Bangalore District Court
Smt.Venkatanarasamma vs Sri.Venkateshappa on 12 February, 2015
IN THE COURT OF XXII ADDL. CITY CIVIL &
SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 4th Day of February 2015.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XII Addl.City Civil & Sessions Judge.
Bengaluru.
O. S. No. 3 4 1 4 /2008
Plaintiffs 1. Smt.Venkatanarasamma,
W/o. Venkateshappa,
Aged about 48 years.
2. Smt.Kavitha,
d/o. Venkateshappa,
aged 27 years.
3. Sri.Viswanath,
s/o.Venkateshappa,
aged about 26 years.
4. Sri.Murali,
s/o.Venkateshappa,
aged about 23 years.
5. Smt.Savitha,
d/o. Venkateshappa,
aged 22 years.
6. Smt.Indramma,
w/o Venkataswamy,
aged 38 years.
7. Sri.Manohar,
S/o Venkataswamy,
aged 22 years.
8. Sri.Prashanth,
2
O.S.No.3414/2008
S/o Venkataswamy,
aged 19 years.
9. Smt.Bharathi,
W/o Krishnamurthy, aged about 38 years.
10. Master Vikas,
s/o Krishnamurthy, since minor by age
represented by his natural guardian
mother Smt.Bharathi.
All are residing at No.2/2, Yeshoda Nagar,
Opposite Jakkur Aerodrum, Jakkur Post,
Bengaluru-Bellary Road, Bengaluru-64.
by Sri.Kumar & Bhat, Advocates.
Vs.
Defendants: 1. Sri.Venkateshappa,
s/o Late Chikkappaiah,
aged about 53 years, r/at No.2/2,
Yashodanagar Opp.Jakkur
Arodrum, Jakkur post,
Bengaluru-Bellary road,
Bengaluru - 560 064.
2. Sri.Venkataswamy,
s/o Late Chikkappaiah,
aged about 53 years, r/a. No.2/2,
Yashodanagar Opp.Jakkur
Arodrum, Jakkur post,
Bengaluru-Bellary road,
Bengaluru - 560 064.
3. Sri.Krishnamurthy,
s/o Late Chikkappaiah,
aged about 53 years,r/at No.2/2,
Yashodanagar Opp.Jakkur
Arodrum, Jakkur post,
Bengaluru-Bellary road,
Bengaluru - 560 064.
4. Sri.N.Sridhar,
s/o N.Sathyanarayana,
aged about 43 years, r/at No.100,
ground floor, Block No.7S, MIG-A-
Phase, Yelahanka New Town,
Bengaluru - 64.
3
O.S.No.3414/2008
D1-by Sri.S.P.Keshava, Advocate.
D4 - by Smt.M.R.Rajini, Advocate.
Date of institution of suit 28-05-2008
Nature of the suit Partition and separate
possession
Date of commencement 01-04-2014
of recording of evidence
Date on which Judgment 04-02-2015
was pronounced
Total duration Days Months Years
06 08 06
JUDGMENT
This suit filed by the plaintiff is for partition and separate possession of their 1/3rd share each in all the suit properties, together with mesne profits and for permanent injunction restraining the defendants No.1 to 3 from alienating the suit property in favour of 4th defendant and from creating right, title or interest over the suit property in favour of third parties and for grant of permanent injunction for restraining the defendant No.4 and his men from interfering with plaintiffs' peaceful possession and enjoyment of suit property and for declaring that the Judgment and Decree passed in O.S.No.3578/2008 is not binding on the plaintiffs and to declare the sale deed dated 3-4-2012 executed by this Court in favour of 4th 4 O.S.No.3414/2008 defendant on behalf of defendants No.1 to 3 is null and void and not binding on plaintiffs and to restore the peaceful possession of plaintiffs, which is illegally acquired by defendant No.4 and any other reliefs which Court deems to fit, together with costs of this suit.
2. The brief facts of the plaint averments are that, the plaintiff No.1 is the wife of defendant No.1 and plaintiffs No.2 to 5 are children of plaintiff No.1, born to defendant No.1 and plaintiff No.6 is the wife of defendant No.2 and plaintiffs No.7 and 8 are children of plaintiff No.6, born to defendant No.2 and plaintiff No.10 is the son of plaintiff No.9, born to defendant No.3 and that, defendants No.1 to 3 are full brothers of each other and their father
- Chikkappaiah being original propositus, has died intestate, leaving behind the defendants No.1 to 3 as his legal heirs and that, the suit property is the joint ancestral property of plaintiffs and defendants No.1 to 3 and that, the defendant Nos.1 to 3 being addicted to bad vices, have sold the suit property to defendant No.4 under agreement of sale and that, the suit property had fallen to the share of defendants No.1 to 3 under registered partition deed dated 20-5-2000, after death of Chikkappaia-the original propositus and that, defendant No.4, taking undue advantage of 5 O.S.No.3414/2008 purchase of suit property from defendants No.1 to 3, is attempting to dispossess the plaintiffs from the suit property and that, the plaintiffs have got 1/13th share each in the suit property and that, the defendants No.1 to 3 cannot alienate the share of plaintiffs to defendant No.4 and therefore, the sale of suit property by defendants No.1 to 3 in favour of defendant No.4 be declared as null and void and for partition and separate possession of 1/13th share of each of the plaintiffs, together with costs and other reliefs, which the Court deems fit.
3. This suit is opposed by the defendant No.4, by filing his written statement and additional written statement, wherein he contends that, defendant No.4 is bonafide purchaser of suit property, from defendants No.1 to 3, as defendants No.1 to 3 have jointly executed registered agreement of sale on 14-11-2007 in favour of defendant No.4 in respect of suit property and received a sum of Rs.30,32,000/- from defendant No.4 as against total sale consideration amount of Rs.53,75,000/- and that, the defendants No.1 to 3 again executed an agreement on 11-2-2008 in favour of defendant No.4 for raising loan and that, the defendants No.1 to 3 have refused and denied to execute registered sale deed in favour of 6 O.S.No.3414/2008 defendant No.4 and therefore, defendant No.4 had filed a suit bearing O.S.No.3578/2008 on the file of C.C.CH.No.8 and the said suit came to be decreed in favour of present defendant No.4 and directed the defendants No.1 to 3 to execute sale deed and this Court has executed the registered sale deed in favour of defendant No.4, as defendants No.1 to 3 have failed to execute registered sale deed in favour of defendant No.4, as per the directions of the Court and since then, defendant No.4 is in lawful possession and enjoyment of the suit property and that, consequent upon the execution of registered partition deed dated 20-5-2000 entered into between defendants No.1 to 3 interse, in respect of the suit property amongst themselves, these defendants No.1 to 3 have become absolute owners of the suit property and therefore, the execution of agreement of sale in favour of defendant No.4 by defendants No.1 to 3 in respect of suit property, is valid and binding and therefore, the plaintiffs have no right or interest in the suit property, as the suit property has become the self acquired property of defendants No.1 to 3 by virtue of registered partition deed entered into between the defendants No.1 to 3 interse on dated 20-5-2000. On all these grounds, the defendant No.4 prays for dismissal of this suit, with costs.
