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2013 DIGILAW 250 (CHH)

KHIRODRI BAI v. BHOLA RAM

2013-08-27

N.K.AGARWAL

body2013
JUDGMENT 1. Instant First Appeal filed under Section 96 of CPC is directed against the judgment and decree dated 05.08.2002, passed by the 1st Additional District Judge, Raigarh, in Civil Suit No. 11-A/1996. 2. Facts in brief, necessary for disposal of this appeal are that plaintiffs are daughters of late Madhu Ram Mehar. Panch Ram Mehar, Ramakant Mehar, Shankar Mehar and Mahesh Mehar were his sons and Mutukunwar was his wife. Respondent No. 1 & 2 are legal representatives of Panch Ram Mehar whereas respondent No. 3 to 9 are legal representatives of Ramakant Mehar. Madhu Ram Mehar died in the year, 1972, Mutukunwar died in the year 1995, Ramakant Mehar died in the year 1980, Panch Ram died during pendency of suit and Shankar and Mahesh died issueless in the year 1986 and 1994 respectively. 3. Plaintiffs/appellants filed a suit claiming declaration of their exclusive title over the suit house constructed on Nazul Sheet No. 43, Plot No. 559/1, area 1914 sq. ft. situated in the city of Raigarh. It is the plaintiff's case that the suit house was coparcenary property of plaintiffs and defendants and pursuant to oral partition took place between the parties in the year 1962, the respondents have separated themselves and since then they are not having au)' share in the suit house. 4. The trial court framed issues and parties led evidence. 5. The plaintiffs are claiming exclusive right over the suit house, in substance, based on a plain paper alleged to be written by one of son of Madhu Mehar on 14.09.1964 which has been held by the trial court as inadmissible as the same is neither properly stamped nor is registered. 6. The trial court therefore rejected the contention of prior partition among the parties raised by the plaintiffs and declared 1/6th share of each of plaintiffs in the suit house considering the provisions contained in Section 6 of Hindu Succession Act, 1956 (for short 'the Act, 1956') before its amendment vide Hindu Succession (Amendment) Act, 2005 (for short 'the Act, 2005'). 7. 7. While not disputing the above factual findings recorded by the court below, learned counsel appearing for the appellants would submit: pursuant to amendment in Section 6 of the Act, 1956, vide amendment Act, 2005, now the plaintiffs who are daughters of late Madhu Mehar, shall, by birth become coparceners in their own right in the same manner as the son, and therefore, they are entitled for ¼th share in the suit house in place of 1/6th. 8. On the other hand, learned counsel appearing for the respondent No. 3 to 9 would submit: the property has been partitioned by the court below before amendment of the Act, 1956, and therefore, in view of proviso to sub-section 1 of Section 6 of the Act, 1956, the amended provisions are not applicable in the facts of present case. The amendment is also prospective in nature and each plaintiff would be entitled for 1/6th share in the suit house and the judgment and decree passed by the trial court does not warrant any interference. 9. I have heard learned counsel appearing for the parties and perused the judgment and decree impugned including record of court below. 10. Existing Section 6 of the Act 1956 was substituted by 2005 Amendment Act. After substitution, new Section 6 reads as follows: "6. Devolution of interest in 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 subject to the same liabilities in respect of the said coparcenary property as that of a son, 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 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 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 testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary 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 predeceased 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 daughter, as such child would have got had he 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 the Hindu Mitakshara 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. Explanation.-For the purposes of this sub-section, the interest of the Hindu Mitakshara 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) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt : Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect – (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.- For the purposes of clause (a), the expression 'son', 'grandson' or 'great-grandson' shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (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 a decree of a court." 11. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9-9-2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9-9-2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. 12. The legal position is settled that partition of a joint Hindu family can be effected by various modes, inter alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition has not been affected before 20-12-2004 either by a registered instrument of partition or by a decree of the court which had attained finality. The only stage that has reached in the instant case is that though the suit for partition was not filed by the plaintiffs, the property has been partitioned by the trial court which is under assail in the instant appeal and the decree is yet to attain finality. 13. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. In the instant case, neither the decree of trial court has attained finality nor the property has been partitioned by metes and bounds between the parties nor allottees of the share are put in possession of the respective property. 14. The Supreme Court in case of Ganduri Koteshwaramma and another Vs. Chakiri Yanadi and another 2011 (9) SCC 788 i.e. in a case where the preliminary decree has been passed by the court and no appeal has been preferred there against and final decree was yet to be passed, in substance has held: trial court is competent to modify the preliminary decree in the changed or supervening circumstances even if no appeal has been preferred. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit be settled once for all in that suit alone and no other proceedings, and if during pendency of litigation the changes took place in the provision then its benefit is available to the daughters. 15. In the light of above clear proposition of law and the fact that no final prior partition took place between the parties, the benefit of amendment Act, 2005, is available to the appellants and they are entitled for 1/4th share in the suit house in place of 1/6th. 16. For the reasons mentioned hereinabove, the appeal is allowed in part. The appellants are entitled for ¼th share of suit house in place of 1/6th. Decree passed by the trial court is modified to the above extent. Rest of the conditions mentioned in the decree shall remain intact. No order as to costs. Appeal Allowed.