Property distribution
sachin
(Querist) 15 October 2011
This query is : Resolved
sir my father had 400 acre ancestral agricultutral land in m.p. he passed in 1967. land was then in name of me and my mother. my mother passed in 2009. i have four sisters. total we are 5 heirs.sisters got their names on record in 2010. they had filed a civil suit for partion in 2010.the judgement is under process.
i was getting a bigger share in property as i was a male child. but today i read in news paper that HSA section 6 has been amended on 13 oct 2011 by supreme court.
sir what is the amendment and what will it effect on my case.now how would be the partion.
some says that now daughters will be treated as co-parceners now. and will get equal share. plz clear my doubts
my advocate has demanded for 60%for me and 10% to each daughters.
R.Ramachandran
(Expert) 15 October 2011
Dear Mr. Sachin,
You have to indicate whether the entire 400 acres of property was purchased by your father, or he received it from his father/grand father etc.
Only after knowing this, it will be possible to give an answer to your question.
prabhakar singh
(Expert) 15 October 2011
The entire section as amended by amending Act2005 is produced below.But you should check with your local lawyer that in state of MP if Hindu Succession Act 1956[as amended by
amending Act2005]is applicable in matters of inheritance of agricultural land or any state law separately passed by MP.If so,then difference between the two.
Under section 6 of H.S.Act if great grand father was the owner of any property and devolved by succession upon grandfather and from him devolved upon the father then under old coparcenary law the grand son acquired equal rights of share along with father just by birth BUT DAUGHTERS WERE EXCLUDED FROM ACQUIRING THIS RIGHT BY BIRTH;but now by amendment the right which was available as a coparcenary against the father to his son has been made available to his daughters also unless a final partition has taken place between father and son with respect to that coparcenary by a registered deed before 20/12/2004.
prabhakar singh
(Expert) 15 October 2011
[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 pre-deceased 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.]
Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]
Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. 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 States 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. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.
State Amendment
Sections 6A to 6C
Karnataka:
After section 6 the following sections shall be inserted, namely:—
"6A. Equal rights to daugher in co-parcenary property.— Notwithstanding anything contained in section 6 of this Act—
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:
Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.
6B. Interest to devolve by survivorship on death.— When a female Hindu dies after the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990, having at the time of her death an interest in a Mitakshara co-parcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:
Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship.
Explanations.— (1) For the purposes of this section the interest of female Hindu Mitakshara co-parcenary shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.
(2) Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the co-parcenary, or any of his or her heirs to claim on intestacy a share in the interest referred to therein.
6C. Preferential right to acquire property in certain cases.— (1) Where, after the commencement of Hindu Succession (Karnataka Amendment) Act, 1990 an interest in any immovable property of an intestate or in any business carried by him or her, whether solely or in conjunction with others devolves under sections 6A or 6B upon two or more heirs and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under sub-section (1) shall in the absence of any agreement between the parties, be determined by the court, on application, being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.
(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation.— In this section 'court' means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may by notification in the Official Gazette specify in this behalf.
[ Vide Karnataka Act 23 of 1994, sec. 2 (w.e.f. 30-7-1994).]
Shastri J.K.
(Expert) 15 October 2011
Your sisters will get equal share.
R.Ramachandran
(Expert) 15 October 2011
Dear Mr. Shastri,
Can you please tell the basis on which you say that the sisters will get equal share?
sachin
(Querist) 15 October 2011
thank u for such a quick reply by experts i am really obliged.
mr. ramchandran ji, entire property is ancestral . my father didnt purchased any.he got it in inheritance from my grand father.there was no partion among us before now.what would be my share now?
mr prabhakar sinh ji, i dont have much knowledge of law, please tell me what would amendment on 13 oct 20011 will effect my share.there was no partion among us before now, waiting for ur wise reply
R.Ramachandran
(Expert) 15 October 2011
Dear Mr. Sachin,
If it was 'ancestral property', then upon the death of your father in the year 1967 the same stands automatically partitioned by operation of law (Section 6 of the Hindu Succession Act, 1956). You and your father thus would have got 200 acres each. (Now that your mother has also died the overall calculation will not undergo any change, even in your area, mother is also entitled to one share at the time of partition.)
