Gujarat High Court
State Of Gujarat & vs Shivarjsinh Harishchandrasinh & 2 on 10 January, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/13510/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13510 of 2017
With
CIVIL APPLICATION NO. 10843 of 2017
In
SPECIAL CIVIL APPLICATION NO. 13510 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
Circulate this judgement in the subordinate Judiciary and
one copy be forwarded to the State Govt. in its Revenue
Department.
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STATE OF GUJARAT & 1....Petitioner(s)
Versus
SHIVARJSINH HARISHCHANDRASINH & 2....Respondent(s)
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Appearance:
MS NISHA THAKORE, AGP for the Petitioner(s) No. 1 - 2
MR MC BHATT, ADVOCATE WITH MR MP PRAJAPATI, CAVEATOR for the
Respondent(s) No. 3 , 3.2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/01/2018
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C/SCA/13510/2017 CAV JUDGMENT
CAV JUDGMENT
1 By this application under Article 227 of the Constitution of India, the State of Gujarat along with the Mamlatdar, Upleta, District: Rajkot call in question the legality and validity of the order dated 10th April 2013 passed by the Gujarat Revenue Tribunal, by which the Tribunal partly allowed the revision application filed by the respondents herein and remanded the matter to the Mamlatdar and A.L.T. for fresh consideration of the issue in question.
2 The facts giving rise to this application may be summarised as under:
2.1 The respondents are the legal heirs of one Harishchandrasinh Dansinh. The Amended Act, 1972 (Gujarat Act No.2 of 1972) of the Gujarat Agricultural Lands Ceiling Act, 1960 came into force with effect from 1st April 1976.
2.2 On 29th June 1976, Shri Harishchandrasinh Dansinh Vala filled up the form No.2 along with an affidavit in accordance with Section 10 of the Ceiling Act, and thereby declared the various parcels of lands in his holding situated in the districts of Rajkot and Jamnagar respectively. The lands held by Shri Harishchandrasinh Dansinh were ancestral.
2.3 On 5th September 1977, the Revenue Department, vide order dated 9th December 1976, passed under Section 14 of the Act, directed the Mamlatdar of the Upleta Taluka to conduct the ceiling case.
2.4 The proceedings, ultimately, came to be registered as the Ceiling Page 2 of 58 HC-NIC Page 2 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT Case No.42 of 1976 with the Mamlatdar and A.L.T., Upleta, Rajkot. Shri Harishchandrasinh Dansinh was served with the notices and the matter was heard. The statements of TalaticumMantri and the other revenue officers were recorded and various other documentary evidence produced by the parties were taken on record.
2.5 On 4th October 1980 i.e. during the pendency of the proceedings before the Mamlatar and A.L.T., Upleta, Shri Harishchandrasinh Dansinh passed away.
2.6 The Mamlatdar and A.L.T., Upleta, vide his order dated 28th January 1984, declared:
(1) that on the date when the Act came into force i.e. 1st April 1976, Shri Harishchandrasinh Dansinh had two major sons namely Shivrajsinh Harishchanrasinh (D.O.B. 28th January 1941) and Indrajitsinh Harishchandrasinh (D.O.B. 15th June 1947). Therefore, the family members of the deceased Harishchandra Dansinh were entitled to three units each.
(2) that out of the total holding of Harishchandra Dansinh, the land admeasuring 1050 Acres were declared as surplus. The respondents were held entitled to hold the lands admeasuring Acres 130.20 Gunthas.
2.7 It appears that the respondents filed an appeal before the Deputy Collector, Gondal, District: Rajkot challenging the order passed by the Mamlatdar, Upleta.
2.8 On 23rd February 1984, the Mamlatdar, Upleta forwarded all the Page 3 of 58 HC-NIC Page 3 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT papers to the Deputy Collector, Gondal, Rajkot.
2.9 On 30th June 1984, the Deputy Collector, Gondal issued notices upon the respondents, and after considering their reply as well as the record of the case, affirmed the order of the Mamlatdar and A.L.T., Upleta.
2.10 The respondents, being aggrieved and dissatisfied with the order passed by the Deputy Collector, Gondal preferred a revision application before the Gujarat Revenue Tribunal, which came to be registered as the Revision Case No.TEN/BR/2/85. Before the Tribunal, two things were highlighted by the respondents:
(1) Vidi land is not to be treated as an agricultural and therefore, the same was wrongly considered in the holding under the Agricultural Lands Ceiling Act.
(2) The original holder namely Harishchandrasinh Dansinh had passed away on 4th October 1980 and apart from the two major sons named above, he also left behind two daughters namely Kaushyakumari (D.O.B. Year 1944) and Premilakumari.
2.11 It was argued before the Tribunal that in view of the amended Hindu Succession Act, 1956 i.e. the Amended Act, 2005, the daughters being treated as the coparceners were entitled to two units each as the Class I heirs.
2.12 The Gujarat Revenue Tribunal, vide its order dated 10th April 2013, was pleased to partly allow the revision application. By its impugned order, the Tribunal remanded the matter to the Mamlatdar Page 4 of 58 HC-NIC Page 4 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT and A.L.T., Upleta to reexamine the matter in terms of the observations made in the impugned order as regards the right of the two daughters to be considered as coparceners in view of the Amended Act, 2005.
3 Being dissatisfied with the judgment and order passed by the Tribunal, the State Government as well as the Mamlatdar and A.L.T., Upleta are here before this Court under Article 227 of the Constitution of India.
4 I take notice of the fact that the impugned order is dated 10 th April 2013. Whereas this application came to be filed before this Court on 18th July 2017 i.e. almost after a period of four years and three months. In such circumstances, the respondents raised a preliminary objection as regards the maintainability of this application on the point of gross delay and laches on the part of the State in filing this application.
● SUBMISSIONS ON BEHALF OF THE STATE OF GUJARAT:
5 The learned A.G.P. submitted that the impugned order passed by
the Gujarat Revenue Tribunal is beyond the scope of the revisional powers exercised by the Tribunal under Section 38 of the Gujarat Agricultural Land Ceiling Act. As per Section 38, the revisional powers can be invoked unless it is established that (1) the order of the Collector was contrary to law; (2) that the Collector failed to determine the material issue on law; or (3) that there was substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice.
6 The learned A.G.P. submitted that no finding is given by the Tribunal as regards any of the aforesaid eventuality being considered for Page 5 of 58 HC-NIC Page 5 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT quashing the order of the Deputy Collector and Mamlatdar and remanding the matter.
7 Relying upon a decision of the Supreme Court in the case of N. Balakrishnan vs. M. Krishnamurthy [AIR 1998 SC 3222], the learned A.G.P. submitted that what counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. It was held by the Supreme Court that Section 5 of the Act is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government, which in similar circumstances, is not shown to an individual suitor, yet one should not but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.
8 Relying upon Section 6 of the Act, it was submitted that the sub section (1) is in two parts. The first part is the non obstante clause and the later is the main or the operative part. The operative portion is a negative enactment. It prohibits any person from holding land more than the ceiling area from 1st September 1961. The first part of SubSection (1) being the non obstante clause prohibits the application of any law in force or even any usage as regards the holding of any land in excess of the ceiling area. Therefore, the legislature intended prohibition of application of other laws. The special enactment governs the determination of holding rights of land within the ceiling area. Sub sections (3B) and (3C) of Section 6 of the Act was introduced by the Page 6 of 58 HC-NIC Page 6 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT amending Act of 1974 with some other relevant provisions by Amending Act No.II of 1974, which admittedly came into force from 1st April, 1976. The said amending subsection reads as under:
"6(3B) Where a family or a joint family consists of more than five members comprising a person and other members belonging to all or any of the following categories namely:
(i) minor son,
(ii) widow of a predeceased son,
(iii) minor son or unmarried daughter of a predeceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extend of onfifth of the ceiling area for each member in excess of five, so however that the total holding of the family does not exceed twice the ceiling area; and in such a case, in relation to the holding of such family, such area shall be deemed to be the ceiling area:
Provided......."
"6(3C) Where a family or a joint family irrespective of the number of members includes a major son, then each major son shall be deemed to be a separate person for the purposes of subsection (1)."
9 A bare perusal of the subsections referred to above make it clear that in order to avail the two conditions must be satisfied i.e. (i) the family should consist of more than five members and (ii) it should have amongst the categories of members mentioned in the three subclauses. If the family does not consist of more than five members but has amongst it any of the members mentioned in the three subclauses, it will not be entitled to the benefit of enlargement of the ceiling area.
Page 7 of 58HC-NIC Page 7 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT Therefore, it is submitted that the benefit of enlargement of the ceiling area will ensure to only that family where the total number of members is more than five and amongst them are members belonging to the categories mentioned therein viz. Minor son, widow of predeceased son and on or unmarried daughter of the predeceased son. But at that stage, there is no mention of the word daughters married or unmarried.
10 It was submitted that on the appointed date, the daughters must have acquired right as heirs of deceased Harishchandrasinh in view of Section 6(B) of the Hindu Succession Act or alternatively, even on the date when the succession opened i.e. on the death of Harishchandrasinh on 4th October 1980. At that stage also, the daughters had not acquired any right in view of the prevailing Hindu Succession Act, 1956. Thus, the requirement of law as laid down by the Supreme Court in the case of Prakash and others vs. Phulavati and others reported in 2016 (2) SCC 36 is rightly applicable to the facts of the case that in order to avail the benefit of the amendment Act, the daughter and father both should be alive. In the present case, at page 26, the details of the daughters have been furnished stating that one daughter of Harishchandrasinh, namely Kaushalyakumari was born in the year 1944 and she passed away on 21 st May 1973. Therefore, the share prayed for was of the deceased daughter through her daughters. It is, therefore, submitted that one of the daughters was not even alive to satisfy the requirement of the Amendment Act, 2005.
11 It was further submitted that the deeming provision referring to the partition of the property immediately before the death of the coparcener should be given due and full effect in view of the settled principle of the interpretation of proviso incorporating the deeming fiction. The Supreme Court upheld the principle of law that the family Page 8 of 58 HC-NIC Page 8 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT settlement does not require compulsory registration. In light of the said observations, upon the death of the coparcener, the deeming fiction would immediately come into effect leading to notional partition. Thus, it is held that even the disposition or alienation including the partition effected before 20th day of December 2004 as per law applicable prior to the said date will remain unaffected. In such circumstances, so far as the notional partition is concerned, on death of Harishchandrasinh on 4th October 1980, the deeming fiction comes into effect by virtue of the explanation to the prevailing Section 5 of the Hindu Succession Act, 1956 leading to notional partition and this being partition prior to 20th December 2004, is not affected by the subsequent Hindu Succession Amendment Act of 2005. Thus, it is submitted that the respondents are not entitled to avail the benefits of the Hindu Succession Amendment Act, 2005 in light of the notional partition and also when the excess land had already been declared prior to the Amendment Act of 2005.
