Wednesday 28 December 2016

Whether daughter will be entitled to get share in joint family property if her father died prior to time when amendment Act 2005 came in to force?

While construing almost a similar provision introduced in the Hindu Succession Act by amendment in the State of Andhra Pradesh, it had been observed by the Supreme Court in (1991) 3 SCC 647 (S. SAI REDDY v. S. NARAYANA REDDY AND OTHERS) that the partition for the purpose of considering the eligibility of a daughter to equal share with that of a son, even in respect of Joint Hindu family property, there has to be a completed partition and not mere severance of joint status. It was observed therein :-
"7. . . . Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share in the property. Similarly, if the partition had been effected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was not given a share in the family property. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. 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 parties, or by a decree of the court. When a suit for partition is filed in a 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. . . . "
12. Even though the submission that in the absence of completed partition either by the registered document or through the court, the amended provisions can be made applicable, the question remains whether the petitioners can be treated as coparceners in respect of the property in dispute.
13. A careful reading of Section 6(1) read with 6(3) of the Hindu Succession (Amendment) Act clearly indicates that a daughter can be considered as a coparcener only if her father was a coparcener at the time of coming into force of the amended provision. It is of course true that for the purpose of considering whether the father is a coparcener or not, the restricted meaning of the expression "partition" as given in the explanation is to be attributed.
14. In the present case, admittedly the father of the present petitioners had expired in 1975. Section 6(1) of the Act is prospective in the sense that a daughter is being treated as coparcener on and from the commencement of the Hindu Succession (Amendment) Act, 2005. If such provision is read along with Section 6(3), it becomes clear that if a Hindu dies after commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property shall devolve not by survivorship but by intestate succession as contemplated in the Act.
15. In the present case, the death of the father having taken place in 1975, succession itself opened in the year 1975 in accordance with the existing provisions contained in Section 6. If the contention of the petitioners is accepted, it would amount to giving retrospective effect to the provisions of Section 6 as amended in 2005. On the death of the father in 1975, the property had already vested with Class-I heirs including the daughters as contemplated in the unamended Section 6 of the Act. Even though the intention of the amended provision is to confer better rights on the daughters, it cannot be stressed to the extent of holding that the succession which had opened prior to coming into force of the amended Act are also required to be re-opened. In this connection, we are also inclined to refer to the decision of M. Srinivasan, J., as His Lordship then was, reported in 1991(2) MLJ 199 (SUNDARAMBAL AND OTHERS v. DEIVANAAYAGAM AND OTHERS). While interpreting almost a similar provision, as contained in Section 29-A of the Hindu Succession Act, as introduced by the Tamil Nadu Amendment Act 1 of 1990, the learned single Judge had made the following observations :-
"14. ... Under Sub-cause (1), the daughter of a coparcener shall become a coparcener in her own right by birth, thus enabling all daughters of a coparcener who were born even prior to 25th March 1989 to become coparceners. In other words, if a male Hindu has a daughter born on any date prior to 25th March, 1989, she would also be a coparcener with him in the joint family when the Amendment came into force. But the necessary requisite is, the male Hindu should have been alive on the date of the coming into force of the Amended Act. The section only makes a daughter a coparcener and not a sister. If a male Hindu had died before 25th March, 1989 leaving coparcenary property, then his daughter cannot claim to be a coparcener in the same manner as a son, as, on the date on which the Act came into force, her father was not alive. She had the status only as a sister-a-vis her brother and not a daughter on the date of the coming into force of the Amendment Act. ..."
Madras High Court
Smt. Bagirathi vs S. Manivanan on 14 August, 2008
CORAM

MR. JUSTICE P.K. MISRA
AND
 MR. JUSTICE M. JAICHANDREN

REVIEW PETITION NO.37 OF 2008
Citation:2008(6) ALLMR(JOURNAL)36

P.K. MISRA, J The facts in brief are as follows :-
1.1 In order to appreciate the contentions raised by the petitioners in this Review Application, it would be appropriate to trace the relationship and genealogy, which is apparent from the pleadings and the evidence of the parties.
1.2 Appadurai and Doraisamy were two brothers. Doraisamy expired on 22.10.1965 leaving behind his widow Karpagambal. They had no issues. Sundarajan, the father of the present disputants, was the son of Appadurai through his first wife. Appadurai had also begotten another son Ranganathan and a daugter Radhabai through his second wife Sundarambal. Sundarajan had expired on 9.8.1975, leaving behind six daughters, who are the plaintiffs in the suit for partition (Petitioners in the Review Application) and two sons, who were Defendants 1 and 2 as well as his widow, the original Defendant No.3. Such Defendant No.3, however, had expired during the pendency of the suit. Initially the plaintiffs claimed 1/9th share each, but subsequently, on the death of their mother, they amended the plaint and claimed 1/8th share each.
