JUDGMENT : 1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the C.P.C.') is at the instance of the original plaintiffs and is directed against the judgment and order dated 24th April 2018 passed by the 12th Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur in the Regular Civil Appeal No.78 of 2017 arising from the judgment and decree dated 29th September 2017 passed by the Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur in the Special Civil Suit No.244 of 2005. 2. For the sake of convenience, the appellants herein shall be referred to as the 'original plaintiffs' and the respondents hereinafter shall be referred to as 'the original defendants'. 3. The case put up by the plaintiffs, in their own words, as pleaded in the memo of the Second Appeal, is as under: “2.2 The dispute in the suit concerns the land bearing survey No.710, Hisa No.2, admeasuring 14,670 sq. mtrs. situated in village Makarba, Taluka city, District Sub-District Ahmedabad (hereinafter referred to as 'suit property'). The original plaintiff, Gangaben Motiji Thakor who had filed the suit initially as sole plaintiff claims one half share in the suit property as the heir of her deceased father Motiji Ajuji Thakor. During the pendency of the suit, Gangaben expired and therefore, her sons have been brought on record as the heirs of the plaintiff. 2.3 The plaintiffs have shown their pedigree as to how their one half share devolves in the suit property. After the death of the father Motiji Ajuji, the original plaintiff Gangaben became the co-owner of one half share along with her brother Ranchhodjibhai. The plaintiff's father Motiji Ajuji expired on 09.01.1944. At the time of the death of the plaintiff's father, Ranchhodji was the sole surviving male member. The Entry No.2350 dated 20.01.1944 was made in the revenue record entering the name of Ranchhodji Thakor. As Ranchhodji was the elder brother and was managing the affairs of the family after the death of the plaintiff's father, the plaintiff had wholly trusted her brother. Ranchhodji was cultivating the subject land. Gangaben was also illiterate. After the marriage she had gone to her maternal house. As Ranchhodji was the elder brother and was managing the affairs of the family after the death of the plaintiff's father, the plaintiff had wholly trusted her brother. Ranchhodji was cultivating the subject land. Gangaben was also illiterate. After the marriage she had gone to her maternal house. 2.4 The defendant no.1 with oblique motive to deprive the rights of the original plaintiff Gangaben, got executed two sale deeds, both dated 06.07.1981, for Rs.43,560/- from Ranchhodjibhai, despite knowing the fact that Gangaben had a share in the suit property. On the basis of such sale deeds, the name of the defendant No.1 was mutated in the land revenue record vide Entry Nos.5663 and 5664, both dated 04.09.1981. The plaintiffs have alleged that the defendant No.1 has fraudulently entered into the sale deed with oblique motives to deprive the original plaintiff of her rights. Thus, the sale deeds executed in favour of the defendant No.1 are fraudulent and illegal and in any case does not convey the one half share of the plaintiff, in favour of defendant No.1. 2.5 The defendant No.1 has executed sale deeds in favour of other persons. Subsequently sale transaction have been entered into by various persons. All such persons are arraigned as defendants in the suit. In the suit, the plaintiffs have prayed for a declaration that she has one half share in the suit property. The plaintiffs have also prayed that the sale deeds executed in favour of the defendants are null and void and that the sale deeds are not binding on the plaintiffs. The plaintiffs have also prayed for a mandatory injunction. 2.6 It is the case of the original plaintiff that when on 28.03.2005 she had gone to her near relative's place at Ambaji for attending a marriage ceremony, she came to know about the fraud committed on her and about the sale deeds executed in favour of the defendant No.1. Thereupon, she had inquiries made in the office of Sub-Registrar as well as City Mamlatdar. She had made applications for obtaining copies of relevant documents. Such copies were obtained on 16.07.2005 and 20.12.2005. In such circumstances, the fraud was discovered in the year 2005. 3. Thereupon, she had inquiries made in the office of Sub-Registrar as well as City Mamlatdar. She had made applications for obtaining copies of relevant documents. Such copies were obtained on 16.07.2005 and 20.12.2005. In such circumstances, the fraud was discovered in the year 2005. 3. The impugned judgment is illegal and erroneous and is liable to be set aside on the following grounds: 3.1 The impugned judgment of the Appellate Court is contrary to the law and the facts of the case. 3.2 The Appellate had filed detailed written submissions before the Appellate Court. However, in the impugned judgment, the Appellate Court has not considered the vital submissions made by the appellants. 3.3 The Appellate Court has failed to properly consider the oral evidence as well as documentary evidence on record. 3.4 The Appellate Court has enumerated the judgements cited by the appellants, however, the same are not considered by the Appellate Court. 3.5 The Appellate Court has erred in holding that the original plaintiff has failed to establish that she has one half share in the suit property. 3.6 The Appellate Court has erred in holding that the suit is barred by the law of limitation. 3.7 The Appellate Court failed to consider that the relief of partition is a coincidence of co-ownership and that the partition of the property can be sought for by the co-owner at any point of time. The relief partition can never be time barred. 3.8 The Appellate Court failed consider that the alleged fraud committed by the defendants vitiate the sale deed executed in favour of the defendant No.1 and render it null and void. In such a situation neither the defendant No.1 nor any subsequent transferees would get any right, title or interest in the suit property. The Court has overlooked that in both the sale deeds dated 06.07.1981, false statement is knowingly and deliberately made that Ranchhodjibhai has no sisters. This itself vitiates the sale deeds and renders it null and void. 3.9 The Appellate Court failed to appreciate that even if the sale deeds executed in favour of the defendant no.1 was wholly not vitiated as null and void, it can only convey the one half share of the Ranchhodjibhia. The sale deeds cannot survey the right, title and interest of the original plaintiff Gangaben to the defendant No.1 or to any subsequently transferees. The sale deeds cannot survey the right, title and interest of the original plaintiff Gangaben to the defendant No.1 or to any subsequently transferees. 3.10 The Appellate Court failed to appreciate that two separate sale deeds were executed in respect of the suit property bifurcating the land into two pieces. The suit land was agricultural land and it was not permissive to create fragments. The sale deeds executed in favour of the defendant No.1 are hit by the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and are null and void. Before the sale deeds were executed of parts of the suit land, no division of land was done under the provisions of the Bombay Land Revenue Code. 3.11 The Appellate Court has failed to consider that fraud was discovered in the year 2005 and the plaintiffs came to know of the sale deeds executed in favour of the defendant No.1 in the year 2005, therefore, in view of section 17 of the Limitation Act, 1963, the suit was within jurisdiction. 3.12 The very vital aspects of the case that the plaintiffs came to know of the alleged fraud and the factum of execution of the sale deeds only in the year 2005, is not considered by the Appellate Court and this itself vitiates the judgement. 3.13 In paragraph 7 of the impugned judgement, the Appellate Court has held that the Mayukh Hindu Law which governs part of Gujarat, talks of Matriarchal family and the right of women in the property. However, it was not dealt further on the issue to determine as to whether in the present case the said Mayukh Hindu Law is applicable or not. 3.14 The Appellate Court has erred in upholding the decision of the Trial Court with regard to issues No.3 and 4. The burden of proof of such issues was upon the defendants and the defendants have failed to discharge such burden.” 4. The defendants appeared before the Trial Court and contested the suit. 5. It is pointed out that the rights of the daughters are not recognised either under the Mitakshara Law or Mayukha Law and there is no difference in the succession to the property of the deceased's father under both the laws so far as the rights of the daughters to succeed / inherit such property is concerned. 