12 The learned A.G.P. also submitted that the order at Annexure: "A" came to be affirmed by the Deputy Collector vide his order dated 20 th June 1984. The Gujarat Revenue Tribunal set aside the order dated 28th January 1984 as well as 30th June 1984 and remanded the matter to consider whether each daughter of the deceased Harishchandrasinh was also entitled to a share in view of the amendment of 2005 in the Hindu Succession Act. In such circumstances referred to above, it is submitted that the question that falls for the consideration of this Court is whether in view of the amendment in Section 6 of the Hindu Succession Act, the daughters are entitled to share equal to that of the sons as a separate unit for the purpose of computing the agricultural land holding of deceased Harishchandrasinh.
13 It was further submitted that (i) the computation of agricultural Page 9 of 58 HC-NIC Page 9 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT land holding is to be carried out as per the provisions of the Agricultural Lands Ceiling Act. The said Act does not provide for treating major daughters as a separate unit for the purpose of computing the agricultural land holding. The amendment in the Hindu Succession Act cannot automatically be extended to the provisions of the Agricultural Lands Ceiling Act. The amendment in the Hindu Succession Act does not provide that the amendment shall also be extended or deemed to have been extended to the Agricultural Lands Ceiling Act.
(ii) the Agricultural Lands Ceiling Act is a special legislation and therefore, the agricultural land holding is to calculated as per the specific provisions made therein and the provisions of the Hindu Succession Act cannot be extended.
(iii) while computing the agricultural land holding, the number of members and their holding is not relevant. Even though a minor son has an independent share in a joint family property, his share needs to be clubbed into the share held by the father for the purpose of computing the agricultural land. Similarly, the share in a joint family property is clubbed into the share of the husband. Similarly the shares of unmarried daughter is also clubbed into the share of the father. The Agricultural Lands Ceiling Act, 1960 being a special Act, the computation of the land is to be done as per the provisions of the said Act and not as per the provisions of the Hindu Succession Act.
14 It was submitted that the computation is to be done with reference to the appointed date as well as the specified date. The specified date is 1st April 1976. The appointed day is 24th January 1961. The amendment was not in existence on both the dates. Section 6(1) of the Act clearly says that no person shall be entitled to hold any surplus agricultural land Page 10 of 58 HC-NIC Page 10 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT from the specified date. The definition of the term "person" includes a "joint family". Thus Harishchandrasinh was not entitled to hold surplus land after 1st April 1976 and therefore the amendment cannot be interpreted so as to invalidate the provisions of Section 6(1) of the Agricultural Lands Ceiling Act.
15 In such circumstances referred to above, the learned A.G.P. prayed that there being merit in this application, the same be allowed and the impugned order be quashed.
16 On the other hand, this application has been vehemently opposed by Mr. M.C. Bhatt, the learned counsel appearing for the respondents. Mr. Bhatt, the learned counsel has filed his written submissions. The same are as under:
"DELAY AND LACHES Delay defeats equity.
The petitioners have preferred present petition purported to be a writ petition under Article 226 and 227 of the Constitution of India challenging the Judgement and order AnnexureC (Page2447) dated 104 2013 delivered by Gujarat Revenue Tribunal (GRT). By the impugned order the GRT has ultimately remanded the matter to Mamlatdar for assessing the shares of two daughters and allotment of units accordingly. This Judgement delivered on 1042013 by GRT is sought to be challenged by the petitioners on 1872017 i.e. alter 4 years and 3 months from the date 01 impugned Judgement and order. As far as the exercise of powers by the High Court under Article 226/227 is concerned, the provisions of Indian Limitation Act do not apply. Nonetheless, any litigant including the State has to challenge the Judgement of the statutory authority within reasonable time. it is the consistent trend of judicial decisions to take into consideration normal period of limitation provided by the Limitations Act for the purpose of invoking jurisdiction of the Hon'ble High Court either by way of appeal or by way of revision application. The highest period of limitation provided under statute is 90 days for invoking appellate jurisdiction or revisional jurisdiction of the High Court. The submission of the respondents is that the petition is not entertainable in view of the fact that there is gross delay in preferring the petition and no sufficient cause is either shown or pleaded in the petition explaining this gross delay of four years. The respondents crave leave to draw attention of the Hon'ble Court Page 11 of 58 HC-NIC Page 11 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT to para3.8 of the petition wherein a vague averment is made that some delay has occurred in preferring the petition on account of administrative process and for obtaining permission of competent authority for preferring petition. It is humbly submitted that the averment made is totally vague. No details have been furnished justifying movement of files, making proposal for preferring petition after 1042013. The respondents have specifically averred in the affidavitinreply, more particularly in para8 that the decision was communicated by Mamlatdar, Upleta to learned Government Pleader of the Hon'ble High court on 892014 to prefer writ petition. This decision is communicated in consequence of correspondence between 1012014 to 892014 as referred to by the respondents in the said paragraph. The petitioners have deliberately chosen not to file any affidavit in rejoinder against this averment. The respondents also crave leave to the averments made in the Civil Application No. 10843 of 2017 wherein the present respondents have prayed for direction to the State for production of correspondence mentioned in paragraph8 of the affidavit inreply. Thus, it is not in dispute that the correspondence between various departments has taken place as per the averment made by the present respondents in para8 of the affidavitinreply. There is absolutely no explanation for delay caused after final communication dated 892014 issued by Mamlatdar, Upleta to learned Government Pleader instructing him to file special civil application against Judgement and order of GRT. In View of these facts, it is a case of absolute lethargy and negligence which. would disentitle the State to pray for equitable relief to invoke writ jurisdiction of this Hon'ble Court. Delay defeats equity. On this very preliminary ground the writ petition is required to be rejected.
The Judgements relied upon by the Respondents are as under:
J1. Office of Chief Post Master General and Ors. Versus Living Media India Ltd. and Anr. [Reported in: MANU/SC/0132/2012, Equivalent Citation: AIR 2012 SC 1506] J2. State of Jammu and Kashmir Versus R K Zalpari and Ors. [Reported in: MANU/SC/ 1129/2015, Equivalent Citation: AIR 2016 SC 3006] J3. State of Kerela and Ors. Versus A K Gopakumar [Reported in: MANU/SC/O390/2012] J4. Pundlik J alam Patil (D) by Lrs. Versus Executive Engineer Jalgaon Medium Project and Anr. [Reported in: MANU/SC/4694/2008, Equivalent Citation: 2008 (13) SCALE 773] J5. The Municipal Council, Ahmednagar & Anr. Versus Shah Hyder Beig and Org. [Reported in: MANU/SC/0022/2000, Equivalent Citation AIR 2006 SC 671] J6. Union of India Versus Prayagraj Dyeing & Printing Mills Pvt. Ltd. [Reported in: MANU/GJ/0550/20l4, Equivalent Citation: 2014 47 GST Page 12 of 58 HC-NIC Page 12 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT 689 (Gujarat)] J7. State of Gujarat and Anr. Versus Kanubhai Kantilal Rana [Reported in: MANU/GJ/1113/2013, Equivalent Citation: 2014 1 GLR 381] J8. Samsunisha Begaum and others v. Vishnukumar Ambelal Patel and others 2012 (3) GLR P.2565.
2. MAINTAINABILITY OF WRIT PETITION: From the title of the Special Civil Application, it appears that there are two petitioners in the present petition. Petitioner No.1 is the State of Gujarat through Deputy Collector, whereas Petitioner No.2 is Mamlatdar, Upleta. The Judgement and order under challenge is delivered by GRT whereby the matter is remanded to Mamlatdar for reconsideration. The very same Mamlatdar, the petitioner no.2, who has been cast upon with duty to reconsider the decision, has chosen to challenge the very same order. It is pertinent to point out that Deputy Collector and Mamlatdar are both statutory authorities under Gujarat Agriculture Land Ceiling Act. They have original jurisdiction under the Act. In the present case, the subject matter of the order under challenge was originally before Mamlatdar and thereafter before Deputy Collector as an appellate authority. A statutory authority conferred with statutory powers cannot challenge the orders of higher statutory authority i.e. GRT before High Court invoking jurisdiction under Article 226 of the Constitution of India. The jurisdiction under Article 226 of the.
Constitution of India can be invoked by private citizens in case of violation of fundamental right or statutory right by the statutory authority but a statutory authority (Mamlatdar) cannot challenge the decision of higher statutory authority (GRT) invoking jurisdiction of High Court under Article 226 of the Constitution of India. In this view of the matter, the petition is not maintainable and deserves to be dismissed as being not maintainable.
3. CHALLENGE TO REMAND ORDER He who hears must decide.
By impugned order, the CRT has remanded the matter back to Mamlatdar for the purpose of determining shares of female members of the family (daughters). In compliance of the impugned order, learned Mamlatdar initiated proceeding. After remand order, learned Mamlatdar issued notices to the present respondents. The present respondents did appear before learned Mamlatdar and produced certain documents including Power of Attorney of other respondents. The matter was under
adjudication before learned Mamlatdar and was being adjourned from time to time. The matter had proceeded considerably. Thus, learned Mamlatdar had accepted the remand order and after having heard the parties, was required to adjudicate and decide the matter in accordance with the law. After accepting the remand order and after proceeding Page 13 of 58 HC-NIC Page 13 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT considerably with adjudication of the matter, learned Mamlatdar, instead of deciding the matter on merits in accordance with the law, had chosen at belated stage to prefer writ petition before this Hon'ble Court. Ordinarily, Hon'ble High Court would not be inclined to interfere with the remand order. The petition wherein ultimately the authority has remanded the matter back to the authority for reconsideration and deciding the same on merits, is therefore, not maintainable.
