Document Fragment View

Matching Fragments

5. Sadashiv claims that even if the properties are ancestral properties Muktabai or Narmadabai were not coparceners and cannot claim any interest therein. It is his contention that only on and from 9th September 2005 on which date the Amendment Act 39 of 2005 came into force that the daughter who was then living would become a coparcener. Muktabai as well as Narmadabai died not only prior to the Act having come into force, but even prior to their father. The succession of Sakharam opened on 4th October 1995 when he expired. On and from that date his estate had to be administered. On and from that date his coparcernary interest in the ancestral property would devolve by survivorship. So far as his intestate succession is concerned, Sadashiv as also the children of Muktabai and Narmadabai would take their shares from 1995. Neither of the children claimed her share. In fact, Sakharam died 4 AO.265.2011-AO.274.2011-AO.518.2011- AO.792.2011(JUDGMENT).sxw testate leaving behind a registered Will. Seven years after his death the mutation entry came to be made. Sadashiv was shown as the owner of the suit lands. None challenged the ownership or the mutation entry within three years of the death of Sakharam and also within three years of the mutation entry having been made respectively.

It is, therefore, that it is rightly contended on behalf of the Defendants in the suit that Sakharam's succession opened on 4th October 1995 on that date his daughters Muktabai and/or Narmadabai were not coparceners. His coparcenery property would devolve by survivorship to his only son Sadashiv. The devolution of interest in the coparcenery property as specified in the sub- title/heading of Section 6 would take place only to the son. The 10 AO.265.2011-AO.274.2011-AO.518.2011- AO.792.2011(JUDGMENT).sxw words in the sub-title "devolution of interest" also therefore, show that for an interest to devolve upon a person that person must be alive. No devolution of interest in coparcenery property can take place upon a deceased coparcener. On the date of the death of Sakharam his daughters were not even coparceners; they were not even alive. No devolution of interest upon them could take place.

21.In the case of Champabai W/o. Darshrathsingh Pardeshi & Ors. Vs. Shamabai @ Shamkuwarbai Gajrajsingh Pardeshi & Anr. 2010 (3) ALL MR 262 this Court considered the dwelling house 12 AO.265.2011-AO.274.2011-AO.518.2011- AO.792.2011(JUDGMENT).sxw and the agricultural properties of the deceased, one Dashrathsingh. He died in 1998 having married twice and leaving behind two married daughters born to his first wife and two sons born to his second wife. In this case the retrospectivity of the Act was to be considered. It was observed that succession had opened in 1998 when Darshrathsingh died. There was no amendment to the Hindu Succession Act at the relevant time. The division of shares was immediate without the rights being deferred to the married daughters who were married prior to the Maharashtra Amendment to the Hindu Succession Act. The Maharashtra Amendment with regard to the grant of coparcenery rights to daughter made an exception for married daughters. That amendment, of course, would no longer be applicable in view of the Central Amendment Act. The contention with regard to the dwelling house that the deceased would not take the share was accepted. The shares devolved upon the two sons in 1998 by application of Section 6 r.w. Section 8 of the old Hindu Succession Act of 1956.

24.In that case the Plaintiff/Petitioner applied for partition of the coparcenery property whilst her father was alive under Section 6 of the new Act of 2005 upon the premise that she, as a coparcener, was entitled to all the rights of coparcener including partition. Her father was alive at that time. It was held that Section 6 of the new Act of 2005 was the law relating to intestate succession which regulates the succession of properties of all Hindus by its heading itself which speaks of "devolution" of interest. It was held that "Devolve" means to pass from a person dying to a person living. Hence, the right of a daughter to be treated like a son should be construed only with regard to the share that "devolves" on her when her right to succession opens having regard to the scope and ambit of the Act itself.