Orissa High Court
Subash Chandra Panigrahi vs Rajib Lochan Panigrahi & Ors. on 11 April, 2014
Author: D. Dash
Bench: D. Dash
HIGH COURT OF ORISSA, CUTTACK
FIRST APPEAL No. 250 OF 1994
From the judgment and decree dated 21.03.1994 and 05.04.1994
respectively passed by Shri L.D.Rath, learned Civil Judge (Senior Division),
Chatrapur in T.S. No. 31 of 1989.
.........
Subash Chandra Panigrahi ......... Appellant.
Versus.
Rajib Lochan Panigrahi & others ......... Respondents.
For Appellant : M/s. B.B. Rath, B. Rath,
R.P. Mohapatra, J. Rath,
S.N. Mohapatra, P.K. Parida.,
For Respondents : M/s. M. Mishra, U.C. Pattnaik,
P.K. Das, B. Mishra
.........
PRESENT:
THE HON'BLE MR. JUSTICE D. DASH
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Date of Hearing: 14.02.2014 :: Date of Judgment: 11.04.2014
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The unsuccessful Defendant No. 1 (Appellant) in this appeal
has challenged the judgment and decree passed by the learned Sub-ordinate
Judge, Chhatrapur (as it was then) in Title Suit No. 31 of 1989 decreeing the
suit preliminary making Plaintiff No. 1 (Respondent No -1) entitled to the
share in "Schedule B, C and D" properties equal to that of the Defendant No.
1 (Appellant) with further direction to the Defendant No. 1 (Appellant) - (i) to
render account to the Plaintiff (Respondent No. 1) in respect of the income of
those properties; (ii) to pay `75,000/- towards the marriage expenses of
Plaintiff No. 2 (Respondent No. 2); (iii) in making further provision of `1 lakh
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to meet the marriage expenses of Plaintiff No. 3 (Respondent No. 3); (iv) to
pay a sum of `1500/- per month to Plaintiff No. 2 and 3 (Respondent No. 2
and 3) from the date of filing of the suit till 19.12.1991 and (v) to pay a sum of
`700/- per month as maintenance and educational expenses to Plaintiff No. 3
(Respondent No. 3) from 19.12.1991 till her marriage.
2. For the sake of convenience, in order to avoid confusion and for
proper appreciation, the parties hereinafter are being referred to as they have
been arranged in the original suit.
3. Admittedly, Plaintiff No. 1, 2 and 3 are siblings being the son
and daughters of Defendant No. 1 and Defendant No. 2 is their paternal
grand-father. Plaintiff Nos. 1, 2 and 3 being minors, in this suit have got their
representation through the next friend maternal grand-father, having no
adverse interest to those of minors.
It is their case that their father Defendant No. 1 and grandfather
(Defendant No.2) constituted joint Hindu family and were having family
ancestral landed properties described in "Schedule - A" besides two houses
and those were partitioned between them in T.S. No. 10 of 1977 of the Court
of Subordinate Judge, Aska (as it was then) which was disposed of in terms
of compromise. The lands described in "Schedule - B" and house better
described in "Schedule - C" fell to the share of Defendant No. 1. From out of
the surplus income from the property under "Schedule - B", the property
described in "Schedule - D" was acquired by Defendant No. 1. It is further
said that with the surplus of income derived from the "Schedule - B" property,
the Defendant No. 1 not only acquired a piece of land measuring Ac. 0.0400
dec. but also established and started running a rice huller. The said
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construction etc. over it was made by spending money from the surplus
income for which it also acquired the nature and character as ancestral
property in the hand of Defendant No. 1. It is also said that the joint family
property such as the rice huller came into being and ran with the help of the
funds that become surplus from out of the income of "Schedule-B" property
after meeting necessary expenses. It is next stated that after the partition and
birth of Plaintiff No. 1, the Defendant No. 1 got addicted to several bad habits
to which he was also having the leaning previously. Therefore, ultimately with
oblique motive, he had filed a suit for dissolution of marriage against the
mother of the Plaintiffs. Attempt to bring in a compromise in the said suit
being made; the same became successful which ultimately culminated in
execution of a registered document. Defendant No. 1 agreed to pay
maintenance to the Plaintiffs, their mother and also to make provision for their
marriage, educational and other expenses. A share was curved out for
Plaintiff No. 1, son. But it is a alleged that later the same was flouted as if it
was so vowed. Thereafter, further litigation arose. So, by this suit they
claimed partition of the properties described in "Schedule - B, C and D" of the
plaint with necessary allotment of shares together with other reliefs as stated
in the plaint.
4. The Defendant No. 1 contested the suit by filing the written
statement. While traversing the plaint averments, the main challenge has
been levelled as regards the acquisition of the vacant land measuring Ac.
0.0400 dec. and installation of rice huller i.e. "Schedule - D" property. It is
stated that the same was never purchased with the help of the surplus
income from out of the ancestral joint family property which had fallen in the
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share of Defendant No. 1. In this connection, it is further stated that the said
property purchased is his exclusive self-acquired property having been
purchased from out of his own income that is salary and other source and
therefore, it is asserted that the same is not liable to be partitioned. As
regards other facts relating to the arrangement made in the divorce suit etc.,
the Defendant No. 1 has asserted to have never flouted in any manner.
5. With the above rival pleadings, the Trial Court framed altogether
eight issues and those are: - entitlement of Plaintiff No. 1 to a share equal to
Defendant No. 1 from "Schedule - B, C and D" property; provision for Plaintiff
No. 2 and 3 rendering the account towards the income of "Schedule-B, C and
D" property by the Defendant No. 1. Liability of Defendant No. 1 to pay
marriage expenses of Plaintiffs and most importantly as regards the partition
of "Schedule - D" property in specific besides the issue relating to the fact as
to whether the decision of the village gentries under the registered documents
between the Plaintiffs mother and Defendant No. 1 has been acted upon or
not.
