class I heir is left, or in case of her
death, male relative is left, the share of the deceased
coparcener is fixed to be distributed by a deemed
partition, in the event of an actual partition, as and
when it takes place as per the proviso to unamended
Section 6. The share of the surviving coparcener
may undergo change till the actual partition is
made. The proviso to Section 6 does not come in the
way of formation of a coparcenary, and who can be
a coparcener. The proviso to Section 6 as originally
stood, contained an exception to the survivorship
right. The right conferred under substituted Section
6(1) is not by survivorship but by birth. The death of
every coparcener is inevitable. How the property
passes on death is not relevant for interpreting the
provisions of Section 6(1). Significant is how right of
a coparcener is acquired under Mitakshara
coparcenary. It cannot be inferred that the daughter
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is conferred with the right only on the death of a
living coparcener, by declaration contained in
Section 6, she has been made a coparcener. The
precise declaration made in Section 6(1) has to be
taken to its logical end; otherwise, it would amount
to a denial of the very right to a daughter expressly
conferred by the legislature. Survivorship as a mode
of succession of property of a Mitakshara
coparcener, has been abrogated with effect from 9-
9-2005 by Section 6(3).
76. It was argued that in case Parliament
intended that the incident of birth prior to 2005
would be sufficient to confer the status of a
coparcener, Parliament would need not have
enacted the proviso to Section 6(1). When we read
the provisions conjointly, when right is given to the
daughter of a coparcener in the same manner as a
son by birth, it became necessary to save the
dispositions or alienations, including any partition
or testamentary succession, which had taken place
before 20-12-2004. A daughter can assert the right
on and from 9-9-2005, and the proviso saves from
invalidation the above transactions.
80. A finding has been recorded
in Prakash v. Phulavati [Prakash v. Phulavati,
(2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] that the
rights under the substituted Section 6 accrue to
living daughters of living coparceners as on 9-9-
2005 irrespective of when such daughters are born.
We find that the attention of this Court was not
drawn to the aspect as to how a coparcenary is
created. It is not necessary to form a coparcenary or
to become a coparcener that a predecessor
coparcener should be alive; relevant is birth within
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degrees of coparcenary to which it extends.
Survivorship is the mode of succession, not that of
the formation of a coparcenary. Hence, we
respectfully find ourselves unable to agree with the
concept of “living coparcener”, as laid down
in Prakash v. Phulavati [Prakash v. Phulavati,
(2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] . In our
opinion, the daughters should be living on 9-9-2005.
In substituted Section 6, the expression “daughter of
a living coparcener” has not been used. Right is
given under Section 6(1)(a) to the daughter by birth.
Declaration of right based on the past event was
made on 9-9-2005 and as provided in Section
6(1)(b), daughters by their birth, have the same
rights in the coparcenary, and they are subject to
the same liabilities as provided in Section 6(1)(c).
Any reference to the coparcener shall include a
reference to the daughter of a coparcener. The
provisions of Section 6(1) leave no room to
entertain the proposition that coparcener should be
living on 9-9-2005 through whom the daughter is
claiming. We are unable to be in unison with the
effect of deemed partition for the reasons
mentioned in the latter part.
27. The view expressed in Prakash and Others Vs. Phulavati
and Others, (2016) 2 SCC 36 holding that only living daughters of
living coparceners would be entitled to claim a share in the ancestral
property under Section 6 of the 1956 Act. The opinion expressed cannot
be accepted for the reasons mentioned above. Moreover, it was not
necessary to go into the aforesaid question.
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28. The Hon’ble Supreme Court in Vineeta Sharma case referred
to supra, has further held as follows:-
124. The intendment of amended Section
6 is to ensure that daughters are not deprived of
their rights of obtaining share on becoming
coparcener and claiming a partition of the
coparcenary property by setting up the frivolous
defence of oral partition and/or recorded in the
unregistered memorandum of partition. The court
has to keep in mind the possibility that a plea of oral
partition may be set up, fraudulently or in collusion,
or based on unregistered memorandum of partition
which may also be created at any point of time. Such
a partition is not recognised under Section 6(5).
