Tuesday, 15 January 2013

Daughter has right to sue for partition against other coparceners including her father.

 Section 29A introduced by the Amending Act of 2005 further elaborates the said provision and provides that the daughter of a coparcener shall have the same rights in the coparcenary property as that of a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities. It is not in dispute that a son of a coparcener becomes a coparcener by birth and is entitled to sue for partition even against his own father. Now by the aforesaid amendment of the Hindu Succession Act same rights in the coparcenary property as that of a son has bee I given to a daughter of a coparcener and hence she has become a coparcener in her own right by birth which automatically entitles her to a so have a right to sue for partition against other coparceners including her father.

Patna High Court
Ram Belas Singh vs Uttamraj Singh And Ors. on 28 February, 2008

1. This civil revision has been filed on behalf of defendant No. 2-petitioner challenging order dated 10.09.2007 by which the learned Subordinate Judge, 3, Rohtas, rejected petitioner's petition under Order VII Rule 11 of the Code of Civil Procedure filed in Title Suit No. 393 of 2006.
2. The aforesaid suit was filed by plaintiffs-Opposite Parties 1^st Set for declaration that sale deeds dated 24.07.2006 executed by defendant No. 1 in favour of defendant No. 2 was illegal, void, without any legal necessity, without consideration, without authority and not binding against the plaintiffs with respect to Schedule B land of the plaint and also for a decree of partition of their 3/4^th share in Schedule A land of the plaint and for other ancillary reliefs.
3. Defendant No. 2- petitioner, who happens to be the father of the plaintiff-Opposite Parties 1^st Set, filed his written statement asserting inter alia that the suit for partition flied by the daughters during the life time of their father for partition is not maintainable in view of the specific provisions of law. On the same ground defendant No. 2 filed a petition dated 07.08.2007 in the court below under the provision of Order VII Rule 11(d) of the Code for rejection of the plaint claiming that the suit was barred by specific provisions of law. The said petition has been rejected by the learned court below by impugned order dated 10.09.2007 against which the instant civil revision has been filed.
4. In the instant matter, the relationship between the petitioner and Opposite Parties 1^st Set is not in dispute, whereas the disputes are three folds, namely as to whether female members of a joint family can legally bring a suit against their father for partition of the ancestral property and that whether defendant No. 2-petitioner also had two sons who had died earlier and that whether the sale deed executed by defendant No. 2-petitioner in favor of defendant No. 1-Opposite Party 2^nd Set was legal and valid So far the instant civil revision is concerned, it is limited only with respect to the first issue in dispute as to whether female members of a family specially the daughters can legally bring a suit for partition against their father claiming to be coparceners.
5. Originally the Hindu Law with respect to Mitakshara school, to which the parties admittedly belong, specifically provided that only male members of a family including the son of a coparcener can be coparcener and a daughter cannot be a coparcener in the ancestral property. It is further provided under Clause 332 of the Principles of Hindu Law by Mulla (19^th Edition) that only a coparcener or a purchaser of the interest of a coparcener is entitled to institute a suit for partition.
6. Furthermore the Hindu Succession Act as enacted in the year 1956 (Act XXX of 1956) specifically provided devolution of interest of coparcenary property in Section 6 thereof which reads follows:
6. Devolution of interest of coparcenary property- 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 member; of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving 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 the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1. - 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. - 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.
7. Subsequently Hindu Succession Act, 1956 was amended by Hindu Succession (Amendment) Act, 2005 (Act XXXIX of 2005) and it came into force immediately on 05.06.2005 as notified by the Central Government in the Official Gazette of India, Ext., Pt. II, Section 1, dated-06.06.2005. By the said amending Act Section 6 was substituted whereafter it runs 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,-
(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 invalidated any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20^th 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 his Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
8. Furthermore by the said amending Act equal rights were given to daughters in a coparcenary property by adding Section 29A the Act which reads as follows:
29-A Equal rights to daughter in coparcenary
property.-Notwithstanding anything contained in Section 6 of this Act -
(i) in a joint Hindu family governed by the mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary 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;
(ii) at a partition in such a joint Hindu family referred to in Clause (i), the coparcenary 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 pre-deceased son or a predeceased daughter would have got at the partition if he or she had 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:
Provided further the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had 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 of the predeceased daughter, as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) snail 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, as property capable of being disposed of by her by Will or other testamentary disposition;
(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994;
(v) nothing in Clause (ii) shall apply to a partition which has been effected before the date of the commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994.
9. The suit out of which this civil revision has arisen had been filed in the year 2006 much after coming into force of the Hindu Succession (Amendment) Act, 2005 (Act XXXIX of 2005) which substituted Section 6 of the Act and provided that in a joint Hindu family governed by Mitakshara law the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and will have the same rights in the coparcenary property as she would have if she had been a son and shall also be subject to the same liabilities in respect of the said coparcenary property as that of a son and any reference to a Hindu Mitalshara coparcener shall be deemed to include a reference to a daughter of a coparcener. In the said circumstances, the law is made very clear that the term "Hindu Mitakshara coparcener" used in the original Hindu Law shall now include daughter of a coparcener also giving her the same rights and liabilities by birth as those of the son.
10. Section 29A introduced by the Amending Act of 2005 further elaborates the said provision and provides that the daughter of a coparcener shall have the same rights in the coparcenary property as that of a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities. It is not in dispute that a son of a coparcener becomes a coparcener by birth and is entitled to sue for partition even against his own father. Now by the aforesaid amendment of the Hindu Succession Act same rights in the coparcenary property as that of a son has bee I given to a daughter of a coparcener and hence she has become a coparcener in her own right by birth which automatically entitles her to a so have a right to sue for partition against other coparceners including her father.
11. In the aforesaid facts and circumstances, the suit filed by the plaintiffs-Opposite Party 1^st Set is legally maintainable and the learned court below has rightly rejected the petition filed by defendant No. 2-petitioner under Order VII Rule 11(d) of the Code. This Court does not find any illegality or jurisdictional error in the impugned order of the learned court below and accordingly, this civil revision is dismissed.
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