6. On the basis of the rival case of the parties as projected in
respective pleadings, the evidence piloted during the trial and upon their
consideration and analysis, the Trial Court has answered that the settlement
was never acted upon by the parties at any point of time and next the most
important issue as regards the entitlement of share of the Plaintiffs over
"Schedule- B" property has been answered in favour of the Plaintiffs along
with the issue relating to Plaintiff No. 1 's entitlement of share over "Schedule-
B" property to be the joint family property. Consequentially Defendant No. 1's
liability to render accounts in respect of all those properties has been passed.
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The other issues with regard to marriage and other expenses as well as
maintenance have been answered in favour of the Plaintiffs as stated above.
7. Learned Counsel for the (Defendant No. 1) Appellant at the out
set submits that in this appeal, the Appellant is mainly assailing the finding
with respect to "Schedule - D" property, holding the same as liable for
partition, whittling down the Defendant No. 1's claim that it is his self-acquired
property. In otherwords, the finding in respect of property as to have been
purchased from out of the surplus of the income of family joint property in
"Schedule -B and C" is under challenge and so also the decree to render
accounts for the properties under that item along with the quantum of
maintenance and marriage expenses.
Next adverting to the merit, his submission is that the Plaintiffs
in the suit have not been able to discharge the initial burden by leading clear,
cogent and acceptable evidence that the property under "Schedule -D" had
been purchased by Defendant No. 1 from out of the funds available in his
hand as the surplus of income from out of "Schedule-B and C" property after
meeting all necessary expenses. The evidence on this score according to him
is wholly insufficient. It is also his submission that the Trial Court has
erroneously placed the burden on the Defendant No. 1 to prove his case that
it was his self-acquired property. It is also his submission that even on that
score, the Defendant No. 1 has led sufficient evidence which are enough to
render the finding in favour of Defendant No. 1 that it is his self-acquired
property and as such not liable for partition.
8. Learned Counsel for the Respondents (Plaintiffs), while
supporting the finding of the Trial Court in respect of that issue that the
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property under "Schedule-D" is not the self-acquired property of the
Defendant No. 1 and that it is the joint family property of the parties, has
further submitted that the Defendant No. 1 has utterly failed to prove that he
had any independent source of income at the relevant point of time showing
even the occasion for him to purchase being in a position to spend. It is also
his submission that whatever income that the Defendant No. 1 was having
was all from the ancestral family property falling to his share where the
Plaintiff No. 1 has the right and interest by birth and so also other Plaintiffs
who are daughters of Defendant No. 1 in view of the mandate of the provision
of Hindu Succession Act, 1956 as it now stands after amendment in the year
2005. According to him the Trial Court has rightly said that the Defendant No.
1 has failed to discharge the burden of proof that "Schedule - D" property is
his self acquired property. It is also his submission that in the facts and
circumstances of the case, the Defendant No. 1 has failed to establish the
case by leading clear, cogent and acceptable evidence on the score of self
acquisition as above. In the facts and circumstances of case, according to
him, the Defendant No. 1 was under obligation to establish his case that
"Schedule -D" property is his self-acquired property by proving the facts as to
what was his actual income from his independent sources to satisfy that he
was in a position to purchase with that.
9. It is next submitted by him that in view of the present position of
law as it stands after amendment of Hindu Succession Act, 1956 by Hindu
Succession Amendment Act, 2005, the daughters cannot be denied their
shares and therefore, the preliminary decree is to be accordingly modified.
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This submission is resisted by the learned Counsel for the
Appellant that there being no claim on that score in the suit, at this stage in
this appeal, said relief of allotment of share to the daughters is not legally
permissible. It is also his submission that they are not entitled to the same.
10. Joint family property and self-acquired property are the two
concepts of Hindu law. Thus there is need to examine the law on this aspect
of the case. Principle of law is well settled by now on the point. The oft quoted
decision in case of "Srinivas Krishna Rao Kango v. Narayan Devji Kango
and others" reported in AIR 1954 SC 379 is that proof of the existence of
joint family does not lead to the presumption that the property held by any
member of the family is joint. The initial burden rests upon the one who
asserts any item of property as joint by establishing the said fact leading
satisfactory evidence that at the time, the family possessed some joint
property which from its nature and relative values may have formed, the
nucleus from which the property in question may have been acquired. Then
only the burden shifts to the party asserting self acquisition to establish
affirmatively that the property was acquired without the aid of the joint family
property and from out of his income from independent source.
11. In case of Appalaswami v. Suryanarayan Murty and others;
AIR 1947, Privy Council, 189, the concept of jointness and self acquisition of
property have been explained. What should be the burden of proof if property
held either jointly or separately by any member of the family has also been
explained therein. Even if there is proof to show the existence of joint that
family, it does not lead the Court to arrive at conclusion abruptly that the
property held by any members of the family is also joint. What has been said
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is that the burden lies on the person who asserts that any item of the property
is joint, has to prove the said fact. However, once it is proved that the family
possessed some joint family property which from its nature and relative value
may have formed the nucleus from which the property claimed to be joint may
have been acquired. In such a case the burden shifts immediately and
automatically to the party alleging self acquisition to prove affirmatively that
the property is acquired without any aid of joint family property. This view
taken by the Privy Council has also been followed by the Supreme Court in
Srinivas Krishna Rao Kango (Supra).
12. Besides the above, it is pertinent to mention here that there is
one more situation under which a property separately held by a member of
the joint family at the initial stage as self-acquired property can be taken to
have been altered or transformed to be one as the joint family property at a
later stage and that is by way of blending. The self acquired property of a
member of the joint family must have been thrown to the common stock,
voluntarily, abandoning and surrendering all such separate rights and by
waiving all those must have been made available for being enjoyed and
claimed by all the members which must be shown by such conduct as
expressed and intention as manifested. The self acquired property of the
member of the joint Hindu family will never become so simply because that
member does not maintain separate account of income accrued from that
property even if all the members of the joint family enjoyed the same there of.
But for that purpose it must be shown that the owner of such property has
waved or surrendered special right in that property by his own volition and
expressing such intention.
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It has also been held in case of "M.N. Aryamurty v. M.L.
