Andhra HC (Pre-Telangana)
B.Chandrakala vs A.Anuradha on 31 December, 2014
Bench: R.Subhash Reddy, B.Siva Sankara Rao
HONOURABLE SRI JUSTICE R.SUBHASH REDDY AND HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
C.C.C.A.No.338 OF 2004 and batch
31-12-2014
B.Chandrakala ...appellant- 1st defendant
A.Anuradha .Respondent- Plaintiff
B.Raghunandan .2nd respondent-
2nd defendant
Counsel for the Appellant: M/s Thakur Singh
Counsel for respondent No.1 : Sri Sai Gangadhar Chamarty
Counsel for the respondent No.2:Sri V.L.N.G.K.Murthy
<GIST : ---
>HEAD NOTE : ---
? Cases referred: :
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6. 2007(6)SCC-401
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11. AIR 1967 SC 569
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13. (1987)3 SCC 294
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38. AIR 1973 AP 58
39.(1964) 66 Bom LR 351
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41. AIR 1990 AP 263
42. 2002(6)ALD-415
43.Laws(APH)-2014(9)-43
44.AIR-2006 SC 3332= 2006(8)SCC-656
45.2002(6)ALD-415
46.2012(1)ALT-227
47.2007(5)ALT-447
48.2011(9) SCC-788=2012(1)ALT 29(SC)
49.AIR-2011-SC-2077
50.2007(1)CCC(SC)189
51.AIR 1967 SC 1470
52.AS No.497 of 1992, dt.20-06-2014
53.AIR 2010 Karnataka 124
54.2009(9)SCC-689
55.2008(4) KCCR 2333
56.2008(4) KCCR 2333
57.2014(2)CTC-113
58.AIR-1966-SC-1879
HONOURABLE SRI JUSTICE R.SUBHASH REDDY
AND
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
Cross-Objections (SR)No.3879 of 2005
and
Cross-Objections (SR)No.13681 of 2005
in
C.C.C.A.No.338 OF 2004
and
C.C.C.A.No.338 OF 2004
JUDGMENT (per Honble Dr.Justice B.Siva Sankara Rao)
The appeal is filed by the 1st defendant of the suit, challenging the judgment and decree in O.S.No.45 of 2001 on the file of the XI Additional chief Judge(Fast Track Court) City Civil Court, Hyderabad, dated 20.09.2004 showing the plaintiff as 1st respondent and the 2nd defendant as 2nd respondent to the appeal. The plaintiff-1st respondent maintained cross-objections vide Cross-Objections(SR). No.3879 of 2005 and the 2nd defendant-2nd respondent also maintained separate cross- objections vide Cross-Objections(SR) No.13681 of 2005.
2. The plaintiff filed the suit for partition and separate possession of 1/3rd share in the plaint schedule property comprising of 3 items viz., houses bearing municipal No.1-6-1012; item No.2 house bearing municipal Nos.1-6-1021, 1027 to 1029; and item No.3 houses bearing Nos. 1-6-936, 954 and 956 which are all located at Zamisthanpur, Hyderabad. The appeal lis and cross objections are impugning the preliminary decree and judgement, granting 1/6th share in favour of the Plaintiff, with costs against 2nd defendant and with no profits. The parties hereinafter are being referred as they are arrayed before the trial Court for sake of convenience.
3. Few of the relevant facts not in dispute are that, the plaintiff-A.Anuradha, W/o. Nageshwar and the 2nd defendant- B.Raghunandan are the issues of the 1st defendant-Chandrakala and her late husband Rama Rao. Father of Rama Rao was late Ramalingaiah, s/o. late Ramaiah. The father of the plaintiff and 2nd defendant by name Rama Rao died in September,1997, but for the controversy as to he died intestate or testate. The marriage of the plaintiff was performed on 23.04.1978.
4. The plaintiff`s claim for partition and separate possession of 1/3rd share in all the 3 items of the plaint schedule property is on the grounds that items Nos.1 and 2 supra are that of late Ramaiah-(great grandfather of the plaintiff and 2nd defendant and grandfather of Rama Rao) and item No.3 was purchased with the nucleus by late Rama Rao. It is also her claim otherwise that the item-1 of the plaint schedule property in her possession was given to her at the time of her marriage by her father, orally towards Pasupukumkuma.
5.(a). The defendants 1 and 2 in their separate written statements contested that the suit is not maintainable even otherwise by virtue of the bar under Section 23 of the Hindu Succession Act (hereinafter being called HS Act). It is the further contest of the defendants that the item No.3 of the plaint schedule property is not the ancestral or coparcenary property but for self-acquired property of late Rama Rao, vide sale deed dated 29.11.1966 and they also denied giving of the item-1 of the plaint schedule property to plaintiff towards Pasupukumkuma, in saying her possession of said Item-1 is as tenant.
5.(b). The contest of the 2nd defendant is that item Nos.1 and 2 of the plaint schedule properties are not even the properties of late Ramaiah but of the son of late Ramaiah by name Ramalingaiah, who bequeathed item No.2 of the plaint schedule in favour of his son Rama Rao, under unregistered will dated 10.03.1953 (Ex.B.5 and its English translation Ex.B.6) and Rama Rao, in turn, bequeathed the said item No.2 as well as half share in items 1 and 3 of the plaint schedule to the 2nd defendant and the remaining half share in items 1 and 3 also bequeathed to the 1st defendant under unregistered will dated 04.07.1997(Ex.B.7).
5.(c). It is however the contest of 1st defendant that her late husband Rama Rao in his lifetime had given all the three items of the plaint schedule to her and she is thereby the absolute owner and neither plaintiff nor 2nd defendant got any rights over the same.
6.(a). Before the trial Court from the respective pleadings, the plaintiff was examined as P.W.1 being the sole witness and exhibited Exs.A.1 to A.9 which are the copies of police report, certificate of market value of suit property, extracts of assessment register, invitation letter for Upanayanam and marriage and property valuation certificates issued by Khasim Peeran-Registered valuer for the items. On behalf of the defendants, 1st defendant as D.W.1 and 2nd defendant as D.W.2 came to the witness box and they cause examined one P.Kotaiah-the so called first attestor of Ex.B.7 will and placed reliance upon Exs.B.1 to B.7 certified copies of rental deed, sketch plan of H.No.1-6-1012, certified copy of judgments in R.C.No.597 of 1993 and R.A.No.524 of 1995, unregistered will, dated 10.03.1953, English translation of it and also the unregistered will, dated 04.07.1997.
6.(b). From said evidence with reference to the pleadings supra, the trial Court in answering the issues viz.,
i) Whether item No.3 of plaint schedule is separate property of Rama Rao?
ii) Whether the plaintiff is entitled for partition of the plaint schedule properties and possession of her 1/3rd share as prayed for?
iii) Whether the plaintiff is entitled to future profits with respect to her share in the plaint schedule properties from the date of suit till delivery of possession as prayed for? &
iv) To What relief?-
held that the 1st defendant in her cross-examination by plaintiff at page No.2 admitted that Rama Rao-(her husband) was neither employee nor have any other avocation but for maintaining the family with the help of rents realizing from the plaint schedule items 1 and 2 and with the help of the incomes therefrom acquired the plaint schedule item No.3. The Exs.A.3 to A.5 show that all the three items of the plaint schedule house properties are assessed in the name of Ramaiah-(great grandfather of plaintiff and 2nd defendant) and even to say item No.3 was purchased by Rama Rao, the sale deed is not filed by the defendants and their claim is inconsistent for 2nd defendant-D.W.2 also deposed in his cross- examination that item No.3 of the plaint schedule was also acquired by Rama Rao from his grandfather-Ramaiah. Thus, it was held that all the three items are not the self-acquired properties of Rama Rao but for ancestral properties. The trial Court also held that so far as the wills set up by the defendants under Exs.B.5 and B.7, the 2nd defendant-D.W.2 in his cross-examination by 1st defendant deposed that his father Rama Rao in his lifetime has given all the plaint schedule item Nos.1 to 3 to the 1st defendant and the 1st defendant became owner of the properties after death of Rama Rao. Said version is opposed to the very plea of the exclusive right set up by the defendants under the so called bequeaths in the will-Ex.B.7 said to have been executed by Rama Rao for items 1 and 2 equally in favour of the defendants and for item No.3 exclusively in favour of the 2nd defendant. Further, due execution and also existence of those wills from respective dates is not even proved as required by law and any of those wills not referred in Ex.B.1 rental deed, dated 13.10.1992 or in Exs.B.3 and B.4 certified copy of judgments in R.C.No.597 of 93, dt.14.08.1995 and R.A.No.524 of 95, dt.08.12.1999. Apart from it, Ex.B.5 unregistered will deed, dated 10.03.1953 is on plain paper with the thumb marks of executants in ink which does not bring out even one line (ridges) of the thumb and the will is not proved as required under Section 68 and 69 of the Indian Evidence Act and Section 63 of the Indian Succession Act and even coming to Ex.B.7 will deed, dated 04.07.1997 it was on Rs.100/-stamp paper and three ledger sheets which disclose at page 3 at last line of the matter was typed on already signed paper and D.W.3`s evidence is clear that it is a procreative and falsely set up one. D.W.2 and D.W.3 evidence extracted in the judgment of the trial Court at para-19 in regard to the Exs.B.5 and B.7 wills also was with observation of untrustworthy and belying of said wills by holding in para-20 of the judgment as created and brought into existence for the defence sake.
