Hindu Succession Act, 1996 (30 of 1996) Section 6 – Hindu Succession (Amendment) Act, 2005 (39 of 2005) – Amendment in question is prospective in nature - Right of living daughters of a coparcener can only be appreciated in terms of Hindu Succession (Amendment) Act, 2005 if coparcener is also living on 09.09.2005.  (2018-4) PUNJAB LAW REPORTER (December)

 

 

 

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Hindu Succession Act, Section 6 - Ancestral property – Partition - Whenever a partition of ancestral property takes place, the share that a coparcener gets continues to be ancestral if on the date of partition he has a son - He holds such property as his absolute property if no son exists on the date of partition, but if a son is born subsequently, the ancestral character revives - After commencement of Hindu Succession (Amendment) Act of 2005, the presence of a daughter or birth of a daughter subsequently has the same effect, but her entitlement to a share being a coparcener is subject to the riders found in the amended Section 6 and the ratio laid down by the Supreme Court in Prakash v. Phulavati [(2016) 2 SCC 36] -  If succession to self acquired property of a male Hindu takes place among his heirs in accordance with Section 8 of the Hindu Succession Act, the share that every member takes will be held by each of them as his or her separate property - Hindu Succession Act, Section 8..    

2018 PLR Important Judgments  34 (Karnataka)

 