Subbaraya" AIR 1972 SC 1279 and in case of Purnabasi v. Raj Kumar,
(1995) 1 OLR 606 that if there has been severance of joint family and
subsequently one item of property is acquired in the name of particular
member of the family even though without joint fund it would be the self
acquired property. The Apex Court has made it clear that if one of the
members remained in possession of the entire property of the family even
after severance of status, there is no presumption that the property which is
acquired by him after severance of status must be regarded as acquired for
the family where rents and profits were received by the member in
possession and he would be liable to account for the same but the funds in
the hands of that member do not become impressed with any trust in favour
of other members. Therefore, if such a member acquired such property with
the funds in his possession, the other members would have no claim of share
in that property.
13. In the touch-stone of above settled legal principle, the case in
hand requires examination with reference to the evidence on record and the
foundations through pleadings. Here "Schedule - B" property admittedly is
joint family property which Defendant No. 1 got in partition with his father
being ancestral property. It stands admitted that this Defendant No. 1 was at
that point of time having quite considerable extent of land measuring Ac.
16.55 dec. under his control which belong to the joint family. So reasonably
from its nature and relative value it can be well inferred that the said property
had formed the nucleus and in view of the fact that this extent of land was in
his possession and control in the absence of any evidence being let in by
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Defendant No. 1 specifically on the point that he was absolutely having no
surplus income from out of it.
14. It has been pleaded by the Para - 3 of the plaint that with this
surplus income derived from schedule B properties, that the Defendant No. 1,
has acquired a piece of vacant land measuring Ac.0.0400 dec. in village
Jharipadar and has installed a rice huller mill thereon. The said piece of land
along with the rice huller has been acquired from the out of the surplus of the
nucleus of the joint family property as prescribed in "Schedule D". It has been
further pleaded in Para - 9 of the plaint that as Scheduled B and C of the
property are the ancestral property of the family and Schedule D land having
been acquired with the surplus income of schedule B land, the same is also
the joint family property and is liable to the partitioned., The Defendant No. 1
in the written statement has denied the fact that "Schedule D" property was
also the joint family property having not been purchased from out of the
surplus income of the joint family property described in schedule B and C. It
has been specifically pleaded in Para - 5 of the written statement that the
defendant No. 1 was working as village Postmaster and was doing business
by availing loan. He claims to have acquired the said properties from the out
of the income from salary and business and as such the property in
"Schedule D" being self acquired is not liable to the partitioned. It has been
specifically stated that the property over under Schedule D of the plaint was
never acquired from out of the surplus income of the nucleus of the joint
family property. The Defendant No. 1 has asserted to have accordingly
acquired the "Scheduled D" property and claims that to be his own property
and thus denies the right of the Plaintiffs over the same.
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15. The Trial Court has having taken up this issue No. 5 for
discussion in Para - 8 of the judgment has gone to first of all say by analyzing
the evidence that the said property under "Schedule - D" is liable to be
partitioned. The Defendant- 1 in his evidence has stated that from the year
1976 to 1982, he was serving as village Postmaster and he was also doing
contract business during the period. Out of his own income from the above
business and service, he has stated to have purchased "Scheduled-D"
property by registered sale-deed which has been admitted in evidence and
marked Ext. C. In spite of this, the Trial Court has said that there remains no
cogent evidence to show that how much amount Defendant No. 1 has earned
as his salary as village Postmaster and how much he has received from his
work as a contractor. Therefore, he has discarded the case of Defendant No.
1 that it was purchased from out of his own income. It may be stated here that
in support of the plea that Defendant No. 1 was a contractor, has filed copy of
the letter issued by the Superintendent Engineer dated 30.04.1979 marked
Ext. B which reveals that the Def. No. 1 was a registered "D" class contractor
and his license was valid up to 31.03.1992. The Trial Court has discarded that
as it has not been specifically proved as to whether he was actually allotted
with any contract work or not. The Trial Court in this connection has
practically discarded the case of the Defendant No. 1 due to his failure to
prove the detail account as regards his own income with reference to works
as a contractor and was also towards his salary as village Postmaster. This
particular view in the present case appears to be erroneous. At such distant
point of time, the Trial Court's view that it was the further duty of the
Defendant No. 1 to produce and prove that he was being actually allotted with
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Govt. work and had undertaken certain work and also the other fact by
leading clear, cogent and acceptable evidence as to quantum of work that he
had done and what was the total work value and what was the earning from
said work contract, so as make out a full proof case is not acceptable and
rather unjust, improper and an unrealistic approach. In my considered view,
all these evidence after long lapse of time even if not plotted in detail, cannot
lead to take a view adverse to the case of the Defendant No. 1, when broadly
he has proved that he was serving as village Postmaster and was working as
"D" Class contractor, having the required licence for the purpose showing
independent sources and probable income. Therefore, the view of the Trial
Court is unsustainable.
It has also been the case Defendant No. 1 that he had installed
a rice huller and in cross-examination he has also further stated that he was a
contractor for four years had made a profit of `15000/- to `16000/- and
savings of `4000/- to `5000/- from out of his salary which does not appear to
be unreasonable. D.W. 2's evidence also provide support to the evidence of
D.W. 1, that he was village Postmaster for a period of 6 to 7 years, was also
doing some contract work. All these details were not required to be
specifically pleaded by Defendant No. 1 and for that when the pleading
remains as regards independent sources etc, the evidence as above can't be
ignored or kept out of consideration. On the other hand the Plaintiff's have not
tendered any evidence to show that such facts are pulpably false and have
been simply pleaded / stated to project a case of self acquisition of
"Schedule-D" property and nothing more when actually there no other source
for the Defendant No. 1. So in this state of affairs in the evidence it stands
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proved that the Defendant No. 1 was having independent sources of income
for certain period. This itself leads to an inference that when joint family
property was therein as described in "Schedule-B" and with its income he was
managing the family, also he was having its separate income of which the
sources have been proved. Therefore, in the present case, being unable to
subscribe to the Trial Court's view, it is found that the Defendant No. 1 have
through sufficient evidence has established that "Schedule-D" property was
his self-acquired property. In this case in hand no case of blending is set up
by the Plaintiffs in the alternative. With this view, as emanate from my above
discussions of pleading and evidence, I differ from the finding of the Trial
Court that the Plaintiffs are entitled to any share over the said property. The
"Scheduled-D" property thus is not liable to be partitioned in the present suit.