5. It is pointed out that the rights of the daughters are not recognised either under the Mitakshara Law or Mayukha Law and there is no difference in the succession to the property of the deceased's father under both the laws so far as the rights of the daughters to succeed / inherit such property is concerned. The defendants further pointed out that the suit is grossly time barred. The land in question was sold in the year 1981 by the deceased brother of Gangaben i.e. the plaintiff. The land in question, thereafter, has changed hands many times, and ultimately, it came to be purchased by the defendants Nos.8 to 14 and 17. Each of these defendants have their respective shares and they are the bona fide purchasers of the suit property. Gangaben i.e. the plaintiff did not deem fit to file suit within three years on attaining majority. 6. Having regard to the pleadings of the parties, the Trial Court framed the following issues: “(1) Whether the plaintiff proves that she has 1/2 share in the suit property mentioned in para 'A' of the plaint? (2) Whether the plaintiff proves that she is entitled to recover that share of the suit property from the defendants? (3) Whether the defendants prove that this suit is time barred? (4) Whether the defendants prove that they are became the sole owner of suit property by virtue of registered sale deed? (5) Whether the plaintiff is entitled for declaration and injunction as prayed for? (6) What order and decree?” 7. The issues framed by the Trial Court referred to above came to be answered as under: “(i) Issue No.1 not proved. (ii) Issue No.2 not proved. (iii) Issue No.3 proved. (iv) Issue No.4 proved. (v) Issue No.5 not proved. (vi) Issue No.6 as per final order.” 8. The Trial Court, upon appreciation of the oral as well as the documentary evidence and also having regard to the position of law, dismissed the suit filed by the plaintiffs. The plaintiffs being dissatisfied with the judgment and decree passed by the Trial Court, preferred the Regular Civil Appeal No.78 of 2017 in the District Court of Ahmedabad (Rural) at Mirzapur. The plaintiffs being dissatisfied with the judgment and decree passed by the Trial Court, preferred the Regular Civil Appeal No.78 of 2017 in the District Court of Ahmedabad (Rural) at Mirzapur. The lower Appellate Court, upon re-appreciation of the entire oral evidence as well as the documentary evidence and also having regard to the position of law, dismissed the appeal filed by the plaintiffs and thereby affirmed the judgment and decree passed by the Trial Court dismissing the suit. 9. Being dissatisfied with the judgment and order passed by the lower Appellate Court, the plaintiffs are here before this Court with this Second Appeal under Section 100 of the C.P.C. 10. The following questions have been formulated as the substantial questions of law in the memorandum of the Second Appeal: “4.1 Whether the Appellate Court has erred in la by not exercising jurisdiction vested in it? 4.2(a) Whether the judgement of the Appellate Court is perverse on account of the fact that it does not consider various vital facts and contentions raised by the appellants including the cited case laws? 4.2(b) Whether non-consideration of aforesaid material amounts to non-application of mind and breach of principles of natural justice? 4.2(c) Whether the aforesaid perversity, non-application of mind and violation of principles of natural justice vitiate the impugned judgment? 4.2(d) Whether the aforesaid perversity, non-application of mind and violation of principles of natural justice renders the impugned judgement liable to be set aside and to be remanded back to the Appellate Court for reconsideration under the provisions of the Code of Civil Procedure, 1908? 4.3 Whether fraud vitiates the sale deeds dated 06.07.1981? 4.4 Whether Ranchhodji in law, could have transferred the complete rights in the whole of the suit property to the defendant No.1 when the original plaintiff had one half share in the suit property? 4.5 Whether the sale deed dated 06.07.1981 are operative only in respect of one half share of Ranchhodjibhai and do not affect the one half right, title and interest of the original plaintiff? 4.6 Whether the suit is within time by virtue of Section 17 of the Limitation Act? 4.7 Whether the relief of partition by a co-owner can ever be time barred? 4.8 Whether the sale deeds dated 06.07.1981 are void on account of violation of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947? 4.6 Whether the suit is within time by virtue of Section 17 of the Limitation Act? 4.7 Whether the relief of partition by a co-owner can ever be time barred? 4.8 Whether the sale deeds dated 06.07.1981 are void on account of violation of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947? 4.9 Whether, without the division of agricultural land under the provisions of Bombay Land Revenue Code, the sale of suit property in two parts vitiates the sale as being in violation of Section 9 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947? 4.10 Whether the original plaintiff had right in the suit property under the Mayukh Hindu Law?” SUBMISSIONS ON BEHALF OF THE PLAINTIFFS: 11 Mr. Aspi Kapadia, the learned counsel appearing for the plaintiffs has filed his written submissions. The written submissions on behalf of the plaintiffs are as under: “1. The Special Civil Suit No. 244 of 2005 was filed by Gangaben Motiji Thakore (Plaintiff) for claiming partition of her onehalf undivided share in the land bearing survey no. 710 situated in village Makarba, District Ahmedabad, admeasuring 14,670 sq. mtrs. (hereinafter referred to as “the Suit Land”). The Suit Land originally belonged to Ajjuji Panaji Thakore (grandfather of the plaintiff). It was his individual property. Upon the demise of Ajjuji Panaji Thakore, the suit Land was inherited by Motiji Ajjuji Thakore (father of the plaintiff). Motiji Ajjuji Thakore held the property as his individual property and not as a co-parcenary property. Motiji Ajjuji Thakore acquired the property from his father by succession and not survivorship. This is evident from the averments made in paragraphs 1, 2 and 3 of the Plaint. 2. The family tree is given in paragraph 2 of the Plaint. Motiji Ajjuji Thakore had four daughters and two sons. Apart from Gangaben (the plaintiff) and Ranchodji, all others had died without any issues. Thus, Gangaben and Ranchodji were the two heirs of Motiji Ajjuji Thakore. 3. Motiji Ajjuji Thakore expired on 09.01.1944. Upon his death, the Suit Property devolved by succession (not by survivorship) upon Gangaben and Ranchodji. As is stated herein below, prior to the year 1956 when the Hindu Succession Act was enacted, the Mayukha School of old Hindu Law was applicable in certain parts of Bombay and Gujarat. 3. Motiji Ajjuji Thakore expired on 09.01.1944. Upon his death, the Suit Property devolved by succession (not by survivorship) upon Gangaben and Ranchodji. As is stated herein below, prior to the year 1956 when the Hindu Succession Act was enacted, the Mayukha School of old Hindu Law was applicable in certain parts of Bombay and Gujarat. Under the Mayukha rules of inheritance, the daughters along with the sons were entitled to inherit the father’s property by succession. Thus, the Appellant, Gangaben had become the co-owner of the suit land along with her brother Ranchodji. Ranchodji was in possession of the land and was cultivating the same. Thus, Ranchodji held the possession of the property for himself and in trust with regard to the share of his sister namely Gangaben. Gangaben had implicit trust in her brother and did not doubt his motives. Gangaben had married and was living separately at her in-laws’ place. 4. Ranchodji, on 06.07.1981, executed two separate sale deeds of the suit land in favour of Defendant no. 1 purporting to transfer the whole property to the Defendant No. 1. The said sale deeds were executed behind the back of Gangaben without informing her. In fact, a deliberate and specific false statement was made in the Sale Deeds that Ranchodji had no sisters. Thus, the sale deeds were executed by fraud and hence the fraud vitiated the said sale deeds. Subsequently, defendant no. 1 has transferred the Suit Property to other persons. All subsequent transferees are defendants in the suit. 5. In the year 28.03.2005, Gangaben had gone to village Ambli to attend a marriage ceremony in the family. At that point of time, she came to know the fact that Ranchodji had sold off the suit property in the year 1981. Thereupon, she made inquires and obtained copies of relevant documents and immediately med the Suit claiming her one-half undivided share in the Suit Properties. 6. In the Suit, Gangaben, has prayed for partition of her one-half share in the Suit Property. The Trial Court dismissed the suit by its judgement and decree dated 29.09.2017. Gangaben had preferred Regular Civil Appeal No. 78 of 201 7 before the District Court. The District Court by its judgement and decree dated 24.04.2018 dismissed the Appeal. Being aggrieved, Gangaben has filed the present Second Appeal. 7. The Trial Court dismissed the suit by its judgement and decree dated 29.09.2017. Gangaben had preferred Regular Civil Appeal No. 78 of 201 7 before the District Court. The District Court by its judgement and decree dated 24.04.2018 dismissed the Appeal. Being aggrieved, Gangaben has filed the present Second Appeal. 