Wednesday, 20 April 2016

Whether alienation of ancestral property done after commencement of Hindu Succession amendment Act 2005 is protected?

 In the present case, so called alienation took place
after 9.9.2005, the date fixed for giving effect to the Act. The
provision of section 6 shows that such transaction is not protected
by the Act.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 47 OF 2013
Babu Dagadu Awari,

Versus
Baby w/o. Namdev Lagad,
Citation;2015(7) ALLMR 358
Dated;24-3 2014



1. The proceeding is filed against the order made on
Exh. 29 in R.C.S. No. 141/2009 by the Civil Judge, Junior Division,
Akole, District Ahmednagar. Both the sides are heard.
2. The suit is filed by respondent No. 1 - Smt. Baby
against the present applicant and other respondents for relief of
partition of Hindu joint family properties and for possession of her
share from the properties. The suit is filed in respect of four
agricultural lands and three house properties.
3. The applicant/defendant No. 1 is the father of plaintiff.
Defendant Nos. 2 to 4 are also daughters of present applicant. It
is contended by the plaintiff that the suit properties are the
ancestral properties though they are in the hands of defendant
No. 1. It is contended that in view of amendment made in Hindu
Succession Act, the plaintiff needs to be treated as coparcener
along with defendant No. 1 and other defendants and she has
right to claim partition and possession of her share.
4. It is the case of plaintiff that to deprive her of her
share in the suit properties, the defendant No. 1 has joined hands

with other daughters. It is contended that sham sale deed is
created by defendant No. 1 in favour of defendant Nos. 2 and 3
and the properties are shown to be sold to defendant Nos. 2 and
3. It is the case of plaintiff that no consideration was paid by the
defendant Nos. 2 and 3 and the alienation was also not for legal
necessity. It is the case of plaintiff that the said transaction is not
binding on the plaintiff and she learned about the transaction in
November 2009. In the suit, she has prayed for giving her 1/5th
share in the suit properties.
5. Defendant Nos. 2 and 3 have filed joint written
statement. It is their case that defendant No. 1 remains sick and
he is required to spend on treatment. It is contended that loan
was taken by defendant No. 1 at the time of marriage of plaintiff
and that loan was not repaid. It is contended that defendant No. 1
was in need of money for maintenance and for repayment of loan
and for that he sold some properties to defendant Nos. 2 and 3. It
is their case that out of the consideration received by defendant
No. 1, the amount of Rs. one lakh was given to plaintiff and so she
has no right to claim anything more.
6. It is the case of defendants that during the lifetime of
defendant No. 1, plaintiff has no right to claim partition.

Defendant Nos. 3 and 4 have also filed similar written statement.
7. In application filed at Exh. 29, defendant No. 1
requested the Trial Court to frame preliminary issue regarding the
right of plaintiff to file such suit. After hearing both the sides, the
Trial Court framed issue as follows :-
"Whether the suit is maintainable and the court has
jurisdiction to entertain and try the suit ?"
By the order dated 3.1.2013 the issue came to be decided and the
Trial Court held that such suit is maintainable.
8. In the present proceeding, both the sides have placed
reliance on some reported cases. As the suit is filed on the basis
of right given to daughters under section 6 of Hindu Succession
Act, 2005, the provision needs to be considered. That section runs
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 subsection
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, 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 predeceased
son or of such pre-deceased
daughter; and
(c) the share of the pre-deceased child of a predeceased
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 subsection,
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 “greatgrandson”
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.]
9. For respondent/plaintiff reliance was placed on the
case reported as 2011 AIR SCW 6163 [Ganduri
Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr.]. At
paragraph Nos. 14 and 15 the Apex Court has made following
observations :-
"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."
10. The facts of the reported case show that plaintiff/son
had filed suit against his father, a brother and two sisters. During
pendency of the suit father died. The Trial Court held that plaintiff

was entitled to 1/3rd share as a coparcener and the preliminary
decree was prepared. The final decree was not yet drawn and
actual partition by mets and bounds was not done. After coming
in to force of Act of 2005, the two sisters applied for giving equal
share with the plaintiff in the coparcenery property. The Trial Court
gave 1/4th share each to both the sisters. The Apex Court
considered the objects and reasons of the Act of 2005 and
aforesaid observations came to be made. The Apex Court has
observed that the right accrued to a daughter in a joint Hindu
property is absolute and due to the Act, on and from September 9,
2005, daughter is entitled to a share in ancestral property and is a
coparcener as if she is a son. Thus, retrospective effect was given
to the provision and as the property was not yet actually divided,
the daughter was held to be entitled to share equal to that of son.
11. In the present case, so called alienation took place
after 9.9.2005, the date fixed for giving effect to the Act. The
provision of section 6 shows that such transaction is not protected
by the Act.
12. In the case of Ganduri cited supra, the Apex Court
has referred the case reported as S. Sai Reddy v. S. Narayana
Reddy [1991 AIR SCW 488]. The facts of this reported case