7O.S.No.3414/2008
4. The defendants No.1 to 3, though appeared through their counsel, have failed to file their written statement, nor they contested this suit.
5. On the basis of these rival contentions taken by the parties, following Issues are framed:
1. W hether the plaintiffs prove that suit property is undivided family property of the plaintiffs and defendants 1 to 3?
2. W hether the plaintiffs have a share in the suit property?
3. W hether the plaintiffs are entitled for mesne profits?
4. W hether the plaintiffs are entitled for the relief of permanent injunction sought for?
5. W hether defendant No.4 proves that suit property is self acquired property of defendant Nos.1 to 3?
6. W hether defendant No.4 is a bona fide purchaser for value under an agreement of sale?
7. W hether defendant No.4 proves prior partition among defendant No.1 to defendant No.3 on 20-5-2000?
8. W hether suit is not maintainable?
9. W hether suit is barred by time?8
O.S.No.3414/2008
10. W hether court fee paid is insufficient?
11. W hat Decree or Order?
Additional Issue framed on 18-01-2014:
12. W hether plaintiffs prove that the sale deed dated 3-4-2012 executed in Ex.No. 2301/2010 is not binding on plaintiffs?
6. The plaintiffs, to prove their case, examined 6th plaintiff as P.W.1 and relied upon 17 documents marked as Exs.P1 to P17 and closed their side.
On the other hand, the Defendant No.4 examined himself as D.W.1 and relied upon 19 documents, marked as Ex.D1 to D19 and closed his side.
7. Heard arguments of Learned Counsels for both the parties.
8. My answer to the above Issues are as under:
Issue No.1 - in the Negative;
Issue No.2 - in the Negative;
Issue No.3 - in the Negative;
Issue No.4 - in the Negative;
Issue No.5 - in the Affirmative; Issue No.6 - in the Affirmative;9
O.S.No.3414/2008 Issue No.7 - in the Affirmative; Issue No.8 - left undecided;
Issue No.9 - left undecided;
Issue No.10 - left undecided;
Issue No.11 -as per Final Order below Issue No.12 - in the Negative;
for the following:
Reasons
9. The relationship between the plaintiffs and defendants No.1 to 3 is admitted and it is also an admitted fact that Chikkappaiah-the original propositus, is now dead and it is also an admitted fact that, the defendants No.1 to 3 interse, have entered into partition in respect of suit property, amongst themselves, under registered partition deed dated 20-5-2000.
10. Issue Nos. 1, 2, 5, 6 and 7 : For the sake of convenience and to avoid repetition of facts and in view of the fact that, these Issues are inter-linked and inter-connected with each other, all these Issues are taken-up together for common consideration.
11. The plaintiffs contend that, the suit property is ancestral property held by 10 O.S.No.3414/2008 Chikkaappaiah, the original propositus and after his death as intestate, defendants No.1 to 3 being his sons, have got partitioned in respect of the suit property amongst themselves under registered partition deed dated 20-5-2000 and that, defendants No.1 to 3 have sold the suit property in favour of defendant No.4 under registered agreement of sale, behind the back of plaintiffs, as plaintiffs are the wives and children of defendants No.1 to 3 and that, the agreement of sale dated 14-11-2007 executed by defendants No.1 to 3 in favour of defendant No.4 and registered sale deed dated 3-4-2012 executed by this Court in favour of defendant No.4 in respect of suit property in Execution Petition No.2301/2010, are not binding upon the plaintiffs as plaintiffs have got right, title and interest and share in the suit property. To prove their case, plaintiffs have examined 6th plaintiff as PW1, who has reiterated the same facts in his evidence.
12. In support of their contention, they have relied upon Exs.P1 to P17, which are: Ex.P1-original sale deed dated 20.6.1979, Exs.P2, P7 and P11-Khata certificates, Exs.P3, P8 and P12-Khata extracts, Exs.P4, P9 and P13-Encumbrance certificates, Exs.P5, P10 and P14-Tax paid receipts 11 O.S.No.3414/2008 Ex.P6-Original registered partition deed dated 20.5.2000, Ex.P15-Family tree and Exs.P16 and P17-Judgment and Decree passed in O.S.No.3578/2008.
13. On perusal of Ex.P1, it goes to show that, the suit property is purchased by Chikkappaiah, the original propositus, under registered sale deed dated 20-6-1979 from its original vendor and on perusal of Ex.P6, it goes to show that, after death of Chikkappaiah, the defendants No.1 to 3 have partitioned amongst themselves in respect of suit property under registered partition deed dated 20-5-2000 and acquired shares in the suit property. On perusal of the other documents, it goes to show that, the suit property was standing in the name of defendants No.1 to 3 as joint owners.
14. In support of his contention, Learned Counsel for the plaintiffs has relied upon the following Judgments:
1). Pushpalatha N.V. vs. Padma and others, reported in ILR 2010 Kar. 1484, wherein it is held that:
(A) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) SECTION 6(1) -
Rights created and conferred on the daughter 12 O.S.No.3414/2008 of a Co-parcener-Wind of change in the existing law-Intention of the Parliament-Amendment by way of substitution-HELD, The parliament intended to change the existing law and creates and confer such right on a daughter of a Co-parcener also. Therefore, they chose to make a declaration signaling the change in the law, as it existed till then and heralding a new era. The intention behind the amendment is to confer such Co-parcenary right on the daughter of a co-parcener, which was hitherto not recognized both under the Shastric Hindu Law and the Act. The discrimination sought to be removed was not existing in all Schools of Hindu Law. It was existing only in Miltakshara School. Therefore, amended section makes it clear that the declaration made is confined only to "a Joint Family governed by the Mitakshara law". The equality to be restored was between son and daughter only and not between male and female Hindu. Therefore, the Parliament consciously used the phrase "the daughter of a Co-parcener" is the person on which they are conferring the right and not on any other female relative, who may be a member of Joint Hindu Family. This intention can be gathered from the fact that in the un-amended Section, the proviso conferred rights on a "female relative" and not only on a "daughter of a Co-parcener".-FURTHER HELD, Discrimination sought to be removed in Mitakshara School-Declaration confined to a joint family governed by Mitakshara Law-Equality of status & equal rights in Co-parcener property to a daughter of a Co-parcener-By way amendment two rights are conferred.(a) Equality in Status. The daughter of a Co-parcener by birth become a Co-parcener in her own right in the same manner as the son. (b) Equal rights in Co-parcenary property. The daughter of a 13 O.S.No.3414/2008 Co-parcener would have the same rights in the Co-parcenary property, as she would have had, if she had been a son.-Thus, Gender discrimination between the son and daughter is removed, and bringing the law in conformity with the Article 14 and 15 of the Constitution which are fundamental rights.
