High Court · 2011

Order

This Second Appeal has been preferred by the defendant in the Suit. The respondents have instituted suit O.S.No.3 of 2003 for partition and separate possession. The suit has been brought on the basis that the husband of the 1st plaintiff was the pattedar of land measuring Ac.10-21 guntas situate in Survey No.28/A at Gotkuri Village of Tamsi Mandal, Adilabad District. The plaintiffs 2 and 3 are the daughters of the 1st plaintiff, while the sole defendant was the daughter-in-law (predeceased son’s wife) of the 1st plaintiff. The husband of the defendant is stated to have died six years prior to the filing of the suit and in that view of the matter the partition was solicited. The suit claim is resisted by the defendant on the ground that the land in question is self acquired property of her husband. Further, since the marriages of her two sisters-in-law have been performed prior to 1985, they are not otherwise entitled for any share. Further the suit property is not liable to be divided as Section 29A has been added to the Hindu Succession Act, 1956 (henceforth referred to as ‘the Act’), creating rights in favour of daughters in Hindu Mitakshara Coparcenary,

only with effect from 05-09-1985. Further, the defendant has two children and they have not been impleaded to the suit. Three witnesses were examined and nine exhibits have been marked for the plaintiffs, while three witnesses were examined and Exs. B-1 and B-2 were got marked on behalf of the defendant. The Trial Court has dismissed the Suit. However, it has recorded a finding of fact based upon Exs.A-6 to A-9, pahanis relatable to the land in question for the years 1958-59, 1959-60, 1960-61 and 1961-62, that the suit scheduled property is an ancestral property and that the plea of the defendant / appellant that the suit scheduled land is acquired by her husband is incorrect. The Trial Court has also recorded a finding of fact that the marriages of plaintiffs 2 and 3 were performed prior to the amendment brought to the Act, creating equal rights to daughters in coparcenary property in Andhra Pradesh. Hence, plaintiffs 2 and 3 are not entitled for any share in the property. Since, the 1st plaintiff has died during the pendency of the suit and she, having died intestate, her share in the coparcenary would devolve upon her son, if he were to be alive and since, the said son has predeceased her, her share would devolve upon the defendant, being the widow of the predeceased son. The Trial Court had further found that the plaintiffs 2 and 3 being the daughters of the 1st plaintiff are not entitled to any share in the share of the property of the 1st plaintiff. The Trial Court had also found that the children of the defendant having not been impleaded to the suit, the same is liable to be dismissed for non-joinder of necessary parties. The Appellate Court has noticed that through Ex.A- 1 – legal notice partition was demanded and as per Ex.A- 5 pahani for the suit scheduled land for the year 1995-96, the husband of the 1st plaintiff was shown as the pattedar of the suit schedule land. When read together with Exs.A6 to A9, the suit schedule lands are clearly ancestral property. The finding of the trial court in this respect is confirmed. Further, the husband of the defendant died somewhere between 1995 to 1998 and the suit schedule property was not the self-acquired property of the said husband of the defendant. When once the suit schedule property is found to be ancestral property and remained to be undivided, any one of the coparceners can seek partition of such a property. Dealing with the contention of the defendant that the plaintiffs 2 and 3 are married prior to 05-09-1985, the date with effect from which Section 29A of the Act, is applicable, the Appellate Court found that the embargo contained in the said Section 29A is no longer operative in view of the amendment brought about to Section 6 of the Act, by the Parliament through amending Act No.39 of