show that the effect of the Act made by the State of Andhra
Pradesh in favour of daughters to make them coparcener was
considered. In that case also, suit for partition was filed prior to
coming in to force of the said Act and the preliminary decree was
drawn. The relevant portion of Andhra Pradesh Act, section 29-A
of Hindu Succession Act, 1956 as amended by Andhra Pradesh is
as under :-
"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 a
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
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 predeceased
son or a pre-deceased 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 pre-deceased daughter
:
Provided further that 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 partitin, shall be
allotted to the child of such pre-deceased child
of the pre-deceased son or of the pre-deceased
daughter as the case may be;
(iii) ........
(iv) nothing in clause (ii) shall apply to a
daughter married prior to or to a partition which
had been effected before the commencement
of the Hindu Succession (Andhra Pradesh
Amendment) Act 1986."
The interpretation of the aforesaid provision is made by the Apex
Court at paragraph No. 5 as follows :-
"It is obvious that under the aforesaid provision,
the difference between daughter and son of the
Mitakshara Hindu Family is removed and the
daughter is conferred the coparcenary rights in
the joint-family property by birth in the same
manner and to the same extent as the son. She
is, therefore, now entitled to claim partition and

her share in the family property. The amending
provision is a beneficial legislation which,
among other things, is also directed towards
eradicating social evils such as dowry and
dowry deaths. It also achieves the
constitutional mandate of equity between
sexes."
13. If the provision as amended by Andhra Pradesh is
compared with the provision of section 6 from Central Act, it can
be said that the disability which was there in Andhra Pradesh
(Amendment) Act only due to the marriage of daughter prior to
the date fixed in the Act is not there in the Central Act. Some
exceptions are given in the Central Act and only subject to those
exceptions the daughter is given right which is equal to that of
son in coparcenary property. Thus, the Apex Court has given
retrospective effect to the provision of section 6 made in favour of
daughter.
14. On the other hand, the learned counsel for the
respondent/defendant No. 1 placed reliance on the case reported
as 2012 (3) Mh.L.J. 669 [Vaishali Satish Ganorkar and Anr.
VS. Satish Keshaorao Ganorkar and Ors.]. At paragraph Nos.
14 and 13 following observations are made by the Division Bench
of this Court in respect of section 6 of the Act of 2005.

"14. It may be mentioned, therefore, that ipso
facto upon the passing of the Amendment Act
all the daughters of a coparcener in a
coparcenary or a joint HUF do not become
coparceners. The daughters who are born after
such dates would certainly be coparceners by
virtue of birth, but for a daughter who was born
prior to the coming into force of the
Amendment Act she would be a coparcener
only upon a devolution of interest in
coparcenary property taking place.
13. Consequently, until a coparcener dies and
his succession opens and a succession takes
place, there is no devolution of interest and
hence no daughter of such coparcener to whom
an interest in the coparcenary property would
devolve would be entitled to be a coparcener or
to have the rights or the liabilities in the
coparcenary property along with the son of
such coparcener."
15. In view of observations made by this Court in case of
Vaishali cited supra, submission was made for the defendant No.
1/present applicant that the plaintiff has no right to file suit as her
father is alive and she was born prior to 9.9.2005. This decision
was taken to Apex Court by filing petition for Special Leave to

Appeal bearing No. 6118/2012. Operative order came to be
produced in this proceeding which shows that the petition came
to be dismissed, but the question of law was kept open by the
Apex Court. The Division Bench of this Court decided the case of
Vaishali cited supra on 30.1.2012. Case of Ganduri cited supra
was decided by Apex Court on 12.10.2011. Both Ganduri's case
and S. Sai Reddy's case cited supra of Apex Court are not
referred by the Division Bench of this Court in Vaishali's case
cited supra.
16. In view of the observations made by the Apex Court in
the cases of Ganduri and S. Sai Reddy, this Court holds that
plaintiff has right to file suit for relief of partition in respect of
coparcenary properties though she was born prior to 9.9.2005 and
the Trial Court has not committed any error in rejecting the
application filed by the applicant. No interference is possible in
the order made by the Trial Court.
17. In the result, the application stands dismissed.
 [ T.V. NALAWADE, J.]

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