4. HINDU LAW Position before 1956.
Every Hindu family is presumed to be a joint family. They have joint mess, joint worship and joint estate. Joint Hindu family consists of male as well as female members either by birth or by marriage. Coparcenery is a small part of Hindu undivided family which consists of only male members of the family. In the ancestral and HUF property, all the male coparceners had right by birth to own and hold the property. The Illustration "I" at ANNEXUREA would make the position very clear. In the said illustration, at a given point of time, the interest in HUF property is of (F) (father), (A) (First son), (B) (Second son) and (C) (Third son). Any property in the hands of (F) (Le. father) is ancestral property if (F) has received the same from (F1) (father of F), (F2) (grandfather of F) or (F3) (great grandfather of F). In such ancestral property the sons (A)(B) and (C) have equal shares. In the illustration AnnexureA if father (F) dies, his widow has no interest in the HUF property. Similarly, his daughters also do not get any share or interest in the HUF property. HUF is a continuous and perpetual phenomena. As far as HUF property is concerned, the succession never opens. In the illustration, if father (F) dies, then the interest of the sons (A) (B) & (C) in the HUF property would increase. In the same illustration, if the son (A) dies, the share of (B) (C) and (F) would increase. Thus, the share of coparceners in HUF is never determined, unless partition takes place. In any case, the daughter had no right in HUF property by birth. She is a member of the family without any entitlement in HUF property.
5. HINDU LAW Position after 1956.
After enactment of Hindu Succession Act, 1956 the selfacquired property of intestate Hindu is governed by section 8 of the Act. The names of the heirs are indicated in ScheduleI. Section 6 makes provision regarding undivided share of coparcener dying as a member of HUF. The text of section 6 of the Hindu Succession Act of 1956 is annexed herewith at ANN EXUREB for ready reference. It is provided that in the eventuality of Hindu coparcener dying after 1956, his undivided interest in coparcenary property shall devolve by survivorship upon surviving coparceners and not according to the Act. However, if the deceased had left any female relative specified in ClassI of the Schedule or male relatives specified in that Class claiming through female heir, undivided share in Page 14 of 58 HC-NIC Page 14 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT coparcenery property of deceased, shall not devolve by survivorship but it will be inherited according to section 8 of the Hindu Succession Act.
6. As per the illustrationII at Annexure A, if Father (F) dies after 1956 leaving behind three sons (A), (B) & (C) and daughter (D), the undivided share of father (F) was 1/4 in coparcenery property because all male members (A)(B)(C) & (F) were coparcneners and therefore, each one of them had 1/4 share in the property on the date of demise of (F). In the Coparcenery Property, this 1/4 undivided share of (F) will be inherited by three sons (A)(B)(C) and daughter (D). Thus, each one of them will be entitled to claim 1/4 share of 1/4 i.e. 1/16th share. Nonetheless, the interest of the sons (A)(B) & (C) will survive to the extent of 3/4 th estate in HUF and each one will have l/ 16th share in father's property. There is absolutely no partition of the property. Coparcenery continues in 3/4 share of sons and daughter has share of 1/16 in the entire property. Only with a view to determine the extent of share of inheritance in coparcenery, the Hindu Succession Act contemplates notional partition but in fact and in reality there is o partition.
7. Position of Hindu Law After 2005 In view of amendment in Hindu Succession Act after 2005, in view of Section 6, sons and daughters will be coparceners in HUF Property. Daughters will have same right in the HUF property as of son.
Unamended Section 6 of Hindu Succession Act did provide for succession of undivided share of the Coparceners. Except the undivided share of the deceased Coparceners, coparcenery property will be continued as HUF property for remaining coparceners. The proviso to Section 6(1) of the amended Act provides that recognition of rights of a daughter as coparcener and her right in coparcenery property by birth would not affect to invalidate any alienation of coparcenery property. It also provides that it will not affect any partition having taken place before 2005. The question is regarding interpretation of the word 'partition' occurring in the proviso. The object of proviso appears that coparcenary property must exist in the year 2005. If the coparcenary property transferred before 2005 daughter having born before 2005 cannot challenge the transfer so as to effect the interest of transferee. Same way, if as a consequence of partition which might have taken place before 2005 and as a result of that the coparceners (Father) of a daughter does not continue to have any interest in coparcenery property then in that case there does not exist any coparcenery property in which daughter can make claim as coparcener by birth.
As per Illustration III at Annexure A, if before 2005 Partition has Page 15 of 58 HC-NIC Page 15 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT taken place between Father (F), A(Son), B (Son), C(Son) then in that case there does not exist coparcenery property in which D(Daughter) can claim any right. But assume F (Father) had brother and there is partition between F(Father) and his brother before 2005 then in that case after partition there were 4 coparceners in branch of F. In this situation, daughter is entitled to make claim after 2005 because she is coparcener like son and entitled to
8. HUF Property by Birth.
Partition contemplated in amended section 6(1) Proviso is the partition by meats and bounds. The ascertainment of extent of share does not amount amount to partition. Unamended Section 6 only provides for succession of Hindu dying having interest in the coparcenery property. At that time, for ascertainment of his share in the coparcenary property, the method to be adopted is notional partition. But that does not amount to partition as contemplated by amended Section 6 (1) (Proviso). Partition is allotment of separate precise share to previous coowners or Coparceners. As far as the partition is concerned, the respondents rely upon the meaning of the word "partition" assigned in
(i) Wharton's Law Lexicon page736 (ANNEXUREC.)
(ii) Black's Law Dictionary page1229 (ANNEXURED.)
(iii) Supreme Court Words & Phrases page13 1313 14 (ANNEXUREE.)
(iv) Section 171 of the Income Tax Act (ANNEXUREF.) In view of the above submissions, the partition contemplated under unamended section 6 and amended section 6 of Hindu Succession Act is not notional to determine the extent of share of coparcener when succession opens for undivided share of coparcener.
9. The respondents submit that the Judgement reported in AIR2016 769 does not apply to the facts of present case. it appears that the attention of the Hon'ble Supreme Court was not drawn properly on the Judgement reported in (201l)9SCC788 and it is sought to be submitted that the Judgement is only pertaining to the principle 0! application of law in pending cases.
10. The petitioners have also placed reliance on the decision reported in (2000)8SCCl96. It is humbly submitted that this Judgement is regarding interpretation of Andhra Pradesh Law Reform: Au, l9'73, and it is in respect of state amendment to Hindu Succession Act made by interpreting section 29A. The subject matter of the present case is Hindu Page 16 of 58 HC-NIC Page 16 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT Succession Act of 2005 and Gujarat Agriculture Land Ceiling Act enacted by parliament and therefore, the Judgement has no application in the present case.
In view of the above submissions, the petition is required to be dismissed.
ANNEXURE:A ILLUSTRATION NO.1 Before Hindu Succession Act, 1956 F2 (Great Grand Father) F1 (Grand Father) F (Father) A - Son B - Son (1) C - Son D- Daughter B - Son (2) B - Son (3) ILLUSTRATION NO.2 After Hindu Succession Act, 1956.
F (Father)
A - Son B - Son C - Son D- Daughter
ILLUSTRATION NO.3
After 2005 [After Hindu Succession (Amendment) Act, 2005] F (Father) A - Son B - Son C - Son D- Daughter 17 The learned counsel appearing for the respondents placed reliance Page 17 of 58 HC-NIC Page 17 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT on the following decisions:
(1) Office of the Chief Post Master General and others vs. Living Media Indian Ltd. and another [AIR 2012 SC 1506] (2) State of Jammu and Kashmir vs. Zalpuri and others [AIR 2016 SC 3006] (3) State of Kerala and others vs. A.K. Gopakumar (Sic) [Civil Appeal No.2203 of 2012 decided on 21st February 2012].
(4) Pundlik Jalam Patil (D) vs. Executive Engineer Jalgaon Medium Project and another [(2008) 17 SCC 448] (5) The Municipal Council, Ahmednagar vs. Shah Hyder Beig and others [AIR 2000 SC 671] (6) Union of India vs. Prayagraj Dying and Printing Mills Pvt Ltd [2015(319) ELT 681 (Guj)] (7) State of Gujarat and another vs. Kanubhai Kantilal Rana [2014 (1) G.L.R. 381] (8) Samsunisha Begaum wife of Dr. Nasarullahkhan Dhaniani and others vs. V. Vishnukumar Ambelal Patel [2012 (3) G.L.R. 2565] All the above referred decisions are on the point of delay and laches on the part of the State in filing appeal or petition under Article 226 or 227 of the Constitution of India.Page 18 of 58
HC-NIC Page 18 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT 18 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Tribunal committed any error in passing the impugned order.
19 As this petition has been vehemently opposed by the learned counsel appearing for the respondents mainly on the ground of delay on the part of the State in challenging the impugned order passed by the Tribunal, I must first look into this issue. There is no doubt that the present application has been filed by the State of Gujarat questioning the legality and validity of the order passed by the Tribunal after a period of almost four years. The State has tried to explain the delay. However, the moot question is should I reject this application only on the ground of delay or should I look into the merits of the matter. I am not inclined to reject this application only on the ground of delay for the reasons which I shall assign hereinafter.
20 In the aforesaid context, I may quote with profit a Five Judge Bench decision of the Supreme Court in the case of Ramchandra Shankar Deodhar and Others vs. The State of Maharashtra and Others, reported in AIR 1974 SC 259. The issue before the Supreme Court was one relating to promotion to the post of Deputy Collector. A preliminary objection was raised on behalf of the respondents that the petitioners were guilty of gross laches and delay in filing the petition. Such objection was raised as the divisional cadres of the Mamlatdars/ Tehsildars were created as far back as 1st November 1956 by the Government Resolution of that date, and the procedure for making promotion to the posts of Deputy Collector on the basis of divisional select lists, which was a necessary consequence of the creation of the divisional cadre of Mamlatdars/Tehsildars, had been in operation for a Page 19 of 58 HC-NIC Page 19 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT long number of years. It was pointed out by the respondents that there was a delay of more than ten to twelve years in filing the petition since the accrual of the cause of complaint and such delay was sufficient to disentitle the petitioners to any relief in a petition under Article 32 of the Constitution. The Supreme Court negatived such preliminary objection by observing as under:
"...We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J., in Tilockchand Motichan v. H.B.Munshi, (1969) 2 SCR 824 = (AIR 1970 SC 898), is one discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose."
21 The Supreme Court in the case of Tukaram Kana Joshi and Others vs. M.I.D.C. and Others, reported in AIR 2013 SC 565 (His Lordship Dr. B.S.Chauhan, J.) reiterated the position of law on the issue of delay. What was assailed before the Supreme Court was the judgment and order passed by the High Court of Bombay by way of which the High Court had rejected the claim of the appellants for compensation due to them for the land taken by the respondent authorities, without resorting to any procedure prescribed by law. It was contended before the Court that the delay and laches on the part of the appellants had extinguished the right to put forth a claim. In such circumstances, His Lordship made the following observations in paragraphs 10, 11 and 12, which, in my opinion, are very apt and helps the petitioners.
