Pushpalatha N V vs V Padma on 19 March, 2010

[Cites 19, Cited by 66]

Karnataka High Court

Pushpalatha N V vs V Padma on 19 March, 2010

Bench: N.Kumar, A.N.Venugopala Gowda

IN THE HIGH COURT OF KARNATAKA AT 
Dated this the 19%" day ofHMarch_,'  b  '
PRESENTa
THE HON'BLE MR'; J1:.sT1"C1a    
THE HONBL1: MR. Jaé"'r:CE   GOWDA

 mas'? £A£>p£§Ag; 'N5; 326 of 2004

BETWEEN:  1111    "

Pushpa1atha'~N V

W/() Nernraj ' VV ' M 
Aged about 42 years _
R/at 13-75? -5"? Main 

J abbar B.lc1pk. Vyalikavalv H
B.an"gaI0fe 4 §.600'03

. ..Appe1lar1t

  L. Govindraj, Advocate)

_  "')Vi::'1ow of Vasantha Kumar D.N.
  " Aged about 65 years
 -~-Now r/at c/0 N.V. Bahubali {Appﬂ
Tej Stores. No.52 ,
11 Main Road, Palace Guttahalli
Bangalore «~ 560 003

Q; 

 



 

A  deoiaration and possession.

 

2 Asha N.V.
W/o Shantharaj
Aged about 40 years I  _
R/at No.52, II Main Road

Palace Guttahalli
Bangalore «-- 550 003

3 N V Tejkumar
Aged about 40 years  _
Door No. 646, 12??' Ma1'nVRoad'« 
15* Block, 3"' Stage."-._ ' A' 2. n "
Basaveshwar Nagax"  '

Bangalore ~-- 560    A

4 N VBah3jb':>aI3tgg.fAp}ji)   "   
Aged about E$_6_~year_s_ "    ' ~
N o.52=§'/' 4, _.-4"? Cfoss  '
Nanjundes'2s%ara 1'Ji1ay_a' "

LaKshm1ff;;agari"§g A '
Kama1.Nagar~.__» * g  ._
Ba'agaIore_   :1, ...Respondents

" {By-.Sf1_ Sadashivappa & Sfi Naik Advocate for R1 to R4) . ﬁIed under section 96 of CPC against the dated 17--1--2004 passed in OS No.i6.271,_/:2O(n):'1Aon the file ofthe XXVIII Additional City Civil M'a.3;ohaI1 Unit, Bangalore, partly decreeing the suit for iv {1} Whether the plaintiff proves that ht Vasanth Kumar died, intestate schedule properties defendants 1 to 4 to .-s4_tLc:ceed.,'V._'?"" h V [2] Whether the platntzﬁipr'opes_v entitled to ~-tne':'schedutehA properties? 'V (3) she is . V (4) Vt/'fI'Z€f§tft"'"TF3VIl'(£f}C.'.3: "(are entitled to? [5] .. What decreeiotr order?

h"t'T";1eVV support of her ciaim examined herseif _P.W~an=d . she produced three documents, which are ,__as V"E¢x.P--1 to 3. On behalf of defendants, 'i'cj':Kurnar, the third defendant was examined as D.W-- T1 No . documents are produced.

13. In the light of the aforesaid contentions, the points that arise for consideration in this appeal are as und..e'r:.i {I} {2} (3) What is the right of the daughter of a' a Joint Hindu Family goperned . Z in co--parcenary propertyﬂ..i5yA'=..oirti1e"'V::5f vxihe amendment?

When Section 6 is~~ "ap_plicabie--.. tot: partitions already eJffeet'ei:i?- '' V VI/hat"fs__ xdaughter in a co--

parcenary 'propertg? it :ffV "

{4} Whether the ..arnenaed is prospective or retrospe_etive in operattan?

{5} A"WhetherV the«.parnended provision applies to the before the Court?

happens to the vested right under repealed , it 6 of {a} other female members (19) male members?

it/o 27 within the coparcenary. This means that ..iLeVery birth or death of a male in the family;ithe»:sh'a1'ef'_"rof"' every other surviving male eithe.1"'»--gets«'_' d4irrii..nishe.d. 1'-or if enlarged. If a coparcenary consi«sts:'_'_'ofv aff"fathe1'_ two sons, each would OW1'kV>K.(.v):1"'1€x third of 'If' another son is born in they_....Rfam1ly, automatically the share of each male is red'ueed to th; _

31. The in Mitakshara are followed by and Mithila Schools.

all the:'l's¢hoa1'g;. of Mitakshara School. Howevehthe. in force in the several states representedllby these sc._ho'o1s are not entirely the same. They v ._diffe,r'in c_erta_in asj§je'ets« namely, the order of inheritance as laid in is not strictly followed in Bombay, Gujarat and the North Ifonkon. The order of succession to males in the [VBo:mIoa;a' is different from that in other parts of India l2j;=.rhere...AMitakshara law prevails. The reason is that in those preference is given to the Vyavahara Mayukha of "--«::Nilkanta Bhatta on few points, where it differs from if Mitakshara. The difference arises from the fact that the Wet AS5'eeti"onlA interpreted. Section 6 reads as unden- 43 impression that they are inconsistent A. other. Further, the same provision,--jr' u;*her1:x _ interpreted with reference to interpretation may lead to x_ T because the Rules of interpretaiion:'are ::e'te.r--~ right dtfferent types of defects. It not apply all rules of lIi'L€!p't4":etttLi{)ti a provision of lC1.Ll,3;.,_" rule of interpretation should " as a tool depending upon thessnatuvre drafting which be " V-The Rules of in interpreting the statutes; V hf _ the: l' inconsistency, aifsurdttyli[gr_c__redu'ndancy. j Where the words are clear the Vunafnl:gigluous;.'ltE1ere is little need to open the toolhit".,0ffnteIp'rettitt0n. "

in mind these principles, the substituted " "Section 6. Devolution of interest in it ooparcenarg property.» {1} On and from the tzomrnencement of the Hindu Succession (Amendment) Act 2005, in a Joint Hindu family govemed by the Mitatcshara Law, the daughter of a coparcener shall, » if h' = which has been effected before

1..Vthe'2i;_ml_ of December, 2004. if f'pariition" means any partition made by execution of a deed of partition duly registered under the 47 (19) any alienation made in respect of satisfaction of, any such is any such right or alienatio:1*"sl'i:a.ll"'l:2l:e enforceable undef 'rule or 'V obligation in the _rrianner_Aan,de.to it the same extent would enforceable {A rrientlmentjet Act, ._ had not 'been enacted; '' 'V Explanation. 5 the -_ 'clause (CU, exjppession or 'great-

1'-'lT__    to refer to the
____ H   as the case
 or adopted prior to
it the  of the Hindu Succession

 airiiendezeiaii)'  2005.