[
7. It is therefrom concluded by the trial Court that as the plaint schedule properties are the coparcenary properties of Rama Rao and 2nd defendant, each got undivided half and the bar under Section 23 of the Hindu Succession Act for claiming partition of dwelling houses by daughter till partition sought by son has no application as the schedule properties are not all exclusive dwelling houses of the joint family but with mulgies and also leased out. The trial Court ultimately decreed the plaintiffs suit, though sought for 1/3rd, only for 1/6th out of the plaint schedule items 1 to 3 with equal share to the 1st defendant-wife of Rama Rao and to the 2nd defendant(son of Rama Rao) out of the half share of Rama Rao in the coparcenary and that remaining share is of the 2nd defendant (for 2/3rd to the 2nd defendant) by disbelieving of giving of any of the properties by Rama Rao to the plaintiff or 1st defendant. The trial court however did not choose to grant any profits past or future in favour of the plaintiff saying she is in possession of item No.1 of the plaint schedule and she is not paying any rents for the claim even by the defendants of her as tenant, but for awarded costs of the suit that too only against the 2nd defendant-brother of plaintiff without awarding any costs against the 1st defendant-mother of plaintiff and 2nd defendant.
8. It is impugning said decree and judgement of the trial court supra, the appeal and two sets of cross objections are filed, Viz., 8(a). The 1st defendant-mother of plaintiff and 2nd defendant filed the main appeal contending that the trial Court went wrong in decreeing the suit even for 1/6th share in favour of plaintiff out of the plaint schedule items 1 to 3 instead of holding that Rama Rao during his lifetime handed over all the plaint schedule items 1 to 3 to the 1st defendant and she became owner with absolute rights and neither plaintiff nor 2nd defendant entitled to any share and should have seen that the plaintiff is only a tenant of item No.1 of the plaint schedule and in the order in R.C.No.523 of 2002, there was a finding to that effect, that the trial Court having held Exs.B.5 and B.7 wills are created that was by 2nd defendant, should have dismissed the suit of the plaintiff for her disentitlement to the very claim for partition by virtue of bar under Section 23 of the HS Act.
8(b). The Cross-Objections (SR)No.3879 of 2005 supra filed by the plaintiff are by impugning the granting of only 1/6th share and for not granting 1/3rd share by treating the plaintiff as a coparcener at par with her brother-(2nd defendant) as per Section 29-A of the Hindu Succession A.P. Amendment Act,13 of 1986 (hereinafter called AP HS Amended Act) and for not granting of profits. It is the submission by learned counsel for the plaintiff-cross-objector supra that the Hindu Succession Amended Act,39 of 2005 (hereinafter called HS Amended Act,2005) came into force pending the appeal by virtue of which the plaintiff is also a coparcener with the 2nd defendant and the plaintiff is thus entitled to the reliefs as prayed for in the suit and there is no bar for the suit otherwise from Section 23 of the HS Act, since deleted by the HS Amended Act,2005.
8(c). The Cross-Objections(SR) No.13681 of 2005 of the 2nd defendant is mainly impugning the awarding of costs against him, saying the trial Court should not have awarded costs much less against him.
9. Heard the learned counsel for the appellant as well as the respective Cross-Objectors at length and perused the material on record.
10. Now the common points that arise for consideration in deciding the appeal as well as both the Cross-Objections are:-
i). Whether the plaint schedule items 1 and 2 are all coparcenary properties of Rama Rao and 2nd defendant-(son of Rama Rao) and item No.3 is also form part of the coparcenary and not the self-acquired property of Rama Rao; if so, whether plaintiff is also a coparcener with equal rights and if not, to what share she is entitled therein?
ii). Whether the plaint schedule Item-1 was given to the plaintiff orally as Pasupukumkuma at the time of her marriage and with what proof and if so with what consequences?
iii). Whether the 1st defendant is entitled to plaint schedule properties absolutely and if so, whether the trial Courts decree and judgment for partition granting 1/6th share to the plaintiff is unsustainable?
iv). Whether the very suit claim is barred by Section 23 of the Hindu Succession Act,1956?
v). Whether awarding of costs against the 2nd defendant is unsustainable?
vi). To what extent this court while sitting in appeal against the trial Court`s impugned judgement and decree can interfere and with what observations and conclusions?
vii). To what relief?
Point Nos.i-vi:
11. As point Nos. i-vi are interrelated and to avoid repetition of facts, all the six points are taken up together to answer. So far as Exs.B.5 and B.7 wills concerned, it was held by the trial Court as not proved from the evidence on record. It is not proved for the reasons that, it is not only the existence and acting upon of the Exs.B.5 and B.7 wills, but also the proof as required by Sections 68 to 71 r/w. Sections 47, 67 and 100 of the Indian Evidence Act, Section 63 of the Indian Succession Act and Section 3 of the Transfer of Property Act of due execution and attestation and in sound and disposing state of mind with free will and volition and as a last will and testament with absolute right over the entire plaint schedule properties to bequeath for not even exclusive properties of Rama Rao to make any bequeaths for the same and not even that of his father for his making any bequeaths, particularly Items 1 & 2 of the plaint schedule are the ancestral properties and Item 3 of the plaint schedule also part of the coparcenary for acquired with the ancestral properties undisputedly. There is also a presumption for the properties acquired with no separate funds would constitute the joint family property if it is shown that the joint family has sufficient nucleus-vide K.V.Narayanaswami Iyer Vs. K.V.Rama Krishna Iyer and there is a presumption of jointness in a family governed by' Hindu Mitakshara Law and that the initial burden lies on the party claiming disruption if any in the joint Status-vide Shankararao DaijiSaheb Shinde Vs. Vithalrao Ganpathro Shinde . When it is the coparcenary property and the 2nd defendant being the son of Rama Rao got right by birth for undivided half share therein, there is no right to make bequeath for the entire property as if his own by said Rama Rao even from the combined reading of Sections-6,8 & 30 of the HS Act, that though a coparcenary property in the hands of sole surviving coparcener is exclusive and disposable property, the moment a son is born the property automatically reconverts as coparcenary-vide Sheela Devi Vs. Lal Chand . There is a propounders influence also from the very evidence of D.W.2-2nd defendant of he was present and participated, if at all, otherwise proved the so called execution. A perusal of the evidence of D.Ws.2 and 3 regarding execution and existence of the will is itself in cloud and their evidence is highly incredible to place any reliance. There is nothing even to show the so called will Ex.B.7 dated 04.07.1997 was ever seen the light of the day and ever acted upon much less any mutation pursuant to the bequeaths thereunder in the name of defendants 1 and 2 respectively and equally for alleged will Ex.B5. Even to claim by the 2nd defendant of the item No.3 is bequeathed by Rama Rao exclusively for him, it is the admission in the evidence on record from that of D.Ws.1 and 2 that, Rama Rao has no avocation and no independent means but for maintaining the family from the rental income of items 1 and 2 of the plaint schedule properties with mulgies therein and he acquired item No.3 therefrom. In fact, there is further version from their evidence that item No.3 is also not acquired by Rama Rao but it is the ancestral property of Rama Raos grandfather-Ramaiah, along with items 1 and 2 and the same is also established from the mutation in the name of said Ramaiah. When such is the case, the making of any bequeath for entire item No.3 of plaint schedule by Rama Rao to the 2nd defendant (son) does not arise, which itself shows there was no any voluntary execution of any will as a last testament and in sound and disposing state of mind by making any bequeath by Rama Rao that too including for item Nos.1 and 2 by giving half share out of it to 2nd defendant and half share remaining to the 1st defendant by totally ignoring without even giving of any little extent at least towards Pasupukumkuma to the plaintiff for no any property after marriage of plaintiff given to her by her father towards Pasupukumkuma as per the defendants in their saying, the plaintiff`s claim of Item 1 given to her as Pasupukumkuma is not correct and the alleged will no way even reflects the same. All these facts and circumstances cumulatively show as rightly concluded by the trial Court though not in specific words with specific discussion, of Exs.B.5 and B.7 are introduced by creation by the 2nd defendant to have benefit therefrom if possible. Once the Ex.B.5 and B.7 not proved and once all the plaint schedule items 1 to 3 are proved as ancestral properties in the hands of Rama Rao and Rama Rao died intestate in September,1997 leaving behind him the plaintiff and defendants being daughter, wife and son of him and leaving his interest in the plaint schedule coparcenary properties and as the 2nd defendant also did not dispute the trial court`s finding on Ex.B.5 and B.7 wills as not proved and all the plaint schedule items 1 to 3 are proved as coparcenary properties, there is nothing more to discuss in this regard in the appeal lis.