1.3 The case of the plaintiffs / petitioners as projected in the plaint was to the effect that there was a land belonging to a landlord, whereon Appadurai and Doraisamy, the joint lessees, had constructed a superstructure. Subsequently, by virtue of the decree passed under Section 9 of the City Tenants' Protection Act, Sundarajan, the father of the present litigants, had purchased the lands from his own income. The property, now in dispute, had been allotted to Sundarajan in a partition and, therefore, on his death, the parties are entitled to succeed equally to such separate property of Sundarajan.
1.4 Defendant No.1 filed a written statement, which was adopted by Defendant No.2. The allegation that the father of the parties had purchased the suit property out of his own earnings was denied. It was claimed that on a leasehold land, superstructure had been put up by Doraisamy and his brother Appadurai, who were members of the joint family. After the death of Doraisamy, his half share in the property devolved on his widow Smt.Karpagambal. The widow of Doraisamy settled her half share in the property in favour of Sundarajan by a deed of settlement dated 3.10.1966. Thus, Sundarajan became entitled to 5/8th share and the second son and the daughter of Appadurai were entitled to 3/8th share in the said property. Subsequently, Sundarajan had purchased the leasehold land under Section 9 of the City Tenants Protection Act by a registered sale deed, dated 4.9.1972. It is stated that Defendant No.1 had provided money for the purchase of the said land.
1.5 Learned single Judge found that the superstructure on the leasehold land belonged to the joint family consisting of two brothers, Doraisamy and Appadurai and after the death of Doraisamy, his widow had executed a settlement deed, dated 3.10.1966, in respect of her half share in the building in favour of Sundarajan. There was a partition under Ex.A-4 dated 1.2.1967, wherein it was admitted that the superstructure belonged to the joint family consisting of two brothers. Under the partition deed dated 1.2.1967, Sundarajan was allotted the disputed suit building towards his share, whereas other properties were allotted to the share of others. Learned single Judge further held that on the death of Sundarajan on 9.8.1975, his 1/3rd interest in such joint family property devolved upon his legal heirs, namely, the widow, the daughters and the sons. It was further held that since the widow of Sundarajan, the mother of the plaintiffs and the defendants 1 and 2, died during the pendency of the suit, her share devolved upon the plaintiffs and the surviving defendants and, therefore, the plaintiffs were entitled to each 1/8th of the 1/3rd i.e., 1/24 and the defendants 1 and 2 were entitled to the balance 18/24. so far as the land on which the superstructure stood is concerned. The learned single Judge further held that the land on which the superstructure was constructed by the joint family, was purchased from out of the joint earnings and joint family income of Sundarajan and his son. It was found that Sundarajan himself was getting a low sum as salary and he was possessed of a joint family house in 1970, which was under the occupation of the tenants. It was further found that Sundarajan himself could not have managed to raise a sum of Rs.11,000/-, which was the sale consideration, and the first defendant, who got employment in 1963 and had joined service as a Junior Engineer, was drawing a decent salary and was contributing his salary to his father. Therefore, it was concluded that the land has been purchased from out of the joint income of the father and the son, and also from out of the income from the ancestral building which had been rented out. On the basis of such findings, the trial court held that all the plaintiffs together were entitled to 1/4th share and the defendants 1 and 2 were entitled to the remaining 3/4th share.
1.6 In the appeal filed by the plaintiffs, the Division Bench confirmed the findings of the learned single Judge including the finding that the landed property had been purchased by the aid of the joint contribution made by Sundarajan and Defendant No.1 as well as from the income of the joint family.
1.7 The present Review Petition has been filed seeking to review the said judgment.
2. The first contention is that the half share of Doraisamy having been settled by his widow Karpagambal in favour of Sundarajan, at least half share of the property must be taken to be the separate property of Sundarajan and, therefore, in respect of such half share, the plaintiffs and the defendants 1 & 2 would each be entitled to 1/8th share, though in respect of the other half share belonging to Appadurai, on his death, Sundarajan had 1/3rd share and the parties had 1/8th in such share. The other contention is to the effect that the Hindu Succession Act was amended in 2005 and since the property is yet to be divided by metes and bounds, the provisions of the amended Act would be applicable and, therefore, the daughters should be treated as coparceners having equal share in the property as that of a son.