(25) Nothing contained in this section shall " _ :1 Explanation.-- For the purposes of this Section Registration Act 1908 (16 of 1908) or partition \ effected by a decree of a court. "

between male and female Hindu. Therefore, the Parlilament consciously used the phrase "the daughter of a it is the person on Whom they are conferring the any other female relative, who may abmembgri 'of Family. This intention can be. gatheredefrom tlact thlati the un-- amended Section, thelproviso conle'rred on a "female relative" and notbniy on; "da11gi1ter of avlcoparcener".

48. Then the iisllthe right that is created and 'V in {a:)l"'_ 'The coparcener by birth become 'a coharcener in her own right in the lsame....m'anner as the son. Equality 'V dirt Status.

H A 'l'.:T§1e1'.daughter of a coparcener would have same rights in the coparcenary property, as she would have had, if she had been a son. Equal rights in coparcenary property.

"deﬁnite settlement with regard to some matter. 60 word "disposition", "alienation", "partition" and "tee-tdinéntary disposition" used in this proviso.

61. The term "disposition" has been Judicial Dictionary as a devise "inte'n_dee.:l mode by which property can pas's,.Vo:..vvhether"ov"act parties or by an act of the law', change of property. The word or giving up by a person of It is not a term of law. It has riot meaning has to be gathered from the is The word 'disposition' in relation made by deed or wilt and also dispositionV'1naC1e by or under a decree of a court. The «--w0rd:__'disposition' vvotdd ordinarily be used in reference to a dvot:'1;ir'rie:nt--.and not to the effect of that document. The removal of a'tl1if1g from one's self is involved in a disposal. The 'edisposition; is the provision creating the interest, not the {interest itseif. Therefore, disposition means a plan or ._.li'--'ari-gingement for the disposal, distribution of something; ii/' 64 property shall notwithstanding anything contained in the Act, or in any other law for the time being in force, be deemedto be property capable of being disposed of by him or:

the meaning of this Section.

67. In the light of the aforesaid'-vyvoirds'lused to sub--section (1) of Section 6 itl_is--.clear'the substitintedyVSection» . t' has no application and It shallln-ot affect.'o-rginvaliidate any disposition or alienation' _o;r_ or testamentary disposition whichhas takerr place the 20"" day of December _v Inilfother»..yvords_iif' there is no disposition or alienation of «a property_»belo'12.ging to a Joint Hindu Family, the daughter who"-is Vconferre_dVt1ile status of a co~parcener by virtue Qf ;p'sthe':.gets'Aa:' right' 'by' birth ' is" 'e'n'title'd' to "the" 'same "rights"

fin .vtheVco~.paifcen'ary property in the same manner as the son. The llanguagiej' employed in the proviso is unambiguous and clear. it intention was to save disposition, alienation it l..iincl1;itci«isI&1g any partition. or testamentary disposition of property '-«l.'>wh'ichhad taken place before the 20"" day of December 2004. M'/it 66 not by survivorship, and the coparcenary property_°slfiall'..be deemed to have been divided as if a partition had:*--taI§perilplacel_ Therefore, with the passing of the the concept of survivorship is given a go once and if

70. The word used is, implying rnale and female. This provision deals jpinterest Va' Hindu in the property of a Joint Hindui§overned';by'_Mitakshara Law. If the said Secﬁons 8 and 14, which deals tliesaid Sections deals with the se1r7'l'g:¢§quiié;}C§-51' oirfiigplécpjarate of a male Hindu and female. :VVWhereas,:{Ii) deais with the Joint Hindu Farnily propezrty} Hindu Family shall devolve by ""~..-testairrieritary or irtte------'--staté 'succession, as the case may be ll'«..u1iderith'is:lAf:tiand not by survivorship. Vvhen this provision is contrasted Section 6 prior to amendment, which dealt ld~evo1_ution of interest in a co--parcenary property in l..:r'espe'e.t oi' a male Hindu, his interest in the property shall ...l.'.-devolve by survivorship upon the surviving members of the co-

"'«.:parcena1y and not in accordance with this Act. Therefore, by this substituted provision, the devolution of interest by 67 survivorship is completely abolished after operation of 2005 Act. Section 30 of the Act:

testamentary succession. The extplanation Vto--fIth'a.t Section made it clear that, the inter°est:".otf"a mitakshara coparcenary property anything contained in the Act "any»..othe'r"iawr the time being in force, be capable of being disposed of by him"? by:her'.vsjithinithetrneaning of the Section

30. i.e., he interest also by way of disposition. When the amendﬁag ' that, on and from the cornrnencenaent of'=th'e:' Succession {Amendment} Act, 2005,' a..Joint"Hi_ndu family governed by the Mitakshara law, a coparcener shall by birth become a coparceher"'--«in right in the same manner as the son ' and haV€V."'tIi'E';.:!S£A11"n€ rights in the coparcenary property as she ' ha"-we had if she had been a son, the question. which arise yforeonsideration is, as section 30 was not applicabie to a h ,f_e_1n§ale Hindu coparcezaer in a mitakshara law, how her interest " . tin that property could be disposed of and whether Section 30 is it//' 68 applicable to her. It is to clarify this, _sub--section (2) of Section 6 is introduced. It is declared that, any property a female Hindu becomes entitled by virtue of shall be held by her with the ineipdents'"'Qf-.':COparcena._ry' ownership and shall be regarded, :'.notwithstanding contained in this Act, or any.oth_er la"w_l"or the"tir;:eV_pbei'ngVbin";

force, as property capable of of her by testamentary disposition.;..'_.*ip'hu5§V; is achieved with a male co--parcener who is vested the-.sla'idjVvp-ower by virtue of explanation [I}' t'otp;jp.rSection€p3Cl of Therefore, by substituted._Secti'o.n~..6V,'Vthedairghter of a co--parcener in a Joint Hindu Farni|_y governedbytllvlitakshara Law has been conferred adbe .sox_1.'v __ :1 the ec:_g1i'-upparcenary properties as she would have had if she the statrrstof a co.--parcener by birth and conferred same rights 69 POINT NO. 2 "PARTITION" UNDER HINDU LAW

