Jharkhand High Court
Surendra Nath Sharma vs Rajendra Kumar Sharma And Ors. on 5 February, 2008
Equivalent citations: 2008(56)BLJR1355, AIR 2008 (NOC) 2158 (JHAR.) = 2008 (2) AIR JHAR R 67, 2008 (2) AIR JHAR R 67, 2008 (5) AKAR (NOC) 755 (JHAR.) = 2008 (2) AIR JHAR R 67, 2008 A I H C 3589, (2009) 1 HINDULR 105, (2008) 64 ALLINDCAS 418 (JHA)
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
Page 1355
1. This application under Article 227 of the Constitution of India is directed against the order dated 8.3.2007 passed by Sub-Judge-VII, Deoghar in Title Partition Suit No. 32/2000 whereby he has rejected the petition filed by the petitioner along with proforma respondents-defendants.
2. The question that arose for consideration is as to whether daughter being a co-parcener is a necessary party in a suit for partition of ancestral co-parcenary property.
3. The facts of the case lie in a narrow compass:
The plaintiff-respondents Ist set filed petition suit No. 32/2000 for partition of joint family ancestral property. Defendants-respondents No. 2 and 3 contested Page 1356 the suit by filing written statement taking various pleas including non-joinder of necessary parties. The petitioner-defendant filed a petition for adding Savitri Devi, Usha Devi and Mina Devi as defendants in the suit on the ground that they are co-parceners having equal right title and interest over the ancestral property. The plaintiff objected the same by filing rejoinder. The court below rejected the said application by passing impugned order on the ground inter alia that above named persons, Savitri Devi, Uaha Devi and Mina Devi, daughters of Sri Lal Sharma have no legal right over the suit property. Hence, this application by the defendant-petitioner.
4. Learned Counsel for the petitioner assailed the impugned order on the ground inter alia that after amendment of Hindu Succession (Amendment) Act, 2005, daughter of a co-parcener has right title and interest over the ancestral property. Learned Counsel further submitted that daughters of Sri Lal Sharma have equal shares in the suit property and therefore, the court below has committed serious error of law in rejecting the application for impleading them as parties in the suit.
5. Learned Counsel appearing on behalf of respondents, on the other hand, submitted that the amended provisions of Hindu Succession Act will not apply in the present suit which was filed in 2000 i.e. much prior to the amendment of the said Act. Learned Counsel further submitted that the application was filed by the defendants only to delay the disposal of the suit.
6. The reasons assigned by the court below in rejecting the petition is that the cause of action for filing the suit arose in the year 1999 when the defendants refused the claim of the plaintiff for partition of the suit property. According to the court when cause of action arose, daughters of Sri Lal Sharma (defendant No. 5) had no right over his property during life time of his father and so the provisions of Hindu Succession (Amendment) Act 2005 will not apply in the present suit because the present suit was filed much prior to the said Amendment Act. For better appreciation the impugned order is reproduced herein below:
8.3.07 Both parties have filed their respective steps. Put up for order.
Order The defendant No. 1 and 2 have filed a petition dated 2.8.06 for directing the plaintiff to implead the name of sister of defendant i.e. 1 and 2. The plaintiff's as well as defendant No. 3 and 4 have also filed rejoinder petitions against the aforesaid petition of the defendant No. 1 and 2.
The defendant No. 1 and 2 have stated in their petition that the wife of defendant No. 4 (Sri Lal Sharma) namely Faguni Devi @ Bhuleshwari Devi, who died in the year 1970 leaving behind her husband Shri Lal Sharma (def. No. -4), two sons (def. No. 1 and 2) and three daughters namely Savitri Devi, Usha Devi and Mina Devi. It is further stated that the present suit properties are ancestral properties of Khagpat Mistry, the grand father of Sri Lal Sharma (defendant No. --4. The three daughters of Bhuleshwari Devi @ Faguni Devi namely Savitri Devi, Usha Devi and Mina Devi are not parties to the present suit and as per the present law as amended by Act, 39 of 2005, the said three daughters of Bhuleshwari Devi are Co-parceners and they have got equal right, title and interest in the Page 1357 co-parcenary property, so they must he impleaded in the present suit so that the present suit can be decided property and effectively.
On the other hand the plaintiff has stated in his rejoinder petition that the Act 39 of 2005 (Hindu Succession Amendment Act) will not apply in this suit as per provision of general clauses Act, as because the present suit has been filed on 10.4.2000 be much prior of the Amended Act No. 39/2005.
The defendant No. 3 and 4 have also vehemently opposed the aforesaid petition of defendant N and 2 and also filed a rejoinder petition and stated to there in that the plaintiff being the master of his own plaint can not be directed to frame the plaint in a particular manner or to implead the alleged sisters of the defendants No. 1 and 2. It is further stated that the suit properties are not the ancestral property of Khagpat Mistri and the said petition of defendant No. 1 and 2 is misconceived and not maintainable and is fit to be rejected at this precrusive stage.
I go ahead to hear is the matter on the basis of materiel available is the record.