16. This leads me to delve with the submission advanced for the
first time in course of hearing of this appeal as regards claim of share by
Plaintiff No. 2 and 3, the daughters of Defendant No. 1 and grant thereof over
the property described in "Schedule - B and C" which Defendant No. 1 got in
a partition with his father as his share over ancestral property.
Admittedly at the time of hearing and decision in the suit, the
Hindu Succession Amendment Act, 2005 had not come into force and it came
into force only on 09.09.2005 during pendency of this appeal filed by
Defendant No. 1 challenging the judgment and decree preliminarily worked
out by the Trial Court and pending scrutiny by this Appellate Court.
This appeal as per the settled position of law is a continuation of
suit and when the Appellate Court confirms, modifies or reverses the decree
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on merit, the Trial Court's decree is under law merges in the Appellate decree
and it is the Appellate Court's decree which rules.
In case of the change in the law whether it will affect pending
appeals was considered in case of "Laxmi Narayan Guin and others - vrs.-
Niranjan Modak;" (1985)1 SCC 270; Ram Srup - vrs. - Munshi; AIR 1963
SC 553; Mulla - vrs. Gadhu; AIR 1966 SC 1423 and United Bank of India,
Calcutta - vrs. Abhijit Tea Co. Pvt. Limited and others; AIR 2000 SC
2957. It has been held that a change in law during the pendency the appeal
has to be taken into account and will govern the rights of the parties. If the
new law speaks in language, which expressly or by clear intendment, takes in
even pending matters, the Court of Trial as well as the Court of Appeal must
regard to an intention so expressed, and the Court of appeal may give effect
to such a law even after the judgment of the Court of first instance.
Therefore, this Court is commanded to consider applicability of
the Hindu Succession Amendment Act, 2005 in respect of the rights conferred
therein upon the daughters in getting shares over coparcenary property.
17. In the exercise as aforesaid at first instance, the points arising
for consideration are the followings:-
(a) The right of the daughter of a coparcener in a joint Hindu
family governed by Mitakhara Law in Coparcenary
Property by virtue of Hindu Succession Amendment Act,
2005.
(b) The amended provision is prospective or retrospective in
operation.
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But before that, let there be a short survey with regard to the
rules of interpretation of statute as enunciated in several cases by the Apex
Court of which few are being referred to.
18. The Apex Court in case of "Mahadfolal Kanodia - vrs.-
Administrator General of West Bengal;" AIR 1960 SC 936 has laid down
the principles to be applied as under:-
(1) Statutory provisions which create or take away
substantive rights are ordinarily prospective. They can be
retrospective if made so expressly or by necessary
implication and the retrospective operation must be
limited only to the extent to which it has been so made
either expressly or by necessary implication.
(2) The intention of the legislature has to be gathered from
the words used by it, giving then the plain, normal
grammatical meaning.
(3) If any provision of a legislation, the purpose of which is to
benefit a particular class of persons is ambiguous so that
it is capable of two meaning, the meaning which
preserves the benefit should be adopted.
(4) If the strict grammatical interpretation gives rise to an
absurdity or inconsistency such interpretation should be
discarded and an interpretation which will give effect to
the purpose will be put on the words, if necessary even
by modification of the language used.
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18.1. In case of "Commissioner of Income Tax - vrs.- India Bank
Ltd; AIR 1965 SC 1473, the Supreme Court reiterated with further emphasis."
"In construing the Act, we must adhere closely to the language
of the Act. If there is ambiguity in terms of a provision, recourse must naturally
be had to well established principles of construction, but it is not permissible
first to create an artificial ambiguity and then try to resolve the ambiguity by
resort to some general principles."
18.2. The principles are so succinctly stated in American
Jurisprudence (2nd Edition, Vol-73, Page 434, Para 366) quoted with approval
in "S.R. Bommai - vrs. - Union of India;" AIR 1994 SC 1918".
"While it has been held that it is duty of the Courts to interpret a statute
as they find it without reference to whether its provisions are expedient or in
expedient; it has also been recognized that where a statute is ambiguous and
subject to more than one interpretation, the expediency of one construction or
the other is properly considered. Indeed, where the arguments are nicely
balanced, expediency may trip the seals in few or of a particular construction.
It is not the function of a Court in the interpretation of statutes, to vindicate the
wisdom of the law. The mere fact that the statute leads to unwise results is
not sufficient to justify the Courts in rejecting the plain meaning of
unambiguous words or in giving to a statute a meaning of which its language
is not suspectable, or in restricting the scope of a statute. By the same token,
an omission or failure to prove for contingency which it may seem wise to
have provided for specifically, does not justify any judicial addition to the
language of the statute. To the contrary, it is the duty of the Court to interpret
a statute as they find it without reference to whether its provision are wise or
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unwise, necessary or unnecessary, appropriate or inappropriate, or well or ill
conceived."
"Rule of interpretation are meant to ascertain the true intent and
purpose of the enactment and set right any anomaly, in consistency or
ambiguity, while giving effect to it, the several rules of interpretation when
juxtapositioned may give an impression that they are inconsistent with each
other. Further the same provision, when interpreted with reference to different
rules of interpretation, may lead to different results. This is because the rules
of interpretation are meant to set right different types of defects. It is not
possible to apply all rules of interpretation together to a provision of law. An
appropriate rule of interpretation should be chosen as a tool depending upon
the nature of the defect in drafting which has to be set right. The rules of
interpretation are to be applied in interpreting the statute, only if there is
ambiguity, inconsistently, absurdity or redundancy. Where the words are
clear, unambiguous, there is little need to open the tool kit of interpretation".