133. The severance of status may take
place from the date of filing of a suit; however, a
decree is necessary for working out the results of the
same, and there may be a change of rights during
the pendency of the suit for allotting definite shares
till final decree is passed. There are cases in which
partition can be reopened on the ground of fraud or
mistake, etc. or on certain other permissible
grounds. In appropriate cases, it can be reopened at
the instance of minor also.
134. The protection of rights of
daughters as coparcener is envisaged in the
substituted Section 6 of the 1956 Act recognises the
partition brought about by a decree of a court or
effected by a registered instrument. The partition so
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effected before 20-12-2004 is saved.
135. A special definition of partition has
been carved out in the Explanation. The intendment
of the provisions is not to jeopardise the interest of
the daughter and to take care of sham or frivolous
transaction set up in defence unjustly to deprive the
daughter of her right as coparcener and prevent
nullifying the benefit flowing from the provisions as
substituted. The statutory provisions made in Section
6(5) change the entire complexion as to partition.
However, under the law that prevailed earlier, an
oral partition was recognised. In view of change of
provisions of Section 6, the intendment of the
legislature is clear and such a plea of oral partition
is not to be readily accepted. The provisions of
Section 6(5) are required to be interpreted to cast a
heavy burden of proof upon proponent of oral
partition before it is accepted such as separate
occupation of portions, appropriation of the income,
and consequent entry in the revenue records and
invariably to be supported by other
contemporaneous public documents admissible in
evidence, may be accepted most reluctantly while
exercising all safeguards. The intendment of Section
6 of the Act is only to accept the genuine partitions
that might have taken place under the prevailing
law, and are not set up as a false defence and only
oral ipse dixit is to be rejected outrightly. The object
of preventing, setting up of false or frivolous defence
to set at naught the benefit emanating from amended
provisions, has to be given full effect. Otherwise, it
would become very easy to deprive the daughter of
her rights as a coparcener. When such a defence is
taken, the court has to be very extremely careful in
accepting the same, and only if very cogent,
impeccable, and contemporaneous documentary
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evidence in shape of public documents in support
are available, such a plea may be entertained, not
otherwise. We reiterate that the plea of an oral
partition or memorandum of partition, unregistered
one can be manufactured at any point in time,
without any contemporaneous public document
needs rejection at all costs. We say so for
exceptionally good cases where partition is proved
conclusively and we caution the courts that the
finding is not to be based on the preponderance of
probabilities in view of provisions of gender justice
and the rigour of very heavy burden of proof which
meets the intendment of Explanation to Section 6(5).
It has to be remembered that the courts cannot
defeat the object of the beneficial provisions made
by the Amendment Act. The exception is carved out
by us as earlier execution of a registered document
for partition was not necessary, and the court was
rarely approached for the sake of family prestige. It
was approached as a last resort when parties were
not able to settle their family dispute amicably. We
take note of the fact that even before 1956, partition
in other modes than envisaged under Section 6(5)
had taken place.
136. The expression used in the
Explanation to Section 6(5) “partition effected by a
decree of a court” would mean giving of final effect
to actual partition by passing the final decree, only
then it can be said that a decree of a court effects
partition. A preliminary decree declares share but
does not effect the actual partition, that is effected
by passing of a final decree; thus, statutory
provisions are to be given full effect, whether
partition is actually carried out as per the
intendment of the Act is to be found out by the court.
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Even if partition is supported by a registered
document it is necessary to prove that it had been
given effect to and acted upon and is not otherwise
sham or invalid or carried out by a final decree of a
court. In case partition, in fact, had been worked out
finally in toto as if it would have been carried out in
the same manner as if affected (sic effected) by a
decree of a court, it can be recognised, not
otherwise. A partition made by execution of deed
duly registered under the Registration Act, 1908,
also refers to completed event of partition not
merely intendment to separate, is to be borne in
mind while dealing with the special provisions of
Section 6(5) conferring rights on a daughter. There
is a clear legislative departure with respect to proof
of partition which prevailed earlier; thus, the court
may recognise the other mode of partition in
exceptional cases based upon continuous evidence
for a long time in the shape of public document not
mere stray entries then only it would not be in
consonance with the spirit of the provisions of
Section 6(5) and its Explanation.