11-A. When such is the case, the claim of 1st defendant that she is absolute owner of all the plaint schedule properties allegedly given absolutely to her by her late husband Rama Rao in his lifetime orally is even untenable for having no absolute rights over the plaint schedule coparcenary properties for the 2nd defendant also was one of the coparceners with his father Rama Rao with equal rights by birth; though the father manager can give a reasonable extent of the joint family property to the daughter at the time of marriage or even later to it at any time till actual partition-as per para-18 of the decision in- Guramma Bhratar Chanbasappa Deshmukh Nagamma Bhratar Ghanbasappa Deshmukh Vs. Mallappa Chanbasappa Guramma Bhratar Chanbasappa same cannot extend to 1st defendant-wife of Rama Rao, but for if at all to plaintiff-daughter of Rama Rao. Thus at best Rama Rao`s undivided half share could be conveyed by him if at all to the 1st defendant, that too for any transfer of immovable property worth Rs.100/-and above, must be in writing and by regd. document and otherwise void, equally gift of undivided interest is also void. When it is not even in recognition of any pre-existing right to 1st defendant-for that is not even her case- vide decision- V.Tulsamma Vs. Shesha Reddy , and not by assignment and not even by any complete family settlement of any disputes in existence or in anticipation or by partition-cum settlement to validate oral transaction-vide decision- M.Venkataramana Hebbar Vs. M.Rajagopal Hebbar , it could when be only by gift; and a gift of immovable property of any value when requires by document in writing with stamp duty and compulsory registration, including from Sections 123 and 122 of the Transfer of Property Act read with sections 17 and 49 of the Registration Act, any such oral gift/settlement is invalid and no rights created thereunder including from the Full Bench decision of our Honble High Court in Gandevalla Jayaram Reddy Vs. Mokkala Padmavathamma that was also followed in later decisions of this Court including in Nangineni Radhakrishna Murthy Vs. Kanneganti Nagendramma . No doubt, contra to the Full Bench decision of this Court in Gandevalla Jayaram Reddy (supra), though not referring to it- much less by expressly overruling, the Apex Court in the later expression reported in Government of A.P. Vs. M. Krishnaveni , laid down, in consonance with the earlier expressions of the Apex Court in Kamaladevi Vs. Bachulal Quipto , Guramma Bhratar Chanbasappa Deshmukh Nagamma Bhratar Ghanbasappa Deshmukh(supra), Perumalakkal v. Balakrishuan and of the Full Bench judgment of the Madras High Court of the year,1929 - that property gifted by father to his daughter at the time of or after her marriage per se to an old aged custom prevailing in the area of Andhra Pradesh and as per the said family arrangement at the marriage of the daughters R and K, the object is as a family arrangement to protect the family from long drawn litigation or perpetual strifes, which mars the unity, solidarity of the family and create hatred and bad blood between the members of the family; other way, it promotes legal justice through wider distribution of wealth, therefore, such family arrangements have to be construed widely. In so saying it was held further that, for family arrangement, if it is not confined only between persons having legal right to the property, for which a document, which is in the nature of memorandum of such oral family partition valid and when filed before the court for its information, which is not compulsorily registerable and therefore can be used in evidence of the family arrangement as binding and final between the parties to create rights there under, saying there under absolute rights are conferred on the female under Section 14(1) of Hindu Succession Act, which speaks that for any property possessed by a female Hindu whether acquired before or after commencement of the HS Act,1956 shall be held by her as full owner thereof in holding that by virtue of section 14(1) of the Act. Thus, a daughter under the oral Pasupukumkuma gift as family arrangement got absolute rights from the possession and enjoyment as per the recognized custom. However, coming to the facts on hand, it is not even the claim of 1st defendant that it was a transfer for consideration by her husband Rama Rao of his undivided coparcenary interest under Section 30 of HS Act in her favour. Otherwise, it could be by settlement/gift. Even a gift/settlement of coparcenary undivided interest is void under the south Indian Mitakshara law; no doubt, if it is to one of other undivided coparceners and not with consent of others, then it can be treated as a relinquishment for the benefit of all other undivided coparceners-as held by the Apex Court in Thamma Venkata Subbamma(dead) by Lr. Vs. Thamma Rattamma and others . The 1st defendant is not at all a coparcener and the plaintiff also even not a coparcener by virtue of AP HS Amended Act. There is no any proof for the claim of 1st defendant that all the plaint schedule properties given absolutely to her by her late husband Rama Rao in his lifetime orally. Likewise, there is no any proof for the claim of plaintiff that Item-1 of the plaint schedule property was given absolutely to her by her late father Rama Rao in his lifetime orally towards Pasupukumkuma. There is no even mutation of properties in municipal records in the name of 1st defendant or plaintiff to say any little basis for their respective claims. Thus, the so-called oral transfer of all plaint schedule properties set up by the 1st defendant is invalid and unenforceable. Equally, the so-called oral transfer or assignment as Pasupukumkuma of item-1 of the plaint schedule properties set up by the plaintiff is with no proof and thereby untenable. Thus, there is nothing to interfere with the finding of the trial court belying said claim of the 1st defendant for the item Nos.1 to 3 and of the plaintiff for the Item-1 of the plaint schedule.
11-B. Now coming to decide any bar for the plaintiff`s suit claim to maintain from Section 23 of the HS Act,1956 even after the same is deleted from the statute book by the HS Amended Act,2005 concerned, Section 23 of the HS Act,1956 no doubt disentitles a female heir to ask for actual partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is to mean bar is not for filing suit for partition and obtaining of preliminary decree, but for obtaining final partition by actual division and separation as per the settled law. No doubt in Narashimaha Murthy Vs. Susheelabai(Smt) - the Apex Court held that said bar applies even there is sole male member. However, the bar has no application for all buildings but for the one in use for dwelling by the joint family that too, bar is for actual partition and not for even to file suit and get preliminary decree for partition.
12. In fact, the bar has no longer to survive to the claim of partition by a coparcener and even a daughter coparcener under the AP HS Amended Act once the same applies, from its wording in Section 29A as the partiable property includes even a dwelling house. The suit was filed in December,2000 and the preliminary decree was passed in September,2004 (which is prior to the Hindu Succession Amended Act,39 of 2005 came into force) and the AP HS Amended Act,13 of 1986 has no application even the plaint schedule items Nos.1 to 3 are coparcenary properties as marriage of the plaintiff was performed before 5th September,1985. In fact the plaint schedule house properties all not in the occupation of the joint family for dwelling as mostly let out with mulgies and the bar is not for filing suit for partition and obtaining of preliminary decree, but for obtaining final partition by actual division and separation as per the settled law. The trial court was thus right in holding that the 2nd defendant is entitled to 2/3rd share and plaintiff and 1st defendant respectively entitled to each 1/6th share in passing the partition preliminary decree by granting 1/6th share each to the plaintiff and 1st defendant respectively and 2/3rd share to the 2nd defendant in holding that Rama Rao died intestate. Furthermore, Section 23 of the HS Act is deleted by the HS Amended Act,2005 and as such after the HS Amended Act,2005 came into force pending the appeal, there is no such bar to survive for female to seek partition of dwelling house as held by the Apex Court in G.Sekhar Vs. Geetha .
13. Now coming to the claim of plaintiff that she is though not coparcener to claim right by birth at par with her brother and father being a daughter as if a son, by virtue of the HS AP Amended Act for her marriage performed in the year,1978 April, prior to the HS AP Amended Act,13 of 1986 which came into force w.e.f.5-9-1985; from the HS Amended Act,2005 came into force on 9th September,2005 by which (Section 6 of the principal Act was substituted by new section, providing for devolution of interest in coparcenary property to a daughter of a coparcener when there was no any registered partition of the properties before December, 2004), she became a coparcener with her brother to claim equal rights with him as right by birth to redefine and refix the shares and to grant the 1/3rd share in the plaint schedule properties as claimed in the suit and the court has to take into consideration the subsequent events, facts and change of law to mould the reliefs. To decide the same, it is necessary to discuss the scope of law with reference to the HS AP Amended Act,1986 and the HS Amended Act,2005.
14. Before considering the same, it is needful to mention on the scope of appreciation of evidence in special reference to appeals and in moulding or grant of reliefs; it was held by the Apex Court in Banarsi Vs Ramphal and Pannalal Vs State of Bombay (5 judges bench) and also as per the subsequent expressions placing reliance on the above in Santhosh Hazari Vs Purushottam Tiwari , Madan Lal Vs Yoga Bai , Harihar Prasad Singh Vs Balmiki Prasad Singh , Koksingh Vs Deokabai and Gaisi Ram Vs Ramji Lal that, 1stappellate Court must re-appreciate (appreciate afresh) entire evidence like in a suit in giving its findings supported by reasons as to decide the lis and therefrom to find how far the decision of the trial court on any of its findings and conclusions are correct or incorrect, including for confirmation or reversal of said findings of the trial Court; not only to pass an order or decree that the trial court ought to have passed, but also while sitting in appeal against, irrespective of the appeal filed is challenging even part of the order or decree of the trial court, to grant any further decree or order within the scope of relief, though not beyond, as the case may require within the facts and circumstances; and any finding is also left open to attack by the respondents irrespective of no cross-objections, though no additional relief the respondents to the appeal can claim without cross-objections. For that the appellate Court is conferred with powers of wide amplitude under Order XLI Rules 22,24 and 33 CPC so as to do complete justice between the parties and to prevent to the extent possible scope for further litigation and also to give finality to the lis and the power includes the subsequent events to take note of in so moulding the reliefs and such power is unfettered to make whatever order it thinks fit even between co-respondents, for ordinarily cross-objections between co-respondents they do not prefer, but for the three limitations on such power to say no order against a party not before the Court to be passed, parties if given up a claim not to revive on its own and not to grant more relief than what trial court granted to the party with no cross objections to that extent, for that was made final.