"10. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Page 20 of 58 HC-NIC Page 20 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional imitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.
11. The question of condonation of delay is one of the discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the partys defence must be tried upon principles substantially equitable. (Vide: P.S.Sadasivaswamy v. State of T.N. AIR 1974 SC 2271; State of M.P. and Ors. V. Nandlal Jaiswal and Ors., AIR 1987 SC 251; and Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors., (2009) 1 SCC 768: (AIR 2008 SC (Suppl) 824);)
12. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a nondeliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the petitioners. (Vide:Durga Prasad v. Chief Controller of Imports and Exports and Ors. AIR 1970 SC 769; Collector, Land Acquisition, Anantnag and Anr. V. Mst. Katiji and Ors., AIR 1987 SC 1353; Delhi Rohtas Light Railway Company Ltd. v. District Board, Bhojpur and Ors., AIR 1993 SC 802: (1992 AIR SCW 3181); Dayal Singh and Ors. v. Union of India and Page 21 of 58 HC-NIC Page 21 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT Ors. AIR 2003 SC 1140: (2003 AIR SCW 685); and Shankara Coop. Housing Society Ltd. v. M.Prabhakar and Ors. AIR 2011 SC 2161 : (2011 AIR SCW 3033))"
22 Thus, as held by the Supreme Court in a plethora of decisions that no hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after a considerable delay and is otherwise guilty of laches. The question of condonation of delay is one of the discretion and has to be decided on the basis of the facts of the case at hand.
23 I am inclined to overlook the aspect of delay in the present case for the reason that the order passed by the Tribunal is not tenable in law. Besides the same, even if I would have rejected this application on the ground of delay, it would not have put an end to the litigation. The impugned order is one of remand. However, the ground on which the entire litigation has been remanded by the Tribunal to the Mamlatdar and A.L.T. is something quite contrary to the position of law prevailing as on date. In such circumstances, I have decided to go into the merits of the matter.
● ANALYSIS:
24 The principal issue in the case at hand is with regard to the right
of daughters in the property in question considering the Hindu Succession (Amendment) Act, 2005. The principal argument of the learned counsel appearing for the respondents is that in view of the Hindu Succession (Amendment) Act, 2005, the daughters are treated as coparceners and they would have a share in the property. The sum and substance of the argument is that once the right of the daughters so far as their share in the property in question is crystalised, then they would Page 22 of 58 HC-NIC Page 22 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT be entitled to two units each, and in such circumstances, the order passed, in the proceedings under the Land Ceiling Act, needs to be modified accordingly. The Tribunal is of the view that the matter should be looked into once again by the Mamlatdar and A.L.T. in this direction. The Tribunal has hinted or rather has pointed towards the Hindu Succession (Amendment) Act, 2005, and has asked the Mamlatdar and A.L.T. to decide it accordingly.
25 Before adverting to the rival submissions canvassed on either side, it would be apposite to reproduce the erstwhile Section 6 of the Hindu Succession Act and the amended Section 6 of the Act as substituted by Section 3 of the amended Act for the sake of convenience. The pre amended Section 6 of the Principal Act reads as under:
"Section 6: Devolution of interest in coparcenary property when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act;
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1 For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been alloted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2 Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
The substituted Section 6 of the Principal Act as amended by the Page 23 of 58 HC-NIC Page 23 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT Amendment Act which is in force w.e.f. 9 September, 2005 reads as under:
6. Devolution of interest of coparcenary property. (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
(ci) Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the predeceased son or a predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre deceased daughter; and
(c) the share of the predeceased child of a predeceased son or of a pre deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre Page 24 of 58 HC-NIC Page 24 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT deceased child of the predeceased son or a predeceased daughter, as the case may be.
Explanation. For the purposes of this subsection, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or greatgrandson for the recovery of any debt due from his father, grandfather or greatgrandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or greatgrandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this subsection shall affect
(a) the right of any creditor to proceed against the son, grandson or great grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. For the purposes of clause (a), the expression "son", "grandson" or "greatgrandson" shall be deemed to refer to the son, grandson or greatgrandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004."
Explanation. For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court."
26 Having regard to the importance of the issue, I would like to look into the history and development of the Hindu Law as well as look at the Page 25 of 58 HC-NIC Page 25 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT Law Commission Report, Report of the Standing Committee of Parliament and the Statement of Objects and Reasons of the Bill introduced in Parliament with the purpose of finding out the true intent of the Parliament in amending Section 6 of the Principal Act by the Amendment Act, 2005. [See: Badrinarayan Shankar Bhandari and others vs. Omprakash Shankar Bhandari and others, 2014 (5) CTC 353].
27 As far as back in 1584 in the Heydons' case (1584) 76 ER Page 637 it was said that for sure and true interpretation of the statute in general, four things are to be considered :
(a) what was the common law before making the Act,
(b) what was the mischief and defect for which the common law did not provide,
(c) what remedy the Parliament has resolved and appointed to cure the disease; and
(d) what is the reason of the remedy.
This Rule of interpretation/construction is now popularly known as the Mischief Rule or Rule of Purposive Construction. This Rule was approved by the Supreme Court in Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661] and after setting out the above Rule, stated that it is the office of the Judge to always make such construction as would advance the remedy and suppress the mischief.
• OLD HINDU LAW
28 Before the enactment of the Principal Act, the Hindus were
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covered by the Shastric and customary law which varied from region to region. Principally, there were two schools of the Hindu Law in India i.e. Dayabhaga which was prevalent in the eastern part of India i.e. Bengal and the adjoining areas and Mitakshara which was prevalent in the rest of India. Under the Mitakshara School of Hindu Law, woman in a joint Hindu family had merely a right of maintenance/sustenance but had no right of inheritance to property. The basis of Hindu joint family was a common male ancestor and the properties of the family were held as a coparcenary property with the male member of the family having a right to the property by virtue of birth and their interest in the coparcenary property would keep varying depending upon the death or a birth of a male in the joint Hindu Family. The property of a male coparcener on his death used to pass by survivorship in the Mitakshara School of Hindu Law. No female is a member of the coparcenary though, she is a member of the joint Hindu family. The coparcenary would normally consist up to four degrees i.e. the common ancestor (coparcener), his son, grandson and great grand son.
29 Under the Dayabhaga School of Hindu Law, the daughters also got equal share along with their brothers. Under the Dayabhaga School the property is transmitted by the Succession and not by Survivorship. In this School, a female could be a coparcener. So far as the Dayabhaga School was concerned, there was no concept of a coparcenary property and every member of a Hindu family would hold the property in his/her own right and was entitled to dispose of the property as he/she deemed fit either by gift or Will. There was no concept of passing of property by survivorship nor did a Hindu male in Dayabhaga School acquire rights to property merely by virtue of his birth. Consequently, the women had a right equal to the rights to that of men belonging to the family in the Dayabhaga School of Hindu Law.
Page 27 of 58HC-NIC Page 27 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT 30 The earliest legislation with regard to the right of female inheritance was made in 1929 called the Hindu Law of Inheritance Act, 1929. This Act conferred inheritance right to three female heirs i.e. the son'sdaughter, daughter'sdaughter and sister. Thus, bringing about the restrictions on the exclusive Rule of Survivorship. The next legislation was the Hindu Womens Right to Property Act, 1937. This Act enabled the widow to succeed along with the son of the deceased in equal share to the property of her deceased husband. However, the widow was entitled only to a limited estate in the property i.e. the life estate and could not dispose of the property during her life time.
• PRINCIPAL ACT
31 In 1950, while framing the Constitution, Articles 14, 15(2) and
(3) and 16 of the Constitution of India, sought inter alia to restrain the practice of discrimination against women and made equal treatment of women a part of the fundamental rights guaranteed under the Constitution. In line with the above Constitutional objective, the Parliament enacted the Hindu Succession Act,1956 i.e. the Principal Act. This Act applies to all Hindus including Buddhists, Jains and Sikhs. It lays down a uniform and comprehensive system of inheritance and applies to all Hindus, whether governed by the Mitakshara or Dayabhaga School of Hindu Law. However, Section 6 of the Principal Act as originally enacted retained substantially the Rule of passing of property in a coparcenary by survivorship, although it did give rights of testamentary disposition to Hindu males in respect of his properties including his coparcenary share. The erstwhile Section 6 of the Principal Act amended Section (6) inter alia provided that the interest of a coparcener in the coparcenary property if not disposed of by Will under Section 30 of the Principal Act, would devolve in terms of the pre Page 28 of 58 HC-NIC Page 28 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT amended Section 6. The main part of the preamended Section 6 provided that the right of a male Hindu at the time of his death in the coparcenary property will devolve by survivorship. However, the proviso provided that if the deceased coparcener has any female relatives specified in Class I of the Schedule to the Act, then the property will devolve in terms of preamended Section 6. The Explanation 1 provides that there would be notional partition immediately before his death so as to allocate the share in the coparcenary to the deceased coparcener.
32 It is interesting to note that the Hindu Code Bill wanted to do away with the Mitakshara coparcenary completely. However, the same was opposed to and the erstwhile Section 6 was enacted in the Principal Act. Consequently, if a partition took place in the coparcenary property, then each male coparcener would get his share and the mother and wife/widow would not become a coparcener but would get a share in the coparcenary property. But a daughter would get no share in the coparcenary property. The daughter would only get a share as one of the heirs on the death of coparcener, out of the share of the deceased in the coparcenary property on notional partition, in view of proviso to pre amended Section 8 of the Principal Act. In terms of Section 30 of the Principal Act, a Hindu male can dispose of his entire property including his interest in coparcenary property by testamentary disposition/Will and also in the process deprive his female heirs of any share. [See: Badrinarayan Shankar Bhandari and others vs. Omprakash Shankar Bhandari and others, 2014 (5) CTC 353].
• MAKING OF THE AMENDMENT ACT , 2005
33 Keeping the aforesaid position of Hindu Law, in its 174th Report
(May 2000), the Law Commission of India was of the view that the Page 29 of 58 HC-NIC Page 29 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT gender reforms were called for to ensure equality. The Commission noted the fact that in various States such as Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka, attempts had already been made to bring about the gender equality. But all these States, except Kerala, while conferring the coparcenary rights on the daughters also denied such rights to daughters married prior to the State Acts coming into force.