71. According to the true notion of mitakshara family, no individual member of ll-that it remains undivided, can predicate that Particular member -- has a definite..A:s:1";i_,all1l*'€;v>.lllonesthirdV or one--fourth. Partition; . accord'i'1ig'Vp_:'toihat lavsﬂ-consists in a numerical division of the it consists in deﬁning the shares of the joint property. Once the agreement between the parties,__ partition is complete. After the shares are so ideiinedull'theaparties may divide the property by metes; and boiindsor they may continue to live together and lle'11joy'thé5-"property inﬂlcommon as before. The property ceases to iininediately the shares are defined and henceforth the '--~parti-es-ghold the property as tenants--in--common. A ldisruptioniof joint family status by a definite and unequivocal it i'indi.ca:t--lon to separate implies separation in interest and in although not immediately followed by a de facto actual division of the subject--matter. This may at any time be claimed lit 7E purpose of proving intention to separate. But an which by itself does not create any right tnite're"st:..V_"'in"» immovable property but only a on partition does not require "'regis_Atratioii._"' HUW€\f€3Ifi"l'.a memorandum of family sett1e1nei'1t beingpnot av.Vpartit:'.o1i deed ' does not require registration. d.oesr_not_;§ however, amount to a transfer of means that the totality of the property' which all the coparceners be transformed into separate in respect of several items.ofp--r.opertiesi.aIlotted to them respectively.

72. instituvtiotiiylofsuit for partition by a member of a j;oint,_"fi:m;i_-iy as an""ur:.e-quivocai "intimation 'of h'is"i'nt'e'ntion to"

'V_sepai'a.te;,and~.the.re consequently is a severance of his joint stat.iis--.ifro'm4--".rh§:= date When it is instituted. A decree may be 'pnecessaiy' ford working out the results of the severance and for it luualiiottinpg definite shares, but the status of the plaintiff as in estate is brought about by his assertion of his right '«l..:lto'separate, whether the obtains a consequential judgment or it "not. A suit must in substance be a suit for partition with a 74 conferred equal right In coparcenary property with the son would be entitled to a share in the coparcenafy that of the son notvvithstandlng fact _--'thstt"

partition of the coparcenary prop'erty;"'a.e' rcc0gr'i1SéVd:V't"--uﬁ€i€1' Hindu law vis--r;1--vis, the law ofvpartition;-._

75. The second mode reeo'g111:2;edV"'as perhthe deﬁnition of partition is, partition "effeeted"h35;i of a Court". The word decree is defined VP1'eoedure Code 1908. The definition«"re.?;d'e~::'e1e- V if V '''' ., /' expression of than dd so far as regards the ' Cottfé .Vex197'Vt'§'§Singb' it;--""beonClu.sively determines the of parties with regard to all or any of g in controversy in the suit and may ' &Ve.itherVV}orelimina1y orfinal. It shall be deemed z the rejection of a plaint and the ' determination of any question within Section A' 144, but shall not include-

{a} any adjudication from which appeal lies as an appeal from an order, {b} any order or j_

76. It is a formal expressi"onz'0f an a(Ij_uclicatio;n which so far as 'the Court expressing determines the rights of the parties with'. the matters in controversy in jthecsuit. hpeilyfpreliminary or final. In a partitio;1"siii.t,f"'ivri'_,_a: the Court declares the _v in dispute. In other words, 'yvhic.h:eac~h.members of a joint family in the said joint fanii-lyAA'--.property or coparcenary property is 'decree"is" a'ppe'a.l'a'bl'e. "Whe'n"a trial Court lhﬂdecreesp the decree is challenged by a competent appeal,' the is considered as a continuation of the suit, fanol the appellate decree affirms, modiﬁes or reverses the l'..decrec.yponV' the merits, the trial Court decree is said in law to the appellate decree, and it is the appellate decree "*«.VVl§yhich rules. However, what the Court does in a preliminary decree is only a declaration of shares. It does not effect a 7'7 PHOOLCHAND AND ANOTHER V. GOPAL LAL, AIR [1 967) SC 1470:

"We are of opinion that there is the Code of Civil Procedure which prohilottsv passing of more than one pfrelirrainary circumstances justify the necessary to do so particularly when after the preliniinarjy.-duecreé'~.s_orrLe jjarttesiidie and shares of other"

We have already .notV-disputed that in can do so even after the prelimiriary goassed. It would in our lguptﬂlonléll ".'1con'oenient to the court ' and _ the para, V it to have disputed rights ﬁnally and specification of shares in the pfel_i%riinar'y decree varied before a final decree is A.V:»:u;vrepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no dgfjiculiy in f éiltsetf be liable to appeal. We should I I out that what we are saying to partition suits, for we are not A in the present appeal with other kinds of g suitst' in which also preliminary and ﬁnal decree are it = passed. There is no prohibition in the Code of Civil 78 holding that in such cases there is a ~ deciding these disputed rights: if so, reason why a second the shares in a partition suit he the court. So far therefore~v..as concerned we have no "that ' an eoent transpires after V T -- decree which necessitates'~a__change' can and should :.:.a;,;ri: cidispute in that that dispute shares specified in the preliminary 'decree, aiready passed in a decree in Procedure against passing a second preliminary decree in such circumstances and we do not see kl//,c 80 decree does not arise in the present appeal ~ that we express no opinion. We therefore in the circumstances of this caseii' Court to draw up afresh of the parties had died afterithe pAreiimi;1.ar'y decree and before the final decree "passed}'v»I<'v.1.rther

-as there was dispuxte'tthe parties 4i'o"oppe'al."~WVe' therefore agree with the view I that in such circumstances a decree can be passed in A suits by which the shares allotted in the ff preliihinwy decree already passed can be it * amended and y" there is dispute between surviving as to deuoplutrfon o_f"th'e-- parties who were by the h and therefore the passed was mended, the a decree and was liable parties in that behatf and that dispute is decided for decision amounts to a decree. We should 8% however like to make it clear that this can only:

done so long as the final decree has passed. We therefore reject thiswcontentionll appellant. ' ._ f v_ s. SAI REDDY vs s NARAYANA .m:DD3:f_A1vD origins. 114519.-:r1'}r. 3 SCC 647]:

"7. The ._VlioAivever, to when a partition to effected for the _;jarp_o:s'es;1._ofit'he 'arine:nded:« provision. A prirtiiionfi can be effected a family settlement, by a registered» of partition, by oral ~;arrangemen'i' by____the parties, or by a decree of the h V' " .. ,cei;;+z;. a suit for partition is filed in a court, a is passed determining shares of i-iieviﬁieinbers of the family. The final decree " folloivs, thereafter, allotiing 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 2 82 put in possession of the respective property, partition is not complete. The preliminary which determines share does not bring ﬁnal partition. For, pending the finr1l"._giecree' h«t_he":7 shares themselves are liable"._to"--__be account of the interveningsiheventsl In V it case, there is noVdispute.l'thaht:'--onlg.'a preliminary decree had been the final decree could' be Act came into (ii) of Section 293A _ _'=iAc:jf:g.ggcanie applicable. This intervening eventhhgggwhich gave shares to ;respondents:2 to the effect of varying shares g,f3»-gfgehvhhpafﬁesHlilce any supervening development. gvtrielegtslation is beneficial and placed on the A stataf'e'ti'book with the avowed object of benefitting worrien which is a vulnerable section of the society it * _ all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in lo 83 mind in the present case with a mere severanceiiof the status of the joint family which can be by an expression of a mere desire member to do so. The partition"-thr}_tithe 7A has in mind in the presenttasebis partition completed in brought about A preliminary decree. Vrnere shares which _ change does not bring Hence, we are of eeunless a partition of the property. metes and bounds, the idaaghters. A' be deprived of the benefits by Act. Any other view is likely to section of the fair sex of the benefits by the amendment. Spurious famiiy setdenients, instruments of partitions not to speak oral partitions witl spring up and nullity the beneficial effect of the legislation depriving a vast section of women of its benefits."

84

77. Therefore, it is clear that if on the December, 2004, there is no partitiorreffectedfay" the it ' court thereby meaning a ﬁnal ciec'ree?'_'_'for: plartiﬁorl reached ﬁnality, then, the daughter of a" coparce-ner"is"entitledat to equal share in the coparcenary._pi'op'erty as Qfta son and Section 6 is applicable'""--t:o_such,' _ The legislative intention is clear; v"l'hey'" beneﬁt of this section to a not wanted it to be defeated well understood under Hindu aguit for partition is filed or a decree for been passed by a trial Court. On those gpgroundpsgl they did; not want to deny the daughter her in coparcenary property which ought to have to her on the day the Act came into force narnely 1}'*~i* urie 1956.

_ pp registered partition deed could not be prepared, gpltantedated and registered after the coming into force of the Act, it Sirhilarly a final decree for partition cannot be created or manipulated, just to deny the daughters their legitimate share 85 in the coparcenary property, and a partition by instrument and a final decree for partition that attained would reﬂect the bona fide condt1ct».of the normal circumstances. They did not thtose' transa_"ct.ion:s to be affected by the substituted SL°C_tion Actbtt Therefore a partition effected AVinu:'th_e"e manner before 20"? December qéaaikagffrom the purview of Section 6. Except--those."t'wo« Xivhatever may be the Course .Qf3._:0'f€ daughter of a coparcenernraspp property equal to that of a son',

79. There1'ore,-_t1'iev btconvcept of partition and severance of _th-e- -a und'er-.15-i;nd-u - Law -has no application -under - -the - definition of partition by way of Explanation to'*snb¥seVctio:n $15) of Section 6 of the Act and it is only such 'V partitionapwwhich are not affected by the effect of amended " '2_'Se'cti-on eef the Act.

86 POINT N0. 3 mr IS THE RIGHT OF A MARRIED DAIIGH?1'lE!.{u?:wA.l.::' I.

80. The bill prepared by the Lavv provision making the amended provision not-"--lapp1icahle'~tow married daughters. That is precisely What in the amendments carried zto 'legisvlatures of Karnataka, Andhra Pradesh.'_ Tamil Nadu. However, in the pasisedgbhy we do not ﬁnd the said provision did not find favour people and is deleted from Jhefore it is presented to the Parliament: "T_herefor_e,A'ﬁiheintention of the Parliament is clearly WV.,;manifest;-éfrorn -Sec-on-d-ly-, -the -marri-age~ has I1-O~ - - --

"--__releevanc--e_"io"«vthe.__succession or inheritance of the property. Whensa marries, his right to succeed to a property 'V or inlierit a 'property is in no way affected by the act of V' ijrnar*n'age.l' However, in the case of a daughter in a Hindu a distinction was sought to be made. After her it marriage as she ceased to be a member of the Hindu Undivided U Family and becomes a member of the Hindu Undivided Family ::/a 88 interpretive process the word 'married daughters' in ariy form and in any context to defeat her rights Conferred"--ﬂuIider amended Section 6. when the legislative intentioiriss clearly and unambiguously without'"'i'eaving for it interpretation. Thirdly, the lariguageh declaration made in Section h6..:Vg"raakes.V' the' intent"? explicit and clear, i.e., the dauhghter-.of--~a. coeparceneir shall by birth become a co--parcenar- in the same manner as the artd" in the co-

parcenary she she had been a son.

It me,m%_§ sori possesses in a co--parcenary property is._soi1ghtt..to:'be;4corifedrred on the daughter. The son would; 'ncthlose 'rightV'in.a co--parcenary property because of this It iswthat right which is conferred on the therefore, when by birth son acquires an interest in =.4co~p.arc_ie:1ary property and retains the same, ViEQt"7ith.St_8A.}[1ding his marriage, when the daughter is also g4.'conferi§ed the same right, it means she acquires a right by birth hiyrifthe Co--parcenary property and she continues to hold the said right notwithstanding her marriage. The daughter's 89 marriage will not put an end to the right of the to a co--parcenary property which she acquired by not the interpretation to be given to those Section would be violative of Sectionlll of:".th-eg which declares that there cannota47..be'--._zany between person and person on basis' ofsex be a distinction 'oetweeh~.__a and'uVa~..daughter""under the constitutional scheme. otherlinlterpretation would mean there beia between a married daughter is again opposed to the equality Articlelé} of the Constitution. Then thewhole --.bfinging about this amendment, by substituting provision inllthe existing Act and declaring that V. the da§,1ghterv%would«get_¢a right by birth in the same manner as "Would.ybeddefeated, if any interpretation is to be placed {ﬂaking .°distir'1e'tion between a married daughter and an unmarrieci daughter or a married son and a married daughter.

- '~___VThat is "rl.Q__t3 the legislative intent and purpose. On the contrary, A ~'-such an attempt was made by the State Legislatures and .'_yj__tl"'1'e interpretation placed on the aforesaid provision resulted LEI} 91 struck down under Article 14 of the Constitution. It suffers from twin vices of gender discrtrntnation inter se among women on account of between a rnarried $7 SO11.