(B) HINDU SUCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1)
-Declaration and conferment of right in Co-parcenary property on the daughter of a Co-parcener-The Phrase-"On and from the commencement of the Hindu Succession (Amendment) Act 2005" - Interpretation of
-HELD, The amendment is introduced by way of substitution. The result is, this amended provision is there is in the statute on the day it came into force i.e., 17-6-1956. From that day till the amendment Act came into force on 9-9-2005, the daughter of the Co-parcener was not a Co-parcener and she became a co-parcener only from 9-9-2005. Though her status was so declared on 9-9-2005, she has been given right in the co-parcenery property from the date of her birth. It would result in absurdity. Therefore, what the parliament did was to use the phrase, "on and from the commencement of the Hindu Succession (Amendment) Act, 2005", as the opening words of the Section, thus removing the absurdity. -FURTHER HELD, If the aforesaid opening words were not there in the amended Section and it is inserted by way of substitution, when the right is given to a daughter by birth, such a right would have accrued to her prior to the date of the passing of the Act in 1956 itself. The intention of the Parliament was not to give her rights in a Co-parcenary property prior to the date of the Act as she had only a limited right in the property, whether ancestral or 14 O.S.No.3414/2008 self acquired property of the father. Therefore on a proper interpretation it follows that when the status of a co-parcenar is conferred on the daughter on and from the date of the commencement of the Amendment Act, as the right is given to her by birth, she must have born after 17.6.1956, the day on which the Act came into force. It is only under the Act, her limited estate blossomed into an absolute estate, and got equal rights with the son in the property of her father and mother.
(C) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) - SECTION 6(1) -
"Status of the daughter of a co-parcener born prior to 17-6-1956 and after 17-6-1956-Benefit of the Amended Act to the daughter of a co-parcener born prior to 17-6-1956 and after 17-6-1956-Discussed-HELD, When the Act was enacted, the legislature had no intention of conferring rights which are conferred for the first time on a female relative of a co-parcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of Section 6 also it cannot be made before the Act came into force. In the Act before amendment the daughter of a Co-parcener was not conferred the status of a co-parcener. Such a status is conferred only by the Amendment Act in 2005. After conferring such status, right to co-parcener property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth should be after the Act came into force., 17.6.1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a co-parcener who was born prior to 17.6.1956. Therefore 15 O.S.No.3414/2008 in this context also the opening words of the amending Section assumes importance. The status of a co-parcener is conferred on a daughter of a co-parcenar on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. But, both these rights are conferred under the Act and, therefore, it necessarily follows the daughter of a co-parcenar who is born after the Act came into force alone will be entitled to a right in the co-parcenary property and not a daughter who was born prior to 17.6.1956.-FURTHER HELD, Thus, by virtue of the substituted provision what the Parliament intends to do is first to declare that, on and from the commencement of this Amendment Act is a Joint Hindu family governed by the Mitakshara law, the daughter of a Co-parcener shall by birth become a Co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son. Therefore, the Mitakshara law in respect of co-parcenary property and co-parcenary consisting of only male members came to an end. By such a declaration the Parliament declared that from the date of the amendment shastric and customary law of co-parcenary governed by Mitakshara School is no more applicable and it cease to exist. Thus, by virtue of the aforesaid provision, a right is conferred on a daughter of a Co-parcener for the first time. The said right is conferred by birth. Therefore, though such a right was declared in the year 2005, the declaration that the said right as a co-parcener enures to her benefit by birth makes the said provision retro active.16
O.S.No.3414/2008 (D) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1)
-Proviso to Proviso is added to sub-Section (1) of Section 6-Effect of disposition of property which had taken place before the 20th day of December, 2004-HELD, In the light of the words used in the proviso to sub-section (1) of Section 6 it is clear, the substituted Section has no application and it shall not affect or invalidate any disposition or alienation or partition or testamentary disposition which has taken place before the 20th day of December, 2004. In other words, if there is no disposition or alienation of a property belonging to a Joint Hindu Family, the daughter who is conferred the status of a Co-parcener by virtue of which she gets a right by birth is entitled to the same rights in the co-parcenary property in the same manner as the son. The language employed in the proviso is unambiguous and clear. The intention was to save disposition, alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
Sub-Section (2) of Section 6 further declares that any property to which a female Hindu becomes entitled by virtue of sub-Section (1) shall be held by her with incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in the Act, or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(E) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SUB-SECTION (3) OF SECTION 6- Succession of property after the commencement of the Hindu Succession Act, 2005-Concept of survivorship-Whether still 17 O.S.No.3414/2008 survives-HELD, Sub-Section (3) of Section 6 deals with succession of property after the commencement of the Hindu Succession Act, 2005, i.e. from 09.09.2005. 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 Co-parcenary 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.
(F) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -Partition defined under Section 6 of the Act-Concept of severance of status under Hindu Law
-Applicability to Hindu Succession (Amendment Act), 2005-HELD, In Section 6 the word 'partition' has been defined. It is a very narrow definition of partition. As per the said definition a partition means, (1) Partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908). - (2) Partition effected by a decree of the Court. - Unless the partition is evidenced by a registered document and has come into existence prior to 20th day of December, 2004, the daughter who has now been conferred the status of a co-parcener cannot be denied the right to the co-parcenary property which she has now acquired by birth.-Therefore, they made it clear a plea of partition if it is not supported by a registered deed of partition would not defeat the right of a daughter.-FURTHER 18 O.S.No.3414/2008 HELD, If a partition is effected by a decree of the Court, thereby meaning a final decree passed by a Court has attained finality, then, the daughter of a co-parcener who has been conferred equal rights in the co-parcenary property under Section 6, would not be entitled to a share in the co-parcenary property as that of the son. -Therefore, the concept of partition and severance of the status as under Hindu Law has no application under the Act in view of the definition of partition by way of Explanation to sub-Section (5) of Section 6 of the Act and it is only such partitions which are not affected by the effect of amended Section 6 of the Act.
(G) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1) - Right of a married daughter under-Whether a married daughter is a co-parcener? HELD, The language employed and the declaration made in Section 6 makes the legislative intent explicit and clear, i.e., the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have it if she had been a son. It means whatever right the son possesses in co-parcenary property is sought to be conferred on the daughter. The son would not lose his right in a co-parcenary property because of his marriage. It is that right which is conferred on the daughter and, therefore, when by birth son acquires an interest in co-parcenary property and retains the same, notwithstanding his marriage, when the daughter is also conferred the same right, it means she acquires right by birth in the co-parcenary property and she continuous to hold the said right notwithstanding her marriage. The daughter's marriage will not 19 O.S.No.3414/2008 put an end to the right of the daughter to a co-parcenary property which she acquired by birth. -FURHTER HELD, Therefore, a marriage daughter is also a co-parcener and is entitled to equal share with the son in the co-parcenary properties and her marriage in no way affects her right to equal share in the co-parcenary property. Even after marriage she continues to have the same right which she had before marriage, as her right to co-parcenary property flows from her birth as that of the son. To find out what is the right of a daughter in co-parcenary property, one has to find out what is the right of the son. Whatever rights the son has in the co-parcenary property, by virtue of the amendment the daughter also has such right. That is the object behind the legislation i.e., to achieve equality in the right of inheritance.