29. Admittedly, the alleged partition in Ex.A1 between the second
to fourth respondents/first to third defendants took place on 20.05.2005.
What is saved under the amended Act is the partition that took place
before 20.12.2004. The law has recognised the rights of daughter under
Act as a coparcener. In the explanation to Section 6 of the Hindu
Succession Act, 1956, “partition” means partition effected by a decree of
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Court dividing the property. In this case, the partition in Ex.A1 dated
20.05.2005 is not recognized under the law. Division has to be by metes
and bounds by a decree of the Court.
30. Therefore, the second, third and fourth respondents were not
justified in entering into an unregistered partition deed dated 20.05.2005
in Ex.A1. Ex.A1 dated 20.05.2005 is not binding on the first
respondent/plaintiff. Consequently, the subsequent sale in Ex.A2 dated
28.12.2005 between the third respondent/second defendant and the
appellant/fourth respondent after 20.12.2004 cannot also bind on the first
respondent/plaintiff.
31. Though the appellant claims to be a bona fide purchaser of the
entire extent of property in Ex.A2 Sale Deed dated 28.12.2005, there are
no documents to infer that the purchase was a bona fide. The sale was
after the amendment which came into force w.e.f. 09.09.2005.
32. As the rights of the married daughter as a coparcener stands
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recognized under Section 6(1) of the Hindu Succession Act, 1956 with
effect from 09.09.2005, no mistake can be found in the impugned
Judgment and Decree of the Appellate Court.
33. If the appellant/fourth defendant had taken the trouble of
getting a prior legal opinion before purchasing the property under Ex.A2
Sale Deed dated 28.12.2005, the appellant would have been perhaps
advised to not to purchase the same, if a correct genuine legal opinion
was given to the appellant/fourth defendant.
34. In this case, no attempt was made by the appellant/fourth
defendant in that direction and therefore the appellant/fourth defendant
cannot plead bona fide purchase. In this case, there are no records to
substantiate that any attempt was made by the appellant/fourth defendant
before purchasing the property vide Ex.A2 Sale Deed dated 28.12.2005.
35. Therefore, the decision of the Appellate Court to the extent of
recognising the rights of the first respondent/plaintiff to the suit schedule
property has to be upheld. Certain other observations in the impugned
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Judgment and Decree that properties have to be divided into three equal
shares between the first respondent/plaintiff, the second respondent/first
defendant and the third respondent/second defendant is liable to be set
aside as incorrect.
36. It is noticed that the Appellate Court has wrongly allotted 1/6 th
share in the suit scheduled properties to the first respondent/plaintiff. The
property was to be divided in two equal shares. In view of the above, the
both the appellant/fourth defendant and the first respondent / plaintiff are
entitled to 50% share each in the suit schedule properties. Accordingly,
the impugned Judgment and Decree of the Appellate Court is partly
modified.
37. In the light of the above, the substantial questions of law raised
in this appeal are answered against the appellant/fourth defendant and
this appeal filed by the appellant / fourth defendant is liable to be
dismissed.
38. Since the appellant/fourth defendant had paid the sale
consideration for the sale of suit scheduled property to the third
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respondent/second defendant (the son of second respondent/first
defendant), the appellant/fourth defendant is entitled to recover 50% of
sale consideration from the third respondent/second defendant together
with interest at 7.5% from the date of payment till the date of deposit in
the manner known to law.
39. This Second Appeal is therefore dismissed with the above
observations. No cost.
20.07.2021
Index : Yes/No
Internet : Yes/No
jen
To
1.The Principal District Court, Erode.
2.The I Additional Subordinate Court, Erode.
3.The Section Officer,
V.R. Section, Madras High Court.
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C.SARAVANAN, J.
jen
S.A.No.979 of 2012
and M.P.No.1 of 2012
20.07.2021
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Page No 40 of 40