3. It is to be noted that the first contention has been raised for the first time in this Review Application. In the plaint, the main plea of the present petitioners, who were the plaintiffs, was to the effect that even though the superstructure was the joint family property of the two brothers, namely, Appadurai and Doraisamy, the land on which such superstructure was constructed had been purchased by Sundarajan from out of his own income and, therefore, the entire property i.e., the land and the superstructure standing on the same, should be treated as the separate property of Sundarajan. The other point raised was to the effect that the disputed property having been allotted to Sundarajan in the partition between Sundarajan, his brother Ranganathan, sister Radhabai, the property allotted to Sundarajan must be taken to be his separate property.
4. Learned single Judge having negatived both the contentions and having held that the land had been purchased on the basis of the joint contribution made by Sundarajan as well as his son, Defendant No.1, and also by utilising the rental income of some houses belonging to the joint family, such property must be taken to be the joint family property of Sundarajan and his two sons, namely, Defendant No.1 and Defendant No.2. In the appeal, the main focus of the appellant was also riveted on the above two aspects and it was never contended that Sundarajan having obtained half interest in such superstructure by virtue of the deed of settlement made by Smt. Karpagambal, such half interest in the property should be treated as separate property of Sundarajan. Therefore, such a mixed question of facts and law cannot be permitted to be agitated for the first time in a review application when such aspect had never been raised, either before the trial court or even in the appeal.
5. The main contention in the appeal was to the effect that the property having been allotted to Sundarajan in a partition, it should be taken as his separate property. This aspect was analysed in the judgment under review and it was observed that the share allotted in the partition remains a joint family property so far as the progenies of such quondam co-sharers are concerned. We do not think the conclusion can be reviewed on the basis of a point which is being raised for the first time in the Review Application.
6. That apart, inspite of such settlement in respect of half of the property, the entire property along with other properties were taken into account while effecting the partition under the registered deed of partition. This conduct on the part of Sundarajan would clearly indicate that notwithstanding the fact that half of the interest had been obtained by virtue of a settlement deed executed by Smt. Karpagambal, who was none-else than the wife of the paternal uncle of Sundarajan, the entire properties including the half interest settled with Sundarajan were treated as joint family properties. At any rate, in the absence of a specific plea and specific contention on the above aspect, either before the trial court or even in the appeal, it would not be appropriate to review the decision on a ground raised for the first time in the Review, more particularly in view of the limited scope for review. It is needless to point out that a court cannot convert itself to an appellate court while considering a review application.
7. So far as the second contention is concerned, it is no doubt true that such a contention was raised in the written submission filed by the present petitioners, but such contention has not been dealt with directly. It would be appropriate to consider at length the tenability of this later submission made by the petitioners.
8. Learned counsel for the petitioners has submitted that the Hindu Succession Act, 1956 (hereinafter referred to as "the Act") has been amended under Act 39 of 2005 by incorporation of additional provisions by substituting Section 6 of the Act. Section 6, before it was amended, was as follows :-
"6. Devolution of interest in 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 members 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."
8.1 After the amendment effected by the Hindu Succession (Amendment) Act (Act 39 of 2005),Section 6 reads as under :-
"6. Devolution of interest in coparcenary property.- (1) On and from the commencement of theHindu 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 on 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, 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:
...
(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 the decree of a Court."
9. Learned counsel for the petitioners has submitted that by virtue of such amended provisions, the plaintiffs, who are the daughters of Sundarajan, should be given share in the joint family property equal to those of the sons of Sundarajan. Learned counsel has placed specific emphasis on the provisions contained in Section 6(1)(a) and (b) to the effect that in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in the same manner as the son and shall have same rights in the coparcenary property if she had been a son. Learned counsel for the petitioners further submitted that as perSection 6(5), the amended provisions shall not apply to a partition, which is effected before the 20th day of December, 2004 and by virtue of the explanation, the expression "partition" means any partition made by execution of a deed of partition duly registered or partition effected by the decree of a Court. It is further submitted by him that, even though there had been a preliminary decree for partition in the present case, which was the subject matter of challenge in the appeal and which was pending at the time when amended provision Section 6 came into force, since there is no partition by metes and bounds, it must be taken that the other provisions of Section 6would be applicable.