Since your father has died without leaving any will, his property will get inherited equally by all his 5 legal heirs. (you and your 4 sisters). Thus, the 200 acres which was your father's share will go to all the 5 of you each getting 40 acres.
Thus, you will get 240 acres (200 + 40) acres, while all your sisters will get 40 acres each. This works out to 60% to you and 10% each to your sister. That is how your Advocate has demanded 60% to you and 10% each to your sisters.
sachin
(Querist) 15 October 2011
yeah sir ramchandran ji , but today my advocate says that law has amended on 13 oct 2011, and now i will get 1/5 share.as daughters will be coparcener now who were excluded in amendment 2005, and since descion of partion is not yet done then, the descion will be according to new amendment, actually my case is in intial stage only
R.Ramachandran
(Expert) 15 October 2011
Please ask your lawyer to indicate who amended the law on 13.10.2011. If so a copy of the same.
prabhakar singh
(Expert) 15 October 2011
First of all i disagree with Mr.Shastri j k.
And i also disagree with those who says that Hindu Succession Act has been Amended on 13.10.2011.
I find my self in complete agreement of view expressed by Mr.Ramachandran,if not any state law with regard to succession of agricultural land but only Hindu Succession Act 1956{as amended in 2005}is in force in MP with regard to succession of
agricultural land also.
Facts of your case emerging before me are now as below that i have took in my consideration to arrive at my opinion:..
1]the property 400 acres of agricultural land was ancestral coparcenary property in hands of your father.
2] the year of death of your father is 1967.
3]at then the coparcenary consisted of your father and you alone as per then applicable provisions of section 6 of Hindu Succession
Act1956.
4]that on the death of your father a partition deemed in law took place ipso facto and 1/2 was deemed to be your individual share and 1/2 to be share of your father in the coparcenary.
5]thus due to his death in 1967 the coparcenary between your father and you came to an end.
6]that at that time at the death of your father law did not recognize any share of daughters as coparcenary member.
7]then out of 400 acres 200 acres is your exclusive share that exclusively and legally vested in you alone.
8]the remainder 1/2=200 acres that was your fathers coparcenary share shall be deemed to have been devolved upon your mother ,you and your sisters equally.
9]since your mother has also died hence share shall also be deemed to have been devolved upon her son[you] and upon her all daughters[your 04 sisters].
10]As on this date as per current legal position of your case you have a rightful legal share of 240 acres of land in dispute[200+{200/5}]and each of your sisters have 40 acres as their share as per law applicable to your case on date.
11]you or your lawyer what ever read in news paper about the law amendment is a misconception of true position.
12] i ensure no amendment in Hindu Succession Act 1956 has taken place on 13.10.2011.
13]the said amendment was made in 2005 but
from that amendment only those daughters will derive benefit whose fathers died after the amendment.
14]only you need to know if there is any local law at state level separately dealing
agricultural succession in the state??
If not then view expressed here is the correct position of law applicable to your case.
15]It may be possible that some judgement might have been given on 13.10.2011 in which amending Act 2005 and its impact might have been discussed,but that does not mean,here now every case shall get reopen a fresh and amendment of 2005 shall be applied RETROSPECTIVELY SINCE THE DATE CONCEPT OF COPARCENARY WAS EVOLVED.
I HAVE ALREADY EXPLAINED, IF FATHERS AND SONS WERE ALIVE IN AMENDMENT YEAR OF 2005 AND NO REGISTERED PARTITION AMONG THEM WAS IN EXISTENCE OF THEIR COPARCENARY ON OR BEFORE 20/12/2004 ,THEN WITH SUCH FATHERS NOT ONLY THEIR SONS BUT THEIR DAUGHTERS SHALL ALSO BE DEEMED TO BE FORMING A AUTOMATIC COPARCENARY WITHOUT GENDER BIAS SINCE THE DATE OF AMENDMENT BROUGHT IN FORCE IN YEAR 2005.
prabhakar singh
(Expert) 15 October 2011
As told your case shall be governed by section 6 Hindu Succession Act 1956 as it read before amendment of 2005 because your father died in 1967.