7. The judgement and decree of the Trial Court as well as the District Court is erroneous. As is stated hereinabove, the Suit Property in the hands of Motiji Ajjuji Thakore was his individual property (and not co-parcenary property). Thus, upon his death, the property devolved upon his son and daughter namely, Ranchodji and Gangaben by succession and not by survivorship. Prior to the Hindu Succession Act enacted in the year 1956, succession to a Hindu male was governed by old Hindu Law. The Mayukha School of old Hindu Law was applicable in certain parts of Bombay and Gujarat. Under the Mayukha rules of inheritance, the daughters along with the sons were entitled to inherit the father’s property by succession. In certain parts of the state of Bombay and Gujarat, the Mayukha ‘Law is applicable. This is also accepted by the District Court in paragraph 7 of its judgement. The Respondents who are on caveat had relied upon the following judgements of this Hon’ble Court: 1. 2007 (1) GLH 403 Lalitaben Vs. Niruben Ramanbhai Suthar and 2. 2018 (2) GLH 294 State of Gujarat Vs. Shivarjsinh Harishchandrasinh. Both the aforesaid judgements do not defeat the Appellants case in any way. Both the cases are in respect of rights of women as coparceners and based on survivorship and not succession. In fact, in the judgement reported in 2007 (1) GLH 403 , in paragraph 7 thereof, the Hon’ble Court has observed that the Mayukha Hindu Law talks of Matriarchal family and the right of women in property. Thus, it cannot be said as an absolute proposition of law that prior to 1956, daughters never inherited the property of their father by succession. The relevant extracts of the Hindu Law by Mulla, 22"d Edition, has been submitted to this Hon’ble Court. The Appellate Court, though making observations with regard to Mayukha Hindu Law and right of the Women in the property in paragraph 7 of the judgement, has misdirected itself and dwelled upon the aspect of retrospective application of the Hindu Succession Act, 1956, which aspect had no relevance at all. 8. The Appellate Court, though making observations with regard to Mayukha Hindu Law and right of the Women in the property in paragraph 7 of the judgement, has misdirected itself and dwelled upon the aspect of retrospective application of the Hindu Succession Act, 1956, which aspect had no relevance at all. 8. The lower courts have also wrongly held that the suit is barred by limitation. It is submitted that the suit, praying for partition of the onehalf share in the suit property of the Plaintiff cannot be said to be time barred. At the time of sale by Ranchodji in 1981, Ranchodjl having one-half share in the Suit Property was not competent to transfer the whole property, including the one-half share of Gangaben. Thus, the one-half share of Gangaben remained unaffected and Gangaben, in law, continued to be the co-owner of one-half share along with the transferees. A co-owner is entitled to seek partition at any point of time. Limitation Act does not prescribe any period of limitation for seeking partition. Partition is a coincidence of co-ownership and hence, partition can be sought at any point of time. Secondly, the possession of Ranchodji cannot be held to be adverse to Ganagben as he was a co-owner. in any case, that has also not been the case in the suit. For the aforesaid said two propositions, the Appellant relies on the following two judgements: 1. AIR 1971 SC 2184 (paragraphs 19 and 21) Syed Shah Gulam Ghouse Mohiuddin Vs. Syed Shah Ahmed Mohiyuddin Kamisul Qadri and 2. (1995) 4 SCC 496 Vidyadevi Vs. Prem Prakash Also, the sale deeds were executed by fraud. The fraud was discovered in the year 2005. Thus section 17 of the Limitation Act would come into operation and the suit would also thus be within limitation. 9. Thus, the present Second Appeal merits consideration at this Hon'ble Court. On venous aspects. Evidence laid in the suit would be required to be seen to arrive at the correct findings For the said purpose. it is submitted that the record and proceeding are required to be called for and examined in absence of the record and proceedings being tucked into. there is a likelihood of miscarriage of justice.” SUBMISSIONS ON BEHALF OF THE DEFENDANTS: 12. Mr. Mihir Joshi, the learned senior counsel assisted by Mr. it is submitted that the record and proceeding are required to be called for and examined in absence of the record and proceedings being tucked into. there is a likelihood of miscarriage of justice.” SUBMISSIONS ON BEHALF OF THE DEFENDANTS: 12. Mr. Mihir Joshi, the learned senior counsel assisted by Mr. Vimal Patel, the learned counsel appearing for the respondent No.17 has vehemently opposed this Second Appeal. Mr. Joshi submits that no error, not to speak of any error of law could be said to have been committed by the Courts below in taking the view that the original plaintiffs namely Gangaben Motiji Thakor had no right in the suit property at any point of time much less under the Mayukha Hindu Law. Mr. Joshi would submit that assuming for the moment without admitting that the succession in the present case could be said to be governed by the Mayukha School of Hindu Law, yet to appreciate that the parties are governed by the Mayukha Law and the daughter or family would be entitled to succeed to the property, such evidence is required to be brought on record by the person who claims succession through her father. According to Mr. Joshi, no such foundation has been laid before the two Courts below by leading cogent evidence in this regard. Mr. Joshi, the learned senior counsel submitted that a daughter could certainly inherit the property of the deceased father, but only in the absence of a son and /or widow and not in preference to or with them. He submitted that in paragraph 72 of Mulla's Hindu Law, a daughter is placed at Serial No.7 in the order of succession. In view thereof, a daughter is entitled to inherit a right or interest in the property of her deceased father only in the absence of any of the heirs as set out under Serial No.126. 13 Mr. Joshi would submit that the father of the plaintiffs namely Motiji Ajuji Thakor passed away on 9th January 1944. On his demise, the succession opened for the first time. The suit land came to be devolved upon his son Ranchhodji i.e. the brother of Gangaben and the name of Ranchhodji came to be mutated in the record of rights being entry No.2350. Mr. Joshi further pointed out that Ranchhodji Motiji Thakor transferred the suit property way back in the year 1981. The suit land came to be devolved upon his son Ranchhodji i.e. the brother of Gangaben and the name of Ranchhodji came to be mutated in the record of rights being entry No.2350. Mr. Joshi further pointed out that Ranchhodji Motiji Thakor transferred the suit property way back in the year 1981. Ranchhodji passed away on 22nd December 1994. From 1981 till 1994 i.e. from the year the suit property came to be transferred till the time Ranchhodji passed away, the plaintiffs did not raise any issue with regard to her share in the suit property. The suit came to be filed for the first time in the year 2005. 14 On behalf of the respondent No.17, written submissions have been filed as under: 1. The appellant has submitted that the second appeal raises substantial questions of law set out in paragraph 4 of the memo of appeal. During the arguments, the appellant has emphasized the following two questions raised: 4.4 Whether Ranchhodji in law, could have transferred the complete rights in the whole of the suit property to the defendant No. 1 when the original plaintiff (Gangaben (his sister)) had one half share in the suit property? 4.10 Whether the original plaintiff had right in the suit property under the Mayukh Hindu Law? The appellant has submitted that the original plaintiff being Gangaben, daughter of Motiji Ajuji was entitled to an equal share of his property with her brother Ranchhodji, they were the only surviving heirs of Motiji at the time of his death on 09/01/1944. It was submitted that the suit property was the individual property of Motiji and that under the Mayukha School of Hindu Law applicable to certain parts of Bombay and Gujarat, the daughters along with the sons were entitled to inherit their father’s property by succession. The appellant 'has relied upon certain extracts from the commentary in Mulla’s Hindu Law to support such submission. The appellant has further contended that the judgments relied upon by the respondents holding that daughters are not entitled to a share in the property, are delivered in the context of co-parcenary property and its devolution by survivorship and are not relevant since the appellant is claiming devolution by succession in respect of what is now claimed to be the self-acquired property of the father. 3. 3. In response to the aforesaid arguments, the respondents submit that the questions of law as proposed in the appeal or as argued by the respondents, as set out above, do not even arise for consideration. 