19. At this moment, it also requires to be taken note of that
coparcenary is a creature of Hindu Law and is not created by agreement of
parties except in case of reunion and consists of only those persons who
have taken by birth an interest in the property of the holder and who can
enforce partition when ever they like. It's a narrower body than joint family
(Ref.:- Bhagwan Dayal (since deceased) -vrs.- Ust Reoti Devi (deceased)
AIR 1962 SC 287 and Sunil Kumar and another - vrs. - Ram Bakash and
others; AIR 1988 SC 576) The joint Hindu family is genus whereas
coparcenary is an unit under it and a specie. Joint Hindu family consists of all
persons lineally descended from a common ancestor and includes their wives
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and unmarried daughters whereas Hindu coparcenary is a much narrower
body than the joint family; includes only those persons who acquire by birth
an interest in the joint or coparcenary property, they being sons, grand sons
and great grand sons of the holder of the joint property for the time being.
(Ref.:- Smt. Sitalbai and another - vrs. - Ram Chandra; AIR 1970 SC 343;
Gowli Buddana - vrs. - Comm. Income Tax, Maysore; AIR 1966 SC 1523
and Bhagawati Prasad Sah and others - vrs. - Dulhin; AIR 1952 SC 72).
20. With these in mind, it is felt apposite to have a sojourn for
having a telescopic examination upon the position of law on the subject after
1956 and prior to 2005 Amendment Act and thereafter along with their objects
and reasons as well as the goal sought to be achieved.
By the Act of 1956 while codifying the law on intestate
succession among Hindus, it was also aimed to carry out reforms to remove
the disparities and disabilities suffered by Hindu women. But it amidst much
resistance it finally came into force on 17.06.1956. It conferred on women and
in particular daughter equal rights as that of the son. The limited ownership
ripened to absolute ownership in respect of any property possessed by a
female Hindu whether acquired before or after commencement of the Act.
But, the said enactment had no application to coparcenary property. The
daughter was not considered as coparcener and that stood as before.
However, by a proviso to Section 6, provision was made that if a male Hindu
dies leaving behind a surviving female relative specified in class - I of the
Schedule or a male relative specified in that class who claims through such
females relatives, the interest of the deceased in Mitakshara Coparcenary
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property shall devolve by testamentary or intestate succession as the case
may be, under the Act and not by survivorship.
This inequality was tolerated for about 50 years where after the
demand that such discrimination is wholly unjust standing on the way of
rendering social justice reached its peak and no more be swept under the
carpet. This called for the need of a radical reform of the law on the subject.
Thus the Hindu Succession Act (Amendment) Bill, 2005 come to be
introduced on 20.12.2004 in Rajya Sabha and it was passed there on
16.08.2005followed by its passing in Lak-Sabha on 29.08.2005 and assent of the President on 05.09.2005 giving its effect from 09.09.2005. The object is to bring the equality guaranteed by Constitution having regard to the need to render social justice to women by removing the discrimination contained in Section 6 of Act of 1956 in conferring equal rights to daughters in the Hindu Mitakshara coparcenary property as sons have.
21. In the backdrop of above, the provisions of Section - 6 as it stood before and after the Amendment Act, 2005 requiring interpretation be stated hereunder :-
Section - 6 of the Hindu Section - 6 of the Hindu Succession Act, 1956 (Pre- Succession Act, 1956 (Post- Amendment) Amendment) "6. Devolution of interest in "6. Devolution of interest in coparcenary property.- When a male coparcenary property. - (1) On and Hindu dies after the commencement from the commencement of the of this Act, having at the time of his Hindu Succession (Amendment) death an interest in a Mitakshara Act, 2005, in a Joint Hindu family coparcenary property, his interest in governed by the Mitakshara law, the the property shall devolve by daughter of a coparcener shall,- survivorship upon the surviving (a) by birth become a coparcener - 20 - members of the coparcenary and not in her own right in the same manner in accordance with this Act: as the son; Provided that, if the deceased (b) have the same rights in the had left him surviving a female coparcenary property as she would relative specified in class I of the have had if she had been a son; Schedule or a male relative specified (c) be subject to the same in that class who claims through such liabilities in respect of the said female relative, the interest of the coparcenary property as that of a deceased in the Mitakshara son. coparcenary property shall devolve And any reference to a Hindu by testamentary or intestate Mitakshara coparcener shall be succession, as the case may be, deemed to include a reference to a under this Act and not by daughter of a coparcener: survivorship. Provided that nothing contained Explanation 1.- For the in this sub-section shall affect or purposes of this section, the interest invalidate any disposition or of a Hindu Mitakshara coparcener alienation including any partition or shall be deemed to be the share in testamentary disposition of property the property that would have been which had taken place before the allotted to him if a partition of the 20th Day of December, 2004. property had taken place immediately (2) Any property to which a before his death irrespective of female Hindu becomes entitled by whether he was entitled to claim virtue of sub-section (1) shall be partition or not. held by her with the incidents of Explanation 2.- Nothing coparcenary ownership and shall be contained in the proviso to this regarded, notwithstanding anything section shall be construed as contained in this Act, or any other enabling a person who has separated law for the time being in force, as himself from the coparcenary before property capable of being disposed the death of the deceased or any of of by her by testamentary his heirs to claim on intestacy a share disposition. in the interest referred to therein." (3) Where a Hindu dies after the - 21 - commencement of the Hindu Succession (Amendment) Act, xxx xxx xxx 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 xxx xxx xxx property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been xxx xxx xxx alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre- deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the xxx xxx xxx partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre- deceased daughter, as the case may be. Explanation.- For the purpose of - 22 - this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the xxx xxx xxx 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 xxx xxx xxx the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu xxx xxx xxx law, of such son, grandson or great- grandson to discharge any such debt: .... (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th Day of December, 2004. Explanation.- For the purposes of xxx xxx xxx this section "partition" means any partition made be execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by the - 23 - decree of a Court. "
22. Simultaneous reading of the above provisions of as they stood before and now after amendment, it is seen that the heading of section remains unchanged.