(H) CONSTILTUTION OF INDIA ARTICLE 254 (2) INCONSISTENCY BETWEEN LAWS MADE BY PARLIAMENT AND LAWS MADE BY THE LEGISLATURES OF STATES.-HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1) -Effect of Amendment Act No.39/2005 on Karnataka State Amendment-HELD, The Hindu Succession (Karnataka Amendment) Act, 1990 was enacted by the Karnataka Legislature inserting Section 6(A), (B) and (C) in the Hindu Succession Act, 1956, Central Act 30/1956 after Section 6. The State Act received the assent of the President on 28-7-1994 and it became Karnataka Act 23/1994. By the aforesaid Amendment Act for the first time equal rights to daughters in Co-parcenary property was conferred by the Karnataka State Legislature. The said law was repugnant to Section 6. - FURTHER HELD, It is clear the proviso to Article 254(2) empowers 20 O.S.No.3414/2008 the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's 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 through the subsequent law made by Parliament does not expressly repeal a State law, even then, the State will become void as soon as the subsequent law of parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. The law made by parliament shall prevail over the State law. Where a particular provision cannot co-exist or intended to subsist in the event of there being repugnancy between the Central and the State Legislature, the Courts cannot but declare it to be so on the ground of repeal by implication. If the subject matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, which is the principle on which the rule of implied repeal rests.-When the Parliamentary legislation which was subsequent to the Karnataka Amendment conferred the status of a co-parcener on the daughter of a co-parcener and gave right by birth in the co-parcenary property and did not exclude the married daughters from such status and right expressly or by necessary implication, the Central Act to that extent is repugnant to the State law. Similarly, the word partition used in the State Law is too wide and the Central law defines the word partition and giving it a narrow meaning for the purpose of Section 6. Again the said definition runs repugnant to the State law. As the amended law is passed by the Parliament it prevails over the State law and the law 21 O.S.No.3414/2008 passed by the State stands impliedly repealed to the extent of repugnancy. As such, the married daughter cannot be deprived of her right to a share in the co-parcenary property by birth. With the passing of the Amendment Act Section 6-A(d) stands repealed. Married daughter is entitled to equal share with the son in the co-parcenary properties.
(I) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1)- Retrospective Operation-Legislative intent-Effect of substitution-Disposition or alienations including any partition or testamantory disposition of property prior to 20th December 2004-Validity of -HELD, The question whether a statute operates prospectively or retrospectively is one of the legislative intent. If the terms of a statute are clear and unambiguous and it is manifest that the Legislature intended the Act to operate retrospectively, it must unquestionably be so construed. If, however, the terms of a statute do not of themselves made the intention certain or clear, the statute will be presumed to operate prospectively. While considering the question of the retrospective operation of the statute, the nature of the right affected must first be considered. All laws which affects substantive rights or vested rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive.-FURTHER HELD, Though the opening words of the section declares that "on and from the commencement of the Hindu Succession (Amendment) Act, 2005, the daughter of a co-parcener in a joint family governed by the Mithakashare is conferred the status of a co-parcener, it is expressly 22 O.S.No.3414/2008 stated that she becomes a co-parcener by birth. Conferment of the status is different from conferring the rights in the co-parcener property. The right to co-parcener property is conferred from the date of birth, which necessarily means from the date anterior to the date of conferment of status, and thus the Section is made retro active. By such express words the amended section is made retrospective.-Though the provision is made retrospective, if third party interests have crept in or even the co-parceners on the assumption that it has become their separate property after the partition by way of registered partition deed or effected by a decree of the Court has made improvements or alienated the properties or parted with property by testamentary disposition, those transactions cannot be reopened. It is clear that, declaration of right of the daughter of a co-parcener and conferment of right by birth shall not affect or invalidate any "disposition" or "alienation" including any partition or testamentary disposition of property, which have taken place before 20th day of December, 2004.
( J ) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1) - Amendment by way of substitution-Effect on pending proceedings-HELD, It is well understood in suits of partition, first there should be a preliminary decree, declaring the rights of the parties, thereafter in terms of the declaration of the preliminary decree in final decree proceedings the partition is effected by metes and bounds. Therefore, only in the case of a partition effected by a decree of Courts, when it attains finality, a daughter of a co-parcener is deprived of the benefit of the substituted provision. Therefore, this 23 O.S.No.3414/2008 substituted provision applies to the pending proceedings in the Trial Court, the Appellate Court, the Second Appellate Court where the preliminary decree or a final decree is challenged. The language employed by the Parliament is clear, unambiguous and it also clearly demonstrates the intention of the Parliament to make this provision retrospective and give the benefit of the right of a co-parcener which devolves by birth on daughters.- FURTHER HELD, The explanation makes it clear mere passing of a decree for partition whether by the Trial Court or by the Appellate Courts is not enough. Till a partition is effected by a decree of a Court, thereby meaning till the decree for partition attained finality, the daughter cannot be deprived of her legitimate right in the said property. Therefore, the substituted/ amended Section applies to all pending proceedings as the partition is not yet effected by a decree of the Court.
(K) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6 - Vested right of other female relatives - HELD, The amended Section is silent about the rights of other female relatives of a Hindu male dying before the commencement of the amended Act. There is nothing in the amended provision which evinces a contrary intention affecting the operation of the proviso to the unamended Section 6. The amended Section do not manifest an intention to destroy the rights conferred under the proviso to the amended Section. Sub-Section (3) of the amended provision provides only for devolution of the interest on the death of a Hindu, after the amendment Act. In the case of a male, if he has left behind a female relative, the proviso to Section 6 applies, as the amended provision makes no provision for such a contingency. Therefore, the 24 O.S.No.3414/2008 unamended Section remains in operation for the period before this repeal.-FURTHER HELD, 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 Co-parcenary property, if he has left him surviving a female relative, his share is to be determined treating his daughter also as a co-parcener. 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 may be diminished by 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 grand daughter, has to make in favour of a daughter.-Therefore, in so far as other female members left behind by a male co-parcener 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.
(L) HINDU SUCCESSION ACT, 1956- Inheritance -Law prior to 1956- HELD, Prior to the Act of 1956, Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis.-The two systems of inheritance which is predominant amongst the Hindus in India are; Mitakshare system and Dayabhaga System.-Dayabhaga system prevails in Bengal, Mitakshara system in other parts of India. The difference 25 O.S.No.3414/2008 between the two systems arises from the fact that, while the doctrine of religious efficacy is the guiding principle under Dayabhaga School, there is no such definite guiding principle under Mitakshara School. Sometimes, consanguinity has been regarded as the guiding principle and at other times, religious efficacy.-FURTHER HELD, Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of co-parcenars, based on birth in the family. No female is a member of the co-parcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the co-parcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a co-parcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth.-The Dayabhaga school neither accords a right by birth nor by survivorship though joint family and joint property is recognized. Neither sons nor daughters become co-parceners at birth nor do they have rights in the family property during their father's life time. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers.-The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs, i.e. son's daughter, daughter's daughter and sister, thereby creating a limited restriction on the rule of survivorship. Another landmark 26 O.S.No.3414/2008 legislation conferring ownership rights on woman was the Hindu Women's Right to Property Act (XVIII of) 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of co-parcenary but also in the law of partition, alienation of property, inheritance and adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a co-parcener even though she possessed a right akin to a co-parcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights."
2). Manohar Lal and another vs. Dewan Chand and others, reported in AIR 1985 Punjab and Haryana 313, wherein it is held that:
"HINDU LAW-Sale of co-parcenary property-Neither for legal necessity nor for benefit of estate -Would not be binding to the extent of share of vendor.
