Poonam and Others vs Fulchand and Others

Anand Vasant Nirgude, J.—This appeal challenges the concurrent judgments rejecting the appellant/plaintiff''s case that she was entitled to share in coparcenary property and her share would be equal to her brothers who are the respondents. Her suit was partly decreed by giving her share only from her mother''s property.

The facts leading to this litigation are as under :--

"The appellant/plaintiffs are the married sisters of original defendant Nos. 1 to 3. One Paiku was the grandfather of the parties. He was the owner of suit properties i.e. the agricultural lands at village Lihigaon, Taluka Kamptee, District Nagpur. After the death of Paiku, the lands were mutated in the name of his son Zagadu who happened to be the father of the main parties to the suit. After the death of Zagadu, the properties were mutated in the names of respondent/original defendant Nos. 1 to 3. The appellant/plaintiffs sent the notice on 06-07-2010 calling upon the main defendants to partition the ancestral suit property and give them their equal share. Since this request was rejected the suit came to be filed. The respondent/defendants opposed the suit by stating that during the life time of Zagadu the partition of suit property was effected amongst the sons and father in 1979. The appellant/plaintiffs were aware of this change and since they did not file suit in time the suit was barred by limitation. In view of these pleadings the necessary issues were framed and evidence was recorded. The trial Court held that the respondent/defendants had proved the factum of partition which took place in 1979. The trial Court, however, held that since the mother was also entitled to certain shares in the suit property at the time of partition and since she also died the appellant/plaintiffs would get equal share in her property with their brothers. The case then went to the appellate Court. The appellate Court, however, held that the respondent/defendants could not prove the factum of partition but still denied partition to the appellant/plaintiffs. Section 6 of the Hindu Succession Act, 1956 [for short, ''the said Act''] as amended in 2005 is held to be not helpful to them. It was held that since the events in this suit had taken place prior to 2005 the change in the law would not affect the parties. In other words, the learned Judge of the lower appellate Court held that the provisions of Section 6 of the said Act are prospective in nature. Again the appellant/plaintiffs did not succeed in their case and their appeal was dismissed. The only benefit they derived from this judgment was the finding, the appellate Court recorded in respect of factum of partition when they came to this Court. They pointed out to my learned predecessor and argued that the interpretation of Section 6 of the said Act by the learned Judge of the lower Court was incorrect. They placed reliance on the judgment of Full Bench in the case of Badrinarayan Shankar Bhandari etc. etc. Vs. Ompraskash Shankar Bhandari etc. etc., (2014) 5 ABR 791 : AIR 2014 Bom 151 : (2014) 5 ALLMR 846 : (2014) 5 BomCR 481 : (2014) 5 CTC 353 : (2014) 5 MhLj 434 : (2014) 4 RCR(Civil) 620 and having regard to the law laid down in the said judgment the substantial questions of law were framed. The judgment of Full Bench referred to above was not available even to the lower appellate Court at the time when the learned Judge delivered his judgment. There was lot of confusion in the mind of the litigants and their Advocates about how Section 6 of the said Act would be put in practice. Section 6 of the said Act as amended reads as under :--

"[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.

(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 predeceased 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) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. -For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(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.]"

On plain reading of Section 6 of the said Act it is clear that a daughter of a coparcenary would get birth right in coparcenary property in the same manner as a son would get. There is virtually no difficulty in applying this law where a daughter is alive and coparcenary property is available to her for demanding share in it. Sub-section (5) provided an exception to this rule. It recognizes that prior to amendment to Section 6 there was possibility that in many cases coparcenary properties were subjected to partition amongst coparceners. The daughters were not coparceners then and therefore they would not get share in such partition. In case such partition is effected through ''registered deed'' of partition, the partition was permanent and the daughters of such coparcenary would be debarred from claiming further partition. The law on this subject is also developed and now it is held that even though there is no registered partition deed but if the partition is effected by metes and bounds and it is proved properly then, the daughter of coparcenary would not seek partition of coparcenary property.