EFFECT or AMENDMENT ON S"rA'rE _ AMENDMENT i.e., SUB $rr.c'noN 6~A

82. intestacy, succefssioing and partition is at entr,§r'h"V1i\vTo1£"",-:iV5»V_Vi11 Scheduled/II of the Constitution of «the pariiament and the State Legisiatures are_'cornpetent"' to pass law in respect of the same. 'ft isp,ursuance"of"'ti'ie power conferred under Article 245 of :'--.of India the Indian Pariiarnent passed the Hintiiisucceeeion Act, 1956. Section 6 of the said Act dealt devoligtion of interest in co--parcenary property. Section 6 A ~"it clear the devoiution of interest in Mitakshara property '«i«.--'isV'.by survivorship upon the surviving members of the co-- parcenary and not in accordance with the Act. No female member including daughter was a member of Mitakshara co- ti...//"

92

parcenary. Therefore, the said provision did not cori§er,:az3y right on the daughter. 3 it A it

83. The Hindu Succession" at Act, 1990 was enacted by the Section 6[A}, (B) and (C) in ";1956,"S Central Act 30/ 1956 Sections. 'State. Ac-it received the assent of the Presidehnt and it became Karnataka Act I Act for the first time to.) in co--parcena1y property" 'Was the C" Karhataka State Legislature. The said"'3_av§dwas_ to_;Section 6. However, as the said Amendmentﬁctvvreceived 'the assent of the President, though. the 5State__fLaw wasrepugnant to the Central Law, State Law V".__preirai1ed_over._the_ Central Law. Sub--section [d] of Section 6(a) right conferred on a daughter in the co- ', parCCf1F}rSt.'V property by birth shall not apply to a daughter V' t:'rnari'r'§ed prior to or to a partition which had been effected before Ccommencernent of the Hindu Succession {Karnataka A " Amendment] Act, 1990. The said provisions became a part of it the Act. Thereafter, the Parliament passed the Hindu 93 Succession (Amendment) Act, 2005. In the amended provisions no distinction is made between the rnarried daughter and unmarried daughter. Simi1ar1y,A..__"ttieﬂtsrord partition is intended to be conﬁned only a. evidenced by a registered deed of partition. or'..&partitivoi1 effected by a decree of a Court. These two pr'ovisi_ons afeiprepu,gneii1tV'to_ sub--section (d) of Section 6-11'7iﬁI*ieVbquestion.Vjgjyxitiettiefjboth"V these provisions can coexist ore-~inte'nd'er_1 to su'bsi.st~." In order to answer this question it is oneeesjsary 'to: refer' to Article 254 of the Constitution whiclfi re'éids'as L;r1d;er_:«~ 7 ~ it _ ' " inconsistency between laws"i-n1acV1e°iby'" and laws made by the Le¢.ViSvliC2li'i.i.i1'eS.'VO_fA States d .61 if xany----~provision of a law made by the V " of State is repugnant to any provision of by Parliament which Parliament is to enact, or to any provision of an it existing law with respect to one of the matters ' "enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law it//"

made by the Legislature of such State, as the case may be, the existing law, shall prevail and the law___ made by the Legislature of the State shall, to extent of repugnancy, be void. S V (2) Where a law made bymthe State with respect to one of enumerated in the Concurrent':Lis't__eontains" any provision repugnant to theprovisions of law made by Parliament iigaith respect to that nicitter, law so by the legislature of 'itihas been reserved forvthe consii'ieifq.tion."of ytéreslident and has received, assean-t,__p.revail in the State:

xPr_Vov'ided__ tf;at'«.nothtng in this clause shall ééfevent iP¢iri'liié#Itr¢f1éff¢r?1lemmings at any time any u;ithy_.respeot« to the same matter including a S " " amending, varying or repeating the * 'vlaiv by the Legislature of the State."

84.R}_ This Article was the subject matter of '~:§11terp'retation by the Apex Court on various occasions. In the ___"'l'."case of T. BARAI Vs. IiENRYAH HOE reported in AIR 1983 'V V _ it 150, the Supreme Court held as under:

git,/» 95 "There is no doubt or dijffculiy as to the law applicable. Article 254 of the Constitution maicesﬂ provision firstly, as to what would happen _i.n._ihe'*- V. case of conﬂict between a Central and State lauvfj A with regard to the subjects enumerated'-i_n the Concurrent List, and secondlywfor resolvingjsuéh. " , conﬂict. Article 254(1) enunciates the(_riorr31al"m_leV" ' . that in the event of a conflict between --*a Union"and:*--.. ' State Law in the concurrent 'field, thev_--v_form'er S' prevails over the latter. Clause (1) lays down tltatif a State law relating to Concurrent 'subject is 'repugnant' to a Union law relating to that subject, then, whether the:"Uniont..(law prior or'l'ate"r in time, the Union law._u'<ill prevail "and the State law shall, to the extent of such i-rcpugnanvcyt, " be void. To the general rule laid..down in Clause ("1),~ 'Clause (2) engrafts Qlifyexcepgiion, "that 1'f"i'he President assents to a Statetlawlwhich been reserved for his cons'iderati0n, ii~.wi_ll 'prevailt' notwithstanding its repugnanciy to an earlier" law {of the union, both laivs---Vdeal.ing"'3z;%ith concurrent subject. In such a case, the Centtral Actwill give way to the State act only to the extent of inconsistency between the two, andino' nzore,'In'v.short,"'.the result of obtaining the

-as-sen't._of the'--Presiden't--ta- State-Act-is inc-0-nsistent -- _ with a previous Union law relating to a concurrent

-subject' would be that the State Act will prevail in that"«v...S"tate,j.v~and override the provisions of the . "'vCentr"al---Ala-t in their applicability to that State only. preaoniinance of the state law may however r':-evtaken away if Parliament legislates under the proviso to Clause (2). The proviso to Article 254(2) ., A' ' empowers the Union Parliament to repeal or arneno'. = ._ _a repugnant State law even though it has become valid by virtue of the Presidents assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter'. Even though the subsequent law '.5 96 made by Parliament does not expressly repeala-.,,_ State law, even then, the State law will void as soon as the subsequent law of --1- creating repugnancy is made. A State laLU«.wauldi' i be repugnant to the Union law when there' :d.irec,t conflict between the two laws." "Such rfepiignancy I may also arise where both lvaws,-.op}er'a.te ..;'n--. the'; same filed and the two cannot '--possible._ stand" V' together, the law made by parliament shallprevail ; over the State law under Article 25461).' That being S so, when Parliament stepped in and 'enacted}the Central Amendmen!"Act, igt---be.ing a-. later law. made by Parliament "with*:espect. to the 'same matter", the west Bengal Act stood implied repealed." " ._ vb ' ._