34 The Law Commission recommended that the daughter should be made coparcener by birth and that she should be entitled to get a share on partition and/or on the death of the male coparcener. The Commission also recommended that a daughter who is married after the commencement of the Amendment Act, should be entitled to a share in the ancestral property as she has already become a coparcener prior to her marriage. One more recommendation of the Law Commission was to do away with the erstwhile Section 23 of the Principal Act which provided that a woman would have a right to stay in the family house as a member of the joint Hindu Family but unlike a male, she would have no right to demand a partition of the family house. The Commission recommended that she should have rights equal to the male in respect of a family house.
35 The Law commission also observed that the Law of Succession falls under Entry V of the List III (concurrent list) in VII Schedule of the Constitution. In view of Article 246 of the Constitution of India the laws made by the above mentioned five States, would stand repealed to the extent they are repugnant to the Principal Act on amendment.
36 On 20th December, 2004, the Hindu Succession Amendment Bill 2004 was introduced in the Rajyasabha, inter alia, seeking to amend the erstwhile Section 6 and doing away/omitting the erstwhile Section 23 of Page 30 of 58 HC-NIC Page 30 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT the Principal Act.
"Statement of Objects and Reasons for amending the 'Principal Act' read as follows: STATEMENT OF OBJECTS AND REASONS The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession Hindus and gave rights which were till then unknown in relation to women's property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Actlays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudir laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Parathana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.
2. Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts to. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need of render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.Page 31 of 58
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4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on 'Property Rights of Women: Proposed Reform under the Hindu Law.
5. The Bill seeks to achieve the above objects".
37 The Bill inter alia provided in proviso to the proposed Section 6(1) that the Amendment Act would not apply to a daughter married before the commencement of the Amendment Act and also that the Amendment Act will have no application to a partition in case the partition had been affected before the commencement of the Amendment Act. The aforesaid Bill was thereafter referred to the Standing committee of Parliament. The Standing Committee after recording the historical growth of the Hindu Law and Gender inequality with regard to the property right practiced against a female Hindu suggested that proviso 1 to proposed Section 6(1) of the bill which sought to exclude the daughter married before the commencement of the Amendment Act from the benefit of the Act should be done away with.
38 The Standing Committee also suggested that the partition of the Hindu family property should be properly defined in the Amendment Act. It was suggested that the partition for all practical purposes should be either by the registered documents or by a decree of Court. However, where oral partition is pleaded, the same should be backed by evidence in support. Further omission of Section 23 as suggested by the Law Commission, will enable the Hindu Women to seek partition of a family house occupied by the family members just as a male member could seek partition.
39 Thereafter, on 9th September, 2005, the Amendment Act, 2005 Page 32 of 58 HC-NIC Page 32 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT came to be passed as Act 39 of 2005. Section 3 of the Amending Act substituted the erstwhile Section 6 of the Principal Act. The Amendment Act, 2005 did away with the exclusion of married daughter from getting the benefit of the amendment and also added a proviso to Section 6(1) of the Principal Act saving partitions done prior to 20th December, 2004 (the date of introduction of the Bill in Rajya Sabha). The Explanation to Section 6(5) of the Principal Act provided that for the purposes of the Section 6 of the Act partition only means partition by registered document or decree of Court.
40 The Hindu Succession Act, 1956 made a conscious departure from the Shastric/Customary Law, but only in two respects :
(i) Section 30 gave a right to Hindu coparcener to make testamentary disposition of his property including his share in the coparcenary property.
(ii) Section 6 of the Principal Act as enacted in 1956 provided for property passing in the absence of a female heir in ClassI by survivorship upon the death of the coparcener. However, if the coparcener had any female relative such as widow, daughter or a grand daughter, specified in classI of the Schedule then the interest of such deceased coparcener would not pass by way of survivorship but would pass by succession as provided under the Principal Act. (See: Badrinarayan Bhandari (supra)).
41 However, the Principal Act did not provide any rights to the daughters in respect of the partition of the property or any rights to demand partition of the property or even claim a share in the coparcenary property. The only right of the daughter would be to get a Page 33 of 58 HC-NIC Page 33 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT share in the father's share in the coparcenary property and the same would arise only on the death of her ancestorcoparcener. This led to gender discrimination and daughters were left out from enjoying the coparcenary property being violative of Articles 14 and 15 of the Constitution of India which provide for equal rights to all citizens and a mandate not to be discriminated on account of religion, caste, sex or birth. Realizing the dichotomy and gender discrimination being sanctioned by the law, Law Commission of India undertook the study of the provisions of Hindu Law with regard to the laws of inheritance and particularly, with regard to the rights of daughters. On detailed study, the Law Commission submitted the 174th Report in 2000 and recommended that the daughter of a coparcener should be given equal right as that of a son by virtue of her birth in the joint Hindu family. On the basis of the Report of the Law Commission, the Government introduced a Bill in Parliament. However, the Bill also provided in the proposed Section 6(5) that the amended Section shall have prospective effect i.e. the amendment shall not apply to a partition effected before the commencement of the Amendment Act. It also provided that it shall not apply to a daughter married before the commencement of the Amendment Act. However, the Act when passed did not have any provision curtailing the rights of a daughter married before coming into force of Amendment Act. (See: Badrinarayan Bhandari (supra)).
42 The argument of Mr. Bhatt, the learned counsel appearing for the respondents is that in accordance with the amendment, the daughters of coparceners are also given some status equally to that of the sons. According to the learned counsel, the newly amended Section 6(1) of the Hindu Succession Act would apply to the present case as no disposition, alienation or partition of the property took place before 20th December 2004. The learned counsel pointed out that the partition Page 34 of 58 HC-NIC Page 34 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT contemplated in that section is actual partition by execution of a deed of partition or partition effected by a decree of Court. Therefore, the learned counsel submits that there is no question of considering notional or deemed partition. It is his contention that only when the actual partition has taken place prior to 20th December 2004, the amended Act would not apply, and in this case, as there was no such partition prior to 20th December 2004, the daughters are also entitled to equal shares. The learned counsel further urged that the Hindu Succession (Amendment) Act is a beneficial legislation, and therefore, the same is to be liberally interpreted to confer the benefits on the beneficiary that is women.
43 The argument of the State is that the property in question is an ancestral property and on the birth of the two sons of late Harishchandrasinh, they were entitled to get a share each with their father and therefore, all the three male members of their family were entitled to 1/3rd share. On the death of Harishchandrasinh in the year 1980, the succession opened for his 1/3rd share, and therefore, the unamended Section 6 of the Hindu Succession Act, 1956 alone would govern the field. The learned A.G.P. further urged that the amended Act came into force with effect from 20th December 2004, and therefore, it would not apply to the present case. The learned A.G.P. further contended that as Harishchandrasinh passed away on 4th October 1980, the disposition had taken place by operation of law, and therefore, the daughters are not entitled to equal share as claimed by them.
44 The Supreme Court in the case of Sheela Devi and others vs. Lal Chand and another [(2006) 8 SCC 581] observed as under:
"19. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by Page 35 of 58 HC-NIC Page 35 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Subsection (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to subsection (1) of Section 6 of the act creates an exception. First son of Babu Lal viz., Lal Chand, was, thus, a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the plaintiffsrespondents to show that apart from lal Chand, Sohan Lal will also derive the benefit thereof. So far as the second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956."
45 The Supreme Court in the above referred decision observed that the amended Act, 2005 would have no application in that case as the succession having opened in 1989 when the father in that case passed away.
46 The learned counsel appearing for the respondents submitted that the decision of the Supreme Court in the case of Sheela Devi (supra) is not a binding precedent for the proposition that the Hindu Succession (Amendment) Act, 2005 will have no application in cases where the succession has opened prior to December 2004. According to him, the observation made by the Supreme Court is not the ratio decidendi as the issue before the Supreme Court was whether the provisions of Section 8 of the Hindu Succession Act, 1956 would apply or whether the law applicable prior to 1956 Act would apply to the facts of the case.
47 A Division Bench of the Madras High Court in the case of Smt. Bagirathi and others vs. S. Manivanan and another [(2008) 3 TLNJ 4146 (Civil)] held as under:
"13. A careful reading of Section 6(1) read with 6(3) of the Hindu Succession (Amendment) Act, clearly indicates that a daughter can be considered as a coparcener only if her father was a coparcener at the time of coming into force of the amended provision. It is of course true that for Page 36 of 58 HC-NIC Page 36 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT the purpose of considering whether the father is a coparcener or not, the restricted meaning of the expression "partition" as given in the explanation is to be attributed.
14. In the present case, admittedly the father of the present petitioners had expired in 1975. Sec.6(1) of the act is prospective in the sense that a daughter is being treated as coparcener on and from the commencement of the Hindu Succession (Amendment) Act, 2005. If such provision is read along with Sec.6(3), it becomes clear that if a Hindu dies after commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property shall devolve not by survivorship but by intestate succession as contemplated in the act.
15. In the present case, the death of the father having taken place in 1975, succession itself opened in the year 1975 in accordance with the existing provisions contained in Sec.6. If the contention of the petitioners is accepted, it would amount to giving retrospective effect to the provisions of Section 6 as amended in 2005. On the death of the father in 1975, the property had already vested with ClassI heirs including the daughters as contemplated in the unamended Sec.6 of the Act. Even though the intention of the amended provision is to confer better rights on the daughters, it cannot be stressed to the extent of holding that the succession which had opened prior to coming into force of the amended Act are also required to be reopened. In this connection, we are also inclined to refer to the decision of M.Srinivasan, J. as His Lordship then was, reported in 1991(2) M.L.J.199 (Sundarabal and others v. Deivanaayagam and others). While interpreting almost a similar provision, as contained in Section 29Aof the Hindu Succession Act, as introduced by the Tamil Nadu Amendment Act 1 of 1990, the learned Single Judge had made the following observations: "14.... Under subclause (1), the daughter of a coparcener shall become a coparcener in her own right by birth, thus enabling all daughters of a coparcener who were born even prior to 25th March, 1989 to become coparceners. In other words, if a male Hindu has a daughter born on any date prior to 25th March, 1989, she would also be a coparcener with him in the joint family when the Amendment came into force. But the necessary requisite is, the male Hindu should have been alive on the date of the coming into force of the Amended Act. The section only makes a daughter a coparcener and not a sister. If a male Hindu had died before 25th March, 1989 leaving coparcenary property, then his daughter cannot claim to be a coparcener in the same manner as a son, as , on the date on which the Act came into force, her father was not alive. She had the status only as a sisteravis her brother and not a Page 37 of 58 HC-NIC Page 37 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT daughter on the date of the coming into force of the Amendment Act....."