15. Now coming to consider the scope of the Hindu law on survivorship and succession with codification Prior to the HS Act,1956 Shastric (Hindu Canonical) and customary laws that varied from region to region governed the Hindus. Consequently, in matters of succession also, there were different schools, like Dayabhaga in Bengal in eastern India and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat in the western part; Marumakkattayam or Nambudri in Kerala in far south; and Mitakshara in other parts of India, with slight variations. Mitakshara school of Hindu law recognises a difference between ancestral property and self-acquired property. It also recognises an entity by the name of coparcenary which consists of coparceners as its members. A coparcenary is a legal institution consisting of three generations of male heirs in the family-Gowli Buddanna Vs. Commissioner of Income-Tax, Mysore . Thus, Coparcener is a person who shares equally with other members of the Coparcenary in the inheritance of an undivided estate or in the right to it. For a male member to become coparcener, the existence of Coparcenary is a pre- requisite, without which merely because he is a male person and member of joint family, he cannot be considered as coparcener. Every such male member on birth becomes a member of the coparcenary, where coparcenary exists. This means that no persons share in coparcenary property can be determined with certainty. It diminishes on the birth of a male member and enlarges on the death of a male member. Any coparcener has the right to demand partition of the joint family. Once a partition takes place, leave about the coparcenary of remaining undivided members to continue, a new coparcenary would come into existence, namely the partitioned member and his next two generations of males. For this reason, coparcenary rights do not exist in self-acquired property, which was not thrown into common hotchpotch of the joint family-(Doctrine of blending), vide- Andhra Pradesh & Ors. Vs. Union of India . Thus the concept of a birthright-(Survivorship), at which a person acquires rights on his birth even if the ancestor is still alive is fundamental to an understanding of the coparcenary. In fact, the birth of a male child diminishes the right of the ancestor instantly, as each coparcener has an equal share in the undivided whole. As contrasted with this, inheritance by succession, whether testamentary or intestate, is a right that accrues on the death of a person. Succession can only be in that property which a man leaves on his death. Until then, a person has an unrestricted right to enjoy the property or alienate it.
15-A. The HS Act,1956 was the first law to provide a comprehensive and uniform system of inheritance among Hindus and to address gender inequalities in the area of inheritanceit was therefore a process of codification as well as a reform at the same time. Prior to this, the Hindu Womens Rights to Property Act,1937 in relation to dwelling house, that was extended to agricultural lands also by virtue of the Madras Amended Act,26 of 1947, was in operation, vide-Chintamani Ammal Vs. Nandgopal and though this enactment was itself radical as it conferred rights of succession to the Hindu widow for the first time, it also gave rise to lacunae which were later filled by the HS Act,1956-the first post-independence enactment of property rights among Hindus applies to both the Mitakshara and the Dayabhaga systems, as also to persons in certain parts of South India previously governed by certain matriarchal systems of Hindu Law such as the Marumakkattayam, Aliyasantana and Nambudri systems.
15-B. The main scheme of the HS Act,1956 is:
1. The hitherto limited estate given to women was converted into absolute one. Under the old Hindu Law only the stridhana (properties gifted to her at the time of marriage by both sides of the family and by relatives and friends) was the widows absolute property and she was entitled to the other inherited properties only as a life-estate with very limited powers of alienation, if at all. Even under the 1937 Act, the concept of limited estate continued. Section 14 of the Hindu Succession Act removed the disability of a female to acquire and hold property as an absolute owner, and converted the right of a woman in any estate already held by her on the date of the commencement of the Act as a limited owner, into an absolute owner. The provision is retrospective in that it enlarged the limited estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force.
2. Female heirs other than the widow were recognized while the widows position was strengthened.
3. The principle of simultaneous succession of heirs of a certain class was introduced.
4. In the case of the Mitakshara Coparcenary, the principle of survivorship continues to apply but if there is a female or male claim through female in the line of class-1 heirs of the schedule, the principle of succession is applied so as not to exclude her. By virtue of which on the death of a member of a coparcenary, the property devolves upon his mother, widow and daughter, along with his son etc., by testamentary or intestate succession, as the case may be, and not by survivorship under Section 6. This rule confers on the women an equal right of succession with the male member of the joint family under Section 8. However, when the proviso to Section 6 applies, there is no disruption of joint family status as the proviso creates a fiction so that persons who are to inherit by succession are identified to separate that share.
5. Remarriage, conversion and unchastity are no longer held as grounds for disability to inherit.
6. Even the unborn child, son or daughter, has a right if s/he was in the womb at the time of death of the intestate, if born subsequently.
15-C. As was prior to, even after the HS Act,1956 the daughter in a Hindu Joint Family governed by Mitakshara law was not considered as coparcener. Though, the HS Act revolutionized the previously held concepts on rules of inheritance to some extent, it has its own flaws while dealing with property rights of women since it still does not give the right to the daughter of a coparcener in a Hindu joint family to be coparcener by birth in her own right in the same manner as the son or to have right of claim by birth. In fact, the HS Act did not deal with devolution of interest in the coparcenary property. Section 6 of the HS Act made it clear that, when a male Hindu dies after the commencement of the 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 the Act. However, the proviso to the said Section speaks that, if a male Hindu dies leaving behind a surviving 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 the Act and not by survivorship. The concept of the Mitakshara coparcenary property retained under Section 6 of the HS Act has not been amended ever since its enactment by continued to persist the inequality between a son and a daughter till 1985-86, even by any state. It is for the first time the then State of Andhra Pradesh brought the amendment by the Act,13/1986-(HS AP Amended Act) w.e.f. 5th September,1985 to the HS Act and the same mostly followed by a few states in India namely, Tamil Nadu-w.e.f.25th March,1989; Maharashtra- w.e.f.22nd June,1994; Karnataka-w.e.f.30th July,1994 and if not also by some other States, having considered the fact that a daughter needs to be treated equally with son both in the economic and social spheres and particularly to eradicate the evils of dowry demands and harassment after marriage at in-laws family. In so far as the State of Kerala concerned, it is the Kerala Joint Hindu Family System(Abolition) Act,1975-which is an independent statute and not an amendment to the Hindu Succession Act and came into force w.e.f. 01-12-1976, abolishes joint family system among Hindus in the State of Kerala, in respect of a tarwad or thavazi, a kutumba or kavaru, an illom and an undivided Hindu family governed by the Mitakshara law. Section 3 of the Act declares that on and after its commencement, birth in a family would not give rise to rights in property.
15-D. This HS AP Amended Act came into force retrospectively w.e.f. 05.09.1985 is by incorporation of Chapter II-A in the HS Act after section 29 and before Section 30 to the existing provisions under the HS Act,30/1956 dt.17-06-1956, additionally as Section 29-A to C, with overriding effect over Section 6 directly and over Section 23 indirectly. Section 29-A to C of the HS AP Amended Act, which speaks of equal rights to daughter in coparcenary property read that:
Section 29A- Notwithstanding anything contained in Section 6 of the Act,(HS Act,1956)-
(i).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 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 thereof 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 pre-deceased 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 partition, 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).Any property to which a female Hindu becomes entitled by virtue of the provisions of clause(i) shall be held by her with the incidents of coparcenary ownership and shall be regarded not-
withstanding 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 clause(ii) shall apply to a daughter married prior to or to a partition which had been effected before the commence- ment of Hindu Succession(Andhra Pradesh Amendment)Act,1986.
Section 29B- Interest to devolve by survivorship on death-
When a female Hindu dies after the commencement of the Hindu Succession(Andhra Pradesh Amendment)Act,1986 having at the time of her death an interest in a Mitakshara coparcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance this Act.
Provided that if the deceased had left any child or child of a predeceased child 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 female Hindu Mitakshara coparcener 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.
Explanation-2: Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of deceased, had separated himself or herself from the coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to therein.
Section 29C- Preferential right to acquire property in certain cases-
(1) Where, after the commencement of the Hindu Succession(Andhra Pradesh Amendment)Act,1986 an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others devolves, under section 29A or section 29-B 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 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 this section 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 with retrospective effect from 05-09-1985).
15-E. From the above, Section 29(A) when speaks daughter of a coparcener shall by birth become a coparcener as if son including by survivorship, notwithstanding anything contained in Section 6 of HS Act and such property shall be held by her as full owner and the partiable property includes even a dwelling house. Section 29(B) speaks of interest to devolve by survivorship on death of such female. Section 29(C) speaks of the preferential right. The only riders are that, the daughters marriage (minor or major) should not have been performed by the time the Act came into force i.e. by 5.9.1985-(Vide, B.Chandrasekhara Reddy Vs. State of AP ; G.Valli Vs. State of AP and R.Mahalakshmi Vs. AV Anantharaman ) and there should not be actual partition of the property affected by metes and bounds.
15-F. As the HS AP Amended Act provisions covered by section 29(A to C) not amended the existing provision- Section 6 of the HS Act,1956, but for saying- notwithstanding anything contained therein, the HS AP Amended Act applies when there was no any partition by metes and bounds by the time the AP Amended Act,13/1986 came into force w.e.f. 05.09.1985, as concluded already. The Section 29A is thus worded to prevail with non-obstante clause as it is not withstanding anything contained in Section 6 of the existing HS Act,1956. Thereby irrespective of the legal fiction from the concept of notional partition or deemed partition from Section-6 Proviso Explanation-1, from any female relative etc., specified in class-(1) of the Schedule of the Act; for no actual partition taken place, the unmarried daughter is entitled to claim right as coparcener with equal share in the coparcenary property with other male coparceners, as daughter of even one of the Coparceners.