22.1. Sub-section (1) of the first part has been introduced which declares the rights of the daughter of a coparcener giving her the right by birth of becoming a coparcener in her own right in the same manner as the son and then further asserting her the rights in the coparcenary property as she would have had if she had been a son which in other words treating her as that of a son and to have been born as such. Next in the same way and manner with respect to sharing of liability. Most importantly, the command given that Hindu Mitakshara coparcener has to be deemed to include referring to a daughter of a coparcener. All these leave no scope for any interpretation. The language is clear and unambiguous in the above respect of daughter of a coparcener's right by birth as a coparcener, having rights and liability as such as of by birth in her own right and being a member of the coparcenary being as by that. Proviso saves the disposition or alienation including any partition taking place prior to 20.10.2004 from not being falling within the net of being affected consequential to such declaration of right etc; with the explanation forbidding the acceptance of any made of partition other than the two i.e. (1) by registered deed of partition and decree of the Court again if had been done / passed prior to 20.12.2004. The legislature being conscious of the fall out of above declaration made such limited saving.
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Sub-section (2) states that the property so held would be no doubt with the incidents of coparcenary ownership but that is again couched with non-obstaute clause that it would be capable of being disposed by testamentary disposition referring to existing provision in Section 30 of the Act.
All the above got introduced in original Act by the Amendment Act by way of substitution of the entire Section - 6 as it existed.
Importantly, rights are thus conferred on daughters and there has been removal of inequality between son and daughter in restoring equality i.e. un-equals have been made equals as per the Constitutional Mantra rectifying the mistake.
So far as the application of the provision, cut off date i.e., 20.12.2004 has been fixed as in relation to saving alienation etc, with respect to partition prior to that in order to prevent unsettling of the state of affair, in the field, followed by the explanation deserving specific made of partition to be recognised to prevent mischief to deprive bonafide beneficiaries by way of collusion or manipulation and the cut off date is the date of introduction of the Bill in Parliament, coming to public domain. Thus any such acts thereafter have been refused to be given legal sanction as per earlier Act has not been placed out of the net of the fall out of the declaratory provision for the daughters. But must importantly the notional partition as per earlier provision has not been recognised.
22.2. Sub-section -3 of course has undergone change in the amendment. Changes are (i) in place of male Hindu, now the word 'Male' has been omitted which stands as 'Hindu' obviously implying both male and
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female; (ii) Applicability has been restricted to those cases where Hindu dies after commencement of Amendment Act which was earlier in case of death of male Hindu after commencement of principal Act; (iii) the word, having at the time of the death of male Hindu having an interest in Mitakshara coparcenary property has been substituted by:-
"his interest in the property of a joint Hindu family governed by Mitakshara law"; (iv) proviso restricting the devolution of interest of the deceased in the coparcenary property only in the event of being survived by a female relative specified in class - I of the schedule or a male relative of that class claiming through such female relative no more remains and in its place deeming division as if a partition had taken place has been introduced followed by allotment of share therein to daughter as to a son along with provision for devolution in the eventuality of their prior death; (v) provision no more remains to deny any share over the interest as it was in respect of a person separated from coparcenary.
23. The rights created and conferred are:-
(i) The daughter of a coparcener by birth became a coparcener in her own right in the same manner as the son bringing equality in status vis-à-vis the coparcenary property;
(ii) The daughter of a coparcener having the same rights in the coparcenary property, as she would have had, if she had been a son i.e. equal right in coparcenary property.
Equally, the daughter like son is also saddled with liability in respect of the said coparcenary property giving
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effect to the equality objective in letter and spirit. Thus the concept of coparcenary underwent sea change destroying the monopoly of male lineal descendants by giving entry to the daughters by the command of law in the said club.
It is pertinent to state here and to be borne in mind that in the year 1956, there was codification of law for the first time concerning intestate succession among Hindus. It had left the special rights of the members of Mitakshara coparcenary untouched and unaffected. Whereas the Amendment Act of 2005 is to obliterate those special rights of members of coparcenary property as by birth. This is to rectify the blunder done by way of gender discrimination against the Constitutional mandate. This leaves no scope for further interpretation when also the Amendment is by way of total substitution whose effect is that it would be deemed to be there since 17.06.1956 with the rider that w.e.f. 09.09.2005, the daughter became coparcener with right by virtue of her birth which can't be taken to enure to the benefit of only those born on or after 09.09.2005 and it squarely benefits the daughters even born before. The entry to the club of coparcenary is with effect from 09.09.2005 since when they can be said to have been duly enrolled therein.
24. Thus by the substituted provision, it is first declared that on and from the commencement of the Amendment Act in a joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the said property as she would have had if she had been a son and so also as regards liability. So first right is conferred by declaring the
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same as on and from 09.09.2005 which enures to the benefit by birth which is clear and unambiguous. Thus, though on the date of birth she did not have such right as per the law governing the field then, its clear that by amendment of the law, such a right is conferred on her from the date of commencement of the Act of 1956. The intention is culled out when it is seen that there has been employment of word "shall by birth become coparcener in her own right" and "what she would have had ..........." With all these languages of the statute by no stretch of imagination even the birth can be said to have been kept under suspension till then. Had it been the intention, the disposition, alienation, partition etc from would not have been saved and made immune from being affected from a date anterior to the date of commencement of the Amendment Act and there was no necessity to do so by adding a proviso in creating an exception to what is in the enactment, which has to travel within the provision of main enactment and not beyond. As the general rule in construing an enactment containing a proviso is to construe then together without making either of them redundant or otiose. The devise of exclusion is adopted only to exclude a part from the whole, which but for the exclusion, continues to be a part of it and the words of exclusion are presumed to have some meaning without being readily recognised as mere surplus-age. More importantly neither there remains any separate saving section in the Amendment Act of 2005 nor even the concept of notional partition as it earlier stood gets the recognition or any protection for having attained finality and so notwithstanding the fact that there was a partition of the coparcenary property as recognised under Hindu law, the daughter of a coparcener who has been conferred with equal right in the coparcenary property as that of a son would
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be entitled to a share therein. That apart there remains no point in saying that vested right of other male members by amendment has been taken away. The vested right is the right to share which the coparcener acquires by birth but the extent of that share is not a vested right as that is not determined on the date of birth when it is not definite and is likely to fluctuate every now and then with birth and deaths of coparceners. In the present case, particularly for all proposes by the conferment of right upon the daughter, the member of members in the coparcenary goes up. The same in no way dismembers any other coparceners. This runs at par with settled position of law that till disruption of joint family status takes place no coparcener can claim what is his exact share in coparcenary property. It is liable to increase or decrease depending upon the addition to the number or departure of a male member and in heritance by survivorship. But once disruption of joint family status takes place, coparcener's cease to hold the property as joint tenants but they hold so as tenants-in-common. Similarly, so far as the right of other female relatives is concerned, the same is also not wholly affected and for that the provision no more remains for deeming a partition as if to have taken place immediately before his death as existed before. The principle of Hindu law by Mulla; Vol. 1 (17th Edition) as regards the right of wife, it is stated that a wife cannot herself demand a partition but if a partition does take place between her husband and his sons, she is entitled (except in South India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband (Article 315, page 506).This is not ignored here and the position as before prevails. For the same, the Parliament have purposely
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employed the word 'his interest in the property of Hindu joint family governed by Mitakshara Law in substitution of the word 'Mitakshara coparcenary property' after committing the word 'Male' in new provision of sub-section (3) of Section-6 of the Act.' The intention not to deprive as above is manifest and clear. So, this Amended provision successfully passes that important test so as to stand for its retrospective operation.