It cannot be said that in the States where Mitakshara law applies, alienation of coparcenary property would be binding qua the share of the vendor even though it was made without the consent of other co-parceners and legal necessity nor for the benefit of the estate. L.P.A.No.692 of 1973, D/-31-1-1977 (Punj & Har), Overruled."27
O.S.No.3414/2008
3). U.G.Srinivasa Rao vs. Vinaykumar S. Rao and others reported in AIR 2004 Karnataka 450 wherein it is held that:
"(A) HINDU LAW-Joint family property-Sale by one co-sharer-Necessity-No pressure on alienating co-sharer to sell joint family property-Amount of consideration received by alienating co-sharer not spent for benefit of joint family or for any legal necessity or for discharging antecedent debts-Sale of joint family property by alienating co-sharer -Not for legal necessity.
(B) HINDU LAW-Joint family property-Sale by one co-sharer-No consent of other co-sharers for sale-Alienee aware of fact that other co-sharers also entitled for their respective shares in suit property-Alienee purchased suit property solely relying upon representations of alienating co-sharer-Cannot be considered as bona fide purchaser.
(C) HINDU LAW-Joint family
property-partition-Sale of joint family
property by one co-sharer without consent of other co-sharers-Binding on alienating co-sharer and not on non-consenting co-sharers-Alienee's claim for equitable adjustment of share of alienating co-sharer in general partition-Can be allowed.
(D) Civil P.C. (5 of 1908), S.96, O.7, R.7-Alternative reliefs-plaintiff seeking more alternative reliefs-Grant of one of alternative reliefs-Appeal by plaintiff for other reliefs-Not maintainable as plaintiff cannot be considered as a person aggrieved."28
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15. On the other hand, though defendant No.4 admits that defendants No.1 to 3 are the joint owners of the suit property, as per Ex.P6 - registered partition deed, however he contends that, the plaintiffs cannot get share in the suit property, on the ground that, the defendants No.1 to 3 succeeded to suit property as Class-I heirs of deceased Chikkappaiah, who died intestate and in view of Section 8 of the Hindu Succession Act, the plaintiffs do not become Class-I heirs and therefore, the defendants No.1 to 3 succeeded to the suit property as absolute owners of the suit property and therefore, the plaintiffs cannot challenge and question the sale of suit property made by defendants No.1 to 3 in favour of defendant No.4.
16. In support of his contention, he examined himself as D.W.1, who has reiterated the same facts in his evidence and further, he has relied upon Ex.D1- certified copy of sale agreement entered into between himself and defendants No.1 to 3 and Ex.D14 - registered sale deed dated 28-2-2012 executed by this Court in favour of defendant No.4 for and on behalf of defendants No.1 to 3.
17. On going through the documents produced by defendant No.4, it goes to show that, 29 O.S.No.3414/2008 defendants No.1 to 3 have executed an agreement of sale in favour of defendant No.4 in respect of sale of suit property on 14-11-2007, by accepting Rs.30,32,000/-, out of sale consideration amount of Rs.53,75,000/- and that, the defendants No.1 to 3 refused to execute registered sale deed in favour of defendant No.4 and therefore, defendant No.4 has filed suit bearing O.S.No.3578/2008 for specific performance of contract and obtained decree against defendants No.1 to 3 and got the registered sale deed executed through this Court for and on behalf of defendants No.1 to 3 in Execution Petition No. 2301/2010, pending on the file of this Court, on 3-4-2012 and that, the defendant No.4 is in possession of the suit property, consequent upon execution of registered sale deed by the Court in his favour.
18. In support of his contention, Learned Counsel for the defendant No.4 has relied upon the following Judgments:
1). Indira Bai vs. Prof.Shaymasundar, reported in ILR 1988 Kar. 1095 wherein it is held that:
"(A) HINDU LAW-SEPARTE OR SELF-ACQUIRED Property-Incidents-Passes on death interstate to heirs-Such property not joint family 30 O.S.No.3414/2008 property of heirs-Heirs succeed as tenants in common not as joint-tenants; become co-owners-After Hindu Succession Act 1956, widow becomes absolute owner of such share-Share of son as divided member intestate devolves on mother as Class I Heir under Section 8 of Hindu Succession Act, 1956-Section 6 of Hindu Succession Act inapplicable the share being self acquired property of father got by succession, not inheritance."
2). Raghbir Singh vs. Dalip Singh and another, reported in AIR 2004 P & H 220, wherein it is held that:
"Hindu Law-Coparcenary property-Suit filed by sons seeking joint possession of 2/3rd share in suit property-Suit for joint possession was apparently circuitous method for seeking partition of property in lifetime of father-This is not permissible-Such suit is not maintainable."
3). Mrs.Mallika and others vs. Mr.Chandrappa and others, reported in ILR 2007 Kar. 3216, wherein it is held that:
"HINDU SUCCESSION ACT, 1956-Section 8 - Rules of Succession in the case of males under-Son inheriting the self acquired property of his father-HELD, The said property shall be treated as the individual property of the son and the heirs of the son will have no right in the said property as co-parceners-FURTHER HELD, Though under traditional Hindu Succession Act, 1956-Consequently, the property of the 31 O.S.No.3414/2008 father who had separated from his family, on his death will be inherited and held by his sons in their individual capacity and son's son/sons will have no right therein as co-parceners-ON FACTS, HELD, Ten guntas of land in Sy.No.84/3A is the exclusive property of defendant No.1. The plaintiffs as sons did not have any right therein by their birth and therefore the sale deeds executed by the defendant No.1 in favour of the defendants No.2 to 5 were not affected by the plaintiffs being the members of the family since they had no right in the said property sold by defendant No.1. Hence, the suit filed by the plaintiffs is liable to be dismissed."
4). G.Sekar vs. Geetha and others, reported in (2009) 6 SCC 99, wherein it is held that:
"A. Hindu Succession (Amendment) Act, 2005-Ss.3 and 4-Temporal effect-Retrospective aspects distinguished from prospective aspects-Application to joint family property and self-acquired property, distinguished-Hindu Succession Act, 1956, Ss.23 and 6. "
5). Pushpalatha N.V. vs. Padma and others, reported in ILR 2010 Kar. 1484, wherein it is held that:
(A) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) SECTION 6(1) -
Rights created and conferred on the daughter of a Co-parcener-Wind of change in the existing law-Intention of the Parliament-Amendment by way of substitution-HELD, The parliament intended 32 O.S.No.3414/2008 to change the existing law and creates and confer such right on a daughter of a Co-parcener also. Therefore, they chose to make a declaration signaling the change in the law, as it existed till then and heralding a new era. The intention behind the amendment is to confer such Co-parcenary right on the daughter of a co-parcener, which was hitherto not recognized both under the Shastric Hindu Law and the Act. The discrimination sought to be removed was not existing in all Schools of Hindu Law. It was existing only in Miltakshara School. Therefore, amended section makes it clear that the declaration made is confined only to "a Joint Family governed by the Mitakshara law". The equality to be restored was between son and daughter only and not between male and female Hindu. Therefore, the Parliament consciously used the phrase "the daughter of a Co-parcener" is the person on which they are conferring the right and not on any other female relative, who may be a member of Joint Hindu Family. This intention can be gathered from the fact that in the un-amended Section, the proviso conferred rights on a "female relative" and not only on a "daughter of a Co-parcener".-FURTHER HELD, Discrimination sought to be removed in Mitakshara School-Declaration confined to a joint family governed by Mitakshara Law-Equality of status & equal rights in Co-parcener property to a daughter of a Co-parcener-By way amendment two rights are conferred.(a) Equality in Status. The daughter of a Co-parcener by birth become a Co-parcener in her own right in the same manner as the son. (b) Equal rights in Co-parcenary property. The daughter of a Co-parcener would have the same rights in the Co-parcenary property, as she would have had, if she had been a son.-Thus, Gender discrimination between the son and daughter 33 O.S.No.3414/2008 is removed, and bringing the law in conformity with the Article 14 and 15 of the Constitution which are fundamental rights.