4.1 The respondents submit that, contrary to what has been argued by the appellant before this Honourable Court that the subject property is the self acquired property of Motiji, the averments in the plaint are to the effect that the subject property was ancestral property in the hands of Motiji and that he had succeeded to the said property on the death of his father Ajuji Panaji. The original plaintiff Gangaben claimed to have a legal right and share in such ancestral property. (Please see Paragraph 1 Page 79; Paragraph 3 & 5 Page 80-81-82; Paragraph 7 Page 83). In the prayer clause Paragraph 14(B) the plaintiff has sought for a declaration that the impugned sale deeds are illegal inter-alia on account of the breach of the Hindu Succession Act. (Page 86) thereby implying that said Act was applicable at the time of death of Motiji on 09/01/1944. The parties proceeded to trial on the basis of the said averments in the plaint. The Trial Court in its judgment dated 29/09/2017 (Page 48) has held inter-alia as under: So deceased plaintiff ~ Gangaben derived no inheritance as a daughter coparcener in the property. Before existence of Hindu Succession Act, 1956 daughters had no right of inheritance in joint family property or ancestral property as a coparcener. (Page 62) Plaintiffs come with clear case that suit property was ancestral land. So the nature of suit property is joint hindu family property in which female coparceners had no inheritance right prior to 1956. It is not the case of the plaintiff that suit land was self acquired property of her father deceased Motiji Ajuji Thakore. But the suit land was ancestral property inherited by her father. (Page 62) An appeal was filed against the aforesaid judgment of the Trial Court. The appellant had contended in the said appeal that after death of her father in 1944 her late brother Ranchhodji Motiji inherited the suit property and her 1/2 share also devolved as it is ancestral property (Page 31). It was further contended that the Trial Court has passed the order without considering the provisions of the Hindu Succession Act (Page 19). It was further contended that the Trial Court has passed the order without considering the provisions of the Hindu Succession Act (Page 19). These contentions were not accepted by the Appellate Court in its judgment dated 24/04/2018 (Page 12), holding that the right of a daughter in the property of her father being his share in the co-parcenary property was conferred only on the enactment of the Hindu Succession Act, 1956 which did not have any retrospective operation. (Pages 32-35) 4.3 The aforesaid judgment has been challenged in the present second appeal wherein no ground has been raised that the Courts below have erred in proceeding on the premise that the plaintiffs claim in pleadings is for a share in the ancestral property of her father. 4.4 Therefore, the contentions of the appellant, based on the premise that the subject property is self acquired property of Motiji is without a foundation in the pleadings and in fact contrary thereto. Moreover, no such question can therefore be said to arise in the appeal. Since ancestral property and co-parcenary property are inter changeable terms and it is accepted even by the appellant that devolution of ancestral property under Mitakshara Law is by survivorship whereunder daughters do not get any share (Please see (2018) 7 SCC 646 Paragraph 12), the findings of the Courts below on this aspect are not erroneous in any manner and being a settled position of law, no question of law arises. 5.1 Additionally, the claim put forth 'by the appellant on the applicability of “Mayukha Law” is without any contention in this behalf being raised in the pleadings or evidence being adduced before the Courts below. 5.2 The judgment of the Trial Court does not record any such contention of a daughter’s right under “Mayukha Law” being taken at all. Similarly, the judgment of the Appellate Court also does not record any such contention being raised, but refers to a submission in the written argument regarding a right of a daughter with support of an extract of commentary on Manu Smriti (Paragraph 8 Page 21) where there appears to be no reference to Mayukha Law nor has such contention being raised on the basis of the commentary. The only place the term Mayukha Law features is on Page 35 of the judgment of the Appellate Court wherein Paragraphs 7, 9, 10 of the judgment reported in 2007 (1) GLH 403 have been extracted. 5.3 Therefore, the question of applicability of Mayukha Law to the facts of the case and whether Mayukha Law confers a right on the daughter to claim a share in her father’s property equal to that of a son cannot be said to arise in the appeal at all. 6. In any case, such contention of the appellant is misconceived and contrary to the settled position of law. 6.1 The appellant does not dispute that a daughter did not have any share in co-parcenary property (to the extent of the father’s share in such property) prior to the enactment of the Hindu Succession Act, 1956, which is held not to be retrospective in operation. [Please see 2018 (2) GLH 294 ; AIR 1966 SC 1870, (Re. : retrospectively)]. Her right as a co-parcener was conferred for the first time by the Hindu Succession (Amendment) Act, 2005, which has therefore no application to the present case. 6.2. The respondents submit that the contention of the appellant that, Mayukha Law recognizes the right of a daughter to succeed to the property of her father equally with a son, prior to 1956 is completely misconceived and against the settled law." 15. In such circumstances referred to above, Mr. Joshi, the learned Senior Counsel prays that there being no merit in this Second Appeal, the same be dismissed. Analysis : 16. Having heard the learned Counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the original plaintiffs had any right in the suit property under the Mayukha Hindu Law. 17. The family pedigree Chart is as under : Ajuji Panaji Thakor (Deceased) Motiji Ajuji Thakor (Deceased) Jidiben (Wife) (Deceased) Babiben Daughter Issueless Deceased Ranchhodji Son Deceased Paliba Daughter Issueless Deceased Gangaben Daughter (Deceased) Plaintiff Ambaram Son Issueless Deceased Manguben Daughtcr Issueless Deceased 18. To understand the law of inheritance, we should know the meaning of the words "Mitakshara", "co-parcenary" and "Hindu Joint Family". MITAKSHARA : 19. The term "School of law" as applied to different legal schools prevalent in different parts of India, seems to have been first used by Mr. Colebrooke. To understand the law of inheritance, we should know the meaning of the words "Mitakshara", "co-parcenary" and "Hindu Joint Family". MITAKSHARA : 19. The term "School of law" as applied to different legal schools prevalent in different parts of India, seems to have been first used by Mr. Colebrooke. An account of the origin and development of the schools of Hindu law was given by the judicial committee of the Privy Council in the case of Collector of Madura v. Mootto Ramalinga: The remoter sources of the Hindu Law are common to all the different schools. The process by which those schools have been developed seems to have been of this kind. Works universally or very generally received became the subject of subsequent commentaries. The commentator put his own glosses on the ancient text, and his authority having been received in one and rejected in another part of India, schools with conflicting doctrine arose. Mitakshara a very modest title meaning a brief compendium is a running commentary on the Code of Yajnavalkya and a veritable digest of Smriti Law. It was written in the latter part of the eleventh century by Vijananeshwara, an ascetic. In Mitakshara which is more of a digest than a mere commentary on a particular Smriti, we find the quintessence of the Smriti law and its precepts and injunctions. The chief merit of the work consists in its comprehensive treatment of almost all important topics of the law and the synthesising of various Smriti texts. The meaning of the doctrine of sapinda relationship in the law of inheritance insisted upon by Vijnaneshvara whereby of blood (propinquity) is to be preferred to community in the offering of religious ablations is the governing factor whereby under the Mitakshara law the right to inherit arises. According to the Mitakshara law, each son acquires at his birth an equal interest with his father in all ancestral property held by the father and on the death of the father, the son takes the property, not as his heir, but by survivorship. The position of the son or grandson in the Mitakshara is somewhat similar to that of "sui heredes" who under the Roman law are regarded as having a sort of dormant ownership in the estate of their father even during his lifetime. The position of the son or grandson in the Mitakshara is somewhat similar to that of "sui heredes" who under the Roman law are regarded as having a sort of dormant ownership in the estate of their father even during his lifetime. The succession was