15-G. As the subject is in the concurrent list and the HS AP Amended Act received the assent of the President of India, by virtue of Articles 246 and 254 of the Constitution of India; the HS AP Amended Act Section 29 (a) to (c) supra prevails over the HS Act,1956 Sections 6,8 & 23 in the area of any irreconcilability between the provisions of Sections 6,8,23 and Section 29(a) to (c) supra. It is to say succession though opens by the notional partition concept under Section 6 of the HS Act,1956, in the case of a male Hindu died intestate leaving coparcenary property and left behind him female relative etc., specified in class-I of the Schedule of the HS Act, for his undivided interest to devolve by succession to determine the shares as if there is actual partition by the time of his death, once the AP Amended Act applies, since prevails over the notional partition concept and then Section 6 notional partition concept has no bar even from death of the father of the unmarried daughter by the time the AP Amended Act came into force, to the claim of such unmarried daughter as coparcener with her brothers, even it is worded as daughter of coparcener and not sister of coparcener, for the same makes no difference, once bar of Section 6 of HS Act has no application, where the HS AP Amended Act Section 29 (a) to (c) apply. It is practically to say, notional partition concept not taken away, but notwithstanding that notional partition, the daughter can claim as coparcener. No doubt, there is a bar for application of the HS AP Amended Act, once marriage of daughter performed prior to 05.09.1985 or once there is an actual partition by metes and bounds before that date, but for to say even notional partition by virtue of legal fiction got all the traits of actual partition by metes and bounds, once that legal fiction of notional partition has no bar to the claim of daughter as coparcener, it makes no difference.
15-H. However it could not be missed noticing that, after the HS Amended Act,2005 came into force, Section 6 of the HS Act amended by the Act,2005 prevails over the AP Amended Act Section 29(a) to (c) supra. This court in Jangireddy Vs. Y.N.Reddy also held that the HS Amended Act,2005-(Central amended Act)-prevails over the HS AP Amended Act,1986-(State amended Act), despite the HS AP amended Act commences with the non-obstante clause. From the combined reading of Articles 245, 246 and 251 read with 254 of the Constitution of India, more particularly from the proviso to Article 254, it clearly shows that a subsequent Central amendment Act will prevail over the earlier State amendment Act of the subject in concurrent list, to such an extent the State Act even received the assent of president of India is not reconciled with the subsequent Central Legislation.
15-I. The HS Amended Act,2005 amended Section 4, Section 6, Section 23, Section 24 and Section 30 of the Hindu Succession Act,1956, of which Section 6 is presently more relevant to consider. It reads that:
Section 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, not-
withstanding 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 shore 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 predeceased son or of such predeceased daughter; and
(c) the share of the predeceased child of a pre-deceased son or a predeceased 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- grand-father 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 of 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 or 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.
15-J. Though, both under the Shastric Hindu Law and the HS Act,1956 (un-amended Section 6 of the HS Act,1956), a female Hindu was not recognized as a coparcener at all, but for dealt with interest of a male Hindu in a Mitakshara coparcenary property; the parliament intended to change the existing law and create and confer such right on a daughter of a coparcener also by the HS Amended Act,2005. Therefore, they chose to make a declaration signalling the change in the law, as it existed till then and heralding a new era. The equality to be restored was between son and daughter only and not between male and female Hindu and though not absolutely and axiomatically, as divesting of any right already vested is not the intention of the legislature from its close and combined reading. Thus, Gender discrimination between the son and daughter is removed to the extent possible by bringing the law in conformity with the Articles 14 and 15 of the Constitution of India.
15-K. When the HS Amended Act came into force in 2005, naturally the question and a doubt would arise, as to when the daughter would get that right. Section 6 of the Amended Act says 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)---. The parliament though expressly stated in the section itself that this "right is by birth", this amendment is introduced however by way of substitution using the phrase, "on and from the commencement of the Hindu Succession(Amendment) Act,2005" as the opening words of the Section and the above scope is further restricted by the proviso to the amended section 6, which states that nothing contained in Sub-section (1) of Section 6 shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20th day of December, 2004. In this amended Section 6 the word 'partition' has been given a very narrow meaning by Proviso to Sub- section(5) of Section 6-viz., (1) Partition made by execution of a deed of partition duly registered under the Registration Act,16 of 1908 or (2) Partition effected by a decree of the Court. Sub-section(3) of section deals with succession of property after commencement of the Hindu Succession Act,2005(from 09.09.2005). Further, Sub-section(3) of the amended Section 6 provides that, 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. Therefore, with the passing of the Amendment Act,2005, the concept of survivorship is given a go by once and for all so far as the interest of the Hindu(not restricted to male Hindu, to say even of female Hindu). The words as if a partition had taken place save the concept of notional partition by legal fiction.
15-L. A combined reading of the provisions indicate that, if no disposition or alienation or partition or succession had taken place till 20th December,2004, the central amendment will have to be given effect, since there had been no occasion for application of State law, where there had been no partition or death of a coparcener before this date, so that married daughter would also count for a share in the event of further partition or death on or after December 25, 2004, provided she is alive by 9th September,2005. The Parliament consciously used the phrase "the daughter of a coparcener" is the person on whom they are conferring the right and not on any other female relative, who may be a member of Joint Hindu Family, so also, not used the words sister of a coparcener, as not intended to say irrespective of fathers death and of notional partition with all traits of actual partition by legal fiction and succession even opened therefrom, to seek partition with brothers for remaining coparcenary after death of father even continues. It is though in the HS AP Amended Act also, the words "daughter of a coparcener" used; there the bar of notional partition was excluded by the non-obstanti clause used of notwithstanding anything contained in Section 6 of HS Act. The combined reading of the HS Amended Act Section 6 and HS AP Amended Act Section 29A indicates the difference and intention of the legislature from the same also.
15-M. This intention can be gathered also from the fact that in the HS Act,1956- Section 6, proviso conferred rights on a "female relative" and not only on a "daughter of a coparcener". Likewise, the HS Act,1956- Section-6, proviso speaks of a notional partition by legal fiction and Section-6 of the HS Amended Act not used the words notwithstanding anything contained in Section-6 Proviso of the HS Act, though same is used in Section 29A of HS AP Amended Act. Thus, it is subject to Section-6 of the HS Act,1956 or any State Law that was in operation prior to coming into force of the HS Amended Act, the rights that are created or conferred and vested, not being divested even used the words by birth becomes a coparcener for the same not represents point of time traced back to her birth, but to the nature of the right and subject to its existence. It is also to say where the daughter is not alive by the time the Amended Act,2005 has come in to force, the question of becoming a coparcener pursuant to the Act does not arise, much less with coparcenary right by birth. If the daughter is born after the Act came in to force, she can claim. Thus, it is only where such right is available and not vested on others by the time the HS Amended Act,2005 came into force, from the opening words of the Section 6(1) itself says on and from commencement of the Act, then only for its tracing back as birth right arises, to say the Amended Act,2005 is not retrospective in operation. The rights that conferred by the HS Amended Act,2005- Section 6, where there is no partition effected (by legal fiction or otherwise) or where there is no alienation or any disposition by the prescribed date before the Act came into force) are:
(a) Equality in Status - The daughter of a coparcener becomes a coparcener by birth only from the commencement of the Act and in her own right in the same manner as the son and (b) Equal rights in coparcenary property to say it is in the coparcenary property existing, as she would have had, if she had been a son. The parliament also took care to see that the daughter who is conferred rights in the coparcenary property (subject to availability) on par with the son, is also saddled her with the liabilities in respect of said coparcenary property as that of a son, by making it clear that the right in property conferred on her is not free from all encumbrances on the said property. The rights and liabilities are to be shared equally by the son and daughter, thus giving effect to the equality clause in letter and spirit, to a major extent. With the change in the law, the legal concept of coparcenary underwent a radical change. The coparcenary hitherto the monopoly of male lineal descendants and consisting of only male member of a Joint Hindu Family now has to accommodate a daughter among the females also. Thus, any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. Once daughter is conferred with the right of a coparcener, it follows that, she would get a right by birth in the available coparcenary property as on date of the Act. From the opening words of the HS Amended Act,2005- Section 6 saying on and from commencement of the Act, it suggests the same and a combined reading of the amended Section 6 with earlier provision(Section 6) and the State amendments in between that were in force bring about the real intention of the Legislature as stated supra of the Amended Act is not retrospective in operation.
15-N. In this context of interpretation of the words used with other provisions of the Statute and with reference to the legislative intention, it is apt to quote -
15-N.(a). As per Plowden - the intent of statutes is more to be regarded and pursued than the precise letter of them..and the best way to construe an Act of Parliament is according to the intent rather than according to the words.. Each law contains of two parts viz., of BODY and SOUL, the letter of the law is the body of the Law and the sense and reason of the Law is the Soul of Law When the words of statute enact one thing, they enact all other things which are in the like degree.