To support the view expressed above a supreme court judgement is also posted here:
Citation: 2006 AIR 3332,2006(6 )Suppl.SCR370 ,2006(8 )SCC656 ,2006(9 )SCALE509 ,2006(12 )JT288
CASE NO.:
Appeal (civil) 4171 of 2006
PETITIONER:
Anar Devi and Ors
RESPONDENT:
Parmeshwari Devi and Ors
DATE OF JUDGMENT: 18/09/2006
BENCH:
B.N. AGRAWAL & P.P. NAOLEKAR
JUDGMENT:
JUDGMENT
O R D E R
(ARISING OUT OF S.L.P. (C) NO. 15677 OF 2004)
WITH
CIVIL APPEAL NO. 4172 OF 2006
(ARISING OUT OF S.L.P. (C) NO. 19015 OF 2004)
C.A. No. 4171 of 2006 @ S.L.P. (C) No. 15677of 2004:
Heard learned counsel for the parties.
Leave granted.
A suit was filed before the Sub-Divisional Officer by the respondents for
partition of suit properties claiming two-third share therein. In the plaint, it was
plaintiffs’ clear-cut case that the partition suit was filed for partition of notional share of Nagar Mal. Undisputedly, the suit properties were ancestral one in the hands of Nagar Mal, who adopted one Nemi Chand as his son, and after adoption both of them constituted a Mitakshara coparcenary under Hindu Law. Further it was undisputed that Nagar Mal died in the year 1989 intestate in the state of jointness with his adopted son leaving behind him, his adopted son Nemi Chand and the plaintiffs, who were his two daughters.
The trial court by misconstruing the provisions of law, passed an ex-parte
decree for partition of one-third share of each one of the plaintiffs instead of one-sixth share. Against the decree of trial Court, when the matter was taken in appeal, the appellate authority reversed the same after recording a finding that the property was ancestral one, but remitted the matter as the decree was passed ex-parte. Against the order of remand, the matter was taken to the Board of Revenue, which reversed the
order of remand and restored the decree passed by trial Court after recording a
finding that each of the plaintiffs was entitled to one-third share in the suit properties.
The said judgment has been confirmed in writ by a learned single Judge of the High
Court and the same has been upheld in appeal by the Division Bench. Hence, this
appeal by special leave.
In order to appreciate the point involved in the present case it would be useful
to refer to the provisions of Section 6 of the Hindu Succession Act, 1956 (in short "the Act"), as it stood prior to its amendment by Hindu Succession (Amendment) Act, 2005, and the same run thus:
"S. 6 - Devolution of interest in coparcenary property \026 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 surviving him 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 Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as
the case may be, under this Act and not by survivorship.Explanation 1. \026 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 partition or
not.
Explanation 2. \026 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."
Reference in this connection may be made to a passage from the most authoritative Treatise of Mulla, Principles on Hindu Law, Seventeenth Edition, page
250 wherein while interpreting Explanation I to Section 6 of the Act, the learned author stated that "Explanation I defines the expression ’the interest of the deceased in Mitakshara coparcenary property’ and incorporates into the subject the concept of a notional partition. It is essential to note that this notional partition is for the purpose
of enabling succession to and computation of an interest, which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relatives mentioned in Class I of the Schedule. Subject to such carving out of the interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption. A statutory fiction which treats an imaginary state of affairs as real requires that the consequences and
incidents of the putative state of affairs must flow from or accompany it as if the
putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of that state of affairs." The learned author further stated that "the operation of the notional partition and its inevitable corollaries and incidents is to be only for the purposes of this section namely, devolution of interest of the deceased in coparcenary property and would not bring about total disruption of the coparcenary as if there had in fact been a regular partition and severance of status among all the surviving coparceners."