not so much a succession as coming into enjoyment of what in a sense had already partly belonged to them. It is usual to subdivide the Mitakshara School of Hindu law into four schools namely the Benares, the Mithila, the Bombay and the Madras School. The variances between the subdivisions of the Mitakshara school are comparatively few and slight. Except in respect of the Bombay school, this division serves no useful purpose, nor does it rest upon any true or scientific basis. Mithakshara has for more than nine centuries occupied a place of ascendancy and authority unique and unrivalled in the annals of legal literature, Vijnaneshwara was one of the greatest of the juristheologians who contributed to the making of Hindu law. The Mitakshara holds soverign sway in the whole of India except Bengal. CO-PARCENARY : 20. A Co-Parcener is one who shares (equally) with others in inheritance in the estate of a common ancestor. Otherwise called parceners, are such as have equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors. A person to whom an estate descends jointly and who holds it as an entire estate. But sometimes, two or more persons together constituted the heir, and to this case they took the land as 'parceners' or 'coparceners', the latter expression being the more common. In theory of law, coparceners together constituted a single heir; 'they be but one heir and yet several persons'. They were called parceners because, every coparcener had a common law right to have a partition made. 21. A male member of a joint family and his sons, grandsons and great grandsons constitute a co-parcenary. In other words, three generations comes to the holder in unbroken male descendant. Co-parcenary is a creature of law. It cannot be created by act of parties. By adoption, a stranger may be introduced as a member thereof. It is a family unit. A male member of a joint family and his sons, grandsons and great grandsons constitute a co-parcenary. In other words, three generations comes to the holder in unbroken male descendant. Co-parcenary is a creature of law. It cannot be created by act of parties. By adoption, a stranger may be introduced as a member thereof. It is a family unit. A Hindu co-parcenary is, however, a narrower body than the joint family, daily males who acquire by birth an interest in the joint or co-parcenary property can be members of the co-parcenary or coparceners. No female can be a coparcener. 22. The Supreme Court in the case of Bhagwan Dayal (since deceased) v. Mst. Reoti Devi (deceased) reported in AIR 1962 SC 287 held as under : "Co-parcenary is a creature of Hindu Law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognise some of the members of a Joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specifically recognized by it. The acquisitions made by the members of different branches jointly cannot be impressed with the incidents of joint family property. They can only be co-sharers or cotenants, with the result that their properties pass by inheritance and not by survivorship." 23. The Supreme Court in the case of Sunil Kumar and another v. Ram Prakash and others [ (1988) 2 SCC 77 ] : ( AIR 1988 SC 576 ) held as under: "18. The co-parcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcener ship is so limited is to be found in the tenet of the Hindu religion that only male descendants up to three degree can offer spiritual ministration to an ancestor. Only males can be coparceners." HINDU JOINT FAMILY: 24. The joint undivided family is a normal condition of a Hindu society. Joint Hindu Family consists of all persons lineal descended from a common ancestors and includes all wives and unmarried daughters. Undivided Hindu family is originally joint not only in estate but also in food and worship. Only males can be coparceners." HINDU JOINT FAMILY: 24. The joint undivided family is a normal condition of a Hindu society. Joint Hindu Family consists of all persons lineal descended from a common ancestors and includes all wives and unmarried daughters. Undivided Hindu family is originally joint not only in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute joint family and family which does not own any property, may nevertheless be joint. Hindu Joint Family is by birth and joint family property is only adjunct of the joint family. Joint or Undivided Hindu Family may consists of single male member and widows of deceased male members. The property of a joint family does not cease to be a joint family property belonging to any other family merely because the family is represented by a single male member. It may consists of a male Hindu and his wife. It may even consists of two joint members. However, there must be at least two members to constitute joint family. The general principle is that a Hindu Family is presumed to be Joint unless the contrary is proved. A daughter ceases to be a member of her father's family, on marriage and becomes member of her husband's family. 25. The Privy Council in the case of Kalyanji Vithaldas v. Commissioner of Income-tax, Bengal reported in AIR 1937 PC 36 , explained the meaning of Hindu undivided family as under : "The phrase "Hindu undivided family" is used in the statute with reference not to one school only of Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words "Hindu co-parcenary ", all the more that it is not possible to say on the face of the Act that no female can be a member." 26. The Apex Court in the case of Smt. Sitabai and another v. Ramachandra, reported in AIR 1970 SC 343 held thus : "Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and the property of a joint family does not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess. The property which was the joint family property of the Hindu undivided family does not cease to be so because of the "temporary reduction of the co-parcenary unit to a single individual". The character of the property, viz. that it was the joint property of a Hindu undivided family remains the same. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as 'joint property' of the undivided family." 27. The Supreme Court in the case of Gowli Buddanna v. Commissioner of Income-tax, Mysore, reported in AIR 1966 SC 1523 held thus : 6. "A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu co-parcenary is a much narrower body than the joint family : it includes only those persons who acquire by birth an interest in the joint or co-parcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. Therefore, there may be a joint Hindu family consisting of a single male member and widows of deceased coparceners." 28. The Apex Court in the case of Bhagwati Prasad Sah and others v. Dulhin Rameshwari Kuer and another, reported in AIR 1952 SC 72 , held as under : "The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved but where one of the coparceners separates himself from the other members of the joint family and has his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief." LAW PRIOR TO 1956 : 29. Prior to the Act of 1956, the Hindus were governed by the Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to a diversity in the law. Consequently in the matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even more complex. 30. The two systems of inheritance which is predominant amongst the Hindus in India are: Mitakshara system and Dayabhaga system. Dayabhaga system prevails in Bengal, Mitakshara system in other parts of India. The difference between the two systems arises from the fact that, while the doctrine of religious efficacy is the guiding principle under Dayabhaga School, there is no such definite guiding principle under Mitakshara School. Sometimes, consanguinity has been regarded as the guiding principle and at other times, religious efficacy. 31. Mitakshara recognises two modes of devolution of property, namely, survivorship and succession. The rule of survivorship applies to joint family property, the rule of succession apply to property held in absolute severally by the last owner. Dayabhaga recognises only one mode of devolution, namely, succession. It does not recognise the rule of survivorship even in the case of joint family property. The reason is that while every member of a Mitakshara joint family has only an undivided interest in the joint property, a member of a Dayabhaga joint family holds his share in quasi-severalty, so that it passes on his death to his heirs as if he was absolutely seized thereof, and not to the surviving coparceners as under Mitakshara law. 32. 32. Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparcenars, based on birth in the family. No female is a member of the co-parcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the co-parcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a co-parcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. 