Prabhavathi and Others vs Patel B.N. Mallanna and Others

N. Kumar, J.—This is the plaintiffs appeal against the judgment and decree passed by the Trial Court dismissing the plaintiffs suit filed for partition and separate possession of their legitimate share in the plaint schedule property on the ground by virtue of Section 6 of the Hindu Succession and Amendment Act, they have become coparceners and therefore, they are entitled to a share in the coparcenary property. They knew on the date of the suit that there was a registered partition deed dated 2.11.2001 and defendant Nos. 3 and 4 who acquired right in some of the items of the suit schedule properties had gifted them, which they wanted to be nullified on the ground that it is null and void.

The case of the plaintiffs is that one Nanjegowda was the absolute owner of the entire schedule properties and he was owning house and other land properties. The 1st defendant is the only son of the said Nanjegowda, who is the paternal grand father of the plaintiffs. 1st and 2nd defendants are the parents of plaintiff No. 1. The rest of the defendants are the brothers and sisters of 1st plaintiff and paternal uncle and aunt of remaining plaintiffs. Their case is that they are members of the Joint Hindu Family. During the lifetime of Nanjegowda he was managing the entire properties. He died in the year 1962 and his wife Sannamma also dies in the year 1943. Both of them have died intestate and as such, on the death of Nanjegowda, the 1st defendant became the owner of the property left behind by Nanjegowda. The 1st plaintiff is the daughter of defendants Nos. 1 and 2 and other plaintiffs are the grandchildren of defendant Nos. 1 and 2, who are the children of late Lalithamma, the daughter of defendant Nos. 1 and 2. Ever since the death of mother of plaintiffs 2 to 4 they are in the care and custody of the 1st plaintiff, who also performed their marriage after they came to marriageable age. The 4th plaintiff is also with the 1st plaintiff. The 1st defendant has been maintaining entire schedule properties and other properties as the Kartha of the family. However the 1st defendant started to behave abnormally with the plaintiffs and started to ill treat and ignore them. It is learnt that some of the schedule properties have been made in the name of the 2nd defendant by the 1st defendant. Plaintiffs came to know that defendant Nos. 3 and 4 have divided the schedule properties without their consent. However the said partition does not bind the legitimate right of the plaintiffs. The plaintiffs approached defendant Nos. 1 and 2 and asked for the division of the properties, but they have given evasive answer. Plaintiffs together are entitled for 2/6th share in the plaint schedule properties and they are in joint possession of the same. On 2.11.2001 the defendants 1 to 4 have partitioned the plaint schedule properties. At that point of time, O.S. No. 54/1999 was pending on the file of the Court and the same was dismissed for default on 28.9.2004. Therefore, the partition during the year 2001, becomes Impendence. The said division is null and void and unenforceable. The gift of the plaint schedule properties made by defendants 3 and 4 in the name of their daughters and son-in-law is also null and void and not binding on the plaintiffs.

After service of notice the defendants have entered appearance and filed their written statement. They contended the suit is not maintainable either in law or on facts. They contended plaintiffs and defendants are not the members of the Hindu Joint Family. They denied that plaintiffs 2 to 4 are in the custody of the 1st plaintiff and that she has performed the marriage of the other plaintiffs. Plaintiff No. 4 is residing with his father and not with the 1st plaintiff. They specifically contend as there was partition between defendant Nos. 1 and 2 with the defendants 3 and 4 during the year 2001, it was reduced into writing and registered on 8.11.2001. Therefore, all the joint family properties are partitioned. The 4th defendant has sold his share in Sy. No. 186 to one D. Sheela. The property bearing Sy. No. 13 measuring 4 acres 3 guntas was sold by 4th defendant in favour of one V. Thammanne Gowda. They have set out in the written statement alienations made by them and they have performed marriages of their children. Similarly the 6th defendant also filed written statements contesting the suit filed by the plaintiffs to contend that the suit is not maintainable.

On the aforesaid pleading the trial Court framed the following issues:-

Whether the plaintiffs prove that they and defendants are the members of joint Hindu Family and the suit schedule properties are the joint family properties?

Whether the defendants prove that the suit schedule properties are their absolute properties?

Whether the plaintiffs are entitled for partition and separate possession? If so, what is their share?

To substantiate their case the 1st plaintiff - Prabhavathi was examined as P.W. 1 and also examined 3rd plaintiff - Kavitha as P.W. 2. The plaintiffs produced 22 documents which are marked as Exs. P1 to P22. On behalf of the defendants M. Guruswamy was examined as D.W. 1 and Smt. Ambika N.R. was examined as D.W. 2. They also produced 40 documents, which are marked as Exs. D1 to D40.