According to the learned author, at page 253, the undivided interest "of the
deceased coparcener for the purpose of giving effect to the rule laid down in the
proviso, as already pointed out, is to be ascertained on the footing of a notional
partition as of the date of his death. The determination of that share must depend on
the number of persons who would have been entitled to a share in the coparcenary
property if a partition had in fact taken place immediately before his death and such
person would have to be ascertained according to the law of joint family and partition.
The rules of Hindu law on the subject in force at the time of the death of the
coparcener must, therefore, govern the question of ascertainment of the persons who would have been entitled to a share on the notional partition."
In the case of State of Bombay vs. Pandurang Vinayak Chaphalkar &
Others; 1953 (4) SCR 773, this Court, after referring to, with approval, the oftquoted dictum of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough
Council (1952) Appeal Cases 109, has laid down the manner in which statutory
fiction shall be construed and at pages 778 and 779 observed thus:-
"When a statute enacts that something shall be deemed to have
been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between
what persons the statutory fiction is to be resorted to and full effect
must be given to the statutory fiction and it should be carried to its logical conclusion. [Vide Lord Justice James in Ex parte Walton : In
re Levy [17 Ch. D. 746, at p. 756]]. If the purpose of the statutory fiction mentioned in section 15 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the
notification was construed in the literal manner in which it has been
construed by the High Court. In East End Dwellings Co. Ltd. v.
Finsbury Borough Council [[1952] A.C. 109], Lord Asquith while dealing with the provisions of the Town and County Planning Act, 1947, made reference to the same principle and observed as
follows :-
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and
incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or
accompanied it. ....The statute says that you must imagine a certain state of affairs; it does not say that
having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." The corollary thus of declaring the provisions of section 25 of the
Bombay General Clauses Act applicable to the repeal of the ordinance and of deeming that ordinance an enactment is that
wherever the word "ordinance" occurs in the notification, that word has to be read as an enactment."In the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa
Magdum, AIR 1978 SC 1239 at page 1243 it has been laid down by this Court as
under:"What is therefore required to be assumed is that a partition had in
fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is
irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the shares of the deceased in
the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition
had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages\005\005 All the consequences which flow from a real partition
have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased."
Thus we hold that according to Section 6 of the Act when a coparcener dies
leaving behind any female relativespecified in Class I of the Schedule to the Act or
male relative specified in that class claiming through such female relative, his
undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession.
Explanation 1 to Section 6 of the Act provides a mechanism under which undivided
interest of a deceased coparcener can be ascertained and, i.e., that 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. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.
In the case on hand, notional partition of the suit properties between Nagarmal
and his adopted son Nemi Chand has to be assumed immediately before the death of
Nagarmal and that being so Nagar Mal’s undivided interest in the suit property, which was half, devolved on his death upon his three children, i.e., the adopted son Nemi Chand and the two daughters who are plaintiffs in equal proportion. Nemi Chand, the adopted son, would get half of the entire property which right he acquired on the date of adoption and one third of the remaining half which devolved upon him by succession as stated above. This being the position, each of the two plaintiffs was not entitled to one-third share in the suit property, but one-sixth and the remaining properties would go to the adopted son, Nemi Chand.
Undisputedly, the suit properties in the hands of Nagar Mal were ancestral one in which his son Nemi Chand got interest equal to Nagar Mal after his adoption and from the date of adoption, a coparcenary was constituted between the father and the adopted son. Upon the death of Nagar Mal, the property being ancestral, the half undivided interest of Nagar Mal therein devolved by rule of succession upon his three heirs, including Nemi Chand. This being the position each of the daughters would be entitled to one-sixth share in the suit properties and the remaining would go to the heirs of Nemi Chand, since deceased.