(B) HINDU SUCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1)
-Declaration and conferment of right in Co-parcenary property on the daughter of a Co-parcener-The Phrase-"On and from the commencement of the Hindu Succession (Amendment) Act 2005" - Interpretation of
-HELD, The amendment is introduced by way of substitution. The result is, this amended provision is there is in the statute on the day it came into force i.e., 17-6-1956. From that day till the amendment Act came into force on 9-9-2005, the daughter of the Co-parcener was not a Co-parcener and she became a co-parcener only from 9-9-2005. Though her status was so declared on 9-9-2005, she has been given right in the co-parcenery property from the date of her birth. It would result in absurdity. Therefore, what the parliament did was to use the phrase, "on and from the commencement of the Hindu Succession (Amendment) Act, 2005", as the opening words of the Section, thus removing the absurdity. -FURTHER HELD, If the aforesaid opening words were not there in the amended Section and it is inserted by way of substitution, when the right is given to a daughter by birth, such a right would have accrued to her prior to the date of the passing of the Act in 1956 itself. The intention of the Parliament was not to give her rights in a Co-parcenary property prior to the date of the Act as she had only a limited right in the property, whether ancestral or self acquired property of the father. Therefore on a proper interpretation it follows that when the status of a co-parcenar 34 O.S.No.3414/2008 is conferred on the daughter on and from the date of the commencement of the Amendment Act, as the right is given to her by birth, she must have born after 17.6.1956, the day on which the Act came into force. It is only under the Act, her limited estate blossomed into an absolute estate, and got equal rights with the son in the property of her father and mother.
(C) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) - SECTION 6(1) -
"Status of the daughter of a co-parcener born prior to 17-6-1956 and after 17-6-1956-Benefit of the Amended Act to the daughter of a co-parcener born prior to 17-6-1956 and after 17-6-1956-Discussed-HELD, When the Act was enacted, the legislature had no intention of conferring rights which are conferred for the first time on a female relative of a co-parcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of Section 6 also it cannot be made before the Act came into force. In the Act before amendment the daughter of a Co-parcener was not conferred the status of a co-parcener. Such a status is conferred only by the Amendment Act in 2005. After conferring such status, right to co-parcener property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth should be after the Act came into force., 17.6.1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a co-parcener who was born prior to 17.6.1956. Therefore in this context also the opening words of the amending Section assumes importance. The status of a co-parcener is conferred on a 35 O.S.No.3414/2008 daughter of a co-parcenar on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. But, both these rights are conferred under the Act and, therefore, it necessarily follows the daughter of a co-parcenar who is born after the Act came into force alone will be entitled to a right in the co-parcenary property and not a daughter who was born prior to 17.6.1956.-FURTHER HELD, Thus, by virtue of the substituted provision what the Parliament intends to do is first to declare that, on and from the commencement of this Amendment Act is a Joint Hindu family governed by the Mitakshara law, the daughter of a Co-parcener shall by birth become a Co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son. Therefore, the Mitakshara law in respect of co-parcenary property and co-parcenary consisting of only male members came to an end. By such a declaration the Parliament declared that from the date of the amendment shastric and customary law of co-parcenary governed by Mitakshara School is no more applicable and it cease to exist. Thus, by virtue of the aforesaid provision, a right is conferred on a daughter of a Co-parcener for the first time. The said right is conferred by birth. Therefore, though such a right was declared in the year 2005, the declaration that the said right as a co-parcener enures to her benefit by birth makes the said provision retro active.
(D) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1)
-Proviso to Proviso is added to sub-Section (1) of Section 6-Effect of disposition of property which had taken place before the 36 O.S.No.3414/2008 20th day of December, 2004-HELD, In the light of the words used in the proviso to sub-section (1) of Section 6 it is clear, the substituted Section has no application and it shall not affect or invalidate any disposition or alienation or partition or testamentary disposition which has taken place before the 20th day of December, 2004. In other words, if there is no disposition or alienation of a property belonging to a Joint Hindu Family, the daughter who is conferred the status of a Co-parcener by virtue of which she gets a right by birth is entitled to the same rights in the co-parcenary property in the same manner as the son. The language employed in the proviso is unambiguous and clear. The intention was to save disposition, alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
Sub-Section (2) of Section 6 further declares that any property to which a female Hindu becomes entitled by virtue of sub-Section (1) shall be held by her with incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in the Act, or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(E) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SUB-SECTION (3) OF SECTION 6- Succession of property after the commencement of the Hindu Succession Act, 2005-Concept of survivorship-Whether still survives-HELD, Sub-Section (3) of Section 6 deals with succession of property after the commencement of the Hindu Succession Act, 2005, i.e. from 09.09.2005. Sub-Section (3) of 37 O.S.No.3414/2008 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 Co-parcenary 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.
(F) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -Partition defined under Section 6 of the Act-Concept of severance of status under Hindu Law
-Applicability to Hindu Succession (Amendment Act), 2005-HELD, In Section 6 the word 'partition' has been defined. It is a very narrow definition of partition. As per the said definition a partition means, (1) Partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908). - (2) Partition effected by a decree of the Court. - Unless the partition is evidenced by a registered document and has come into existence prior to 20th day of December, 2004, the daughter who has now been conferred the status of a co-parcener cannot be denied the right to the co-parcenary property which she has now acquired by birth.-Therefore, they made it clear a plea of partition if it is not supported by a registered deed of partition would not defeat the right of a daughter.-FURTHER HELD, If a partition is effected by a decree of the Court, thereby meaning a final decree passed by a Court has attained finality, then, the daughter of a co-parcener who has been 38 O.S.No.3414/2008 conferred equal rights in the co-parcenary property under Section 6, would not be entitled to a share in the co-parcenary property as that of the son. -Therefore, the concept of partition and severance of the status as under Hindu Law has no application under the Act in view of the definition of partition by way of Explanation to sub-Section (5) of Section 6 of the Act and it is only such partitions which are not affected by the effect of amended Section 6 of the Act.
