Suman Devi v. Most. Dhawan Kuer

respondent nos. 1 and 2 i.e. defendant nos. 1 and 2. This application has been filed challenging the order dated 12.1.2012, passed in Partition Suit No. 38 of 2010 by which Sub-Judge, II, Gaya has rejected the amendment filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure on the ground that the plaintiff did not have a right in the suit premises as they were sold prior to institution of the partition suit. The suit premises belong to one Awadhesh Yadav. He died leaving behind the defendant no. 1, his wife, defendant no. 2, his daughter and the plaintiff, also his daughter. The plaintiff brought 2 Patna High Court CWJC No.3683 of 2012 (4) dt.04-01-2013 a suit for partition and has purported to create a new schedule in the plaint which includes land which had been sold by defendant no. 1 in the year 2005. An objection has been raised by the defendants that the amendment sought was frivolous and that they had admitted in paragraph 18 of the written statement regarding unity of title and possession over the suit property and they were ready for partition of the suit. According to the defendant nos. 1 and 2, the petitioners would not have the right to include the properties that were sold by the defendant no. 1 as Karta of the family prior to the partition suit in view of the amendment of Section 6 of the Hindu Succession Act, 1956. It appears to be an admitted fact that Awadhesh Yadav died before 2005. It would be proper to refer to the provisions of Sections 6 and 10 of the Hindu Succession Act, 1956 reads as follows: interest Devolution 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 liabilities in respect of the said coparcenary property as that of a son, subject 3 Patna High Court CWJC No.3683 of 2012 (4) dt.04-01-2013 and any reference to a Hindu Mitakshara 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 the 20th day of December, 2004. taken place before (2)………………………. (3)………………………. (4)………………………. (5)………………………. 10. Distribution of property among heirs in class I of the Schedule.-The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:- Rule 1. – The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2.- The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3…………………….. Rule 4…………………….. It is clear on reading of Section 6 aforesaid that if a Hindu male dies after commencement of the 1956 Act, having at the time of his death and interest in Mitakshra coparcenary property, his interest will devolve by survivorship upon the surviving members of the coparcenary. The proviso states that if the deceased has left a female relative specified in Class I of the schedule or a male relative specified in that class who claims interest in the Mitakshara coparcenary, it shall devolve by 4 Patna High Court CWJC No.3683 of 2012 (4) dt.04-01-2013 testamentary or inter state succession as the case may be and not by survivorship. In the present case the heirs of the coparcenary property are all females. As per the chart, they would be considered to be Class I heirs. Sections 9 and 10 further makes it clear that the heirs specified in Schedule 6 and in class I shall take simultaneously and to the exclusion of all other heirs and interest in the coparcenary; whereas Section 10 defines that the intestate’s widow, or if there are more widows then all the widows shall take one share. The surviving sons, daughters and the mother of the intestate shall each take one share and so on. It is thus, clear that i.e. the mother, and two daughters would simultaneously entitle to one share each. The provisions of Section 6 of the Hindu Succession (Amendment Act), 2005 will be 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 coparcenary property, as if she was a son and will be subject to same liabilities in respect of the said coparcenary property as that of a son. In this particular case, the petitioner would be entitled to the coparcenary property under the 1956 Act in the 5 Patna High Court CWJC No.3683 of 2012 (4) dt.04-01-2013 same manner as the mother and the other daughters who have joint hands in the present suit. Thus, it cannot be said that the petitioner cannot claim that she has a right in the share of the property which was owned by her father and subsequently devolved on the mother and daughters. It is quite another aspect of the matter as to whether the property in question was a joint family property or not. This aspect of the matter can only be decided in the suit and, therefore, this Court is not passing any order regarding the fact as to whether the property was joint family or not rather this Court comes to a finding that the petitioner would be entitled to include those properties in the plaint, subject to proving that the property was joint family at the appropriate stage of the trial. In the result, the impugned order is set aside. This writ application is allowed. Sanjay/- (Sheema Ali Khan, J.)