Accordingly, the appeal is allowed, impugned judgments are set aside and suit
for partition is decreed to the extent of one-sixth share of each of the two plaintiffs and the defendants, i.e., heirs of Nemi Chand shall be entitled to the remaining suit properties. Let a preliminary decree be, accordingly, drawn up and steps for preparation of final decree be taken by appointment of a pleader commissioner.
No costs.
C.A. No. 4172 of 2006 @ S.L.P. (C) No. 19015 of 2004:
Heard learned counsel for the parties.
Leave granted.
In view of the order in C.A. No. 4171 of 2006 above, the appeal is allowed, the impugned judgment is set aside and writ petition filed before the High Court is
dismissed.
No costs
prabhakar singh
(Expert) 16 October 2011
dear Mr.Sachin !
unfortunately the judgement you were talking about is now traced by me.The judgement posted above was neither cited before nor has been discussed in this case but view taken here is contrary and against my opinion as well as its own judgement cited above.
i am posting that also here with which i with due respect differ but it is binding till a larger bench of APEX COURT reconsider the two judgments.
2011 STPL(Web) 886 SC
SUPREME COURT OF INDIA
(R.M. LODHA & JAGDISH SINGH KHEHAR, JJ.)
GANDURI KOTESHWARAMMA & ANR.
Appellants
VERSUS
CHAKIRI YANADI & ANR.
Respondents
Civil Appeal No. 8538 of 2011 (Arising out of SLP (Civil) No. 9586 of 2010)-Decided on 12-10-
2011.
Hindu Succession - Coparcenary property - Daughter
JUDGMENT
R.M. Lodha, J.-Leave granted.
2. The question that arises in this appeal, by special leave, is: whether the benefits of Hindu
Succession (Amendment) Act, 2005 are available to the appellants.
3. The appellants and the respondents are siblings being daughters and sons of Chakiri Venkata
Swamy. The 1st respondent (plaintiff) filed a suit for partition in the court of Senior Civil Judge,
Ongole impleading his father Chakiri Venkata Swamy (1st defendant), his brother Chakiri Anji
Babu (2nd defendant) and his two sisters - the present appellants - as 3rd and 4th defendant
respectively. In respect of schedule properties `A', `C' and `D' - coparcenary property - the
plaintiff claimed that he, 1st defendant and 2nd defendant have 1/3rd share each. As regards
schedule property `B'--as the property belonged to his mother--he claimed that all the parties have
1/5th equal share.
4. The 1st defendant died in 1993 during the pendency of the suit.
5. The trial court vide its judgment and preliminary decree dated March 19, 1999 declared that
plaintiff was entitled to 1/3 rd share in the schedule `A', `C' and `D' properties and further entitled
to 1/4th share in the 1/3rd share left by the 1st defendant. As regards schedule property `B' the
plaintiff was declared to be entitled to 1/5 th share. The controversy in the present appeal does not
relate to schedule `B' property and is confined to schedule `A', `C' and `D' properties. The trial
court ordered for separate enquiry as regards mesne profits.
6. The above preliminary decree was amended on September 27, 2003 declaring that plaintiff was
entitled to equal share along with 2nd, 3rd and 4th defendant in 1/5th share left by the 1st
defendant in schedule property `B'.
7. In furtherance of the preliminary decree dated March 19, 1999 and the amended preliminary
decree dated September 27, 2003, the plaintiff made two applications before the trial court (i) for
passing the final decree in terms thereof; and (ii) for determination of mesne profits. The trial2011 STPL(Web) 886 SC 2
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court appointed the Commissioner for division of the schedule property and in that regard
directed him to submit his report. The Commissioner submitted his report.
8. In the course of consideration of the report submitted by the Commissioner and before passing
of the final decree, the Hindu Succession (Amendment) Act, 2005 (for short, `2005 Amendment
Act') came into force on September 9, 2005. By 2005 Amendment Act, Section 6 of the Hindu
Succession Act, 1956 (for short `1956 Act') was substituted. Having regard to 2005 Amendment
Act which we shall refer to appropriately at a later stage, the present appellants (3rd and 4th
defendant) made an application for passing the preliminary decree in their favour for partition of
schedule properties `A', `C' and `D' into four equal shares; allot one share to each of them by
metes and bounds and for delivery of possession.