15-N.(b). As per Austin When the words are ambiguous or of any doubtful significance, the intention of the Legislature must be interpreted. It is to say, the Legislative silence conveys signals of the duty on the interpreter to interpret the meaning and for that the interpretation and construction have same effect by identifying the Legislative intent as part of duty of the Court since the Legislative authorities are functuous officio after the legislation is passed & 15-N.(c). The Apex Court in its expression in RMD Chamarbangwalla Vs. Union of India referring to the expression in River Wear Commissioners Vs. William Adamson held that although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the Statute and bring about the real intention of the legislature there from.
15-O-(i). A Full Bench of the Bombay High Court in Shri Badrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari answering a reference, by Judgement dated 14-08-2014, by overruling the earlier Division Bench expression in Vaishali S.Ganorkar Vs. Satish Keshavrao Ganorkar of only those daughters born after September 9, 2005, will be entitled to equal rights in ancestral property, held that- Section 6 of Hindu Succession Act,1956 as amended by the Amendment Act of 2005 is retro-active in operation. The judges observed: The principle laid down by the Supreme Court in Sheela Devis case, therefore, does not militate against the view taken by us that the Amendment Act of 2005 applies to a daughter of coparcener, who(the daughter)is born before 9th September,2005 and alive as on 9th September,2005 on which date the Amendment Act of 2005 came into force. Of course, there is no dispute about entitlement of a daughter born on or after 9th September,2005. The daughters would be able to exercise their right only after 9th September,2005 when the Act was amended. Therefore, it is imperative that the daughter who seeks to exercise such a right must herself be alive at the time when the Amendment Act,2005 was brought into force. It would not matter whether the daughter concerned is born before 1956 or after 1956. This is for the simple reason that the Hindu Succession Act,1956 when it came into force applied to all Hindus in the country irrespective of their date of birth. The date of birth was not a criterion for application of the Principal Act. The only requirement is that when the Act is being sought to be applied, the person concerned must be in existence/living. To that conclusion, the expression of the Apex Court in Sheela Devi (supra) placed reliance.
15-O-(ii). In Sheela Devi (supra), it was held that, by the time the HS Amended Act came into force, if succession opened by notional partition under Section 6 of HS Act by death of father, the daughter who got right by birth by virtue of the Act, cannot be considered as Coparcener.
15-O-iii. On the aspect whether notional partition by virtue of legal fiction can be considered as actual partition, the Apex Court in Gurupad v Hirabai -observed that the fiction created by Explanation I of Section 6 HS Act,1956 has to be given its full and due effect. The Court in this regard quoted a passage from East End Dwellings Co Ltd. Vs. Finsbury Borough Council , by Lord Asquith that-If you are bidden to treat an imaginary state of affairs as real, you must 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 accomplished it, and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of the state of affairs. The Apex Court therefrom interpreted the concept of notional partition by legal fiction used in the Section 6 to mean that, a partition had taken place between the deceased and other coparceners immediately before his death. This assumption, as per the Court, is irrevocable once made and all the consequences that would flow from a logical partition would follow; 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. 15-O-iv. No doubt it was in the context of benefiting a female it was specifically noted by the Court in the case that all the reforms that had taken place earlier were with a view to improve the property rights of women and a narrow approach would lead to taking a step backwards. The Court went on to mention that it would render fruitless the social reform that has enabled Hindu women to acquire an equal status with men and as such the interpretation that be preferred should be the one that furthers the intention of the legislature and remedies the injustice from which Hindu women have suffered over the years. This approach of the Court of all the consequences that would flow from a logical partition would follow for notional partition was later reaffirmed in State of Maharashtra Vs. Narayan Rao Sham Rao Deshmukh . 15-O-v). It is pertinent to mention here that, a narrow approach has been also followed by the High Court of Andhra Pradesh in P Govinda Reddy Vs. Golla Obulamma and Yethirejulu Neelaya Vs. Mudummuru Ramaswami and earlier to it by the High Court of Bombay in Sriram Bai Vs. Kalgonda that, though from the concept of notional partition U/Section 6 HS Act, the basic principle has been to presume that a partition had been affected only for a specific purpose which is to ascertain the interest of the deceased coparcener as available for succession. It was further presumed that in this particular approach once the said interest was ascertained there was no need to allot shares to the other members, whether male or female, to the family. Even from that approach, for not used the words sister of Coparcener, but used only the words daughter of Coparcener, once father died and his share by notional partition divided for succession opened, there is no coparcenary of father to claim after commencement of the HS Amended Act,2005 for a daughter as if a son of right by birth.
16.(a). From the above, even the legal fiction of notional partition under Section 6 of the HS Act,1956 has no bar from the overriding effect with non-obstanti clause in Section 29A of the HS AP Amended Act, where the HS AP Amended Act applies. In the case on hand, admittedly, the marriage of the plaintiff was performed on 23-04-1978 itself and thus the HS AP Amended Act,13 of 1986 which came into force w.e.f.05-09-1985 has no application. The plaintiff in the suit thereby cannot claim as coparcener in the plaint schedule coparcenary property for 1/3rd share as per the HS AP Amended Act,13 of 1986 in the coparcenary of her brother and late father. However, where the HS AP Amended Act has no application, the HS Act,1956-Section 6 notional partition concept applies. When such is the case, even the appeal suit as well as both the cross-objections impugning the trial Courts degree and judgment supra are continuation of the suit proceedings to say for all purposes the suit lis is pending (under the Doctrine of Merger) even by the time, the HS Amended Act,2005 came into force as held in G.Sekhar(supra), since Rama Rao-(father of plaintiff and 2nd defendant as well as husband of 1st defendant) died in September,1997 intestate leaving them behind him and the plaint schedule properties and of whom the plaintiff and 1st defendant are his female classI legal heirs to succeed his interest in the coparcenary therein with 2nd defendant-male classI legal heir and there from, by the legal fiction of notional partition succession since opened, for there is no further coparcenary of father of plaintiff, the plaintiff even under the HS Amended Act,2005 cannot claim as coparcener with her late father as daughter of coparcener.
16.(b). Thus, a perusal of the scope of Section 6 HS Amended Act,2005-definition of partition by explanation to Section-6(5) if read with proviso to section-6(1) is no way exhaustive, but an inclusive definition from the interpretation by a whole reading of the Section, which even to include the concept of notional partition that brings an irreversible situation from the irrevocable legal fiction to draw that would flow from a logical partition with all consequences as share of the deceased at least separated just before his death, leave about others as discussed supra.
17. In this regard coming to the scope of Section 6 (before and after the HS Amended Act,2005) and Section 29A of AP HS Amended Act,1986 supra with reference to the expressions of this Court and the Apex Court in particular and of other High Courts in general:
17.(i). The Apex Court in S.Sai Reddy Vs. S.Narayana Reddy confirming the expression of this Court(reported decision ), while considering the scope of the HS AP Amended Act,1986 as to when a partition can be said to have been effected for the purposes of the AP amended provision; held that "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 share 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 daughters 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 stratus, 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 affected 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". In this expression of Sai Reddy, the observation-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 and a preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation it appears is made for the reason that notional partition has no way a bar for the HS AP Amended Act to apply for the daughter (unmarried) to become coparcener and what is remained is preliminary decree passed pending in appeal from which there was no actual division.
17.(ii). In Dodla Chinnabbai Reddy Vs Dodla Kumara Swami Reddy referring to the expression of Sai Reddy(supra) though stated not applicable on facts, it was held in considering the scope of Section 29-A of the HS AP Amended Act that, the Non-obstante clause used in Section 29-A of the Act is intended to carve out an exception in favour of the daughters who remained unmarried till 5.9.1985, to confer additional benefits of coparcenary rights on them.
17.(iii). In Parchuri Vs. Parchuri -this court (in the single judge expression) held referring to the expression of the Apex Court in Sai Reddy(supra), that the benefit of the HS Amended Act,2005 can be extended in a pending matter to mean even after passing of preliminary decree to say the suit is deemed pending. There, father was alive by the time suit filed against him and he even died pending appeal filed by him against the preliminary decree for partition of 2/3rd share passed by trial court in favour of his two minor sons by its challenge and the unmarried daughter also as one of legal heirs came on record before,2002 and held for redefining preliminary decree shares for giving her one such share as coparcener with her brothers, for death of father coparcener was pending the lis in appeal. However, once the HS AP Amended Act has no application for daughter married already and later before the HS Amended Act,2005 came in to force the father died, and thereby succession opened under Section 6 of HS Act,1956 by virtue of the notional partition from non-application of the HS AP Amended Act; can the daughter claim partition invoking benefit of the HS Amended Act,2005, was not fallen for consideration for specifically to answer in Parchuri(supra).
17.(iv). For the above question, the answer was held in negative by the expression of the Apex Court in Anardevi Vs. Parmeshwari Devi that was almost reiterated of Sheela Devi(supra)-holding that before the HS Amended Act,2005 came into force, the father when died, the daughter cannot claim partition invoking benefit of the HS Amended Act,2005, as by virtue of notional partition under Section 6 HS Act, succession opened and his interest was devolved by succession under Section 8 of the HS Act,1956 and the HS Amended Act,2005 is only prospective in operation.