10. It is apparent from Section 6(5) that if there has been a partition effected before 20th December, 2004, the amended provisions contained in Section 6 would not be applicable and for the aforesaid purpose the partition means partition by a registered document or the partition effected by the decree of a Court.
11. While construing almost a similar provision introduced in the Hindu Succession Act by amendment in the State of Andhra Pradesh, it had been observed by the Supreme Court in (1991) 3 SCC 647 (S. SAI REDDY v. S. NARAYANA REDDY AND OTHERS) that the partition for the purpose of considering the eligibility of a daughter to equal share with that of a son, even in respect of Joint Hindu family property, there has to be a completed partition and not mere severance of joint status. It was observed therein :-
"7. . . . Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share in the property. Similarly, if the partition had been effected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was not given a share in the family property. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. 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 parties, or by a decree of the court. When a suit for partition is filed in a 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. . . . "
12. Even though the submission that in the absence of completed partition either by the registered document or through the court, the amended provisions can be made applicable, the question remains whether the petitioners can be treated as coparceners in respect of the property in dispute.
13. A careful reading of Section 6(1) read with 6(3) of the Hindu Succession (Amendment) Act clearly indicates that a daughter can be considered as a coparcener only if her father was a coparcener at the time of coming into force of the amended provision. It is of course true that for the purpose of considering whether the father is a coparcener or not, the restricted meaning of the expression "partition" as given in the explanation is to be attributed.
14. In the present case, admittedly the father of the present petitioners had expired in 1975. Section 6(1) of the Act is prospective in the sense that a daughter is being treated as coparcener on and from the commencement of the Hindu Succession (Amendment) Act, 2005. If such provision is read along with Section 6(3), it becomes clear that if a Hindu dies after commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property shall devolve not by survivorship but by intestate succession as contemplated in the Act.
15. In the present case, the death of the father having taken place in 1975, succession itself opened in the year 1975 in accordance with the existing provisions contained in Section 6. If the contention of the petitioners is accepted, it would amount to giving retrospective effect to the provisions of Section 6 as amended in 2005. On the death of the father in 1975, the property had already vested with Class-I heirs including the daughters as contemplated in the unamended Section 6 of the Act. Even though the intention of the amended provision is to confer better rights on the daughters, it cannot be stressed to the extent of holding that the succession which had opened prior to coming into force of the amended Act are also required to be re-opened. In this connection, we are also inclined to refer to the decision of M. Srinivasan, J., as His Lordship then was, reported in 1991(2) MLJ 199 (SUNDARAMBAL AND OTHERS v. DEIVANAAYAGAM AND OTHERS). While interpreting almost a similar provision, as contained in Section 29-A of the Hindu Succession Act, as introduced by the Tamil Nadu Amendment Act 1 of 1990, the learned single Judge had made the following observations :-
"14. ... Under Sub-cause (1), the daughter of a coparcener shall become a coparcener in her own right by birth, thus enabling all daughters of a coparcener who were born even prior to 25th March 1989 to become coparceners. In other words, if a male Hindu has a daughter born on any date prior to 25th March, 1989, she would also be a coparcener with him in the joint family when the Amendment came into force. But the necessary requisite is, the male Hindu should have been alive on the date of the coming into force of the Amended Act. The section only makes a daughter a coparcener and not a sister. If a male Hindu had died before 25th March, 1989 leaving coparcenary property, then his daughter cannot claim to be a coparcener in the same manner as a son, as, on the date on which the Act came into force, her father was not alive. She had the status only as a sister-a-vis her brother and not a daughter on the date of the coming into force of the Amendment Act. ..."
16. In AIR 1966 SC 1879 (ERAMMA v. VEERUPANA), the Supreme Court had observed :-
"5. It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. We accordingly hold that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e. where succession opened before the Act, Section 8 of the Act will have no application."
17. Similarly it was observed in (2006) 8 SCC 581 = (2007) 1 MLJ 797 (SC) [SHEELA DEVI AND OTHERS v. LAL CHAND AND ANOTHER) as follows :-
"21. The Act indisputably would prevail over the old Hindu law. We may notice that Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of the Amendment Act, 2005 would have no application. . . ."
18. In view of the aforesaid discussion, the submission made by the petitioner relating to availability of benefit under the amended provisions of Section 6 of the Act, cannot be accepted.
19. For the aforesaid reasons, we do not think it is a fit case where in exercise of power of revision, the earlier judgment is required to be reviewed. The Revision Application is accordingly dismissed.
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