48 In the case of Valliammal vs. Maniyappan and others [(2008) 4 C.T.C. 773], the Madras High Court observed as under:
""6. In the plaint, it is stated that the father of the plaintiffs died about thirty years prior to the filing of the suit. The second plaintiff as P.W.1 has deposed that their father died in the year 1968. The Amendment Act 39 of 2005 amending Section 6 of the Hindu Succession Act, 1956 came into force on 9.9.2005 and it conferred right upon female heirs in relation to the joint family property. The contention put forth by the learned counsel for the appellant is that the said Amendment came into force pending disposal of the Suit and hence the plaintiffs are entitled to the benefits conferred by the Amending Act. The Amending Act declared that the daughter of the coparcener shall have the same rights in the coparcenery property as she would have had if she had been a son. In other words, the daughter of a coparcener in her own right has become a coparcener in the same manner as the son insofar as the rights in the coparcenery property are concerned. The question is as to when succession opened insofar as the present suit properties are concerned. As already seen, the father of the plaintiffs died in the year 1968 and on the date of his death, the succession had opened to the properties in question. In fact, the Supreme Court in a recent decision in Sheela Devi and others v. Lal Chand and another, 2007(1) M.L.J. 797 (SC) considered the above question and has laid down the law as follows:
"19. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradhesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application."
In view of the above statement of law by the Apex Court, the contention of the appellant is devoid of merit. The succession having opened in the year 1968, the Amendment Act 39 of 2005 would have no application to the facts of the present case. No other contention was advanced by the counsel for the appellant."
Page 38 of 58HC-NIC Page 38 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT 49 In the above referred decision, a learned Single Judge of the Madras High Court held that as the father of the plaintiff in that case died in the year 1968, on the date of his death, the succession could be said to have been opened to the properties in question. Therefore, it was reiterated that the succession having opened in the year 1968, the Amendment Act 39 of 2005 would have no application to the facts of that case.
50 The Supreme Court in the case of Sathyaprema Manjunatha Gowda (Smt) vs. Controller of Estate Duty, Karnataka [(1997) 10 SCC 684] held as under:
"12. The word survivor usually applies to the longest lives of two or more partners or trustees, and has been applied in some cases to the longest liver or joint tenants and legatees, and to others having a joint interest in any property.
13. Here, we are concerned with Manjunatha Gowda who had obtained property at a partition with coparceners. Survivorship, therefore, is the living of one of two or more persons after the death of the others having interest to succeed in the property by succession. The shares in the coparcenary property changes with death or birth of other coparceners. However, in the case of survivorship it is not of the same incidence. He received the property at the partition without there being any other coparcener. It is an individual property and, therefore, he did not receive it by survivorship but by virtue of his status being a coparcener of the Hindu Joint Family along with his father and brothers.
14. Under these circumstances, the conclusion reached by the High Court that since it is by partition, not by survivorship, clause (d) of subsection (1) of Section 8 does not get attracted, is not (sic) correct. No doubt, the learned counsel relied upon the judgment of this Court in Nagendra Prasad v. Kempananjamma1 which was also considered by the High Court in the impugned judgment. This Court therein has explained that the object of Section 8(1)(d) is to give a right to claim a share in the joint family property to all females referred to in clauses (a) to (c) thereof.
Merely because partition by one of the coparceners under clauses (a) to (c) is a condition for a class of family members entitled to a share in the Page 39 of 58 HC-NIC Page 39 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT property, it does not apply to a case where class of family members entitled under clause 8(1)(d) since it stands altogether on a different footing and, therefore, partition is not a condition precedent for claiming a share by a class of family members enumerated in Section 8(1)(a) of the Act. But that principle has no bearing to the facts in this case for the reason that the property held was not received by survivorship."
51 The Supreme Court in the case of Anar Devi and others vs. Parmeshwari Devi and others [2006 AIR SCW 5063] held as under:
"11. Thus we hold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and, i.e., that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.
12. In the case on hand, notional partition of the suit properties between Nagarmal and his adopted son Nemi Chand has to be assumed immediately before the death of Nagar Mal and that being so Nagar Mal's undivided interest in the suit property, which was half, devolved on his death upon his three children, i.e., the adopted son Nemi Chand and the two daughters who are plaintiffs in equal proportion. Nemi Chand, the adopted son, would get half of the entire property which right he acquired on the date of adoption and one third of the remaining half which devolved upon him by succession as stated above. This being the position, each of the two plaintiffs was not entitled to onethird share in the suit property, but onesixth and the remaining properties would go to the adopted son, Nemi Chand.
13. Undisputedly, the suit properties in the hands of Nagar Mal were Page 40 of 58 HC-NIC Page 40 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT ancestral one in which his son Nemi Chand got interest equal to Nagar Mal after his adoption and from the date of adoption, a coparcenary was constituted between the father and the adopted son. Upon the death of Nagar Mal, the property being ancestral; the half undivided interest of Nagar Mal therein devolved by rule of succession upon his three heirs, including Nemi Chand. This being the position each of the daughters would be entitled to onesixth share in the suit properties and the remaining would go to the heirs of Nemi Chand, since deceased."
52 In the aforesaid decision of the Supreme Court, it was held that notional partition of the suit properties has to be assumed before death, and accordingly, the shares are to be alloted to the sons and daughters.
53 In the case of Angammal and another vs. C. Sellamuthu and another [(2007) 4 T.L.N.J. 535], the Madras High Court held as under:
""14. On the facts of this case, Chennimalai Gounder died on 23.6.2004, the date on which notional partition has taken place which is before 20.12.2004, which is contemplated under the proviso to Section 6(1) of the Hindu Succession Act after amendment. On the pleadings, it is clear that the final decree has been passed as early as on 11.8.1989. Admittedly, the plaintiffs have got married in the years 1965 and 1970 respectively. In these circumstances, as per law which is relied upon by the plaintiffs, the plaintiffs are not entitled to larger share since the Amendment Act is prospective in nature and there is no question of enlargement of devolution of share to the plaintiffs. When that is so, the amendment has to be necessarily rejected. In such circumstances, the reliance placed by the learned counsel for the petitioners on the judgement of this Court in Jothi v. Kumaravel (2007 (3)MLJ 64) that amendment under Order VI, Rule 17 can be effected at any time even after commencement of trial, has no application.
15. As correctly pointed out by the learned counsel for the respondents, the Supreme Court has held in Sheela Devi v. Lal Chand [(2007) 1 MLJ 797 (SC)], if succession has opened prior to Hindu Succession (Amendment) Act, 2005, the provisions of Amendment Act have no application. It is based on the ratio decidendi given by the Supreme Court in the said judgement, the learned trial Judge has rejected the application for amendment on the ground that Chennimalai Gounder died on 23.6.2004. But a careful reading of the said jugement shows that in that case the High Court was required to determine as to whether the provisions of Section 8 of the Act would apply to the facts of the said case Page 41 of 58 HC-NIC Page 41 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT or the law prior to the enforcement of 1956 Act would apply. The High Court having held that the nature of the prayer must be regarded as a Hindu coparcenery and as such the law applicable before the Act came into effect would govern the rights of the parties and no the provisions of the Act. It was in those circumstances, the Supreme Court held that if the succession is opened before the Amendment Act came into existence, the Amendment Act, 2005 would have no application. The Supreme Court further held as follows:
"19. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Subsection (1) of Section 6 of the Act governs the law relating to the succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to Subsection (1) of Section 6 of the Act creates an exception. First son of Babulal, viz., Lalchand, was thus, a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the plaintiffs/respondents to show that apart from Lalchand, Sohan Lal will also derive the benefit thereof. So far as the second son Sohan Lal is concerned, no evidence has been brought on record to show that he was born prior to coming into force of Hindu Succession Act, 1956".
16. In any event, in as much as under the amended provision, especially the provisos to Section 691) and 6(5) of the Act, any partition effected before 20th December, 2004 has been saved and on the facts of the case as it is narrated in the written statement that in the partition suit there has been a final decree passed on 11.8.1999 itself and on the basis of memo of compromise filed in which Chennimalai Gounder, who was a coparcener, ultimately died on 23.6.2004. Even as per the explanation, notional partition has taken effect from the date of his death, viz., 23.6.2004 before which time the partition has already been effected by way of final decree and therefore, as rightly pointed out by the learned trial Judge, there is no substance in the contention of the petitioners that by advent of law, viz., by way of amendment, the division of shares gets enlarged. In view of the same, there is no illegality or irregularity in the order of the learned trial Judge and the revision fails and the same is dismissed. No costs. Connected miscellaneous petition is closed."
54 In the above case, the plaintiff's father passed away on 23rd June Page 42 of 58 HC-NIC Page 42 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT 2004, and therefore, the Madras High Court held that a notional partition had taken place before 20th December 2004. The Court took the view that the plaintiffs were not entitled to a larger share since the Amendment Act is prospective in nature and there was no question of enlargement of devolution of shares to the plaintiffs.
55 The Madras High Court in the case of Nachayal vs. Pongiannan and others [(2007) 4 T.L.N.J. 237], while considering the Tamil Nadu Amendment Act, 1989, observed as under;
""11. The law is settled that if the partition had been effected before the Amendment Act came into force, the daughter even though unmarried, is not entitled for a share in the family property. It is seen that in the cases decided by the Apex Court and by the Division Bench of this Court, the daughter of a coparcener became a coparcener in her own right, since the coparcener was alive on the date of coming into force of the Amendment Act and in those circumstances, when a partition was not effected, it is held that unmarried daughter shall become coparcener in the same manner as a son. In the present case, Palani Gounder died on 27.3.1975, well before the coming into force of the Tamil Nadu Amendment Act 1/1990, namely, 25.3.1989 and hence the plaintiff, viz., his unmarried daughter, cannot claim to be a coparcener in the same manner as a son as on the date of coming into force of the Amendment Act. The finding of the Trial Court that the plaintiff is not entitled to the benefit conferred in Tamil Nadu Amendment Act 1/1990, is correct and proper. Hence, the plaintiff is not entitled for a decree for partition as prayed for. The points are answered against the appellant."
56 A Division Bench of the Madras High Court in the case of T.S. Rajam vs. Controller of Estate Duty, Madras [1968 ITR 342, Volume 69] observed as under:
""The word "disposition" is not defined in the Act but there is no positive indicia in the Act to shackle the popular meaning of the word. It has a wide connotation and is used only as expressive of any transfer inter vivos or by operation of law. A settlement is illustrative of the species of disposition known to law but cannot be an equation thereof and is certainly not exhaustive. Though disposition includes a settlement, Page 43 of 58 HC-NIC Page 43 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT settlement is not the only way to dispose. A sale is comprehended in the expression "disposition" in Section 27 of the Estate Duty Act, 1953."