17.(v). In Sai Reddy(supra) once it is held by the Apex Court as the partition that the legislature has in mind in the present case(under the AP HS Amended Act) is undoubtedly a partition completed in all respects and which has brought about an irreversible situation-the notional partition under Section 6 of the HS act by legal fiction is not mere severance in status, but as if actual partition that also brings out an irreversible situation. In the expression of Sai Reddy (supra), the notional partition concept under Section 6 of HS Act, 1956 did not fall for consideration as the HS AP Amended Act provisions given prevalence with non obstanti clause in Section 29 (A-C) of the HS AP Amended Act for giving overriding effect irrespective of what is contained in section 6 of the HS Act,1956. In Sai Reddy(supra), the Apex Court thus only interpreted the wording of Section 29A-C of the AP HS Amended Act of actual partition by meets and bounds, in saying preliminary decree since only defines rights and not an actual partition by meets and bounds, the shares can be redefined once under the AP HS Amended Act, the daughter became coparcener before passing of final decree. The expressions of the Apex Court in Anardevi and Sheela Devi(supra)- cannot be said running contra to the principle laid down in Sai Reddy (supra), even by any stretch of imagination.
17.(vi). In C.Anitha Vs Narne Constructions Pvt. Ltd referring to the expressions of Sai Reddy and Dodla Chinnabbai Reddy(supra) held at para-25 on facts that, after death of Eswaraiah and Anjaiah, the properties were not partitioned by metes and bounds by the Coparceners including the Plaintiff-(daughter of Eswaraiah)-and therefore plaintiff is entitled to coparcenary rights in the property with her brothers among the defendants 1-6, by negated the contention of alienations made before the HS Amended Act,2005 and before December,2004 bars the suit claim of plaintiff.
17.(vii). The expressions of the Apex Court in Anardevi and Sheela Devi(supra) even already rendered by the time Parchuri(supra) and C.Anitha (supra) decided, same were not brought to its notice to consider, apart from the concept of notional partition not considered at all therein.
17.(viii). Referring to the above expressions of the Apex Court in Anardevi and Sheela Devi(supra) and in Sai Reddy(supra), it was held by another single judge expression of this Court in R.V.Padmavathi Vs. Gangarapu S.Chowdary -that once father died leaving wife and daughter, besides sons, before the AP HS Amended Act came into force, since succession opened by notional partition, even the unmarried daughter is not entitled to claim coparcenary interest as per Section 6 of the HS Amended Act,2005 Act and as laid down in Anardevi and Sheela Devi (supra) and by saying in Sai Reddy(supra) exclusively dealt with Section 29A of the AP HS Amended Act.
17.(ix). The above decision in Padmavathi(supra) did not go into the scope of the non-obstante clause in Section 29A of the AP HS Amended Act, saying not withstanding anything contained in Section 6 of HS Act, to extend the benefit of Section 29A of the AP HS Amended Act and once the benefit of Section 29A of the AP HS Amended Act applies, Section 6 HS Amended Act,2005 Act later came into force no way takes away the accrued rights under Section 29A of the AP HS Amended Act on the principle of vested right won`t divest. Even Section 6 HS Amended Act,2005 prevails over Section 29A of the AP HS Amended Act for any inconsistency to reconcile and for any irreconcilability to say the State law deemed repealed by subsequent central legislation to the extent of such irreconcilability by virtue of Articles 245 and 251 read with 254, more particularly from the proviso to Article 254, however, that does not mean vested right conferred by State Act before the Central Act came into force also divests-(See-Jangireddy(supra) and also the other expression in Damalanka Gangaraju Vs. Nandipati Vijaya Lakshmi .
17.(x). As such, the decision in Sai Reddy(supra) rendered was prior to coming into force of Section 6 of the HS Amended Act,2005 and not an authority on the concept of notional partition whether tantamount to actual partition or otherwise any disposition, besides from notional partition succession opens by the legal fiction. Further, the expressions in Parchuri, Padmavathi and C.Anitha(supra) are not the full fledged authorities on the scope of Section 6 HS Amended Act,2005 Act with reference to Section 29A of the AP HS Amended Act, but for to the extent of subsequent change of law pending proceedings in appeal or for final decree can be taken consideration to mould the reliefs. As also laid down by the Apex Court in Ganduri Koteswaramma Vs. Chakiri Yanadi referring to Section 6 HS Amended Act,2005 besides G.Sekhar(supra) and in Prema Vs Nanje Gowda in a suit for partition and as a general principle of law in M/s. Bay Berry Apartments Pvt.Ltd Vs. Shobha - subsequent change of law pending proceedings in appeal or for final decree can be taken consideration to mould the reliefs.
17.(xi). In Ganduri Koteswaramma(supra) the suit for partition was filed by one of the sons of Chakiri Venkata Swamy in the court of Senior Civil Judge, Ongole-(Andhra Pradesh) impleading his father Chakiri Venkata Swamy(1st defendant), his brother Chakiri Anji Babu (2nd defendant) and his two sisters-as 3rd and 4th defendants respectively, in respect of schedule properties `A', `C' and `D' - coparcenary property claiming by the plaintiff 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. The 1st defendant died in 1993 during the pendency of the suit and after the HS AP Amended Act,1986 came into force and later the trial court vide its judgment and preliminary decree dated March 19, 1999 declared that plaintiff was entitled to 1/3rd share in the plaint schedule `A', `C' and `D' properties and further entitled to 1/4th share in the 1/3rd share left by the 1st defendant(father) and as regards schedule property `B' the plaintiff was declared to be entitled to 1/5th share, that was amended on September 27, 2003 declaring that plaintiff was entitled to equal share along with 2nd, 3rd and 4th defendants in 1/5th share left by the 1st defendant in schedule property `B'. In the course of consideration of the report submitted by the Commissioner and before passing of the final decree, the HS Amended Act,2005 came into force on September 9,2005, pursuant to which the 3rd and 4th defendants made an application for passing a preliminary decree in their favour for partition of plaint schedule properties `A', `C' and `D' into four equal shares and to allot one share to each of them by metes and bounds and for delivery of possession. The trial court, on hearing the parties, by its order dated June 15,2009, allowed the application of the 3rd and 4th defendants holding that they are entitled for re-allotment of shares in the preliminary decree, i.e., to 1/4th share each and separate possession in schedule properties `A', `C' and `D'. The plaintiff challenged the order of the trial court in appeal before this Court-(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, holding that final decree is always required to be in conformity with the preliminary decree and Section 97 of the Code of Civil Procedure (for brevity CPC) 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. The Apex Court referring to the earlier 3-Judges Bench decision in Phoolchand Vs. Gopal Lal and Sai Reddy(supra) held that, Section 97 of CPC 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 even if no appeal has been preferred from such preliminary decree, as there can be more than one preliminary decree and 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 CPC 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 CPC 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....." and thus the view of the High Court is against law and the decisions of this Court in Phoolchand and Sai Reddy(supra).
17.(xii). There is nothing came for discussion and consideration in Ganduri Koteswaramma(supra) as to the daughters were married or not by the time HS AP Amended Act,1986 came into force and if married and the same not applicable to them for preliminary decree not considered them as coparceners; whether-notional partition concept of Section 6 of HS Act is a bar or not to get the benefits of the HS Amended Act,2005. The earlier expressions in Anardevi and Sheeladevi(supra) were also not considered on the scope of the Amended Act is only prospective and the concept of notional partition defined in Section 6 of HS Act, opens the succession. It was not even considered whether the concept of notional partition defined in Section 6 of HS Act,1956 falls within the meaning of the word partition used in Section 6 of the HS Amended Act,2005.
17.(xiii). In another single judge expression of this court in Burugupalli Seesharatnam Vs. Sirigina Ramalakshmi referring to Damalanka Gangaraju, G.Sekhar, Ganduri Koteswaramma and mainly relying upon Ganduri Koteswaramma(supra)-held that, daughters are entitled to the benefits of the HS Amended Act,2005. But the expressions in Anardevi and Sheeladevi(supra) were also not considered on the scope of the Amended Act is only prospective and the concept of notional partition defined in Section 6 of HS Act, opens the succession. It was not even considered whether the concept of notional partition defined in Section 6 of HS Act,1956 falls within the meaning of the word partition used in Section 6 of the HS Amended Act,2005.
18.(i). Though a Division Bench of the Karnataka High Court in Pushpalatha N.V. Vs. V.Padma held that the aforesaid judgments of the Apex Court in Anardevi and Sheeladevi(supra) are purely on the facts of those cases and they were not really interpreting the amended provisions and they have not laid down any law, same appears not acceptable. The conclusions arrived in paras 114&115 of Pushpalatha (supra) are as follows:
114. However, while determining the share of the male Hindu who has died before the commencement of the amended Act, i.e.9.9.2005, who had an interest in a Mitakshara coparcenary property, if he has left him surviving a female relative, his share is to be determined treating his daughter also as a coparcener. Thereafter in the notional partition, the share to be allotted to him devolves as per proviso to the unamended Section 6 of the Act. Thus, the vested right accrued to the other female members is not affected by the amendment, as the said vested right is not taken away expressly or by necessary implication by the Parliament. May be the extent of their share be diminished, but it does not amount to taking away the vested right. That is the sacrifice the other female members who are none other than the mother, grandmother, a granddaughter, has to make in favour of a daughter.