In view of above discussion and reasons, the conclusion follows that though such right was declared on 09.09.2005, the declaration that the said right as a coparcener enures to her by birth.
25. The question whether a statute operates prospectively or retrospectively is one of the legislative intent. In para - 18, 18.1 and 18.2 reference has been made to the decision of Apex Court in case of Mahadfolal Kanodia (supra). The legal principles have been further elaborated and settled in Constitution Bench decision in case of "Shyam Sunder and others
- vrs.- Ram Kumar and another." AIR 2001 SC 2472, it has been held that a substituted section in the Act is the product of an Amending Act and all the effects and consequences that follow in the case of an Amending Act, the same would also follow in the case of a substituted section in an Act. It has also been held that where an amendment affects vested rights the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a manner of necessary implication. Ordinarily, when an enactment declares the previsions law it requires to be given retrospective effect. The function of a declaratory statute is to supply an omission or explain previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The
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legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed invariably it has been held to be retrospective. Mere absence of use of word 'declaration' in an Act explaining what was the law before may not appear to be a declaratory Act. But if the Court finds an Act as declaratory or explanatory it has to construe as retrospective. Further held that the function of a declaratory or explanatory Act is to supply an obvious omission or to clear up doubts as to meaning of the previous Act and such an Act comes into effect from the date of passing of the previous Act.
25.1. In this connection, it is also profitable to refer to the following observations in 'Principles of Statutory Interpretation,' 5th Edition 1992, by Sri G.P. Singh at page 351 under caption 'Declaratory Statutes':-
"The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES and approved by Supreme Court:- For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to common law, or meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error whether in the statement of common law or in the interpretation of statutes."
xxxxx xxxxx xxxx It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. 25.2. The inhibition against retrospective construction is not a rigid rule and must vary secundum materium. It has been said that "the basis of
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the rule is no more than simple fairness which ought to be the basis of every legal rule. (Vijay - vrs.- State of Maharashtra; (2006) 6 SCC 289 referring the doctrine of fairness in the context of retrospectively)."
26. In case of "Ganduri Koteshwaramma - vrs. - Chakiri Yanadi; (2011) 9 SCC 788, the Apex Court in a suit for partition between brothers, sisters and other members of the family in respect of coparcenary property had to consider the daughters entitlement in view of Amendment Act of 2005. it has been held therein that:-
"The new Section -6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 09.09.2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section - 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6, that the daughter of a coparcener shall have some rights and liabilities in the coparcenary property as she would have been son is unambiguous and unequivocal. Thus, on an from 09.09.2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son."
27. In the touchstone of all the above principles of law as settled and in view of discussion held in aforesaid Paras more particularly in Para 22 to 24 of the judgment, the substituted provision of Section -6 as brought in by Amendment Act of 2005 is held to be retrospective in operation as otherwise it would be without object.
In view of above, the two decisions rendered by this Court in case of "Pravat Ch. Pattnaik and others - vrs.- Sarat Chandra Pattnaik
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and another;" 106 (2008) CLT 98 and Santilata Sahu - vrs.- Sabitri Sahu and others; 105 (2008) CLT 389 stand for commendation and those also stand firmly by the side of above view and conclusion getting further support from the reasons and legal justifications given therein before that the daughters are conferred with the rights on an from the commencement of the Amendment Act and not merely to those born thereafter.
28. Adverting to the point of grant of shares to Plaintiff No. 2 and 3 in this appeal when not claimed earlier, it is profitable to quote few paras from the Apex Court's decision in case of Ganduri Koteshwaramma (supra):-
"12. The rights accrued to a daughter in the property of a joint Hindu family under 2005 Amendment Act is absolute except in the circumstances provided in the proviso appended to sub-section - 1 of Section 6. The excepted categories to which the new Section 6 of the Act is not applicable are:- (i) where the disposition or alienation including any partition has taken place before 20.12.2004; and (ii) where testamentary disposition of property has been made before 20.12.2004. Sub-section 5 of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been affected before 20.12.2004. 'Partition' has been explained to mean any partition affected by execution of a deed of partition followed by due registration or partition effected by a decree of a Court. So in view of above explanation for applicability of the Section what is relevant to find out is whether any partition has been affected before 20.12.2004 by a registered deed of partition or by a decree of a Court."
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"13. The legal position is settled that partition of a joint Hindu family can be effected by various modes, inter alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the Court."
"14. A preliminary decree determines the rights and interest of the parties. A suit for partition is not disposed of by passing of a preliminary decree. It is by the final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After passing of the preliminary decree, the suit continues till then until the final decree is passed. If in the interregnum i.e., after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interest of the parties having regard to the changed situation.
