Nandkishor vs Shankarrao And Others

M.S. Jawalkar, J

Heard learned Counsel for the appellant. None present for the respondents since long.

This Court vide order dated 03/10/2008 framed following substantial question of law:-

“Whether the First Appellate Court as well as the Trial Court erred in determining the share of the parties?”

Being aggrieved by the judgment and decree passed by Adhoc District Judge, Nagpur in Regular Civil Appeal No. 227/2004 dated 19/12/2006, present appeal is filed by the appellant-original defendant no.1. Respondent No.1 has filed a suit against appellant and the other respondents on the ground that the suit property is an ancestral property and is having 1/4th share in the house property. The appellant herein and respondent Nos. 2 to 5 have filed their written statements and resisted the claim. It is pointed out that the respondent no.1 is having only 1/5th share in the house property and the remaining respondents have relinquished their right in favour of the appellant, therefore appellant is owner of remaining portion of the suit property. The learned Trial Court decided the suit and granted 1/3rd share in the house bearing Municipal Corporation house No. 173 as well as Nazul plot bearing No. 122. The learned Lower Court also granted 1/5th share in the share of deceased father in house bearing No.173 and 1/4th share out of Nazul plot bearing No. 122. Accordingly decree was passed. The appellant was also directed to pay Rs.8,380/- along with interest @ of 12% per annum and respondent 2 and 3 were directed to pay Rs.8,000/-.

The appellant herein challenged the said judgment and decree passed by the learned Lower Court in Regular Civil Appeal No. 227/2004 and the same came to be decided on 19/12/2006. By this judgment learned Appellate Court modified the judgment and decree passed by the Lower Court and respondent No.1 has been allotted 5/16th share in the house No. 173 and plot No. 122 and also in fixed deposit and National Saving. It is contended that the order passed by the learned Appellate Court is patently illegal.

The shares are not properly calculated. There is no finding in respect of share in the fixed deposit as well as National Savings Certificate. Therefore, the decree is illegal. It is pointed out that while giving finding in respect of a joint family properties, the learned Lower Court came to the conclusion that then immovable properties are joint properties and therefore all the legal heirs are having an equal share in the suit properties. All the parties to the suit have admitted this position that the suit property i.e. house and Nazul plot are joint Hindu family property and therefore all the legal heirs are having equal shares as well as equal rights. While deciding this issue, the learned Trial Court held in affirmative but while passing the decree, the learned Lower Court failed to pass a decree in respect shares of the properties. Being Class-I heirs of father of the appellant and respondent they are entitled for equal shares in entire ancestral property.

It is submitted that while passing the decree the learned Lower Court has erroneously come to the conclusion that the deceased father of the appellant and defendant No. 1 are having 1/3rd share. As till the death of father of appellant and respondent the property was not partitioned therefore it may be devolved by way of succession. After the death of father everybody got equal shares of the property. There is no dispute about the relationship of plaintiff and defendant. Plaintiff is real brother of defendant No.1 i.e. appellant and defendant Nos. 3 and 4 are sisters of plaintiff. Defendant No.2 was the mother of plaintiff and defendant Nos 1,3 and 4 who expired in the year 2003 during the pendancy of suit. The learned trial Court by its judgment dated 17/03/2004 declared that the plaintiff is having 1/3rd share in house No. 173 and 1/5th share out of the share of his father in the suit house bearing No.173. The Appellate Court modified the decree and declared that plaintiff is having 5/16th share in the house No. 173.