The Full Bench judgment of this Court referred to above has referred to various judgments including the judgment of Supreme Court in the case of G. Sekar Vs. Geetha and Others, AIR 2009 SC 2649 : (2009) 5 JT 496 : (2009) 5 SCALE 559 : (2009) 6 SCC 99 : (2009) 5 SCR 1005 : (2009) 6 UJ 2774 : (2009) AIRSCW 4075 . The Full Bench in gist held in this field at least three previous judgments were of significant importance; (1) in the case of Ms. Vaishali Satish Ganorkar and Another Vs. Mr. Satish Keshaorao Ganorkar and Others, AIR 2012 Bom 101 : (2012) 2 ALLMR 737 : (2012) 5 BomCR 210 : (2012) 3 MhLj 669 , Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another, AIR 2012 SC 169 : (2011) 6 CTC 102 : (2011) 11 JT 483 : (2011) 4 RCR(Civil) 916 : (2011) 11 SCALE 467 : (2011) 9 SCC 788 : (2011) 12 SCR 968 : (2011) 6 UJ 4060 and G. Sekar Vs. Geetha and Others, AIR 2009 SC 2649 : (2009) 5 JT 496 : (2009) 5 SCALE 559 : (2009) 6 SCC 99 : (2009) 5 SCR 1005 : (2009) 6 UJ 2774 : (2009) AIRSCW 4075 . The Full Bench made gist of provisions of Section 6 of the said Act, after analysis, as under :--

"1(a) On and from the commencement of the Amendment Act, in a Joint Hindu Family governed by Mitakshara law, the daughter of coparcener shall by birth become a coparcener in her own right as the son;

1(b) On and from the commencement of the Amendment Act, in a Joint Hindu Family governed by Mitakshara law, the daughter of coparcener shall have the same rights in the coparcenary property as he would have if she would have been a son;

1(c) On and from the commencement of the Amendment Act, in a Joint Hindu Family governed by Mitakshara law, the daughter of coparcener shall be subject to the same liabilities in respect of the said co-parcenary property as that of a son;

On and from the commencement of the Amendment Act, in a Joint Hindu Family governed by Mitakshara law, any reference to Hindu Mitakshara coparcener shall be deemed to include a reference to daughter of a coparcener;."

(emphasis supplied)

The Full Bench rejected the argument that the provision is prospective in nature to such an extent that the daughter who is born on or after commencement of the Amendment Act of 2005 would alone become a coparcener in her own right. In other words, the daughters who were born prior to the date of amendment would not be entitled to such right. The Full Bench rejected this submission and held that there are two conditions for application of amended provisions of Section 6 of the said Act viz; (i) in a case where a daughter of a coparcener, who claims benefit of this provision should be alive on the date of coming into force; (ii) there should be property of coparcenary available for partition on the day of commencement of the Act. If two conditions are satisfied then she would be entitled to share in it as if she is a coparcener. The Full Bench discussed the judgment of Division Bench in case of Vaishali Ganorkar (supra) in following words :--

"29. So far as the decision of our Division Bench in Ms. Vaishali Satish Ganorkar and Another Vs. Mr. Satish Keshaorao Ganorkar and Others, AIR 2012 Bom 101 : (2012) 2 ALLMR 737 : (2012) 5 BomCR 210 : (2012) 3 MhLj 669 is concerned, we find that it was decided in the peculiar facts of the case. The facts were indeed very gross. As already set out in para 6(A) hereinabove, the father having taken a loan from the Bank and mortgaged the suit flat as a security for the loan in 2008, failed to repay the loan. When the Bank initiated recovery proceedings under the Securitisation Act, to stall such recovery the daughters of the borrower filed the suit claiming to be entitled to 2/3rd of the suit property as their share in the coparcenary property on the basis of section 6 of the Hindu Succession Act, as amended by 2005 Amendment Act. The learned Single Judge refused to grant ad-interim relief to the daughters. In appeal also the Division Bench was required to decide whether the ad-interim relief should be granted against recovery proceedings initiated by the bank. The appeal was dismissed by the Division Bench and the Supreme Court also dismissed the Special Leave Petition leaving the question of law open. The bank could have argued in the alternative that even if the suit flat was a coparcenary property, the father as ''Karta'' of HUF had made alienation of the suit flat by way of mortgage for a legal necessity. Therefore, alienation by way of mortgage was binding on all members of the coparcenary.