57 The Supreme Court in the case of Madras Refineries Limited vs. Chief Controlling Revenue Authority, Board of Revenue, Madras [AIR 1977 (SC) 500], while considering the Stamp Act, 1899, observed as under:
""The term "disposition" has been defined in Stroud's Judicial Dictionary as a devise "intended to comprehend a mode by which property can pass whether by act of parties or by an act of the law" and "includes transfer and charge of property." As the Guarantee Agreement did not have any such effect. It did not constitute a "settlement" also. That document was not therefore an instrument of sale, mortgage or settlement and did not fall within the purview of subsection (1) Section 4 of the Act."
58 The ratio of the above referred decisions fortify the argument of the learned A.G.P. appearing for the State that as per Section 6(1) of the Amendment Act, 2005, nothing contained in the subsection shall affect or invalidate the disposition that had taken place prior to 20th December 2004 and in that case, the disposition took place on 4th October 1980 when Harishchandrasinh passed away.
59 A Full Bench of the Bombay High Court in the case of Badrinarayan Shankar Bhandari (supra), after an exhaustive review of the Hindu Succession Act and the various case law, held in para 76 as under:
"As indicated by us earlier, the case of coparcener who died before 9 September, 2005 would be governed by preamended Section 6 (1) of the Act. It is only in case of death of a coparcener on or after 9 September, 2005 that the amended Section 6 (3) of the Act would apply."Page 44 of 58
HC-NIC Page 44 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT 60 The entire controversy, ultimately, was put an end by the Supreme Court in the case of Prakash and others vs. Phulavati and others [(2016) 2 SCC 36]. The principal issue before the Supreme Court in a batch of matters was whether the Hindu Succession (Amendment) Act, 2005 will have a retrospective effect. The Karnataka High Court upheld the plea of retrospectivity in favour of the respondents, by which the appellants were aggrieved. The Supreme Court recorded the facts of the Civil Appeal No.7217 of 2013 in paras 3, 4, 5, 6 and 7, which reads as under:
"3. Only for the purpose of deciding the above legal question, we refer to the brief facts in Civil Appeal No.7217 of 2013. The respondentplaintiff, Phulavati filed suit being O.S. No.12/1992 before Additional Civil Judge (Senior Division), Belgaum for partition and separate possession to the extent of 1/7th share in the suit properties in Schedule 'A' to 'G' except property bearing CTS No.3241 mentioned in Schedule 'A' in which the share sought was 1/28th.
4. According to the case of the plaintiff, the suit properties were acquired by her late father Yeshwanth Chandrakant Upadhye by inheritance from his adoptive mother Smt. Sunanda Bai. After the death of her father on 18th February, 1988, she acquired the share in the property as claimed.
5. The suit was contested mainly with the plea that the plaintiff could claim share only in the self acquired property of her deceased father and not in the entire property. During pendency of the suit, the plaintiff amended the plaint so as to claim share as per the Amended Act 39 of 2005. The trial court partly decreed the suit to the extent of 1/28 th share in certain properties on the basis of notional partition on the death of her father and in some of the items of property, no share was given, while 1/7th share was given in some other properties as mentioned in detail in the judgment of the trial court.
6. The respondentplaintiff preferred first appeal before the High Court with the grievance that the plaintiff became coparcener under the Amendment Act 39 of 2005 and was entitled to inherit the coparcenary property equal to her brothers, apart from contentions based on individual claims in certain items of property.Page 45 of 58
HC-NIC Page 45 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT
7. The stand of the defendantsappellants was that the plaintiff could not claim any share in self acquired property of the members of the joint family and that the claim of the plaintiff had to be dealt with only under Section 6 of the Hindu Succession Act, 1956 as it stood prior to the amendment by Act 39 of 2005. The defendants relied upon a division bench judgment of the High Court in M. Prithviraj vs. Neelamma N. [ILR 2009 KAR 3612] laying down that if father of a plaintiff had died prior to commencement of Act 39 of 2005, the amended provision could not apply. It was only the law applicable on the date of opening of succession which was to apply."
The Supreme Court, after giving due consideration to the rival submissions and after referring to the provisions of Section 6 of the Hindu Succession Act, as it stood prior to 2005 Amendment Act and as amended, ultimately, took the view that the Amendment Act would operate prospectively. While setting aside the judgment of the High Court, the Supreme Court observed as under:
"17. The text of the amendment itself clearly provides that the right conferred on a 'daughter of a coparcener' is 'on and from the commencement of Hindu Succession (Amendment) Act, 2005'. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective [Shayma Sunder v. Ram Kumar, (2001) 8 SCC 24]. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.
18. Contention of the respondents that the Amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment.Page 46 of 58
HC-NIC Page 46 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT Thus, no other interpretation is possible in view of express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20th December, 2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under subsection 5 or under the Explanation.
19. Interpretation of a provision depends on the text and the context [RBI v. Peerless General Finance & Investment Co. Ltd. (1987) 1 SCC 424]. Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given Kehar Singh vs. State (1988) 3 SCC 609. In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given [District Mining Officer v. TISCO, (2001) 7 SCC 358].
20. There have been number of occasions when a proviso or an explanation came up for interpretation. Depending on the text, context and the purpose, different rules of interpretation have been applied [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591].
21. Normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult masters [Keshavji Ravji & Co. v. CIT (1990) 2 SCC 231].
Object of interpretation is to discover the intention of legislature.
22. In this background, we find that the proviso to Section 6(1) and sub section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20 th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment Page 47 of 58 HC-NIC Page 47 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question.
23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9 th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20 th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.
24.On above interpretation, Civil Appeal No.7217 of 2013 is allowed. The order of the High Court is set aside. The matter is remanded to the High Court for a fresh decision in accordance with law. All other matters may be listed for hearing separately for consideration on 24 th November, 2015."
61 It is not in dispute that the parties are Hindus and residents of Gujarat and are governed by the Mitakshara School. Under the Hindu Law, the coparcenary and H.U.F. connotes two different bodies and are not synonym of each other. A Hindu Undivided Family or a joint Hindu Family consists of all persons linearly descendant from common ancestor and includes their wives and married daughters. A daughter ceases to be a member of her father's family, on marriage when she becomes member of her husband's family. In that sense, a married daughter is not a member of Hindu Undivided Family of his father. A Hindu Undivided Family is a wider connotation which includes males as well as females. It has nexus only with the constitution of family and by itself does not relate it to the holding of the property or rights in property. As against this, a Hindu coparcenary is a much narrower body than the joint family. Generally speaking it includes only those persons who acquire by birth an interest in the joint or coparcenary property. These persons are the sons, grandsons and great grandsons of the holder of the joint property Page 48 of 58 HC-NIC Page 48 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT for the time being. In other words, the coparcenary consists of male members of the three generations next to the holder of the property for the time being in unbroken male descent. A male descendent through a female descendent is not a member of coparcenary under Mitakshara School of Hindu Law. [See: State of Gujarat vs. Ramagauri Harkishandas, (1997) 2 G.L.R. 929] 62 In this connection, a reference may be made to paras 212 and 213 of the Mulla's Principles of Hindu Law, 16th Edition. As will be seen from the aforesaid that the concept of coparcenary is directly related to the existence of joint family property or a coparcenary property. The one incidence of coparcenary property, is that the coparcener is one who acquires an interest in the joint property by birth and that he is a male. No female is ever a coparcener, though she may be member of joint family. The other concept of coparcenary property is, except to the extent it has now been eroded by the provisions of the Hindu Succession Act on opening of a succession after the commencement of the Hindu Succession Act, resulting from death of any of the coparcener his interest in the coparcenary does not pass on to his heirs by succession, but devolves on the remaining members of the coparcenary by survivorship. The another incidence of coparcenary property is that it is liable to be partitioned. In the present case, we are concerned with the incidence of partition. The question that arises for consideration is that who are the persons entitled to a share on partition in case partition takes place actually or is to be considered notionally on a given date. As the property vests in the coparceners whether only the coparceners are entitled to a share on such partition or all of the members of the joint Hindu Family constituting the larger body are entitled to a share or only some of them.
63 According to the principles of partition enunciated by Mulla in his Page 49 of 58 HC-NIC Page 49 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT treatise "Principles of Hindu Law", the only property that can be divided is a coparcenary property. Every coparcener is entitled to a share upon partition, whether minor or major. A son begotten at the time of partition, but born after partition, is also entitled to a share as if he was in existence at the time of partition, if no share is reserved for him at the time of partition. For enforcing this claim, he is entitled to get the partition reopened and share allotted to him. No female is a member of coparcenary, therefore, no female is entitled to claim partition as a coparcener. However, certain females in certain circumstances, are entitled to a share when partition, takes place amongst coparceners. The females, who are entitled to a share on partition, have been stated to be
(i) a wife is entitled to receive a share equal to that of a son when there is a partition between a father and his sons; (ii) likewise a widowed mother though cannot compel a partition so long as the sons remain joint, but if a partition takes place between her sons, she is entitled to a share equal to that of a son in the coparcenary property; (iii) a paternal grandmother (father's mother) also when a partition takes place between her grandsons, since her own son being dead. She is entitled to a share equal to that of a son's sons's. She is also entitled to a share when a partition takes place between her living son and sons of a deceased son, no female other than the three females referred to above in their status as wife, widowed mother or parental grandmother is entitled to a share on partition. Thus, daughters, sisters etc. are not entitled to share on partition. That is the effect of joint reading of Paras 315 and 318 of the aforesaid treatise. Similar view has been communicated by Raghavachari in his book on Hindu Law. These principles also find support from Mayne in his Hindu Law and Usage.
The provisions of Section 4 needs attention in this respect. Sub Page 50 of 58 HC-NIC Page 50 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT section (1) of Section 4 determines the ceiling limit of Urban Land in the case of any person depending upon vacant land situated in specified clauses of the Urban Agglomeration. Subsection (2) provides method of computing the lands held by any person in different Urban Agglomeration. Subsections (4), (5), (6) and (7) provides for various interests held by persons or transferred by persons to be taken into consideration in calculating the extent of vacant land held by such person. Subsection (7) deals with persons who are members of the H.U.F. and provides to what extent their interest in the lands held by the H.U.F. is to be taken into account in calculating the land held by such member of the H.U.F. Subsection (7) reads as under:
"4.(7) Where a person is a member of Hindu Undivided Family, so much of the vacant land and of any other land on which there is a building with a dwelling unit therein, as would have fallen to his share had the entire vacant land and such other land held by the Hindu Undivided Family been partitioned amongst its members at the commencement of this Act shall also be taken into account in calculating the extent of vacant land held by such person."