"15. We are fortified in our view by a three- Judges Bench decision of this case in Phoolchand v. Gopal Lal, AIR 1967 SC 1470 wherein this Court stated as follows:-
We are of the opinion that there is nothing is in the Code of Civil Procedure prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. So far as partition suit is concerned when an event transpires after the
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preliminary decree which necessitates a change in shares, the Court can do so."
29. In case of S. Sai Reddy v. S. Narayan Reddy (1991) 3 SCC 647 during the pendency of the proceedings in the suit for partition before the Trial Court and prior to the passing of final decree, the 1956 Act was amended by State Legislature of Andhra Pradesh conferring share upon the unmarried daughters in the joint family property. The unmarried daughters claiming their share in the property. The matter went to High Court wherein the prayer was found favour with and then it was carried to the Apex Court. The Apex Court considering the objects and reasons behind such legislation and holding the preliminary decree to have not finally determined the shares putting the partition to an end confirmed the order of the High Court. The question again came to be raised before the Apex Court in Ganduri Koteshwaramma v. Chakiri Yanadi and another (2011) 9 SCC 788. In that case during final decree proceeding after submission of the report of the Civil Court Commissioner the Amendment Act come into force. So, necessary applications being filed for allotment of share by the deprived daughters the Trial Court allowed the application. However, the said order was set aside by the High Court. The Hon'ble Apex Court upon consideration of provision of law as well as the principle of law settled by earlier decisions having held that the daughters are entitled to the shares in the joint family property as conferred under the Amendment Act have further said:-
xxxxxxx xxxxxxx xxxxxxx "19. A suit for partition continues after passing of the preliminary decree and the proceedings in the suit get extinguished only on
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passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings".
xxxxxx xxxxxxx xxxxxx "20. Section - 97 C.P.C. that provides that where any party aggrieved by a preliminary decree passed after the commencement of the court does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree does not create any hindrance or obstruction in the power of the Court to modify, amend or alter the preliminary decree or pass another preliminary decree is the changed circumstance so require."
xxxxx xxxxxx xxxxxx "21. "It's true that a final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the Trial Court in the event of changed or supervening circumstances, even if no appeal has been preferred for such preliminary decree." The position is no more res-integra that mere passing of decree for partition whether by Trial Court or by the Appellate court is not enough. Till a partition is affected by a decree of a Court, thereby meaning till the decree
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for partition has attained finality by sealing and signing of the final decree, the daughters cannot be deprived of her legitimate right in the said property.
30. The above authoritative pronouncements of Apex Court provide the answer to the present case concerning the declaration of the rights of the Plaintiff No. 2 and 3 over Schedule - B and C properties and their entitlement to the shares equal to that of Plaintiff No. 1 and Defendant No. 1. When the same, can be so sought for by filing an application in the Trial Court for passing a second preliminary decree taking into consideration the changed and supervening circumstances of enforcement of the Amended provisions of law, I find no any reason to say as to why the same cannot be declared and conferred upon Plaintiff No. 2 and 3 in this appeal when it would serve no purpose to drive them back to knock at the door of the Trial Court for the said relief and more-so when this appeal is the continuation of the suit with doctrine of merger coming into play. Interestingly, in the case, at the time of decision of the suit in view of the law as it was then in fact the plaintiff No. 2 and 3 could not have maintained any appeal being not affected by the decree on the score of deprivation of their share over "Schedule - B and C"
properties and for that reason they had not even claimed so in the suit which cannot be so viewed to their detriment in the changed scenario of law. The right came to be conferred during appeal which cannot be ignored but has to be recognised as the changed and supervening event. As they are entitled to share in view of present position of law and they having not advanced the claim till now would not stand on the way of grant of their entitlement as per law. In the absence of any claim from any other side, Plaintiff No. 2 and 3 are hereby found entitled to have their shares over Schedule - B and C property
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to the extent of 1/4th (one fourth) each along with Plaintiff No. 1 and Defendant No. 1 each of whom are also entitled to 1/4th (one fourth) share therein as Plaintiff No. 2 and 3 become coparceners in their own right by birth which entitles them to also have a right to sue for partition against other coparceners including their father in getting their shares in accordance with law.
31. The question next arises with regard to the other reliefs which have been granted by the Trial Court. In view of my above discussion concluded at Para 15 of the judgment, and as a consequence thereto the decree which has been granted by directing the Defendant No. 1 to render accounts in respect of the income of "Schedule -D" property is liable to be modified that it should be confined to "Schedule- B and C" property.
32. For the marriage expenses, the decree has been passed for sum of `75,000/- and that is in respect of Plaintiff No. 2 and in respect of Plaintiff No. 3 a sum of `1 lakh has been directed to be paid by the Defendant No. 1 for the same along with payment of `1500/- per month to both Plaintiff No. 2 and 3 from the date of filing of the suit till 19.12.1991. Decree has been passed for directing Defendant No. 1 to pay sum of `700/- per month as maintenance and educational expenses to Plaintiff No. 3 from 19.12.1991 till her marriage. Considering the present days price index and soaring price with rate of inflation on a steep increasing trend with the cost of living ascending day by day, this Court finds that the quantum as ordered are quite reasonable and the same and in the facts and circumstances, thus are found to be just and proper cumulatively viewed with the status of the parties as well as the
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properties that stand in their favour remaining under the care and control of the Defendant No. 1. So, the decree on those scores stand confirmed.
33. In view of aforesaid, the appeal stands allowed in part and in the circumstances without cost. The judgment and decree stand modified to the extent that the Plaintiff No. 1, 2 and 3 and Defendant No. 1 are entitled to 1/4th (one fourth) share each over the properties described in "Schedule-B and C" of the plaint and accordingly the preliminary decree to that effect is hereby passed with the other directions as ordained under the said decree by the Trial Court with modification therein keeping "Schedule - D" property out of the purview of rendition of accounts by Defendant No. 1 confining to "Schedule - B and C" property.
..............................
D. Dash, J.
Orissa High Court, Cuttack The 11th April, 2014/Narayan Ho