(G) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1) - Right of a married daughter under-Whether a married daughter is a co-parcener? HELD, The language employed and the declaration made in Section 6 makes the legislative intent explicit and clear, i.e., the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have it if she had been a son. It means whatever right the son possesses in co-parcenary property is sought to be conferred on the daughter. The son would not lose his right in a co-parcenary property because of his marriage. It is that right which is conferred on the daughter and, therefore, when by birth son acquires an interest in co-parcenary property and retains the same, notwithstanding his marriage, when the daughter is also conferred the same right, it means she acquires right by birth in the co-parcenary property and she continuous to hold the said right notwithstanding her marriage. The daughter's marriage will not put an end to the right of the daughter to a co-parcenary property which she acquired by birth. -FURHTER HELD, Therefore, a marriage 39 O.S.No.3414/2008 daughter is also a co-parcener and is entitled to equal share with the son in the co-parcenary properties and her marriage in no way affects her right to equal share in the co-parcenary property. Even after marriage she continues to have the same right which she had before marriage, as her right to co-parcenary property flows from her birth as that of the son. To find out what is the right of a daughter in co-parcenary property, one has to find out what is the right of the son. Whatever rights the son has in the co-parcenary property, by virtue of the amendment the daughter also has such right. That is the object behind the legislation i.e., to achieve equality in the right of inheritance.
(H) CONSTILTUTION OF INDIA ARTICLE 254 (2) INCONSISTENCY BETWEEN LAWS MADE BY PARLIAMENT AND LAWS MADE BY THE LEGISLATURES OF STATES.-HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1) -Effect of Amendment Act No.39/2005 on Karnataka State Amendment-HELD, The Hindu Succession (Karnataka Amendment) Act, 1990 was enacted by the Karnataka Legislature inserting Section 6(A), (B) and (C) in the Hindu Succession Act, 1956, Central Act 30/1956 after Section 6. The State Act received the assent of the President on 28-7-1994 and it became Karnataka Act 23/1994. By the aforesaid Amendment Act for the first time equal rights to daughters in Co-parcenary property was conferred by the Karnataka State Legislature. The said law was repugnant to Section 6. - FURTHER HELD, It is clear the proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's 40 O.S.No.3414/2008 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 through the subsequent law made by Parliament does not expressly repeal a State law, even then, the State will become void as soon as the subsequent law of parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. The law made by parliament shall prevail over the State law. Where a particular provision cannot co-exist or intended to subsist in the event of there being repugnancy between the Central and the State Legislature, the Courts cannot but declare it to be so on the ground of repeal by implication. If the subject matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, which is the principle on which the rule of implied repeal rests.-When the Parliamentary legislation which was subsequent to the Karnataka Amendment conferred the status of a co-parcener on the daughter of a co-parcener and gave right by birth in the co-parcenary property and did not exclude the married daughters from such status and right expressly or by necessary implication, the Central Act to that extent is repugnant to the State law. Similarly, the word partition used in the State Law is too wide and the Central law defines the word partition and giving it a narrow meaning for the purpose of Section 6. Again the said definition runs repugnant to the State law. As the amended law is passed by the Parliament it prevails over the State law and the law passed by the State stands impliedly repealed to the extent of repugnancy. As such, the married daughter cannot be deprived of her 41 O.S.No.3414/2008 right to a share in the co-parcenary property by birth. With the passing of the Amendment Act Section 6-A(d) stands repealed. Married daughter is entitled to equal share with the son in the co-parcenary properties.
(I) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1)- Retrospective Operation-Legislative intent-Effect of substitution-Disposition or alienations including any partition or testamantory disposition of property prior to 20th December 2004-Validity of -HELD, The question whether a statute operates prospectively or retrospectively is one of the legislative intent. If the terms of a statute are clear and unambiguous and it is manifest that the Legislature intended the Act to operate retrospectively, it must unquestionably be so construed. If, however, the terms of a statute do not of themselves made the intention certain or clear, the statute will be presumed to operate prospectively. While considering the question of the retrospective operation of the statute, the nature of the right affected must first be considered. All laws which affects substantive rights or vested rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive.-FURTHER HELD, Though the opening words of the section declares that "on and from the commencement of the Hindu Succession (Amendment) Act, 2005, the daughter of a co-parcener in a joint family governed by the Mithakashare is conferred the status of a co-parcener, it is expressly stated that she becomes a co-parcener by birth. Conferment of the status is different from conferring the rights in the co-parcener 42 O.S.No.3414/2008 property. The right to co-parcener property is conferred from the date of birth, which necessarily means from the date anterior to the date of conferment of status, and thus the Section is made retro active. By such express words the amended section is made retrospective.-Though the provision is made retrospective, if third party interests have crept in or even the co-parceners on the assumption that it has become their separate property after the partition by way of registered partition deed or effected by a decree of the Court has made improvements or alienated the properties or parted with property by testamentary disposition, those transactions cannot be reopened. It is clear that, declaration of right of the daughter of a co-parcener and conferment of right by birth shall not affect or invalidate any "disposition" or "alienation" including any partition or testamentary disposition of property, which have taken place before 20th day of December, 2004.
( J ) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6(1) - Amendment by way of substitution-Effect on pending proceedings-HELD, It is well understood in suits of partition, first there should be a preliminary decree, declaring the rights of the parties, thereafter in terms of the declaration of the preliminary decree in final decree proceedings the partition is effected by metes and bounds. Therefore, only in the case of a partition effected by a decree of Courts, when it attains finality, a daughter of a co-parcener is deprived of the benefit of the substituted provision.
43O.S.No.3414/2008 Therefore, this substituted provision applies to the pending proceedings in the Trial Court, the Appellate Court, the Second Appellate Court where the preliminary decree or a final decree is challenged. The language employed by the Parliament is clear, unambiguous and it also clearly demonstrates the intention of the Parliament to make this provision retrospective and give the benefit of the right of a co-parcener which devolves by birth on daughters.- FURTHER HELD, The explanation makes it clear mere passing of a decree for partition whether by the Trial Court or by the Appellate Courts is not enough. Till a partition is effected by a decree of a Court, thereby meaning till the decree for partition attained finality, the daughter cannot be deprived of her legitimate right in the said property. Therefore, the substituted/ amended Section applies to all pending proceedings as the partition is not yet effected by a decree of the Court.
(K) HINDU SUCCESSION (AMENDMENT) ACT, 2005 (ACT No.39/2005) -SECTION 6 - Vested right of other female relatives - HELD, The amended Section is silent about the rights of other female relatives of a Hindu male dying before the commencement of the amended Act. There is nothing in the amended provision which evinces a contrary intention affecting the operation of the proviso to the unamended Section 6. The amended Section do not manifest an intention to destroy the rights conferred under the proviso to the amended Section. Sub-Section (3) of the amended provision provides only for devolution of the interest on the death of a Hindu, after the amendment Act. In the case of a male, if he has left behind a female 44 O.S.No.3414/2008 relative, the proviso to Section 6 applies, as the amended provision makes no provision for such a contingency. Therefore, the unamended Section remains in operation for the period before this repeal.-FURTHER HELD, 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 Co-parcenary property, if he has left him surviving a female relative, his share is to be determined treating his daughter also as a co-parcener. 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 may be diminished by 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 grand daughter, has to make in favour of a daughter.-Therefore, in so far as other female members left behind by a male co-parcener 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.