115. Therefore, in so far as other female members left behind by a male coparcener dying before the commencement of the Amendment Act, succession to this property is governed by the unamended Section 6 by virtue of Section 6 of the General Clauses Act.
18.(ii). In fact, Pushpalatha(supra) reached the conclusion that the daughter is conferred with right by birth as coparcener and as such a right is vested that relates back to date of her birth, which do not divest by death of father by notional partition, when death of father is after her birth, though prior to coming into force of the HS Amended Act,2005, to say before considering the notional partition for death of father, the daughter`s share as coparcener also to be determined by date and time back to the death of father. This expression no way speaks notional partition concept of Section 6 HS Act,1956 does not fall within the meaning of the word partition used in Section 6 of the HS Amended Act,2005.
18.(iii). No doubt as held by the Apex Court, as in Gurupad;
Narayan Rao Sham Rao Deshmukh; P.Govinda Reddy; Yethirejulu Neelaya and Sriram Bai(supra) and in Shub karan Bubna Vs. Sita Saran Bubna at para-6 that, where only one or few of coparceners get separated, others can continue to hold the remaining property jointly without division by metes and bounds and in M.Venkataramana Hebbar(supra) at para-10 held that, despite severance in status of joint family by expressing unequivocal intention by one of coparceners to others, till partition by metes and bounds the parties may continue to possess the property jointly. It is to say, severance in status is not actual partition and any separation by one or few does not affect the remaining others to continue joint of the coparcenary property. However, that concept is different to the concept under Section 6 of the HS Act,1956 with reference to Section 6 of the HS Amended Act,2005, as to from the said notional partition, it amounts to separation of the share of deceased father for succession opens, to bar the daughter of said deceased coparcener to maintain suit as coparcener with her brothers.
18.(iv). When notional partition by virtue of legal fiction created by Explanation I of Section 6 of the HS Act,1956 has to be considered as actual partition by given its full and due effect to the fiction as held by the Apex Court in Gurupad and Narayan Rao Sham Rao Deshmukh(supra), from that the basic principle has been to presume that a partition had been affected even for a specific purpose which is to ascertain the interest of the deceased father coparcener as available for succession and once the said interest was ascertained, even remaining brother coparceners continue; even death of father taken place before the HS Amended Act,2005 came into force and by legal fiction of notional partition, the father`s undivided share in the coparcenary interest is ascertained for the limited purpose of its separation, whether the daughter after the HS Amended Act came into force from continuation of remaining coparcenary by her brothers, can claim as coparcener with them from any right by birth accrued after the Amended Act came into force, is the question?. For that the answer is even in negative for the reasons discussed supra and also for the reasons that, when Section 6 of the HS Act,1956 speaks notional partition on death of any male member of coparcenary left behind him female relatives etc., specified in Class-1 of the schedule of the Act, by virtue of legal fiction his interest in coparcenary devolve by succession and once it is the father that died and therefrom by virtue of notional partition, there is no coparcenary of father, even brothers continue the coparcenary with the remaining property, so far as daughter concerned, after coming in to force of the Section 6 of the HS Amended Act,2005, to claim right by birth, there is no coparcenary subsisting of her father, from wording of the amended section is the daughter of a coparcener and not even sister of coparcener, much less specifically provided to claim in the deemed coparcenary of brothers even after death of father, where notional partition concept of Section 6 of the HS Act,1956 applies. Needless to say once Section 29A HS AP Amended Act was applicable for which notional partition not a bar and therefrom any right already vested on daughter as coparcener, that wont divest after coming in to force of the Section 6 of the HS Amended Act,2005.
18.(v). Thus, the expressions of the Apex Court in Anardevi and Sheela Devi(supra) cannot be said confined to facts and not laid down any law to bind under Article 141 of the Constitution as law of the land. A careful reading of Section 6(1) read with Section-6(5) and also with Section 6(3) of the HS Amended 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. The above two decisions categorically say therefrom that the right of the daughter to claim as a coparcener under the HS Amended Act, arises when the father manager is alive with coparcenary property and if he is no more, from the notional partition, Succession since opens, the right no longer accrues to claim by a daughter as a coparcener and there by the HS Amended Act is prospective in operation.
19. The earlier Division Bench expressions of the Karnataka High Court in the case of M.Prithviraj Vs. Smt.Leelamma N - relying on the expression of the Apex Court in Sheela Devi(supra) also held that once father died and by virtue of notional partition under Section 6 of the HS Act,1956 there was partition and succession opened, by virtue of subsequent legislation by the HS Amended Act,2005, the daughter cannot claim share in the remaining properties and the HS Amended Act,2005 is thereby held prospective in operation, needless to say another expression of the Karnataka High Court in the case of R.Kantha Vs. Union of India in further answering the HS Amended Act,2005 prevails over the earlier HS Karnataka State Amended Act,1994.
20. In a recent single judge expression of the Madras High Court in K.M.Thangavel Vs. K.T.Udaya Kumar also it was held particularly at para 29 that, by virtue of the notional partition under Section 6 of the HS Act,1956 from death of male coparcener, from a female heir intervenes, there was succession opens and once succession opened, the HS Amended Act,2005 has no application.
21. Thus, the law is consistent on the aspect of notional partition under Section 6 of HS Act,1956 from death of male coparcener, from a female heir intervenes there was succession opens by vesting of right with irreversible situation by the legal fiction of a logical partition with all its consequences and once the succession opened, the HS Amended Act,2005 has no application, from the wording of daughter of a coparcener and not sister of coparcener, but for to say once HS AP Amended Act applies for which notional partition is not a bar to claim by female as coparcener and therefrom any right vested, that does not divest after the HS Amended Act,2005.
22. Further, the Apex Court in G.Sekhar(supra) observed even by referring to the 174th Report of the Law Commission of India and the Statement of objects and reasons of the HS Amended Act,2005 of what Parliament intended to achieve the goal of removal of discrimination; however held that the HS Amended Act,2005 is prospective and not retrospective in operation, as neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession has already taken place. For that conclusion also relied upon the expression in Eramma Vs. Veerupanna where it was held that if partition has not taken place by the time HS Act,1956 came into force, Section 6 of the HS Act,1956 would apply and the operation of the statute is thus prospective in operation.
23. Here coming back again to the facts of the case on hand, the plaintiff was a married daughter by the time HS AP Amended Act,1986 has come in to force and thereby not entitled to the benefits of it and even the HS Amended Act,2005 has no application as before that, the plaintiff`s father Rama Rao died in september,1997 where from succession opened and the plaintiff got only 1/6th share that was by notional partition determined and thus there is no question of continuation of the plaintiff later as coparcener with her brother-2nd defendant (from the wording of the Section 6 of the HS Amended Act,2005 of the daughter of a coparcener and not the sister of a coparcener) to take benefit of the Amended Act 2005. From that, when the cloud is cleared by the above referred expressions from reading of the provisions of the Hindu Succession Act with Central and A.P. State Amendments and therefrom when the plaintiff is not entitled to claim any share by birth much less as a coparcener on par with 2nd defendant, there is nothing to rearrange or redefine the shares defined by the trial Court in the partition preliminary decree.
24. Now coming to the costs awarded against the 2nd defendant covered by the Cross Objections(SR)No.13681 of 2005 concerned; undisputedly, the plaintiff and 2nd defendant are sister and brother and they are daughter and son of 1st defendant who are the family members with close relationship and the plaint valued is on fixed Court Fee and not on market value even, from the claim of joint and constructive possession. Thus, awarding of costs against the 2nd defendant for the suit claim no way justified for sustaining. Hence, the Cross-Objections of the 2nd defendant are to be allowed by ordering no costs throughout.
25. Coming to the Cross Objections(Cross-Objections(SR) No.3879 of 2005) of the plaintiff as answered Supra when plaintiff is in possession of item No.1 of the plaint schedule for which no rent she is paying and other two items are with the 1st and 2nd defendants of whom 2nd defendant is major shareholder of 2/3 share and the 1st defendant is 1/6th shareholder equal to plaintiff is no other than mother of plaintiff, the trial Court is justified in not awarding past or future profits against the defendants or any of them. Thus, the trial Court`s decree holds good and appeal of the 1st defendant also liable for dismissal in this regard also. Accordingly point No.1 is answered.
Point No. 2:
26. In the result, appeal filed by the 1st defendant and the Cross- Objections(SR)No.3879 of 2005 filed by the plaintiff are dismissed with no costs and the Cross-Objections(SR)No.13681 of 2005 filed by the 2nd defendant is allowed with no costs and by setting aside that portion of the trial Courts decree awarding costs of suit against the 2nd defendant. Memo filed by the 2nd defendant stating that during lifetime of his mother-1st defendant, he is not seeking for division of his share in the plaint schedule properties is recorded for the reason that there is no limitation for obtaining final decree in a partition suit and Article 137 of the Limitation Act,1963 also has no application of three years limitation to obtain final decree. It is made clear that till actual division and separation of share of plaintiff, from she is in possession of item No.1 out of the plaint schedule item Nos.1 to 3 properties and for no profits awarded in favour of plaintiff for her share, she is neither liable for any profits to the defendants nor for eviction meanwhile by the defendants from item No.1 of the plaint schedule.
27. Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
___________________ R.SUBHASH REDDY,J _______________________ Dr.B.SIVA SANKARA RAO,J Date: 31.12.2014.