2005. The amendment to Section 6 has been brought into force with effect from 09-09-2005. Relying upon the Judgment rendered in DAMALANKA GANGARAJU AND OTHERS v. NANDIPATI VIJAYA LAKSHMI AND OTHERS [2007 (4) ALD 694], after 09-09-2005 all daughters are required to be treated as coparceners entitled to an equal share irrespective of the fact whether they are majors or minors or their marriages were performed before 05-09-1985 or subsequent thereto. Therefore, the Appellate Court has found that by virtue of the amending Act No.39 of 2005, the embargo contained in Section 29A of the Act is no longer applicable. By virtue of this provision, the Appellate Court has found that post 09-09- 2005, plaintiffs 2 and 3 being daughters, have become entitled for a share in the coparcenary. Therefore, it has allowed the Appeal and decreed the Suit. Heard the learned counsel for the Appellant Sri S. Surender Reddy and the learned counsel for the respondents / plaintiffs Sri S. Chandrasekhar. It should be recorded before proceeding any further that enormous effort has been put in by the learned counsel appearing on both the sides for securing an amicable settlement amongst the parties, but some how, the appellant could not see wisdom in working out an amicable settlement of the matter. In view of the concurrent findings of fact, which has been set out supra, that the suit schedule property is an ancestral property, one is required to consider the effect of Section 6 of the Act, as it originally stood. After 17-06- 1956, the date on which the Act, was brought into force, how the interests of a male Hindu, who died, having, at the time of his death, an interest in a Mitakshara coparcenary property, are to be regulated, has been dealt with by Section 6. Section 6 sets out that the interests of a male Hindu, who died after the commencement of the Act, who, at the time of his death, is having an interest in a Mitakshara coparcenary property, the same shall devolve by survivorship, upon the surviving members of the coparcenary, but not in accordance with Provisions contained in the said Hindu Succession Act. However, the Statute has crafted an exception to this by setting out in the proviso thereto, that if the deceased has left him a surviving female relative, as specified in Clause-I of the Schedule, the interests of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, in accordance with the said Hindu Succession Act, but not by survivorship. Therefore, the Proviso incorporated to Section 6 of the Act regulated the interests of the deceased in a Mitakshara coparcenary property to devolve upon any of the female heirs specified in Schedule-I. It is useful to extract Section 6 of the Act, as it originally stood prior to it’s amendment in 2005, to the extent it is relevant for our present inquiry and the same is as under: ''6. 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: female through such Provided that, if the deceased had left relative him surviving a specified in Class I of the Schedule or a male relative specified in that class who claims female relative, the interest of the deceased coparcenary property testamentary or intestate succession, as the case may be, under this Act and not by survivorship. the mitakshara devolve to be Explanation 1. - For the purposes of this section, the interest of a Hindu mitakshara coparcener shall be deemed 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. the share Explanation 2.- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself 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 effect of this Proviso has fallen for consideration of the Supreme Court in GURUPAD KHANDAPPA MAGDUM v. HIRABAI KHANDAPPA MAGDUM AND OTHERS[1], in paras 7 and 8 in the following terms: “ 7. There is thus no dispute that the normal rule provided for by S.6 does not apply, that the proviso to that section is attracted and decision of the appeal must turn on the meaning Explanation 1 The interpretation of that Explanation is the subject-matter of acute controversy between the parties. to be given to S.6. Since Explanation 1

8. Before considering the implications of Explanation 1, it is necessary to remember that what S.6 deals with is devolution of the interest which a male Hindu a mitakshara coparcenary property at the time of his death. intended to be explanatory of the provisions contained in the section, what the Explanation provides has to be correlated to the subject-matter which the section itself deals with. In the instant case the plaintiff’s suit, based as it is on the provisions of S.6, is essentially a claim to obtain a share in the interest which her husband had time of his death coparcepary property. Two things become necessary to determine for the purpose of giving relief to the in her plaintiff: One, her share two, her husband’s share and husband’s coparcenary property. The proviso to S.6 contains the formula for fixing the share, plaintiff’s claimant while Explanation 1 contains a formula for deducing the share of the deceased. The application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in Ss. 8, 9 and 10 of the Hindu Succession Act. The deceased Khandappa died leaving behind him two sons, three daughters and a widow. The son, daughter and widow are mentioned as heirs in Class 1 of the Schedule and therefore, by reason of the provisions of S. 8 (a) read with the 1st clause of S.9, they take simultaneously and exclusion of other heirs. As between two sons, daughters and the widow will take equally, each having one share in the deceased’s property under S. 10 read with Rr. 1 and 2 of that section. Thus, whatever be deceased in the coparcepary property, since there are six sharers in that property each having an equal share, the plaintiff’s share therein will be 1/6th.” the share of It would also be appropriate in this context to notice yet another Judgment of the Supreme Court in STATE OF MAHARASHTRA v. NARAYAN RAO SHAM RAO DESHMUKH[2], which considered the earlier Judgment of the Supreme Court in GURUPAD KHANDAPPA’s case cited (1) supra. In para 10 while approving the ratio in GURUPAD KHANDAPPA’s case cited (1) supra, the Supreme Court has once again reiterated the principle as under: “10. We have carefully considered the above decision and we feel that this case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under S. 6 of the Act files a suit for partition expression her willingness to gout of the family she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her, as stated in Explanation 1 to S. 6 of the Act. But it cannot be an authority proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under S. 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of it may result such female heir. To illustrate, if what is being asserted is accepted as correct the wife automatically being separated from her husband when one of her sons dies leaving her behind as his 331 heir. Such a result does not follow from the language of the statute. In such an event she should have the option continue in the family as long as she wishes as its member though she acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. ………” to separate herself or In view of this settled proposition of law, the Appellate Court has arrived at a correct conclusion in the matter. Dealing with the objection that the plaintiffs 2 and 3, having been married prior to 05-09-1985 are not entitled to a share in the coparcenary, the Appellate Court rightly placed reliance upon the ratio laid down by this court in Damalanka Gangaraju & others v. Nandipati Vijayalakshmi [2007(4) ALD 694], wherein, this question has been dealt with in the following manner : “30. During the course of hearing of the appeal, it is contended that the plaintiff, D1 and D5 are entitled to 1/3rd share each, since the marriages are performed subsequent to 5.9.1985 when the State Act 29-A in Hindu introduced Succession Act has equating their status as coparceners.