9. The application made by 3rd and 4th defendant was contested by the plaintiff. Insofar as 2nd
defendant is concerned he admitted that the 3rd and 4th defendant are entitled to share as claimed
by them pursuant to 2005 Amendment Act but he also submitted that they were liable for the
debts of the family.
10. The trial court, on hearing the parties, by its order dated June 15, 2009, allowed the
application of the present appellants (3rd and 4th defendant) 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 in schedule properties `A', `C' and `D'.
11. The plaintiff (present respondent no. 1) challenged the order of the trial court in appeal before
the Andhra Pradesh High Court. The Single Judge by his order dated August 26, 2009 allowed
the appeal and set aside the order of the trial court.
12. 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 States 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."
13. 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. After substitution, the new Section 6 reads as
follows :
"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,-
-2011 STPL(Web) 886 SC 3
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(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 pre- deceased 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 predeceased 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 greatgrandson 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 greatgrandson, as the case may be; or2011 STPL(Web) 886 SC 4
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(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."
14. The new Section 6 provides for parity of rights 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 copercener 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 coparcenary property as she would have been a 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.
15. 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. Sub- section (5)
of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the
partition which has been effected before December 20, 2004. For the purposes of new Section 6 it
is explained that `partition' means any partition made by execution of a deed of partition duly
registered under the Registration Act 1908 or partition effected by a decree of a court. In light of
a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for
determining the non- applicability of the Section, what is relevant is to find out whether the
partition has been effected before December 20, 2004 by deed of partition duly registered under
the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position
with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question
that we have to answer is as to whether the preliminary decree passed by the trial court on March
19, 1999 and amended on September 27, 2003 deprives the appellants of the benefits of 2005
Amendment Act although final decree for partition has not yet been passed.
16. The legal position is settled that partition of a Joint Hindu family can be effected by various
modes, inter-alia, two of these modes are (one) by a registered instrument of a partition and (two)
by a decree of the court. In the present case, admittedly, the partition has not been effected before
December 20, 2004 either by a registered instrument of partition or by a decree of the court. The
only stage that has reached in the suit for partition filed by the respondent no.1 is the2011 STPL(Web) 886 SC 5
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determination of shares vide preliminary decree dated March 19, 1999 which came to be
amended on September 27, 2003 and the receipt of the report of the Commissioner.
17. A preliminary decree determines the rights and interests of the parties. The suit for partition is
not disposed of by passing of the preliminary decree. It is by a final decree that the immovable
property of joint Hindu family is partitioned by metes and bounds. After the passing of the
preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e.
after passing of the preliminary decree and before the final decree is passed, the events and
supervening circumstances occur necessitating change in shares, there is no impediment for the
court to amend the preliminary decree or pass another preliminary decree redetermining the rights
and interests of the parties having regard to the changed situation. We are fortified in our view by
a 3- Judge Bench decision of this Court in the case of Phoolchand and Anr. Vs. Gopal Lal [AIR
1967 SC 1470] wherein this Court stated as follows:
"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits
the passing of more than one preliminary decree if circumstances justify the same and
that it may be necessary to do so particularly in partition suits when after the preliminary
decree some parties die and shares of other parties are thereby augmented. . . . .. So far
therefore as partition suits are concerned we have no doubt that if an event transpires
after the preliminary decree which necessitates a change in shares, the court can and
should do so; ........... there is no prohibition in the Code of Civil Procedure against
passing a second preliminary decree in such circumstances and we do not see why we
should rule out a second preliminary decree in such circumstances only on the ground
that the Code of Civil Procedure does not contemplate such a possibility. . . for it must
not be forgotten that the suit is not over till the final decree is passed and the court has
jurisdiction to decide all disputes that may arise after the preliminary decree, particularly
in a partition suit due to deaths of some of the parties. . . . .a second preliminary decree
can be passed in partition suits by which the shares allotted in the preliminary decree
already passed can be amended and if there is dispute between surviving parties in that
behalf and that dispute is decided the decision amounts to a decree.... ............ ."