85. in :"ti;e5A:i,,¢ase 130:9 ..;f'r;a;r¢t;f2sctU:§tIVGA KIRUPANAIVDA VARMYA "" .V,gV'sUIvbAx*aA SWAMIGAL MEDICAL EDUCATIQNAL TRUST Vs. STATE OF TAMIL NAI5U,lrevpotted' 1996 SC 2384, the Apex Court "The fact that the State Act has received the '--..,ass'ent»--..of; "the President would be of no avail because; the repugnancy is with the Central Act "ivl'liz;'h.' was enacted by Parliament after the enactment of the State Act. In view of the proviso to " >._sub%Article {2} of Article 254 parliament could add x _ to, amend, vary or repeal the State act. In exercise it of this power Parliament could repeal the State Act either expressly or by implication 98 Legislature of a State with respect to one of the matters enumerated in the concurrent list contains_ any provision repugnant to the provisions S earlier law made by Parliament. then the_,'law_soa_"' S"

made by the Legislature of such State shall.' if_i.'it' has been reserved for the c_onsideraiion""Qf;.the_' President and has received his assen.t;'«_ptevail~.in_ the State. Provided that nothing. in clause Shall. ' " ' prevent Parliament from enacting atany time any "

law with respect to thesame matter .incl.ud»ing...a law adding to, amending, or'*repeaEingv:the law so made by the Legislature ofvthe State."

88. Dealing w:thu"ih_e qi_;ee§,i1of;'ei.g§t.V:i:e_p1ied repeal. the Supreme Court irithe cgts"e"of1'}:iiLiw_11\?T Vs. GURDIAL SINGH MANN; 'in: _g'1R12oattsc.'i'273, heid as under:

A 2 "On ti"tefdocirir:e"i>_,f 'implied repeal. Mr. Mehta contended 'that._1prOceaural law must be having a meariingful existence "without being in conflict with 0 _preliniinary..legislation. Undoubtedly. the doctrine ., {of implied repeal is not to be favoured but where a . ' " rprteeristenr cannot ' co'--ex'ist" or" "intended to subsistéinvthe event of there being the repugnancy _ " bevtwgeen Central and State legislature the Courts .._eannovt._b:t'i"Vdeclare it to be so on the ground of _ repeal by implication. Uniformity of law, being the basic characteristics of Indian jurisprudence cannot be ternied to be at sujferance by reason of a state ._'Legislation which runs counter to the Central _ "legislation. It is not necessary that one legislation " should be on the positive side whereas the other one in the negative. Such a stringent requirement is not the requirement in order to bring home the issue of repugnancy, but all the same it might result when both the legislations cover the same field. The observation find support from the 99 decision of this Court in Zaverbhai amaidas u. to State of Bombay (1955): son 799: (AIR 1955'-4~s§:____j' __ 752 : 1954 Crl. L.J. 1822) wherein this "Court ' observed (para 11): V It is true, as already pointed out, that'-an"'a c';'uestton,_L A under Article 254(1) whether the Act Parliament» "

prevails against a law of the State, 'no question of S' repeal arises; but the principle on ichich the r'a_le'--of implied repeal rests, narrie'y,"l»that f.th"e --subject~ matter of the later legislatiQn:'is__iCtentical' 'uaith that of the earlier, so' that they cannot both stand together; then the earlier-hisi.repéalecl"by the later enactment, will be equally 'applicablejto 'a question under Article .254(2,,""whether_the further legislation by Parliame'n._t'_'is in respect"«of'vtf_Le Vsaffne matter as that of the,VSt-:tte._Vlaw;"

proviso to Article 254(2) empowers the Unions .lP"arli'a.n1ent to repeal or amend a repugnant Statevvlaiteeven it has become Valid by Virtue t of th€tii.PreSildentidS Hésentiltt Ptarlialrnsnt may reveal '.'T__a_1'.1¢.n§_'h¢ t law, either directly, or by itself enacting a law repugnan't7t_o___th;e"VState law with respect to the 'same matter'. V St _ Even""tho:;1'gh»the subsequent law made by Parliament does not Vexpressllfrepeal a State law, even then, the State law will i' ,beco1ne void as soon as the subsequent law of parliament % creating repugnaney is made. A State law would be repugnant " to the Union law when there is direct conflict between the two IO] repugnant to the State law. As the amended law is.'pa'ssed_ by the Parliament it prevails over the State law by the State stands impliedly repeaied _--'to""th_efextcntxiof repugnancy. As such, the married daughter Vdiepﬁived of her right to a share in the :_co._-ppareenary With the passing of the Amendrrient Apt 6-Nd} stands repealed. Married daughter _is'f._en;titpfledfftojl'equal share with the son in the Coparcenary properties,

91. Theretfore, a inariied..daughter is also a co~parcener and is Zenhtitiediefto the son in the co-parcenary properties and her' no way affects her right to equal sharein the co~ppa'rcei*ialn;fproperty. Even after marriage she to haire~------the same right which she had before finariiiaget right to coparcenary property flows from her 'oirthfasv tiiat the son. To find out what is the right of a daughter fa coparcenary property, find out what is the right if the son. Whatever rights the son has in the coparcenary ' property, by virtue of the amendment the daughter also has "such right. That is the object behind the legislation ie, to achieve equality in the right of inheritance. 104 no application, for, of course, it is obviously competentffor the Legislature, if it pleases, in its wisdom to make tr;e,,'pr§vis;idr:.s of an Act of Parliament retrospective. Wherefa sejctionl of _,a V' statute is amended, the original ce;a§ses"toeXist« t1'1e5ne'w section supersedes it and becomes apart of thelaw j.us--tlasV'if_ the amendment had always beenthere. retrospective in operation". eflstatutes "areV§obviously retroactive, and hencef' '»»g(?neral rule, to retrospective OP?'-§t§.ojn. their very nature, they will prospective effect. Being subject to a liberal--~c_onst1*uc'tion,fany doubt should be resolved in favour Nevertheless, there are even plgirnitations» the" extent of the retroactive operation of ffcumttirye 'Obviously, they cannot violate provisions of the N'or:"shou1d they interfere with or destroy vested _ rights__ of tt1i1".d§parties. A retrospective statute contemplates the [past-..and gives to a previous transaction some different i effect from that which it had under the law when it occurred or transpired. A retrospective law is one which reaches back to and gives to a prior transaction some different E07 "3. Substitution of new section Section 6.- for section 6 of the Principal Ac;t';"th§: " ;_. following section shall be substituted." ' " .. WHAT IS THE EFFECT OF sUBs'r1'1;"z:J'r3i_(j)___ﬁ