31. The learned Counsel appellants contended that on 9.9.2005 there was an amendment to Section 6 of the Hindu Succession Act ('Act' in short) by Central Act 39 of 2005. By virtue of the amendment, irrespective of the dates of marriages of the daughters, they were to be treated as coparceners entitled to equal share. Therefore, the plaintiff would get 1/6th share while D1 remaining 5/6th share viz., each 1/6th share. to D5 get learned Counsel of Andhra Pradesh

32. The further contended that the State Act prevails over the Central act more so in view of the non-obstante clause used Section 29-A of Hindu Succession Act. In other words Section 29-A continues to be in force in spite of amendment by Central Act 39 of 2005 to Section 6 of the Act. The benefits of coparcenary property rights, on the female children were conferred by the State introducing Section 29-A to the Act. It was inserted by Amendment Act No. 13 of 1986 w.e.f. 5.9.1985. These coparcenary rights are conferred only on those female children who are not married prior to 5.9.1985 nor there then. should be a partition by However this embargo in regard to marriage was removed and the rights of the daughters are now protected under Section 6 of the Act. When the State Act was introduced, introduction of non-obstante clause in Section 29-A of the Act is to intend to carve out an exception in favour of the daughters who remained unmarried till 5.9.1985 by conferring coparcenary rights on Predominant reason is to establish complete equality between male and female children with regard to property rights and the rights of female were completely absolute, declared abolishing all notions of limitations. them. Obviously

34. In order to resolve this question, the purpose and amending Acts have to be seen. In the Statement of Objects and Reasons of the A.P. Act, it was mentioned: intention of to claim partition The Hindu Succession Act, 1956 governs the property rights of Hindus and provides for devolution of property. Women are not members of the Hindu the coparcenary under Mitakshara Law and therefore they are not entitled coparcenary property, and such exclusion of daughters has led to the creation of socially pernicious dowry system with its attendant social ills. In order to eradicate this ill by positive means which will simultaneously ameliorate the conditions of women in Hindu Society; it is proposed to confer equal rights on Hindu women along with the male members so as to achieve the constitutional mandate of equality by suitably amending the said Act. The Bill seeks to give effect to the above proposal. Section 29-A of the Hindu Succession Act, 1956, reads as follows: Section 29-A: Equal rights to daughter property:- Notwithstanding anything contained in Section 6 of this Act: coparcenary rights (i) in a Joint Hindu family governed by 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 the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son; (ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: the share which a Provided predeceased son or a pre-deceased daughter would have got at partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such the pre- pre-deceased child of deceased son or of the pre-deceased daughter; further Provided the share allotable to the pre-deceased child of a predeceased son or of a pre- deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the pre- deceased son or of the pre-deceased daughter as the case may be; (iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) 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, as property capable of being disposed of by her by will testamentary disposition; (iv) Nothing in Clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before Hindu Succession (Andhra Pradesh Amendment) Act, 1986. the commencement of A reading of the above provision makes it clear that any joint family governed by Mitakshara, the daughter is made a coparcener equating her status to a son. Exceptions were carved out. The exceptions are that the marriage of the daughter should not have been performed prior to 5.9.1985 or partition should not have been taken place.