33. The rule of inheritance laid down in Mitakshara are followed by the Bombay, Madras, Benares and Mithila Schools, all the schools being subdivisions of Mitakshara School. However, the rules of inheritance in force in the several States represented by these schools are not entirely the same. They differ in certain aspects namely, the order of inheritance as laid down in Mitakshara is not strictly followed in Bombay, Gujarat and the North Konkon. The order of succession to males in the Bombay State is different from that in other parts of India where Mitakshara law prevails. The reason is that in those places preference is given to the Vyavahara Mayukha of Nilkanta Bhatta on few points, where it differs from Mitakshara. The difference arises from the fact that the Bombay School recognises as heirs certain females who are not recognised as heirs in other parts of India. In the Bombay State itself there is a difference between the order of succession in cases governed by the Mayukha. In the Bombay State, daughters do not take as joint tenants with benefits of survivorship, but they take as tenants-in-common. Further, a daughter in that State does not take a limited estate in her father's property, but takes the property absolutely. Thus if a Hindu governed by the Bombay School dies leaving two daughters, each daughter takes an absolute interest in a moiety of her father's estate, and holds it as her separate property, and on her death her share will pass to her own heirs as her stridhana. 34. Thus if a Hindu governed by the Bombay School dies leaving two daughters, each daughter takes an absolute interest in a moiety of her father's estate, and holds it as her separate property, and on her death her share will pass to her own heirs as her stridhana. 34. The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint property is recognised. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father's lifetime. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers. 35. In the Marumakkattayam law, which prevailed in Kerala wherein the family was joint, a household consisted of the mother and her children with joint rights in property. The lineage was traced through the female line. Daughters and their children were thus an integral part of the household and of the property ownership as the family was matrilineal. 36. The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son's daughter, daughter's daughter and sister, thereby creating a limited restriction on the rule of survivorship. Another landmark legislation conferring ownership rights on woman was the Hindu Women's Right to Property Act (XVIII of 1937). This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of co-parcenary but also in the law of partition, alienation of property, inheritance and adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a coparcener even though she possessed a right akin to a co-parcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights. 37. The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the State took positive steps to give her equal status. A daughter had virtually no inheritance rights. 37. The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State and inter-alia also provide that the State shall endeavour to ensure equality between man and woman. LAW AFTER 1956 ACT AND PRIOR TO 2005 AMENDMENT ACT: 38. Sri Pandit Jawaharlal Nehru, the then Prime Minister of India expressed his unequivocal commitment to carry out reforms to remove the disparities and disabilities suffered by Hindu women. As a consequence, despite the resistance of the orthodox section of the Hindus, the Hindu Succession Act, 1956 was enacted and came into force on 17th June, 1956. It applies to all the Hindus including Buddhists, Jains and Sikhs. It lays down a uniform and comprehensive system of inheritance and applies to those governed both by the Mitakshara and the Dayabhaga Schools and also to those in South India governed by the Murumakkattayam, Aliyasantana, Nambudri and other systems of Hindu Law. Many changes were brought about giving women greater rights, yet in section 6 the Mitakshara Co-parcenary was retained. 39. The provisions regarding succession in the Hindu Code Bill, as originally framed by the B.N.Rau Committee and piloted by Dr. Ambedkar, was for abolishing the Mitakshara co-parcenary with its concept of survivorship and the son's right by birth in a joint family property and substituting it with the principle of inheritance by succession. These proposals met with a storm of conservative opposition. When Dr. Ambedkar was questioned as to how this happened in the Select Committee he said: "It was not a compromise. My enemies combined with my enthusiastic supporters and my enemies thought that they might damn the Bill by making it appear worse than it was". 40. These proposals met with a storm of conservative opposition. When Dr. Ambedkar was questioned as to how this happened in the Select Committee he said: "It was not a compromise. My enemies combined with my enthusiastic supporters and my enemies thought that they might damn the Bill by making it appear worse than it was". 40. Therefore, the Hindu Succession Act, 1956 enacted by the Parliament conferred on women and in particular to a daughter equal rights as that of the son. The limited ownership rights in the property conferred under earlier laws blossomed into full ownership in respect of any property possessed by a female Hindu whether acquired before or after the commencement of the Act by virtue of Section 14 of the Act. The explanation to Section 14(1) made it clear, the property referred to in Section 14 includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of the Act. Therefore, a Hindu women with the advent of the Act enjoyed the absolute ownership rights in the property possessed and acquired by her and she was at liberty to exercise her right in the same as such absolute owner. In respect of the property of a male Hindu dying intestate, equal rights were given to a female Hindu by treating her as Class I heir along with son of the deceased. However, the said enactment had no application to co-parcenary property. Prior to 1956 Act, the daughter in a Hindu Joint Family governed by Mitakshara law was not considered a coparcener. Even after 1956 Act the position continued to be the same. The Act of 1956 did not deal with devolution of interest in the co-parcenary property. However, the said enactment had no application to co-parcenary property. Prior to 1956 Act, the daughter in a Hindu Joint Family governed by Mitakshara law was not considered a coparcener. Even after 1956 Act the position continued to be the same. The Act of 1956 did not deal with devolution of interest in the co-parcenary property. Section 6 made it clear that, when a male Hindu dies after the commencement of the Act, having at the time of his death an interest in a Mitakshara co-parcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with the Act. Therefore, the Act was not made applicable to co-parcenary property. However, the proviso to the said Section provided that, if a male Hindu dies leaving behind a surviving female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in Mitakashara co-parcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship. 41. The inequality between a son and a daughter contained in the shastric and customary Mitakshara law continued to persist. The concept of the Mitakshara co-parcenary property retained under section 6 of the Hindu Succession Act has not been amended ever since its enactment. It is a matter of some satisfaction that, five States in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka took cognisance of the fact that a woman needs to be treated equally both in the economic and the social spheres. In the year 1994, the States of Karnataka, Andhra Pradesh, Maharashtra, for the first time brought in amendments to Section 6 conferring right on daughters in co-parcenary property and treating them as coparcenars. As per the law of four of these States, (Kerala excluded), 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. However, the said benefit was not extended to the case of partitions anterior to the said law and to the married daughters. However, the said benefit was not extended to the case of partitions anterior to the said law and to the married daughters. Kerala, however, has gone one step further and abolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on the mere fact that he or she was born in the family. In fact, it abolished the Joint Hindu family system altogether including the Mitakshara, Marumakkattayam, Aliyasantana and Nambudri systems. Thus enacting that joint tenants be replaced by tenants in common. However, the other States instead of abolishing the right by birth strengthened it, while broadly removing the gender discrimination inherent in Mitakshara Co-parcenary. 