98. A Constitution theliapex case" V S' of SHAMRAO V «V5. VAVVEDISTRICT MAGISTRATE THANA, HERS, reported in AIR 1952 SC 324;--dealing' substitution of a provision byéway _2:irr1elj1:~t1'm_ent.___,.-- iiclci ,a:§iinder:

which has been arrllenoledl .by technical rules and we Ac~learll~'Sregarding the proper canons rule is that when a subsequent an earlier one in such a way as to " or a part of itself, into the earlier, earlier Act, must thereafter be read and S SS conetrued (except where that would lead to a repugnancy, in consistency or absurdity} as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so 108 that thereafter these is no need to refer to amending Act at all. This is the rule in Engi'aiid.. is the law in America. It is the Council applied to India. "

99. In the case o__f.SHA - VS» T GURUSHANTAPPA, 19:52-51}. 327, 3. Division Bench of this Court held .3's"undef: h i. V notiriregarded as an independe_nt.statute.V s-tatute in its old form is stiperseded"the 'staiu_te in its amendedform. the arnended sectionVoj"~the<.s'tatute taking the place of the onginai section. all intents and purposes as the amendnfientt had always been there. The V be considered as if embodied in V' 'vt:'A?::e:"'1;:A)}i45Ié'.:."'§'»':gfC£I§l/£1'é3 of which it has become a part. .""Unies'sf intent is clearly indicated, the statute is regarded as if the original staiate had been repealed and the whole statute in , ""'i?e»enacted with the amendment".

100. Yet another Constitution Bench of the Apex Court it in the case of SHYAM SUNDER AND OTHERS vs RAM KUMAR 122 hitherto made or hereafter to be made, then, un.less_lK_ a different intention appears, the repeal shallmnt:-t.}' -- (0) {b} (C) (dz _ --«.aj)iect - any f investigation, _ 'pr"oceed'ing for remedy in respect of any "~.SU.Ch _ _ felt revive anything not in force at the time at which the effect; or affect the previous cperationp of, V enactment ,so,_ repealed or,,~'anything; duly done or--_3y4L"LV~«£fered V'therean'c.i:er;.poi' r affectpzny rig-ht,l_.priz5ilege, oblzgatian or liability"'~..acq.uired," accrued or incurred under any eraactmentv so repealed; or 'apffectlﬂ _ forfeiture or "',;punis3hm*'ent incurr'ed..in-- respect of any 44 iillgﬁfence .corrinii'ited.

" ' enaetrrieint so .repé:aled,' or against any legal privilege, obligation, liabil.ity,.. ~* penalty, forfeiture or if _ V' 'punishment as aforesaid.

_ and such investigation, legal proceeding or remedy "may be instituted, continued or enforced, any-,,.such penalty, foagfeitiire or punishment . ff-be? imposed as y" the repealing Act or Regzilaiion had been passed.

it it 1T2. A power to make a Iaw with respect to the topics " -rvpower to repeal a iaw on those topics. Substitution 'committed to Pariiarnent or State Legisiatures carries with it a ofa provision resuits in repeal of the eariier provision and its E23 replacement by the new provision. Substitution thus combines repeal and fresh enactment. Since repeal of a law from the date of repeal and the law operation for the period before its repeal witb;out.:assistance of .p any saving clause for transactionsﬁpasgt'andclosed,"it"rcan;_be retrospectively amended to affect such t.transacvti'o1fis..yeven its repeai. Section 6 of the applies to all types of repeals. The the repeal be express or implied, entirebr it be repeal simpliciter fresh legislation. The effect _to{C'}«.of".section 6, General Clauses Act is, to preventiltheél statute in spite of its repeal to keep; intact rig-htsacquired or accrued and liabilities incurred "during operation and permit continuance or institution of Wany legal~i.ip'roCeedings or recourse to any remedy which may have been _aV'ailab1e before the repeal for enforcement of such brights liabilities. The distinction between what is, and not a right preserved by the provisions of section 6, W(_§eneral Clauses Act is often one of great ﬁneness. What is unaffected by the repeal of a statute is a right acquired or to E24 accrued under it and not a mere "hope or expectation.""Qf"', or liberty to apply for, acquiring a right. A 4_ between a legal proceeding for enforci.ng all ' A. accrued and a legal proceeding for The former is saved whereas "latter is not._V it ..question' whether a right was acquiredy_0r:'a._liabi1ity under a statute before its repealrbwili. depend on the construction of t'§1.f:v'.statu'te'~and particular case. General sayinggs A it liabilities incurred under a_repe'ale:d 6, General Clauses Act, are suliject evinced by the repealing Act. In case of taplbare hardly any room for a contrary intention; but» 'When the repeal is accompanied by fresh lV"1egislati'on same subject, the provisions of the new Act be-looked into to determine whether and how far the=~new_ .Act4eyinces a contrary intention affecting the operation V"-of psectiori 8, General Clauses Act. The line of enquiry would Whether the new Act expressly keeps alive old rights .A "and liabilities but whether it manifests an intention to destroy them, for unless such an intention is manifested by the new law Act. the rights and liabilities under the repealed continue to exist by force of section 6, General a the repealing Act and not the Act repealed ' . the contrary intention so as to exc1n«de:--the'l operation pofl_se_ction

6. The silence of the repeai.i.ng.. Actfis consistent-VV..arid not inconsistent with section 6 appy1y1'njg._ Z

113. The amended it 'about the rights of other female pvrelativesipdof 'dying before the commencen1en't..4_'of:the'~gméiideqi. itilere is nothing in the afcontrary intention affecting the 0peratio_n the unarnended Section 6. The amended Section do l'not«.:nanifest an intention to destroy the (:'.f'_:OAV.1'1f§1"}£'€C1"x§_1I7_l..{.'.].('T'.}." the proviso to the amended Section. 'S1iLvsection'«v..(t'3'}.._of the amended provision provides only for devo1utiori.V--"ofVpt-he interest on the death of a Hindu, after the an1endrrlentxAct. In the case of a male, if he has left behind a :f..ferhale relative, the proviso to Section 6 applies, as the amended provision makes no provision for such a contingency. "i'i1erefore, the unarnended Section remains in operation for the period before this repeal.

by the unamended Section 6 by virtue of Section'd"p:'o:i"v.the General Clauses Act.

jg! OTHER 1\/{ALE MEMBERS

116. In a co--parcenary property/T."'.yptIie' acquires right by birth. Ono-ehe iri laicoa parcenary property vests in ~a But what is the extent of that*~i(estedHrilgh:t_, pilsvnot deterniined on the date of his birth. Though a ¢o--iparz§e:.i«;§r' right in the co-- parcenary prope:~tyL_'E3y 'thelshareifloi such co--parcenary is notVvdeﬁiiiteiiyanld?-ii't xivilll'-be tliiotnating with the births and deaths fiierefore, no co--parcener can say with definitenessyrliat h.isA'share at any point of time. The share to a__Tco--Vparcer1er..i:s« entitled to, is determined at a partition. On" pa1fr,it'1on,. his share is ascertained, whereas on birth, the nghtiivestsll-l'i:_i:alco--parcener. It is also well settled that in a partitioniysnilt, even after a preliminary decree, depending upon it V' ..thei~interyening circumstances like births and deaths, the share

-- 'allotted in a preliminary decree can be varied by the Court in it "the final decree proceedings tin the properties are partitioned 128 by metes and bounds. The right to a share is a vested right. but the extent of that share is not a Vested right.