  • Hindu Succession (Amendment) Act, 2005, Section 6 -  Pending suit for partition , rights of daughter crystallised – Entitled to share -  Suit for partition and a separate possession filed by sons of the deceased propositus of a Hindu Joint Family – Suit filed stating that the two sons and widow were in joint possession of the properties as coparceners and properties mentioned were acquired out of the joint family nucleus in the name of deceased propositus - Case set up was that the appellants-daughters  were not the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act, 1956 - Section 6 of the Act was amended in the meantime as the decree was passed by the trial court only in the year 2007 - Thus, the rights of the daughters got crystallised in the year 2005 - So far as partition suits are concerned, the partition becomes final only on the passing of a final decree – Appellant daughters entitled to share. Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr. (2011) 9 SCC 788, relied.   (2018)1 SCeJ 222
  • Hindu Succession Act, 1956 (30 of 1956) - Mother is Class I heir, in case of any son pre-deceased and dies issueless - The status of the appellant-plaintiff being brother is a collateral being class II heir - He has no right and interest in the property during the life time of his mother, rightly so, mutation of inheritance has been transferred in favour of mother - Once the mother becomes the absolute owner, she can deal with the property in any manner she wants. (182) P.L.R.
  • Hindu Succession Act, 1956 (30 of 1956) S. 14(1) - Consistent view is that provision of Section 14(1) of 1956 Act would be attracted if any of the conditions contained in Section 14(1) stood fulfilled, if, however, a right is created in Hindu female for the first time in respect of any property under any instrument or under a decree or order of a civil Court etc., where a restricted estate in such property is prescribed, the provision of Sub-section (1) of Section 14 of 1956 Act would have no application by virtue of Sub-section (2)  thereof - Section 14(1) of the Act is attracted to only those cases where a Hindu female has been in possession of the property as a limited owner on coming into force of the Hindu Succession Act. (178) P.L.R.  
  • Hindu Succession Act, 1956 (30 of 1956) S. 14(1) - There is no material evidence available on the file that life time interest having been given was in lieu of some maintenance allowance or settlement and as such the present case is not covered under Section 14(2) but under Section 14(1) of the Act.   (182) P.L.R.
  • Hindu Succession Act, 1956 (30 of 1956) S. 14(1), (2) - Sub Section (2) of Section 14 of the 1956 Act is to be read as a proviso or an exception to sub-section (1) of Section 14 and it operates only in a case where the right in property is created for the first time and there was no pre-existing right in favour of female Hindu - Contrarily, if there was a pre-existing right, be it a life estate only, sub-section (1) of Section 14 applies with full force irrespective of the cloak created on such right and the female Hindu acquires absolute right in such property.  (182) P.L.R.
  • Hindu Succession Act, 1956 (30 of 1956) S. 14(1), 14(2) - Every property what was made a subject of bequest is described to be his own absolute property - The Will begins with the statement "I am the owner of the property and I own and possess agricultural land and other immovable property at Roopnagar" - In respect of the property owned by him, he was competent to bequeath by means of a Will in terms of the Indian Succession Act and the power under the Hindu Succession Act as well - The property which a woman takes after the Hindu Succession Act, will be governed by a manner of deposition which the particular instrument describes - Section 14(2) is in the nature of exception to Section 14(1) and if any property is acquired by a female by a gift or a Will or any other instrument, then the right will be restricted by such an instrument under Section 14(2) and Section 14(1) will not operate - By virtue of Section 14(1), unless she already had a pre-existing interest in the property during the life time of her husband and such interest was being passed by reference to the Will - If the property belongs absolutely by husband, it cannot be said that his wife had a pre-existing interest in the property - Finding of the court below that the widow had a right to execute a Will in respect of the property obtained by her through Will restricting her interest was clearly wrong. (173) P.L.R.  
  • Hindu Succession Act, 1956 (30 of 1956) S. 14(2) - She acquired the right in the property after commencement of the Act - Will i.e.  Will not convert such a right into a full fledged right of ownership of the property. (178) P.L.R.  
  • Hindu Succession Act, 1956 (30 of 1956) S. 15 - Property of a female dying intestate shall devolve according to procedure set out in Section 16 of the Hindu Succession Act - Firstly, the property shall devolve upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband - Therefore, on her death, the widow of pre-deceased son is not entitled to any share. (182) P.L.R.
  • Hindu Succession Act, 1956 (30 of 1956) S. 15(1) - Original plaintiff was the owner and title holder of the said property but by making false and fraudulent representation by her son that the property belonged to him, transferred the same in favour of the appellant - During the pendency of the first appeal before the district court, the vendor (son of the original plaintiff) died - Although on the death, his children did not inherit or succeeded any interest in the property, through their deceased father - However, during the pendency of this appeal, the original plaintiff never acquired any interest in the suit property owned by his mother during his life time - Doctrine of feeding the estoppel would not come into operation as against the grand children of the original plaintiff - Where a transferor never acquired by succession, inheritance or otherwise any interest in the property during his life time then the provisions of S.43 will not come into operation as against the heirs who succeeded stridhan property of their grandmother. (S.C.)(178) P.L.R.  
  • Hindu Succession Act, 1956 (30 of 1956) S. 22(1)(2) - Suit was in purported exercise of a preferential right to secure certain property under Section 22 of the Hindu Succession Act by the plaintiff seeking to exercise that right - The suit was admittedly filed more than a year after the transaction and the objection taken was that Article 97 of the Limitation Act applied and the suit was barred by law - This contention was accepted by both the Courts below by making reference to Article 97 which deals with the right to enforce a right of pre-emption whether the right is founded on law or general usage or on special  contract - Application here must, therefore, be taken as an interlocutory application in suit for a right to enforce the preference that is guaranteed under clause (1) of the said  Section - Such for enforcement of the right under Section 22 of the Hindu Succession Act is governed by Article 97 and not Article 137. (177) P.L.R.  
  • Hindu Succession Act, 1956 (30 of 1956) S. 24 - Hindu Widow's Remarriage Act, 1856 (15 of 1856) S. 2 - Repealed by Act (24 of 1983) - Section 24 of the 1956 Act which places restrictions on certain specified widows in the event of there being a remarriage, i.e. widow of a pre-deceased son or son of a pre-deceased son; while passing the aforesaid judgment has spoken about the aforesaid specified widows and has opined that the widows as specified in Section 24 of the 1956 Act will not become the absolute owner of the suit property and Section 4 of the 1956 Act will not have an overriding effect over Section 2 of the 1856 Act qua such widows - The 1956 Act in terms of Section 8 permits the widow of a Hindu male to inherit simultaneously with the son, daughter and other heirs specified in Class I of the Schedule and she takes her share absolutely and not as widow's estate only. (174) P.L.R.  
  • Hindu Succession Act, 1956 (30 of 1956) S.  4, 22 - Section 4 of the Act has an over-riding effect that unless or otherwise expressly provided in the Act itself any text rule or custom or usage or any other law enforce immediately before the commencement of the Act shall cease to apply to Hindus - The governing consideration shall be only Section 22 of the Hindu Succession Act and not Punjab Pre-empton Act 1913 (1 of 1913)  - Harbir v. Rajpal 2002(2) R.C.R. (Civil) 241 does not state the correct law.  (182) P.L.R.
  • Hindu Succession Act, 1956 (30 of 1956) S.  6 (Amended by Act 39 of 2005) - Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law - Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner - The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced - Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way - Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004 - In no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question. (S.C.)(180) P.L.R.  
  • Hindu Succession Act, 1956 (30 of 1956) S.  6 (Amended by Act 39 of 2005) - Text of the amendment itself clearly provides that the right conferred on a `daughter of a coparcener' is `on and from the commencement of Hindu Succession (Amendment) Act, 2005' - Section 6(3) talks of death after the amendment for its applicability - We hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born - Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected - Any transaction of partition effected thereafter will be governed by the Explanation. (S.C.)(180) P.L.R.  
  • Hindu Succession Act, 1956 (30 of 1956) S.  8 - A separate property can always be treated as joint family property by merger with admitted joint family properties existing or otherwise by throwing the separate property into the hotchpot - A case of blending or merger or deviations from the understanding of obstructed and unobstructed heritage would require to be specifically pleaded and proved - There can be no presumption that the property inherited by the father under the Hindu Succession Act, 1956 held as such was treated by the father as joint family property along with his sons - Such treatment must be expressly pleaded and there must be evidence of such treatment showing that the father had allowed all his sons to enjoy the properties not merely under the bounty of the father but as a right obtaining to them by the treatment made possible by the father by his conduct.  (182) P.L.R.
  • Hindu Succession Act, 1956 (30 of 1956) S.  8 - As per the amendment of Hindu Succession Act 2005 the daughters have been equated with the main coparcener that being in the share in the property even if the land is ancestral and as such their means more parity on that point that defendant No.1 is entitled for share in the property. (179) P.L.R.  
  • Hindu Succession Act, 1956,  Section 6 - Explained - Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b).      Facts:  Appellants are the daughters of GS , propositus of a Hindu Joint Family - Apart from these two daughters, he had two sons, A and V -  GS died in the year 2001 leaving behind the aforesaid two daughters, two sons and his widow, S - After his death, in 2002 son A filed the suit for partition and a separate possession of the suit property stating that the two sons and widow were in joint possession of the aforesaid properties as coparceners and properties mentioned were acquired out of the joint family nucleus in the name of GS -  Case set up was that the appellants-daughters  were not the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act, 1956. (2018)1 SCeJ 222
  •  Mitakshara law : The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.”  (2018)1 SCeJ 222