42. Therefore, notwithstanding such conferment of co-parcenary property rights in property by birth, discrimination persisted between a married daughter and an unmarried daughter and the married daughter and a married son. It led to heart burning. The law prior to amendment denied the daughter the status of co-parcenar in a Joint Hindu Family and equal rights in the property with the son, and the State tolerated this inequality for nearly 50 years. Article 13 of the Constitution declares that all laws in force in the territory of India immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of Part III fundamental rights shall, to the extent of such inconsistency, is void. The Act was enacted after the commencement of the Constitution. Article 13(2) declares that the State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of the said clause, shall to the extent of the contravention, be void. It took nearly 50 years to realise this inequality and restore equality. It is in this background the Parliament took note of the events for the last 50 years after the enactment, various pronouncements of the Apex Court while interpreting Articles 14, 15 and 16 and the attempts made by successive Governments to eradicate gender bias and came up with the Hindu Succession (Amendment) Act, 2005. That is the purpose of this amendment. 43. SUCCESSION IN THE BOMBAY STATE. (1) The order of succession to males in the Bombay State is different from that in other parts of India where Mitakshara law prevails. That is the purpose of this amendment. 43. SUCCESSION IN THE BOMBAY STATE. (1) The order of succession to males in the Bombay State is different from that in other parts of India where Mitakshara law prevails. The difference arises from the fact that the Bombay School recognises as heirs, certain females who are not recognised as heirs in other parts of India. (2) In the Bombay State itself, there is a difference between the order of succession in cases governed by Mayukha. 44. ORDER OF SUCCESSION IN CASES GOVERNED BY MITAKSHARA.: The following is the order of succession to makes among sapindas in the Bombay State in cases governed by Mitakshara: (1-6) Son, son's (whose father is dead) and son's son (whose father and grandfather are both dead). These inherit simultaneously. Under Act XVIII of 1937, the widow, the pre-deceased son's widow, and the widow of a pre-deceased son of a pre-deceased son, are also recognised as heirs. (7) Daughter. In the Bombay State, daughters do not take as joint tenants with benefits of survivorship, but they take as tenants-in-common. Further, a daughter in that State does not take a limited estate in her father's property, but takes the property absolutely. Thus, if a Hindu governed by the Bombay School dies leaving two daughters, each daughter takes as absolute interest in a moiety of her father's estate, and holds it as her separate property, and on her death her share will pass to her own heirs as her stridhana. (8) Daughter's son (9) Mother (10) Father (11) Brother : (i) of the whole blood (ii) of the half-blood. Sons of brothers of the whole blood succeed before sons of brothers of the half-blood. (12) Brother's son: (i) of the whole blood (ii) of the half – blood Sons of brothers of the while blood succeed before sons of brothers of the half-blood. (13) Grandmother (father's mother) (14) Full sister Her place in the order of successions is not affected by the Hindu Law of Inheritance (Amendment) Act, 1929 (2 of 1929). (15) Half-sister The Three Remote Descendants of the Deceased (16) Great-great-grandson It is not settled whether nos. 16, 17 and 18 succeed before or after no 19. In Appaji v. Mohan Lal (1930) 54 Bom 564, pg. 611, 127 IC, the question was raised, but not decided. (15) Half-sister The Three Remote Descendants of the Deceased (16) Great-great-grandson It is not settled whether nos. 16, 17 and 18 succeed before or after no 19. In Appaji v. Mohan Lal (1930) 54 Bom 564, pg. 611, 127 IC, the question was raised, but not decided. (17) Great-great-great-grandson (18) Great-great-great-great-grandson Widows of Four Male Lineal Descendants of the deceased (19) Great-grandson's widow (20) Great-great-grandson's widow (21) Great-great-great-grandson's widow (22) Great-great-great-great-grandson's widow The Four Remote Descendants of the Brother (23) Brother's son's son. He does not succeed before but succeeds after the son's widow (6) (no 17). (24) Brother's son's son's son (25) Brother's son's son's son's son (26) Brother's son's son's son's son Widows of Father, Brother and Brother's Descendants (27) Stepmother [Rakhmabia v. Tukaram, (1887) 11 Bom 47] (28) Brother's widow [Basangavda v. Basangavda (1975) 39 Bom 87, 27 IC 167] (29) Brother's son's widow [Madhavram v. Dave (1987) 21 Bom 739] (30) Brother's son's son's widow (31) Brother's son's son's son's widow (32) Brother's son's son's son's son's widow (33) Brother's son's son's son's son's son's widow Father's Father and his Six Descendants (34) Father's father (34A) Son's daughter (34B) Daughter's daughter (34C) Sister's son For 34, 34A, 34B and 34C. (35) Paternal uncle: (i) of the whole blood (ii) of the half-blood (36) Paternal uncle's son He takes before no 42 [Rachava v. Kalingapa (1892) 16 Bom 716]. (37) Paternal uncle's son's son. He takes before no 42 [Kashibai v. Moreshwar (1911) 35 Bom 389]. (35) Paternal uncle: (i) of the whole blood (ii) of the half-blood (36) Paternal uncle's son He takes before no 42 [Rachava v. Kalingapa (1892) 16 Bom 716]. (37) Paternal uncle's son's son. He takes before no 42 [Kashibai v. Moreshwar (1911) 35 Bom 389]. (38) Paternal uncle's son's son's son (39) Paternal uncle's son's son's son's son (40) Paternal uncle's son's son's son's son's son Widows of Father's Father and his Six Descendants (41) Father's stepmother (42) Paternal uncle's widow She takes before father's sister [Raghunath Shankar v. Laxmibai (1935) 59 Bom 417] (43) Paternal uncle's son's widow (44) Paternal uncle's son's son's widow (45) Paternal uncle's son's son's son's widow (46) Paternal uncle's son's son's son's son's widow (47) Paternal uncle's son's son's son's son's son's widow The Third Agnate Female and the Third Agnate Male Ancestor and the Latter's Six Descendants (48) Father's father's mother (49) Father's father's father (50) Father's paternal uncle (51) Father's paternal uncle's son (52) Father's paternal uncle's son's son (53) Father's paternal uncle's son's son's son (54) Father's paternal uncle's son's son's son's son (55) Father's paternal uncle's son's son's son's son's son Widows of Father's Father's Father and his Six Descendants (56) Father's father's stepmother (57) Father's paternal uncle's widow (58) Father's paternal uncle's son's widow (59) Father's paternal uncle's son's son's widow (60) Father's paternal uncle's son's son's son's widow (61) Father's paternal uncle's son's son's son's son's widow (62) Father's paternal uncle's son's son's son's son's son's widow The Remaining Sapindas and Their Widows (63-70) The fourth agnate female and the fourth agnate male ancestor and the latter's six descendants, one after another [Ambaidas v. Jijibhai (1912) 14 Bom LR 261] (71-77) Widows of gotraja sapindas nos 64 to 70, one after another.” 45. The order of succession in cases governed by Mayukha – The following is the order of succession to males in cases governed by Mayukha. Mayukha, Chapter VI, Section 8, Note 77, Mulla Hindu Law, 23rd Edition, page 183: (1-6) Same as order of succession in cases governed by Mitakshara. (7) Father (8) Mother (9) Full brothers along with sons of full brothers who are dead. (10) Full brother's son. (11-12) Same as order of succession in cases governed by Mitakshara. (13) Father's father and half-brother, in equal shares. 46. (7) Father (8) Mother (9) Full brothers along with sons of full brothers who are dead. (10) Full brother's son. (11-12) Same as order of succession in cases governed by Mitakshara. (13) Father's father and half-brother, in equal shares. 46. Before coming into force of the Hindu Succession Act, 1956, the succession amongst Hindu was governed by the Sruti, Smruti and orthodox Hindu Law. Mansmruti was the source to provide that what would be the mode of succession. Mitakshara or Banaras law, Daybhag or Bengal Hindu Law were also to govern the succession. In Gujarat, the succession could be governed by Mayukha School of Hindu Law. In each of the laws, the daughter or widow of the deceased was not entitled to succession to the property left by the last male holder, be he a Karta of Joint Hindu Family or owner in his personal capacity. Mayukh Hindu Law which governs a part of Gujarat, talks of the Matiarchiel family and right of the woman in property, but to appreciate that the parties are governed by Mayukh law and the daughter or female would be entitled to succeed to the property, such evidence is required to be brought on record by the person who claims succession through her father. MAYUKHA BRANCH OF HINDU LAW: 47. It is now well known that there are two principal schools of Hindu Law in India, the Mitakshara School and the Dayabhaga school. The Dayabhaga school prevails in Bengal and the Mitakshara school prevails in the rest of India. The Mitakshara school is sub-divided into four sub-schools, the Banaras School, the Mithila School, the Mayukha School and the Dravida School; but all these four sub-schools are really branches of the Mitakshara school of Hindu law, because the Mitakshara commentary written by Vigyaneshwar is considered as principal authority in the school except on a few points whore other commentaries are held to be controlling. 