The aforesaid provision clearly gives an indication of a statutory scheme that in the case of a property held by the H.U.F. so much of the vacant land and any of other land on which there is a building with a dwelling unit therein which would have fallen to the share of the member concerned, had the entire vacant land and such other land referred to above held by the H.U.F. been partitioned amongst its members at the commencement of the Act, is to be considered in the case of member concerned. The same cannot be considered in the hands of Karta of the H.U.F. in totality. Obviously, it envisages a notional partition and determination of shares that could be allotted on the appointed day, on the day in which holding of vacant land and surplus land has to be calculated under the Act, to those members of the family Page 51 of 58 HC-NIC Page 51 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT who are entitled to share on that date. Therefore, without determining the entitlement to the share on the partition, automatically the vacant land cannot be divided into physical number of adult members who could be legitimately considered to be constituting bigger body of the Hindu Undivided Family. Moreover, it is to be seen that Subsection (7) only deals with a person who is a member of the H.U.F. as discussed above. Married daughters cannot be treated to be member of the H.U.F. of which their father is Karta, as such. On marriage, she ceases to be member of her father's family and becomes member of her husband's family. [See: State of Gujarat vs. Ramagauri Harkishandas (supra)] 64 Therefore, to the extent merely on the basis of the fact that the property in question was an ancestral property, the argument that on a notional partition of the ancestral property, the major married daughters will be entitled to a separate unit qua the property in question, should fail.
65 The case pertains to the agricultural land held by Harishchandrasinh through his heirs under the provisions of the Agricultural Lands Ceiling Act, 1960 (as amended 1972). Annexure: "A" is the order passed by the competent authority. The computation is carried out on the basis of the agricultural lands held by late Harishchandrasinh on 24th January 1971. Harishchandrasinh passed away in 1980. As per the order of the competent authority, three units of the family are held to be entitled to hold the agricultural lands upto the ceiling limits in accordance with the provisions of the Agricultural Lands Ceiling Act, 1960. The three units comprised of (i) deceased Harishchandrasinh, (ii) major son Shivrajsinh, and (iii) major son Indrajitsinh.
Page 52 of 58HC-NIC Page 52 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT 66 In my view, the competent authority did not commit any error in the computation.
(a) Section 5 of the Act prescribes the ceiling limits.
(b) Chapter III lays down the fixation of ceiling on the holding lands, determination of surplus land and acquisition thereof.
(c) Section 6(1) of the Act provides that no person shall be entitled to hold whether as owner or tenant or partly as owner or partly as tenant land in excess of the ceiling area from appointed ate. The person includes the joint family as per the definition in Section 2(21).
(d) Section 6(2) of the Act provides for the computation of holding agricultural land as per the provisions of Section 6(2) of the Act. The spouse, their minor sons and minor unmarried daughters, then individual is grouped together for the purpose of this Act and the lands held in the name of all such persons are to be treated as land holding by one individual. In other words, the individual spouse, minor sons and unmarried together constitute one unit. Major son is excluded even if he is a part of the family.
(e) When a joint family consists of more than 5 members, comprises of person and other members belonging to any of the following category:
(i) minor son
(ii) widow of predeceased son
(iii) minor son or unmarried daughter or predeceased sons;Page 53 of 58
HC-NIC Page 53 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT where mother is dead in such cases family is entitled to hold land in excess of ceiling limits to the extent of 1/5th of ceiling area.
(iv) as per subsection (3) of Section 6 of the Act, whether a family or a joint family include the major son, such major son shall be deemed to be a separate person for the purpose of subsection (1).
In view of the above provisions of law, the competent authority has rightly taken three units as Shivrajsinh and Indrajitsinh who were major sons on the appointed date and thus the computation is carried out in accordance with the above sub section.
(f) Subsection (3)(d) clearly provides for the purpose of computation of the agricultural land holding either under sub section (2) or subsection (3)(b) or subsection (3)(d), the members comprise in a family or a joint family, specified date shall alone be taken into consideration. The specified date is defined in Section 2(27A) means the date of coming into force of the amending Act, 1972. The specified date is 1st April 1976 as mentioned in part - I of the order at Annexure: "A". Subsection 3(2) further lays down that any changes in the character or number of members of the family occurred in thereafter shall be ignored.
(g) Subsection (4) of Section 6 of the Act provides that a person is not entitled to hold shall be deemed to be a surplus land.
(h) The computation is carried out as per the above provisions of Page 54 of 58 HC-NIC Page 54 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT the Agricultural Lands Ceiling Act, 1960. There is no infirmity in computation of the agricultural lands.
(i) The computation of the agricultural land holding is to be carried out as per the provisions of the Agricultural Lands Ceiling Act. The said Act does not provide for treating major daughters as a separate unit for the purpose of computing the agricultural land holding. The amendment in the Hindu Succession Act cannot automatically be extended to the provisions of the Agricultural Lands Ceiling Act. The amendment in the Hindu Succession Act does not provide that the amendment shall also be extended or deemed to have been extended to the Agricultural Lands Ceiling Act.
(j) the Agricultural Lands Ceiling Act is a special legislation and therefore, the agricultural land holding is to be carried out as per the specific provisions made therein and the provisions of the Hindu Succession Act cannot be extended.
(k) It may be noted that while computing the agricultural land holding, the number of members and their holding is not relevant. Even though a minor son has an independent share in a joint family property, his share needs to be clubbed into the share held by the father for the purpose of computing the agricultural land. Similarly, the share in a joint family property is clubbed into the share of the husband. Similarly the shares of unmarried daughter is also clubbed into the share of the father. The Agricultural Lands Ceiling Act, 1960 being a special Act, the computation of the land is to be done as per the provisions of the said Act and not as per the provisions of the Hindu Succession Act.
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(l) The computation is to be done with reference to the appointed date and specified date. The specified date is 1 st April 1976. The appointed day is 24th January 1961. The amendment was not in existence on both the dates. Section 6(1) of the Act clearly says that no person shall be entitled to hold any surplus agricultural land from the specified date. The definition of the term "person" includes "joint family". Thus, Harishchandrasinh was not entitled to hold the surplus land after 1st April 1976, and therefore, the amendment cannot be interpreted so as to invalidate the provisions of Section 6(1) of the Agricultural Lands Ceiling Act.
67 I must deal with one another submission canvassed on behalf of the respondents. Mr. Bhatt, the learned counsel appearing for the respondents submitted that the Tribunal, by its impugned order, remanded the proceedings to the Mamlatdar for the purpose of reconsidering the entire issue keeping in mind the Hindu Succession (Amendment) Act, 2005. Mr. Bhatt, the learned counsel submitted that the Mamlatdar as well the Deputy Collector are statutory authorities under the Land Ceiling Act. The argument of Mr. Bhatt, the learned counsel is that a statutory authority conferred with the statutory powers cannot challenge the orders of the higher authorities like the Gujarat Revenue Tribunal before this Court by invoking the writ jurisdiction under Article 226 of the Constitution or the supervisory jurisdiction under Article 227 of the Constitution of India.
68 I am not impressed with the submission of Mr. Bhatt, the learned counsel as noted above. In fact, there was no reason for the Mamlatdar Page 56 of 58 HC-NIC Page 56 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT to join with the State of Gujarat as one of the petitioners, more particularly, when the State of Gujarat thought fit to question the legality and validity of the order passed by the Tribunal. Secondly, the contention raised by Mr. Bhatt, the learned counsel, is as such covered by a decision of the Supreme Court in the case of the Collector, Rajkot and others vs. Bavabhai Karshanbhai Patel and another [Civil Appeal No.4505 of 2006 decided on 16th October 2006]. In the case before the Supreme Court, the contention raised was that the Collector could not have challenged the order of the Secretary to the State Government. While rejecting such contention, the Supreme Court observed as under:
"Leave granted.
The challenge in this appeal is to the order dated 17.10.2002 in Special Civil Application NO.3486 of 2002 passed by the learned single Judge dismissing petition as not maintainable and the order dated 16.6.2004 passed by the Bench in LPA NO.850 of 2003 affirming the order passed by the learned single Judge.
We have heard the parties.
In both the orders the learned single Judge and the Division Bench were of the view that since the order of the Secretary to the State Government has been challenged by the Collector the writ petition is not maintainable, according to them the Collector is subordinate to the Secretary in the Government and, therefore, he is incompetent to challenge the order passed by the Secretary to the State Government.
We have perused ground 'A' taken in this appeal which shows that the appeal was preferred by the Collector of Rajkot on the expressed direction given by the Ministry of Revenue. Apart from that, we are of the view that when an illegality is committed it is open to the Collector to challenge the same to protect the interest of the State. Therefore, both the learned single Judge and Division Bench of the High Court were not collect in saying that the Collector cannot challenge the order passed by the Secretary to the State Government.
Since, the controversy has not been settled on merits, we set aside the orders of the learned single Judge and the Division Bench of the High Court and the matter is remitted back to the learned single Judge by Page 57 of 58 HC-NIC Page 57 of 58 Created On Wed Jan 10 23:15:22 IST 2018 C/SCA/13510/2017 CAV JUDGMENT restoring Special Civil Application No.3486 of 2002 before the learned single Judge. The learned single Judge shall after hearing the parties consider the respective merits and pass an appropriate order in accordance with law. We make it clear that the parties are at liberty to raise all rights and contentions before the learned single Judge. The High Court is requested to dispose of the matter within six months."
68 Thus, the fact that the Mamlatdar has joined as the petitioner No.2 along with the State of Gujarat for the purpose of challenging the order of the Tribunal, as such, would not make any difference and would not be of any help to the respondents.
69 In the aforesaid view of the matter, I have reached to the conclusion that the impugned order passed by the Tribunal is not tenable in law and deserves to be quashed.
70 In the result, this application succeeds and is hereby allowed. The impugned order dated 10th April 2013 passed by the Tribunal is hereby quashed.
71 In view of the order passed in the main matter, the connected Civil Application would not survive and the same is disposed of.
(J.B.PARDIWALA, J.) chandresh Page 58 of 58 HC-NIC Page 58 of 58 Created On Wed Jan 10 23:15:22 IST 2018