learned Counsel relied on judgment in Vineeta Sharma Vs. Rakesh Sharma and others reported in AIR 2020 SC 3717, wherein reference had been made to a larger bench in view of conflicting verdicts rendered in two Division Bench judgments of Apex Court in Prakash and others Vs. Phulwati and others, MANU/ SC/1241/2015: (2016)2 SCC 36 and Danamma @ Suman Surpur and another Vs. Amar and others, MANU/SC/0064/2018: (2018) 3 SCC 343. The Division Bench of the Apex Court in Prakash Vs. Phulwati (supra) held that Section 6 of Hindu Succession Act was not retrospective in operation and it applies when both, coparceners and his daughters were alive on the date of commencement of Amendment Act. The Apex Court further opined that the provisions contained in the explanation to Section 6 Sub Clause 5 provides for requirement of partition to be registered one or by a decree of Court. It can have no application to a statutory notional partition on the opening of succession as provided in the un-amended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of deceased coparcener which is not covered either under the proviso to Section 6 (1) or Section 6 Sub Clause (5), including its explanation. The registration requirement was inapplicable for partition of property by operation of law. The provisions of Section 6 had been held to be prospective in Danamma. The Apex Court held that the amended provision of Section 6 confers full rights upon the daughter-coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenery property. The father died, leaving behind two daughters, two sons and a widow. Coparceners’ father was not alive when the substituted provision of Section 6 came into force. The daughters, sons and widow were given 1/5th share apiece. While answering the reference the Hon’ble Apex Court held that :

(a) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer statues of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(b) The rights could be claimed by the daughter born earlier with effect from the date of commencement of Amendment Act with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the date on which the Hindu Succession (Amendment) bill, 2004 was introduced in the Rajya Sabha.

(c) Since the right in coparcenary was by birth, it was not necessary that father coparcener should be living as on date of commencement of Amendment Act.

(d) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. 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 Act of 1956 or male relative of such female. The provisions of the substituted Section 6 were required to be given full effect. Notwithstanding that a preliminary decree had been passed the daughters were to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(e) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition could not 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 effected by a decree of a court. However, in exceptional cases where plea of oral partition was supported by public documents and partition was finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone could not be accepted and to be rejected outrightly.

Thus Apex Court held that since the right of any coparcener is by birth, it was not necessary that father coparcener should be living as on date of commencement of Amendment Act, 2005 and share equal to that of son be given to the daughters even in pending proceeding even in an appeal.

Thus it is clear, in view of judgment and the provisions contained in substituted Section 6 of Hindu Succession Act, 1956 confers status of “coparcener” on the daughter either before or after amendment, in the same manner as that of a son, with same rights and liabilities. Since the right of coparcener is by birth it is not necessary that father coparcener should be living as on 09/09/2005. The daughters cannot be deprived of their rights of equality conferred upon them by Section 6. At present the appellant and respondent Nos. 1 to 3 are the only legal heirs of Pandurang Chopkar who are entitled to receive equal shares in the all properties of deceased Pandurang Chopkar. Thus the order passed by learned Ad-hoc District Judge, Nagpur in Regular Civil Appeal 227/2004 dated 19/12/2006 as well as judgment and decree passed by Joint Civil Judge Senior Division in Special Civil Suit No.724/1998 passed on 17/03/2004 are liable to be set aside to the extent of shares in immovable ancestral property. There is apparent error in determining the shares of the parties. Accordingly substantial question of law is answered in the affirmative.

So far as, other relief granted by the learned Trial Court in respect of direction to the defendant No.1 to pay amount of Rs.25,000/- along with interest amount of Rs.8,380/- so also direction to the defendant Nos. 3 and 4 to pay Rs.8,000/- needs no interference, as plaintiff duly established his claim to that effect. Accordingly, I proceed to pass the following order.

ORDER

The Second Appeal is partly allowed with proportionate cost.

The order passed by learned Trial Court as well as Appellate Court is modified as under :

It is declared that the appellant as well as respondent Nos. 1 to 3 are having 1/4th share each in the house bearing Municipal Corporation No. 173 so also in the Nazul Plot bearing No. 122.

The suit house - Nagpur Municipal house No.173 and Nazul plat No.122 be partitioned by appointment of Commissioner for handing over the possession to the respective parties.

Rest of the order of learned Trial Court is confirmed.

Record and proceedings be remitted back immediately.