117. it is contended that once succession'-«totpergsiwitrithe death of a coparcener, the share oi' tttheother coijarjceners are T also determined. men though bounds takes piace immediateiy~;._y the" said--.VAsh_areVWcannot be altered, as it is a vested .right.yAi-Aiifested. right 'cannot be taken away by amendment. contention, they reiied on a decision of Diviisionﬁenchf-of this Court in the case of M.PRI:t*H12ire.»§;I GTHER$"_"'vs"V4SMT. LEEIAMMA N AND OTHEIJES [2_008_ where relying on a judgment of the Ape:i{"Court'in the 'case of Sheela Devi and Others Vs Lal Anothe.:....§2007 (2) Civil LJ 364 it was held, the 'aIn'ended'pr'extisions of the Hindu Succession Act, 2005 are not applicable-.V--tjo facts of the case, since the succession had already"".cVotiened _ in the year 1969 on the demise of it V' ..K.Do.ddananjundaiah. The aforesaid judgment do not lay down 'iaw. As is clear from the aforesaid observations the " Waztnended Act is not appiicable to the facts of the case. The said judgment was rendered following the judgment of the Apex would have no application. Subsection (1) Section 6 of the Act governs the law succession on the death of a coparcener 4' :"

event the heirs are only male descend-a.r.1,tfs[;.,V proviso heirs appended to subfisiection (1 of 6 of the Act creates an exception. sonlqf it A Lal, 1212., Lot Chand, op coparcener._.3 Section 6 is exception to thepeneral"ru.ies;v': Itllwas, therefore, obligatory'. on the the plaintiffs» respondents to shoufthat Chand, Sohan Lal will also .d:en:vev.the laenejitthereojl So far as the 'second:=__son concerned, no evidence"'ha.s. to show that he convina into force of Hindu Succession Act; . 1956*'? p it _.

.,._§gIlV18, Hovireveif, the Supreme Court after referring to the ,é1foresaic1VA.j'o,dg:nent, in the case of BHANWAR SILNGH vs [(2008) 3 sec 37} held as under : W V V "22. In that case, as noticed hereinbefore, A' ' Ram had no son in the year 1922 but a son, Chand, was born to him in the year 1938 and another son, Sohan Lal, was born in 1956. It was in the aforementioned situation, this Court held that a joint family revived on the birth of Lal jg'/,..

I31 Chand. This Court, in that view of the opined that as there was no proof as 'V' the second son was born after the Coming. of the Hindu Succession Act,jitHw'as_fteld«that_ heirs were not entitled to the" W coparcenary interest. V . '

23. Sheeta Devi, th_e_rejTore.t_».is not.at)plicable to thefaet of the j. it it

119. Therefore, the are purely on the facts of those_Vcases_ really interpreting the arrgendeld Apex Court nor the High Court, inthe afores'a_id_lld'eeisions were interpreting the amended section andlthgeyVhave'*.no't. laid down any law. Therefore, the 'l V' _aforesai(:l,judgrnents'"are of no assistance. before the commencement of the amended Section succession opened and a co--parcenar acquires a specific in the co--pareenary property, which vests in him Lonvthe date the succession opens, it is open to the legislature in .' exercise of its plenary power to take away such vested right by l "making the law retrospective. It is only when the amended law it/ 139 'N "Yatra Naryasthu Poojyanthe, Raniantheiifhatra,iﬁevvethahai"

The deities smile on the family the fema1'es': areihonoured (held in respect} i' ' "

ON FACTS:

126. Coming to the 'facts is not in dispute that it is the d.efejridaritsV' that the schedule propertiesiaie The kartha of the Joint Hindu Family,' I)V§zsi;'V2is-.::.t:}_11::-;,::';f?;umar died on 31.12.1984 inte state. _'i'here"was rio'v._partiti~on between him and his sons during He"left....behind 2 sons and the two daughters ineluclingé'the-.}§I'a.intiﬁ° apart from the 15* defendant widow. By virtueof theV't;f_krriendment Act, the p}aintiff--the daughter of a co-

'.Vparcexmer;"in Joint Hindu Family governed by the Mitakshara "_fLaW*-E7«y becomes a co--pareenar in her own right in the saijnemanner as the son and have the same rights in the co-

" jjareeriary property as she would have had if she had been a son. There were 5 eo--pareenars of the Hindu Undivided Family availabie__flor,npartition is not disputed and challenged in 0 0 ".fhiiSVéPP€a1. it ' I42 suit on 10-10-2002 defendants 1 to 4 filed a _to alienate) the suit property pending disposal of ' present appeal is ﬁled before this Courton 7. if the aforesaid sale deed is executed 24i'1_t?;i2.004V; off date stipulated in and alienations from Section 0(1) of'substitutfedsection, as the said alienation is 'pendency of the proceedings, it i.§_'~_:l117fC byithég Therefore, notwithstandirlg'_pth:_eaforesaid dispositionlalienation before the cut off cpj_ate,v' not take away the right of the plaintiff "under the substituted Section. It binds only parties: instrument. The right of the plaintiff in,respe"c;t property is in tact. Therefore, in the said contention also. The fir1dirxgVVo.f that properties C and D schedule are 129 .

orde-r:~ {E}

(ii) {iii} {iv}

(v) .j;:1;1;{1§s§/ugk 143 In that View of the matter, we pass The appeal is allowed.

The judgment and decree__ aside. ' p A 1 V» 2 V It is declaredthat thex.§tati1t:[f aentttied to 6/25th share in the sehedute properties Plaintyff'_ts profits. It is to be Fter int decree proceedings.

Pcufties-«1.to their C!.1,t)1ff_l£}"OStS. sg/..

IUEGE 35/;

WE GE

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Karnataka High Court

Pushpalatha N V vs V Padma on 19 March, 2010

Bench: N.Kumar, A.N.Venugopala Gowda