The Trial Court on appreciation of the oral and documentary evidence on record held that the plaintiffs were members of Joint Hindu Family and that the suit schedule properties were ancestral properties. The defendants have failed to prove that the suit properties were self acquired and absolute properties. Thereafter it took note of the registered partition deed, which has come into existence on 2.11.2001 under which the Joint Hindu Family status was severed and all the partition was by metes and bounds. It also took note of the fact that the defendants have alienated their respective shares in the suit schedule properties by way of a registered document. Therefore, it held that as on the date the Hindu Succession (Amendment) Act, 2005 came into effect, there was no Joint Hindu Family in existence and there was no registered partition deed and therefore, though the daughter was conferred the status of a coparcener from the date of Amendment Act came into effect by virtue of the explanation of sub-section (5) of Section 6 of the Act defines "Nothing contained in this section shall apply to a partition, which has been effected before the 20th December 2004," the plaintiffs are not entitled to a share in the partition. They also took note of the proviso to Section 6(1) of the Act, which defines 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" and accordingly it dismissed the suit. Aggrieved by the said judgment and decree the plaintiffs have preferred this appeal.

The learned counsel for the appellants brought to our notice that during subsistence of this appeal both the defendants 1 and 2 have died. Therefore, he contends even if the judgment of the trial Court does not call for any interference, the plaintiffs are entitled to a share in the property belonging to defendants 1 and 2, as all the legal heirs are on record in this appeal and therefore, he submits that the plaintiffs have to be allowed a share in their property.

Per contra, the learned counsel for the defendants supported the impugned order.

Therefore, the points that arise for our consideration in this appeal are

a. Whether a case for interference with the order passed by the Trial Court is made out?

b. Whether this Court can pass a decree in respect of the properties belonging to defendant Nos. 1 and 2 in this appeal?

The entire basis in filing the suit is the amendment to Section 6 of the Hindu Succession Act, 1956 which came into effect from 9.9.2005. Section 6 conferred on a daughter of a coparcener in a Joint Hindu Family governed by the Amendment Law the status of the coparcener and rights in the coparcenary property devolves on a daughter as if she has been a son. Therefore, the 1st plaintiff -- daughter of defendants 1 and 2 and plaintiffs 2 to 4 who are the children of yet another daughter of 1st defendant by name Lalithamma have filed the suit claiming a share in all the suit schedule properties contending that the schedule properties are ancestral properties, and that they have not been given a share and the partition deed effected between the defendants is not binding on them as they are not parties to the same.

"Section 6(5) : Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004."

When the Parliament conferred on a daughter the status of a coparcener and Section 6 was substituted in the place of the earlier Section, which was in force for more than 50 years, what was saved is the disposition of property or alienation by which third party interest would have arisen. They did not want the third party interest to be effected by the amendment. Therefore Proviso to Section 6 of the Act categorically states anything contained in the sub-section i.e., sub-section (1) where a daughter was conferred right of coparcener shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20th December 2004. Sub-section (5) of Section categorically defines Nothing contained in this section shall apply to a partition, which has been effected before the 20th December 2004.

Though Section 6 came into force from 9.9.2005 which is retrospective in nature and it is deemed to be on the Statute Book on the day from 17.6.1956 when the Hindu Succession Act, 1956 came into force, however, if a partition had taken place prior to 20.12.2004 sub-section (5) of Section 6 makes it clear the daughter, who is conferred a right of a coparcener is not entitled to any share in the coparcenary property. This is precisely what the trial Court has held and therefore, the judgment of the Trial Court dismissing the suit of the plaintiff cannot be found fault with as there was a registered partition deed executed on 2.11.2001 between the defendants in the suit. On the date of the suit, there was no joint family in existence hence coparcenary was severed on 20.11.2001. Therefore relying on the valid partition deed dated 2.11.2001, the suit is dismissed. After the partition on 2.11.2001 what the 1st defendant got to his share, on the death of Nanjegowda his legal heirs, who are mentioned in the schedule r/w. Section 8 of the Act are entitled to a share and therefore, that share is to be awarded in turn to the legal heirs, who are the plaintiffs in this case. However, the cause of action for the suit is that the plaintiffs are the coparceners and by virtue of Section 6 of the Hindu Succession (Amendment) Act, 2005 they are claiming by survivorship. Now the right has accrued for a share in the 1st defendant''s property by virtue of Section 8 which is by way of inheritance. Right accrues on the death of that person and therefore, cause of action for the suit and cause of action for the claim in respect of 1st defendant is not identical. It is not possible to grant any decree in respect of the suit schedule properties. The appellants are at liberty to file separate suit and work out their remedy and therefore, no relief can be granted in this appeal.

In that view of the matter, we do not see any merit in this appeal. Accordingly the appeal is dismissed.