(L) HINDU SUCCESSION ACT, 1956- Inheritance -Law prior to 1956- HELD, Prior to the Act of 1956, Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis.-The two systems of inheritance which is predominant amongst the Hindus in India are; Mitakshare 45 O.S.No.3414/2008 system and Dayabhaga System.-Dayabhaga system prevails in Bengal, Mitakshara system in other parts of India. The difference between the two systems arises from the fact that, while the doctrine of religious efficacy is the guiding principle under Dayabhaga School, there is no such definite guiding principle under Mitakshara School. Sometimes, consanguinity has been regarded as the guiding principle and at other times, religious efficacy.-FURTHER HELD, Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of co-parcenars, based on birth in the family. No female is a member of the co-parcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the co-parcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a co-parcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth.-The Dayabhaga school neither accords a right by birth nor by survivorship though joint family and joint property is recognized. Neither sons nor daughters become co-parceners at birth nor do they have rights in the family property during their father's life time. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers.-The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs, i.e. son's 46 O.S.No.3414/2008 daughter, daughter's daughter and sister, thereby creating a limited restriction on the rule of survivorship. Another landmark legislation conferring ownership rights on woman was the Hindu Women's Right to Property Act (XVIII of) 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of co-parcenary but also in the law of partition, alienation of property, inheritance and adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a co-parcener even though she possessed a right akin to a co-parcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights."
6). Sri.Rudrappa vs. Sri.H.R.Shivakumar and others, reported in 2012 (4) KCCR 2873 (DB), wherein it is held that:
" HINDU LAW-Partition - SPECIFIC RELIEF ACT, 1963-Section 34-Partition-Earlier registered partition to which the father of the plaintiffs, namely, the third defendant, was a party-The third defendant remained ex parte and did not file any written statement.
Held, the plaintiffs could not have challenged the registered partition deed on the ground that their father was not a pragmatic person or innocent or was incapable of understanding worldly things. If at all the registered partition deed was void, 47 O.S.No.3414/2008 illegal or unfair and not binding, it was for the third defendant to question the same on those grounds. When he chose not to question the registered partition deed entered into between himself and his stepbrother, plaintiffs, who were claiming shares through their father, could not have questioned the partition deed already effected between the parties on the ground that it is unfair and void and was obtained by playing fraud on their father. Further held, the registered partition deed effected between the defendants 2 and 3 could not be reopened unless it was shown at the instance of the third defendant that the same was obtained by fraud and coercion. As the third defendant himself did not choose to contest the suit questioning the earlier registered partition effected between himself and the second defendant, the plaintiffs could not have question of the same by filing partition suit during the lifetime of their father. The suit was held not maintainable and the Judgment and Decree of the Trial Court was set aside. Appeal was allowed."
7). Swamy and another vs. Smt.Thimmamma and others, reported in 2013(4) Kar.L.J. 459 wherein it is held that:
"(A) HINDU SUCCESSION ACT, 1956, Section 8
- Notional partition-Trial Court opined-Properties as self acquired properties of Huthcegowda -Held, finding of the Trial Court found to be based upon an incorrect presumption.
Anand Byrareddy, J., Held: The Court below has proceeded to hold that the suit properties ought to be treated as the self 48 O.S.No.3414/2008 acquired properties in the hands of Hutchegowda and the defendant, would have to be divided equally between the plaintiff and the defendants, has been found to be an incorrect presumption. The question whether the plaintiff and defendant 3 were born before 1956, was never in issue before the Court below and even though there is no finding of fact in this regard, there is sufficient material available on record, as produced by the plaintiff and defendant 3 themselves, that they were clearly born before 1956. Therefore, their share in the suit properties as coparceners by birth cannot be accepted. "
19. In view of the fact that, defendants No.1 to 3 are Class-I heirs to the deceased Chikkappaiah and that, the said Chikkappaiah being the original propositus, has died intestate and that, the plaintiffs not being Class-I heirs, the defendants No.1 to 3 succeed to the suit property as absolute owners. This view of mine is supported by the Judgment of Hon'ble High Court of Karnataka held in case of Mrs. Mallika and others vs. Mr.Chandrappa and others reported in ILR 2007 Kar. 3216 stated supra.
20. In view of the principles laid down in the above decision stated supra, the plaintiffs in the instant suit, do not get any right, title and interest in the suit property, by virtue of their birth in the family of defendants No.1 to 3 and the sale deeds 49 O.S.No.3414/2008 executed by defendants No.1 to 3 in favour of defendant No.4 will not be affected by the plaintiffs, though they are the family members of defendants No.1 to 3. In view of the foregoing reasons, I hold Issue Nos.1 and 2 in the Negative and I hold Issue Nos.5, 6 and 7 in the Affirmative.
21. Issue Nos.3, and 4: In view of my answer to Issue Nos.1 and 2 in the Negative, I hold these Issues in the Negative.
22. Issue Nos.8, 9 and 10 : In view of my answer to Issue Nos.1 and 2 in the Negative, these Issues are left undecided.
23. Issue No.12 : In view of my answer to Issue Nos.1 and 2 in the Negative, this Issue is answered in the Negative.
24. Issue No.11 : In view of the foregoing reasons and in the result, I proceed to pass the following:
ORDER Suit of the plaintiffs is dismissed.
Parties are directed to bear their own costs.50
O.S.No.3414/2008 (Dictated to the Judgment Writer, computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 4th day of February 2015.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs:
P.W.1 Indramma List of witnesses examined for defendants:
D.W.1 Sridhara List of documents exhibited for the plaintiffs:
Ex.P1- original sale deed dated 20.6.1979, Exs.P2 & P3 -Khata certificate and Khata extract Ex.P4 -Encumbrance certificate Ex.P5 -Tax paid receipt Ex.P6 -Original registered partition deed dated 20.5.2000 Exs.P7 & P8 -Khata certificate and Khata extract Ex.P9 - Encumbrance certificate Ex.P10 - Tax paid receipt 51 O.S.No.3414/2008 Exs.P11 & P12 Khata certificate and Khata extract Ex.P13 - Encumbrance certificate Ex.P14 - Tax paid receipt Ex.P15 -Family tree Exs.P16 & P17-Judgment & Decree in O.S.No.3578/2008 List of documents marked for defendants:
Ex.D1 - certified copy of sale agreement Exs.D2 to D5- Certified copy of public notices Ex.D6 - Certified copy of legal notice Ex.D7 -Certified copy of Police complaint Ex.D8 - Certified copy of joint statement given before police Ex.D9 - Certified copy of Sanction letter issued by bank Ex.D10 - c.c. of statement of accounts of Corporation Bank Ex.D10(a) - corresponding payment entries Ex.D11 - copy of statement of account of Corporation Bank Ex.D11(a) corresponding payment entries Exs.D12 & D13 -Certified copy of statement of accounts Ex.D14 - Original court sale deed dated 28.2.2012 Ex.D15 - Receipt Exs.D15(a),(b) &(c)- Signatures of Bharathi, Indiramma and Vishwanath Ex.D16 - c.c. of letter issued by Police Commissioner 52 O.S.No.3414/2008 Ex.D17 - Certified copy of statement recorded by the police Ex.D18- Encumbrance certificate Ex.D19 -Certified copy of police notice (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.