Apart from the above factual aspects, it must be acknowledged that when the questions of law were argued in Ms. Vaishali Satish Ganorkar and Another Vs. Mr. Satish Keshaorao Ganorkar and Others, AIR 2012 Bom 101 : (2012) 2 ALLMR 737 : (2012) 5 BomCR 210 : (2012) 3 MhLj 669 , the legislative history as well as Statement of Objects and Reasons for the Amendment Act were not brought to the notice of the Division Bench. Even the binding judgment of the Supreme Court in Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another, AIR 2012 SC 169 : (2011) 6 CTC 102 : (2011) 11 JT 483 : (2011) 4 RCR(Civil) 916 : (2011) 11 SCALE 467 : (2011) 9 SCC 788 : (2011) 12 SCR 968 : (2011) 6 UJ 4060 was not brought to the notice of the Division Bench. That judgment was directly on the scope and ambit of amended section 6 of the Hindu Succession Act. On the contrary the Division Bench was persuaded to follow the principle laid down by the Supreme Court in G. Sekar Vs. Geetha and Others, AIR 2009 SC 2649 : (2009) 5 JT 496 : (2009) 5 SCALE 559 : (2009) 6 SCC 99 : (2009) 5 SCR 1005 : (2009) 6 UJ 2774 : (2009) AIRSCW 4075 , in which dealing with the provision of section 23 of the Hindu Succession Act, it was held that if the date of opening of the succession to the property of a coparcener took place before the Amendment Act, 2005, then section 23 of the pre-Amended Act would apply. In the above context, the Division Bench noticed that the father coparcener (respondent No. 1 in the appeal) was still alive on 9 September, 2005, and the occasion to apply Amended section 6 would arise only on the death of the coparcener. The Division Bench gave importance to the marginal note and the grammar in the Amended section 6. We have given our utmost anxious consideration, particularly since one of us (Chief Justice) was party to the decision in Ms. Vaishali Satish Ganorkar and Another Vs. Mr. Satish Keshaorao Ganorkar and Others, AIR 2012 Bom 101 : (2012) 2 ALLMR 737 : (2012) 5 BomCR 210 : (2012) 3 MhLj 669 ."

In view of this discussion, the Full bench held that Vaishali Ganorkar''s decision of Division Bench in that case is per curium. The last judgment referred to above is the judgment of Supreme Court in the case of Ganduri Koteshwaramma and others (supra). The Full Bench discussed this judgment in following words :--

"61. The Supreme Court held in Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another, AIR 2012 SC 169 : (2011) 6 CTC 102 : (2011) 11 JT 483 : (2011) 4 RCR(Civil) 916 : (2011) 11 SCALE 467 : (2011) 9 SCC 788 : (2011) 12 SCR 968 : (2011) 6 UJ 4060 that the amended section 6 will apply to a partition suit wherein the final decree was not passed before the date of commencement of the Amended Act of 2005. Those observations have to be examined in the context of the facts of that case, partition had taken place between father and two sons, each of them getting 1/3rd of the coparcenary property. Thereafter, when the father died, his interest in the coparcenary property was divided on notional partition in terms of proviso to erstwhile section 6(1) of the Principal Act between two daughters and two sons. A preliminary decree was passed in 1999, which was amend in 2003.

The final decree for partition was not yet passed, when the Amendment Act, 2005 came into force on 9 September, 2005. In view of the said amendment, two daughters sought a share in the property claiming to be equal to their brothers'' share and prayed for amendment of the preliminary decree on that basis. The trial Court allowed the daughters'' application by order dated 15 June, 2009 and held that they were entitled for re-allotment of shares in the preliminary decree, i.e. they are entitled to 1/4th share each and separate possession. The plaintiffs/brothers challenged the order of the trial Court in appeal before the Andhra Pradesh High Court. The single Judge of the High Court allowed the appeal and set aside the order of the trial Court. In the appeal filed by sisters, the appeal Supreme Court set aside the order of the High Court and restored the order of the trial Court and directed the trial Court to proceed for preparation of the final decree in terms of its order dated 15 June, 2009.

While rendering its decision in the above case, the Supreme Court made the following observations :--

"9. The 1956 Act is an Act to codify the law relating to intestate succession among Hindus. This Act has brought about important changes in the law of succession but without affecting the special rights of the members of a Mitakshara coparcenary. The Parliament felt that non-inclusion of daughters in the Mitakshara coparcenary property was causing discrimination to them and, accordingly, decided to bring in necessary changes in the law. The Statement of Objects and Reasons of the 2005 Amendment Act, inter alia, reads as under :

"......... The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the State of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property."

With the above object in mind, the Parliament substituted the existing section 6 of the 1956 Act by a new provision vide 2005 Amendment Act.......

The new section 6 provides for parity of right in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in section 6 that the daughter of the coparcener shall have same rights and liabilities in the co-parcenary property as she would have been son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.

The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of section 6. The excepted categories to which new section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December, 20, 2004................."

Perusal of the above decision of the Supreme Court leaves no room for doubt that the amended section 6 came to be applied to a case where daughters were born long prior to the date of coming into force of the Amendment Act, 2005 and still the Supreme Court gave them the benefits of amended section 6 by recognizing rights of daughter to get share in the coparcenary property, as if she had been a son."

In view of this, the appeal deserves to be allowed. It would be held that the appellant/plaintiffs are entitled to equal share with that of their brothers. The suit property should be partitioned between the principal sharers who are three sisters and five brothers and each one will be entitled to 1/8th share.

There shall be decree accordingly.