Orissa High Court
Netramani Gardia And vs Collector on 17 April, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
RVWPET No.110 of 2024
Netramani Gardia and .... Petitioners
others
Mr. Prafulla Kumar Rath, Senior Advocate
being assisted by Mr. S.K. Behera, Advocate
-versus-
Collector, Sundargarh and .... Opposite Parties
others
Mr. Umesh Chandra Behura, AGA
(For Opposite Party Nos.1 and 2)
Mr. G.N. Sahu, Advocate
(For Opposite Party Nos.3 to 12)
CORAM: JUSTICE SANJAY KUMAR MISHRA
ORDER
17.04.2025
Order No.
05. This matter is taken up through hybrid mode.
2. This application has been filed for review of judgment
dated 07.03.2024 passed by this Court in L.A.A. No.33 of
2015. The sole ground to sought for review is that
impugned judgment has been passed relying on only
paragraph No.137 of the judgment of Supreme Court in
Vineeta Sharma Vs. Rakesh Sharma and others,
reported in (2020) 9 SCC 1 (para-129 of the downloaded
copy of the judgment), without taking note of the
observation made in paragraph No.80 (para-75 of the
downloaded copy of the Judgment) of the said judgment. In
the said paragraph, referring to the judgment of the
Supreme Court in Prakash Vs. Phulavati, it was observed
that the daughter should be living on 09.09.2005. As
Nilabati expired on 29.09.1998, which is much prior to
coming into force of the Hindu Succession (Amendment)
Act, 2005, the rights over the properties are all vested in
the surviving coparceners.
3. In view of the ground urged in the review application,
it would be apt to reproduce below the substituted Sub-
section 6(1) to 6(3) of the Hindu Succession Act, 1956,
shortly, the Act, 1956:
"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 Mitaksharalaw, 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. On conjoint reading of paragraph Nos. 80 and 137 so
also other paragraphs of the judgment in Vinit Sharma
(supra) and the provisions enshrined under substituted
Section 6 of the Act, 1956, it is amply clear that status of
coparcener on a daughter born before or after amendment
is in the same manner, as of a son with the same rights
and liabilities.
5. Though Nilabati died on 29.09.1998, in view of the
substituted provision under Section 6 of the Act, 1956, so
also detailed discussion in Vinit Sharma (supra), it is not
necessary that the daughter of the coparcener should be
living as on 09.09.2005, as right is given under section
6(1)(a) of the Act, 1956 to the daughter by birth. Hence,
this Court is of the view that there is no infirmity/error in
the judgment under review, as alleged.
6. Accordingly, the review petition, being devoid of any
merit, stands dismissed.
(S. K. MISHRA)
Kanhu JUDGE
Location: High Court of Orissa, Cuttack.