The present partition suit has been filed by the plaintiff against the defendants on 10/4/2000. The defendants have appeared and filed their respective written statements. In this present suit plaintiff has examined several witnesses and after closing the evidence of plaintiff the defendant No. 3 and 4 have also examined their witnesses and the have also closed their case and the date has been fixed for giving witnesses of defendant 110, 1 and 2. At this stage the defendant No. 1 and 2 filed the resaid petition on 2.8.06 for directing the plaintiff implead the name of the sisters of defendant No. 1 and 2. According to the para- 12 of the plaint, the cause of action for filing this suit has been arisen on year 1999, when the defendants have refused for partition. I find that the said cause of action when arises, on that period daughters of Sri Lal Sharma (defendant No. 4) had no right over his property during the life time of their father, so the provisions of Hindu Succession Amendment Act 2005 will not apply in this present suit because the present suit has filed much prior of the said amended act where has taken place in the year 2005, as such question of adding party of the daughters of defendant to 4 Shri Lal Sharma does not arise at all. Accordingly the petition filed on behalf of defendant No. 1 and 2, is hereby rejected.
To dated 23.3.07 for evidence of defendant No. 1 and 2.
7. Learned Counsel for the parties have no disputed the fact that the plaintiff has instituted the suit against his father Sri Lal Sharma and his brothers for partition of the ancestral property treating it as co-parcenary property. The question, therefore, that falls for consideration, as stated above, is as to whether the daughters of Sri Lal Sharma are necessary parties in the suit. In this context it will be relevant to refer Section 6 of the Act as amended by Hindu Succession (Amendment) Act 2005 (Act 39 of 2005) which came into effect from 9.1.2005. Section 6 as amended reads as under:
6. Devolution of interest in coparcenery property -
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakashara law, the daughter of a coparcener shall, Page 1358
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same right in the co-parcenary property as she should have had if she had been a son;
(c) be subject to the same liabilities in respect of the said co-parcenary property as that of a son, and any reference to a Hindu Mitakashara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the properly of a Joint Hindu family governed by the Mitakashara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the co-parcenary property shall be deemed to have been divided as if a partition had taken place 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 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 I daughter, as such child would have got had be or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation-- For the purposes of this sub-section, the interest of a Hindu Mitakashara 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) ...
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 the decree of a Court.
Page 1359
8. From bare reading of the aforesaid provision, it is manifestly clear that on and from the date of commencement of the Amended Act 2005, daughter of a co-parcenary shall become co-parcener in her own right and in the same manner as a son shall have the same right in the co-parcenary property. It is further clear that in the co-parcenary property daughters shall also be allotted the same share as is allotted to the son. Sub-section (5) makes it very clear that the aforesaid provisions of the Act will apply only in respect of those properties which have not been partitioned before 20th December, 2004. The explanation to Sub-section (5) further makes it clear that partition means any partition made by execution of deed of partition duly registered or affected by decree of a court.
9. The Amendment Act of 2005 is the outcome of 174th report of Law Commission of India on property right of women. According to the amending Act of 2005, in a Joint Hindu Family governed by the Mitakashara Law, the daughter of a coparcener shall, also by birth become a coparcener in her own right in the same manner as the son heir. She shall have the same rights in the coparcener property as she would have had if she had been a son. She shall be subject to the same liabilities and disabilities in respect of the said coparcener property as that of a son and any reference to a Hindu mistakashara coparcener shall be deemed to include a reference to a daughter. But this provision shall not apply to a daughter married before the commencement of the Hindu Succession (Amendment) Act of 2005. This provision shall not affect or invalidate any disposition or alienation including partition or testamentary disposition of property which had taken place before 20th December, 2004. Further any property to which female Hindu becomes entitled by virtue of above provision shall be held by her with the incidents of co-parcener ownership and shall be regarded, as property capable of being disposed of by her by will and other testamentary disposition. The provision was also made that where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act of 2005, his interest in the property of a Joint Hindu Family governed by the Mitakashara Law, shall devolve by testamentary or intestate succession under the Act and not by survivorship, and the coparcener property shall be deemed to have been divided as if a partition had taken place. Further the daughter is allotted the same share as is allotted to a son. The provision was also made that 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 predeceased daughter. By virtue of the new provision, a daughter of a coparcener in a joint Hindu family governed by the Mitakashara law now becomes a coparcener in her own right and thus enjoys rights equal to those hitherto enjoyed by a son of a coparcener. The implications of this fundamental change are wide. Since a daughter now stands on an equal footing with a son of a coparcener, she is now invested with all the rights, including the right to seek partition of the coparcener property. Where under the old law, since a female could not act as Karta of the joint family, as a result of the new provision, she could also become Karta of the joint Hindu family.) In the instant case as noticed above, ancestral properties of the parties which is the suit property has still not been partitioned. Admittedly the plaintiff demanded partition and then filed the suit which is pending. The court below committed gross error of law in rejecting the petition of the petitioner on the ground that cause of action arose in 1999 i.e. before commencement of Amendment Act, 2005. The court below Page 1360 miserably failed to take into consideration the fact that the property has not yet been partitioned and the suit for that purpose is still pending.
10. It is well settled that claim for partition is a recurring cause of action and unless division of property is brought to completion by actual delivery of allotment of share, each party has right to claim partition. The impugned order, therefore, cannot be sustained in law.
11. For the aforesaid reasons this application is allowed and the impugned order is set aside. Consequently, the application filed by the petitioner for impleading the daughters of Sri Lal Sharma stands allowed. However, it is made clear that this order will not prejudice the cases of the parties and the court below shall decide all the issues with regard to right title and interest and the share of the parties over the suit property in accordance with law.