HINDU SUCCESSION ACT, 1956 - CASE LAW - Section 6
Brij Narayan Aggarwal v Anup Kr. Goyal,
(Basic Conditions needed for Claiming the Share of the daughter after the Amendment of 2005)
Bench:S N Dhingra J.
Facts:
- A suit for filed on the behalf of the daughter claiming her share from her parents in the coparcenary property on the ground of Amendment of 2005 to the Act.
- Earlier a partition suit was filed by her 2 brothers in 1984 in which the daughter was granted 1/36th share in the property.
Issue:
Whether the Appellant is entitled to claim the share under Hindu Succession Act,1956?
Contentions raised by Respondent :
- Since Mrs. Mithlesh Aggarwal died in the year 1998 and her share had already been determined by a competent Court and a decree has been passed which became final, no right survived in plaintiff to file a fresh suit even after amendment of Hindu Succession Act.
Contentions raised by Appellant :
- After passing of the amendment in Hindu Succession Act claiming that Mrs. MithleshAggarwal was entitled to 1/6th share in view of the amendment and this Court should declare her to be entitled to 1/6th share.
- Since execution petition was pending and the partition decree passed by the Court in 1991 has not been given effect to by effecting partition by metes and bounds, the partition is not complete as the decree has not been implemented. Appellant relied upon Section 6(5) of Hindu Succession Act as amended and stated that amended section shall apply in this case since no partition has been effected before 20.12.2004
Held :
- The HUF of which Mr. Pran Nath Goyal was karta, ceased to exist when partition suit was filed by Respondent No. 1 and 2 in 1984. It is settled law that once partition is demanded and a suit is filed by a member of HUF, the severance in the status of coparcener takes place.
- It is clear that the whole sum and substance of the amendment Act is that HUF must be in existence on the day of commencement of the Act or at least on 20.12.2004 and no partition had taken place before 20.12.2004.
- The partition had taken place by a decree of court in 1991 itself. Mrs. Mithlesh Aggarwal, died in 1998. Mere pendency of the execution would not give right to the Appellant, who is husband of Mrs. MithleshAggarwal, to revive an HUF which ceased to exists in 1984 itself. The suit is not maintainable under the amended Hindu Succession Act as claimed by the Appellant.