18. This Court in the case of S. Sai Reddy vs. S. Narayana Reddy and Others [(1991) 3 SCC
647 11] had an occasion to consider the question identical to the question with which we are
faced in the present appeal. That was a case where during the pendency of the proceedings in the
suit for partition before the trial court and prior to the passing of final decree, the 1956 Act was
amended by the State Legislature of Andhra Pradesh as a result of which unmarried daughters
became entitled to a share in the joint family property. The unmarried daughters respondents 2 to
5 therein made application before the trial court claiming their share in the property after the State
amendment in the 1956 Act. The trial court by its judgment and order dated August 24, 1989
rejected their application on the ground that the preliminary decree had already been passed and
specific shares of the parties had been declared and, thus, it was not open to the unmarried
daughters to claim share in the property by virtue of the State amendment in the 1956 Act. The
unmarried daughters preferred revision against the order of the trial court before the High Court.
The High Court set aside the order of the trial court and declared that in view of the newly added
Section 29-A, the unmarried daughters were entitled to share in the joint family property. The
High Court further directed the trial court to determine the shares of the unmarried daughters
accordingly. The appellant therein challenged the order of the High Court before this Court. This
Court considered the matter thus;
".........A partition of the joint Hindu family can be effected by various modes, viz., by a
family settlement, by a registered instrument of partition, by oral arrangement by the 2011 STPL(Web) 886 SC 6
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parties, or by a decree of the court. When a suit for partition is filed in a 12 court, a
preliminary decree is passed determining shares of the members of the family. The final
decree follows, thereafter, allotting specific properties and directing the partition of the
immovable properties by metes and bounds. Unless and until the final decree is passed
and the allottees of the shares are put in possession of the respective property, the
partition is not complete. The preliminary decree which determines shares does not bring
about the final partition. For, pending the final decree the shares themselves are liable to
be varied on account of the intervening events. In the instant case, there is no dispute that
only a preliminary decree had been passed and before the final decree could be passed the
amending Act came into force as a result of which clause (ii) of Section 29-A of the Act
became applicable. This intervening event which gave shares to respondents 2 to 5 had
the effect of varying shares of the parties like any supervening development. Since the
legislation is beneficial and placed on the statute book with the avowed object of
benefitting women which is a vulnerable section of the society in all its stratas, it is
necessary to give a liberal effect to it. For this reason also, we cannot equate the concept
of partition that the legislature has in mind in the present case with a mere severance of
the status of the joint family which can be effected by an expression of a mere desire by a
family member to do so. The partition that the legislature has in mind in the present case
is undoubtedly a partition completed in all respects and which has brought about an
irreversible situation. A preliminary decree which merely declares shares which are
themselves liable to change does not bring about any irreversible situation. Hence, we are
of the view that unless a partition of the property is effected by metes and bounds, the
daughters cannot be deprived of the benefits conferred by the Act. Any other view is
likely to deprive a vast section of the fair sex of the benefits conferred by the amendment.
Spurious family settlements, instruments of partitions not to speak of oral partitions will
spring up and nullify the beneficial effect of the legislation depriving a vast section of
women of its benefits".
19. The above legal position is wholly and squarely applicable to the present case. It surprises us
that the High Court was not apprised of the decisions of this Court in Phoolchand1 and S. Sai
Reddy2. High Court considered the matter as follows:
"In the recent past, the Parliament amended Section 6 of the Hindu Succession Act (for
short `the Act'), according status of coparceners to the female members of the family
also. Basing their claim on amended Section 6 of the Act, the respondents 1 and 2 i.e.,
defendants 3 and 4 filed I.A. No. 564 of 2007 under Order XX Rule 18 of C.P.C., a
provision, which applies only to preparation of final decree. It hardly needs an emphasis
that a final decree is always required to be in conformity with the preliminary decree. If
any party wants alteration or change of preliminary decree, the only course open to him
or her is to file an appeal or to seek other remedies vis-`-vis the preliminary decree. As
long as the preliminary decree stands, the allotment of shares cannot be in a manner
different from what is ordained in it."
20. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule
18 of C.P.C. In a suit for partition of immovable property, if such property is not assessed to the
payment of revenue to the government, ordinarily passing of a preliminary decree declaring the
share of the parties may be required. The court would thereafter proceed for preparation of final
decree. In Phoolchand1, this Court has stated the legal position that C.P.C. creates no impediment
for even more than one preliminary decree if after passing of the preliminary decree events have
taken place necessitating the readjustment of shares as declared in the preliminary decree. The
court has always power to revise the preliminary decree or pass another preliminary decree if the 2011 STPL(Web) 886 SC 7
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situation in the changed circumstances so demand. A suit for partition continues after the passing
of the preliminary decree and the proceedings in the suit get extinguished only on passing of the
final decree. It is not correct statement of law that once a preliminary decree has been passed, it is
not capable of modification. It needs no emphasis that the rights of the parties in a partition suit
should be settled once for all in that suit alone and no other proceedings.
21. Section 97 of C. P.C. that provides that where any party aggrieved by a preliminary decree
passed after the commencement of the Code does not appeal from such decree, he shall be
precluded from disputing its correctness in any appeal which may be preferred from the final
decree does not create any hindrance or obstruction in the power of the court to modify, amend or
alter the preliminary decree or pass another preliminary decree if the changed circumstances so
require.
22. It is true that final decree is always required to be in conformity with the preliminary decree
but that does not mean that a preliminary decree, before the final decree is passed, cannot be
altered or amended or modified by the trial court in the event of changed or supervening
circumstances even if no appeal has been preferred from such preliminary decree.
23. The view of the High Court is against law and the decisions of this Court in Phoolchand1 and
S.Sai Reddy.
24. We accordingly allow this appeal; set aside the impugned judgment of the High Court and
restore the order of the trial court dated June 15, 2009. The trial court shall now proceed for the
preparation of the final decree in terms of its order dated June 15, 2009. No costs.
R.Ramachandran
(Expert) 16 October 2011
Dear Mr. Sachin,
Probably based on the decision of the Supreme Court dated 12.10.2011 in the case of GANDURI KOTESHWARAMMA & ANR. vs.
CHAKIRI YANADI & ANR. (as posted by Mr. Prabhakar Singh above), your lawyer has said that every one will get equal share. If one has to follow the above decision of the Supreme Court, yes, your advocate is correct that every one will get equal share in the ancestral property.
However, the said decision by the Supreme Court appears to be not correct. Seems to be an hurried decision without going into various settled aspects.
I will come up with detailed reasoning for my view on this.
It would be advisable for the party concerned to prefer a Review Petition, with proper grounds, against this decision.
sachin
(Querist) 17 October 2011
thank u all experts,
sir ramchandranji, i talked to my advocate , he said that desicion on 12/10/2011 by supreme court is very similar to my case, so now it could come in view of lower courts and it may effect my case, and the property can be divided into 5 equal parts.
he said as we demanded partion too late and the names of daughter child is on records with me, then they have good chance of getting equal parts.
sir what u says in this matter
R.Ramachandran
(Expert) 23 October 2011
Dear Mr. Sachin,
The decision of the Supreme Court in "Ganduri Koteshwaramma and Anr. Vs. Chakiri Yanadi & Anr." Civil Appeal 8538 / 2011 dated : 12th October 2011" does not appear to be based on any sound settled legal principles.
Please visit
http://www.lawyersclubindia.com/experts/Partitition-239761.asp
where I have given (on 22.10.2011) my detailed reasoning for saying so. I do not want to paste the said reasoning here once again.
Thus, your case can still be argued that you are entitled for 60% while each of your sisters only 10%. I am confident that you will win. The latest SC decision can be distinguished and faltered.
