Tripura High Court
Smt. Debjani Gope vs Shri Nirendra Chandra Ghosh & Anr on 28 November, 2023
HIGH COURT OF TRIPURA
AGARTALA
RSA No.35 of 2023
Smt. Debjani Gope
......Appellant
Versus
Shri Nirendra Chandra Ghosh & Anr.
.... Respondents
For Appellant (s) : Mr. S.K Jha, Adv.
For Respondent(s) : None
HON'BLE MR. JUSTICE S.D PURKAYASTHA
Order
28.11.2023
Heard Mr. S.K. Jha, learned counsel appearing for the appellant.
The appellant filed Title Suit (Partition) 10 of 2021 in the court of the
learned Civil Jude (Sr. Division), Khowai, Khowai District against her father (the
respondent No.1) and brother (the respondent No.2) for partition of suit land
asserting that late Manindra Chandra Ghosh and late Suresh Chandra Ghosh were
two brothers and she is the granddaughter of said Manindra Chandra Ghosh. Late
Suresh Chandra Ghosh died issue less and thereafter, after the death of said two
persons, the appellant, her father and brother became the coparceners by the
operation of provision of Section 6 of the Hindu Succession Act, 1956, for short
the Act. Her allegation is that her father, the respondent No.1 started selling
different portion of ancestral property depriving her and to enrich her brother and
after such fraudulent sales, only 3.47 acres is lying in the joint stock. Therefore,
she prayed for partition of the suit land claiming her share to be 1/3rd therein and
also claiming compensation from the share of the respondents for the land sold by
the respondent No.1 to the detriment of the appellant and to the benefit of the
respondent No.2. She also prayed for decree of rendition of accounts and for
permanent injunction restraining the respondents from creating any third party
interest in the suit land.
The trial court vide order dated 20.12.2022 rejected the plaint under Order
VII Rule 11 of the Code of Civil Procedure on the basis of a petition submitted by
the respondents holding that the parties are governed by Dayabhaga School of
Hindu Law and during the lifetime of the respondent No.1, the plaintiff cannot
demand for partition of ancestral property.
The order dated 20.12.2022 was challenged in Title Appeal No.01 of 2023
in the court of the Addl. District Judge, Khowai, Khowai District and said court
expressed the similar view in its order dated 12.10.2023 and dismissed the
appeal. The said order of the first appellate court is under challenge in this second
appeal.
Mr. Jha, learned counsel submits that in view of the amended provision of
Section 6 of the Act, the daughter of coparceners shall by birth become a
coparcener in her own right in the same manner as the son and therefore, she is
entitled to 1/3rd share of the joint stock but to deprive her from her legitimate
right over the property and in other way to give undue benefit to his son, the
respondent No.1 has been selling different portion of land of the joint property
and again by purchasing some other new lands in the name of the respondent
No.2 elsewhere.
Mr. Jha, learned counsel submits that there are substantial question
involved in the appeal that amendment of 2005 of the Act has practically
abrogated the difference between Mitakshara law and Dayabhaga Law entitling
the appellant 1/3rd share in the property and in view of the same, the judgment of
the first appellate court is perverse.
Mr. Jha, learned counsel also refers Para-71 of a decision of the Hon'ble
Supreme Court in Arunachala Gounder (Dead) by LRs. versus Ponnusamy
and others, reported in (2022) 11 SCC 520 wherein it was observed that the
1956 Act brought about changes in the law of succession among Hindus and gave
rights which were till then unknown in relation to women's property. The 1956 Act
lays down a uniform and comprehensive system of inheritance and applies, inter-
alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to
those governed previously by the Murumakkattayam, Aliyasantana and Nambudri
Laws.
The second reference which was made by Mr. Jha, learned counsel, is
another decision of the Hon'ble Supreme Court in Vineeta Sharma vs. Rakesh
Sharma, reported in (2020) 9 SCC 1, wherein Para-85, it has been observed as
under:
"85.The right to claim partition is a significant basic feature of
the coparcenary, and a coparcener is one who can claim
partition. The daughter has now become entitled to claim
partition of coparcenary w.e.f. 9.9.2005, which is a vital change
brought about by the statute. A coparcener enjoys the right to
seek severance of status. Under sections 6(1) and 6(2), the
rights of a daughter are pari passu with a son. In the eventuality
of a partition, apart from sons and daughters, the wife of the
coparcener is also entitled to an equal share. The right of the
wife of a coparcener to claim her right in property is in no way
taken away."
Section 6 of the Act was in the following language before the Amendments
2005 was brought into force:
6 Devolution of interest in coparcenary property. -- When a male
Hindu dies after the commencement of this Act, having at the
time of his death an interest in a Mitakshara coparcenary
property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and
not in accordance with this Act:
Provided that, if the deceased had left him surviving a female
relative specified in class I of the Schedule or a male relative
specified in that class who claims through such female relative,
the interest of the deceased in the Mitakshara coparcenary
property shall devolve by testamentary or intestate succession,
as the case may be, under this Act and not by survivorship.
Explanation 1.-For the purposes of this 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 petition or not.
Explanation 2.- Nothing contained in the proviso to this
section shall be construed as enabling a person who has
separated himself from the coparcenary before the death of
the deceased or any of his heirs to claim on intestacy a
share in the interest referred to therein.
After such amendment, the following is the position of sub-section (1) of
Section 6 of the Act:
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.
Therefore, from the aforesaid amendment of 2005 (w.e.f.
09.09.2005) it is clear that birth right of the daughters in a family governed
by Mitakshara law (emphasis added) was introduced in coparcenary
property and based on the same, the suit was filed by the present appellant.
At present Hindu Law comprises of 2(two) schools i.e. Mitakshara and
Dayabhaga Schools. Benares, Mithila School; Maharashtra or Bombay School
(Western India) and Dravida or Madras School (Southern India) are the
4(four) minor schools under Mitakshara School (Ref : Mulla Hindu Law 21st
Edition, page-58 (reprint in 2014). Dayabhaga School generally prevails in
Bengali speaking states of Bengal and Assam (Mulla Hindu Law, ibid, page-
72). In Tripura also the Bengalis are guided by Dayabhaga Schools of law
unless contrary is shown and therefore, Section 6 of the Act, 1956 dealing
with coparcernary property is not applicable to the parties and nothing could
be shown by the appellant that she is guided by Mitakshara School of law or
that it is a coparcenary property.
Considering thus, it appears that no perversity was committed by the
courts below by passing the above said orders and therefore, there is no
substantial question of law involved in this appeal requiring admission of the
same. The appellant has misconstrued and misapplied the provisions of
Section 6 of the Act while lodging the claim.
As a corollary, the second appeal is not admitted and therefore, the
same is dismissed.
Interlocutory application(s), if any, stands disposed of.
JUDGE
SATABDI DUTTA DUTTA
Date: 2023.11.30 10:25:08
+05'30'
Sujay