35. The Parliament obviously after taking cognizance of the amendments made by States of Andhra Pradesh besides Tamil Nadu, Karnataka and Maharashtra, amended Section 6 of the Hindu Succession Act in tune with Section 29-A barring some exceptions by way of Amendment Act 39 of 2005 Succession Hindu (Amendment) Act, 1956, which came into force with effect from 9.9.2005. In the Statement of Objects and Reasons it was mentioned: system intestate succession comprehensive The Hindu Succession Act, 1956 has amended and codified the law relating Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relating to women's property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform inheritance and applies inter alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkayyam, Aliyasantana and Nambudri Laws. The Act applies to every person who is a Hindu by religion forms or developments including a Virashaiva, a Lingayat or a Brahmo, Pararthana 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. in any of follower of S e cti o n 6 of the Act deals with devolution of interest of a male Hindu property in Coparcenary recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara Coparcenary property without including the female in it means that the females cannot inherit in ancestral property as their male counterparts do. 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 equality fundamental guaranteed by the Constitution. Having regard to the need to 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. remove is proposed It 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 in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide 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. for partition The above proposals are based on the Law the recommendations of Commission of India which contained its 174th report on "Property Rights of women proposed reform under the Hindu Law". The bill seeks to achieve the above objects.

36. Obviously, the Central Act 39 of 2005 was introduced in order to bring out uniformity through out the country. The stipulation that the marriage of the daughter should not have been performed before 5.9.1985 was removed. Therefore, irrespective of the dates of marriage, all daughters would be deemed to be coparceners with one exception that partition should not have taken place before 20.12.2004. The expression 'partition' herein means that partition under a duly registered partition deed or partition effected by a decree of Court. While bringing out amendment, the Union Government has dropped the condition as the date of marriage. Obviously the condition that partition should have taken place as evidenced above was kept in tact as that amendment made affecting the rights of parties already accrued in favour of others shall not disturb so vested. Now, then the daughter is declared as a coparcener, she will naturally takes a share in the family coparceners. No doubt, while amending Section 6, the enactments made by the States of Andhra Pradesh, Tamil Nadu, Karnataka and along with Maharashtra were not repealed. In other words, the Central Amending Act did not repeal Section 29-A of the State Amendment.

38. ……………… The Supreme Court in Sai Reddy v. Reddy Narayana MANU/SC/0609/1991 : (1991)3SCC647 amendment held: , referring It is obvious that under the aforesaid the difference between provision, daughter and son of the Mitakshara Hindu family is removed and the daughter is conferred rights in the joint family property by birth in the same manner and to the same extent as the son. She is, therefore, now entitled to claim partition and her share in the family amending provision is a beneficial legislation, which, among other things, is also directed towards eradicating social evils such as dowry and dowry deaths. constitutional mandate of equality between sexes. property. The achieves It

39. The Parliament has unfettered power of legislating question. It may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the "same matter". The Parliament while passing State evidently amendments. In introducing Act 39 of 2005 it intends to correct the anomaly created between male and female amendment, ignored process, while children. It intends to set right the Law. taking In cognizance of those enactments made by different States, it further bestowed some more rights. The embargo created in State Acts like the daughters marriages to be performed after a particular date etc., were lifted undoubtedly it is an improvement over the State Acts. Undoubtedly Central 42. enactment prevails over the State Act and the latter is deemed to have repealed. In case of overlappings of a matter them, predominance has to be given to the Union legislation.” between Further, the two daughters of the defendant are undoubtedly entitled to be treated as proper parties to a suit for partition, but however, they may not be truly necessary for affecting the partition, inasmuch as their share in the coparcenary is not being adversely impacted by the decree. Their share in the coparcenary remained intact and hence, they will not be adversely impacted by the decision to affect the partition of the coparcenary properties. In that view of the matter, they may not be necessary parties for this present Suit and hence, their non-impleadment is not fatal. For these reasons, I do not see any merit in this Second Appeal and accordingly the same is dismissed, but however, without costs. ------------------------------- Nooty Ramamohan Rao, J 11-07-2011