48. There used to be some difference of opinion on the question whether there are really any schools of Hindu Law in India. It appears that Colebrook was perhaps the first to use the phrase "schools of Hindu Law", see Banerji's 'Hindu Marriage and Stridhana' (Tagore Law Lectures 1878, p. 6 of 1913 edition). After examining the question Mr. 48. There used to be some difference of opinion on the question whether there are really any schools of Hindu Law in India. It appears that Colebrook was perhaps the first to use the phrase "schools of Hindu Law", see Banerji's 'Hindu Marriage and Stridhana' (Tagore Law Lectures 1878, p. 6 of 1913 edition). After examining the question Mr. Banerji, comes to the conclusion that the expression "Schools of Law" is not, altogether foreign to Hindu Law; and as it represents a real distinction it may conveniently be retained. Sir Ganga Nath Jha in his book 'Hindu Law in its Sources'1930 Edn. Vol. I, at pp. 15 and 16 points out how the idea of schools of Hindu Law arose. Says he : "As early as the seventh century A.D. we find Kumarila declaring that while the Smriti of Manu is regarded as binding throughput Aryavarta all other Smritis have a limited jurisdiction; and from what he says in a subsequent passage it is clear that the limitation, in the jurisdiction was not territorial; it rested upon the diversity of the Shakhas of Recensional Texts of the Vedas, the followers of different Shakhas accepting different Smritis for their supreme authority. This seems to have been at the root of the conception of diverse schools of Law; although this conception as current among the older Hindu givers differs from that which has found currency in modem Indian Law. For the former, all law, based as it must be upon the Veda, must be equally binding on all men; and the only limitation that they would allow would be, either (1) that due to the capacity of individuals, or (2) that justified by qualifying words or phrases in the texts themselves." According to him the modern conception of the schools of Hindu Law was based upon the diversity in the later interpretations of the older texts, and upon the subsequent predilections and customs of the particular peoples concerned. The learned author further observed : "In view of the above facts, though there does appear to be some such division as into the 'Mitakshara school', the "Mayukha school' and so forth, there is no justification for assigning to those schools hard and fast territorial jurisdiction." But it appears that the various schools of law had assumed definite territorial limits by the time that the British Indian Courts applied the rules of Hindu Law in their decisions. As the Privy Council said in the 'Collector of Madura v. Moottoo Ramalinga Sathupathy', 12 Moo Ind App 397 (PC) (B) at p. 435 : "The remoter sources of the Hindoo Law are common to all the different schools. The process by which those schools have been developed seems, to have been of this kind. Works universally or very generally received became the subject of subsequent commentaries. The commentator put his own gloss, on the ancient texts; and his authority having been received in one and rejected in another part of India, schools with conflicting doctrines arose. 49. In the older books written by Anglo-Indian authors we find the division of Hindu Law into five schools, named by the territories in which they were considered to prevail. Thus in Tagore Law Lectures 1870 by Cowell, a mention is made of five schools of Hindu Law existing at that time. The Bengal, Mithila, Banaras, Mabaraslitra and Dravida schools. In his later book, "A short Treatise on Hindu Law, published in 1895, however the learned author says : "There are five schools of Hindu Law, Bengal, Mithila, Banaras, Maharashtra and Dravida. The last four, however, only differ so far as they modify the Mitakshara and the variation between them are not radical. For most purposes it may be considered that there are only two schools, those of the Mitakshara and Dayabhaga." Since then it has been generally recognised that, there are only two schools of Hindu Law Mitakshara and Dayabhaga and that the Banaras, the Mayukha, the Dravida and Mithila are really sub-schools of the Mitakshara school. See Mayne's Hindu Law, 11th Edition at page 54; where the learned author says : "The term 'school of law' as applied to the different legal opinions prevalent in different parts of India, seems to have been first used by Mr. Colebrooke. See Mayne's Hindu Law, 11th Edition at page 54; where the learned author says : "The term 'school of law' as applied to the different legal opinions prevalent in different parts of India, seems to have been first used by Mr. Colebrooke. There are in fact only two maim schools, the Mitakshara' and the Dayabhaga." The learned author at page 56 goes on to observe : "It is usual to subdivide the Mitakshara school of Hindu Law into four schools, namely the Banaras, the Mithila, the Maharashtra and the Dravida schools. The subdivision was once carried even lo the event of dividing the Dravida into a Tamil, a Karnatak and an Andhra school for which however there was no justification. The variations between the sub-division of the Mitakshara school are comparatively few and slight. Except in respect of the Mitakshara school, this division serves no useful purpose; nor does it rest upon any true or scientific basis. It is to a certain extent misleading as it conceals the fundamental identity of doctrine between the so called Mithila, Banaras, Maharashtra, and Dravida schools and suggest that there are more differences than do really exists." Mulla in his Hindu Law has also followed the same division at page 11 of the 10th Edition. The learned author says : "Properly speaking, there are only two schools of law, namely, the Mitakshara school and the Dayabhaga school. The Dayabhaga school prevails in Bengal; the Mitakshara school prevails in other parts of British India." Then at page 12 it is stated that: "The Mitakshara school is sub-divided into four minor schools; these differ between themselves in some matters of detail relating particularly to adoption and inheritance. All these schools acknowledge the supreme authority of the Mitakshara but they give preference to certain treatises and to commentaries which control certain passages of the Mitakshara. This accounts for the differences between those schools." 50. In the aforesaid context, I may refer to a Division Bench decision of the Bombay High Court in the case of Ben Madhu and another vs. Bai Mahakore and another reported in AIR 1950 Bombay 66. I may quote the relevant observations as under: “12. It is well known that the three principal sources of Hindu law are the Bhrutis, the Smritis, and the conduct of the good or the approved usage (vide Manu, ii, 12, Yajnavalkya, i, 7). I may quote the relevant observations as under: “12. It is well known that the three principal sources of Hindu law are the Bhrutis, the Smritis, and the conduct of the good or the approved usage (vide Manu, ii, 12, Yajnavalkya, i, 7). The Sanskrit word for custom which is used both by Manu and Yajnavalkaya is "Sadachara" or the usage of virtuous men. Manu himself has defined this term in these words : "The custom handed down in regular succession since times immemorial amongst the chief castes and the mixed races of the country." (Vide Manu, ii, 18). The word Shruti literally means what was heard and refers in the main to the Vedas, since it is believed that the Yedas contained the very words of the Deity as they were heard by the several seers. The Vedas, however, contain very little of secular law and they do not make any appreciable contribution in the matter of Hindu law with which civil Courts are concerned. Smritis literally mean what is remembered, These Smritis consist of compilations handed down by the sages of antiquity. It is the Smritis that constitute the main source of Hindu law. In due course of time, however, several commentaries came to be written by reputed authors on these Smritis and it is these commentaries that virtually usurped the place of importance amongst the sources of Hindu law. It is well recognised that the rules of law enunciated in these commentaries should be treated with respect in the places where those respective commentaries prevail. The third source of Hindu law is custom or usage. It may either be a family or a local custom or usage. A local custom is one which binds all persons in the local area where it prevails and it differs from a family custom inasmuch as the latter binds only the members of the family. It is, however, important to remember that when local custom or usage is mentioned as a source of Hindu law, it means that such a custom or usage purports to modify the law and claims to have force independently of it. Such custom must be ancient, certain and reasonable, and being in derogation of the general rules of law, it has to be construed strictly : vide Hurpurshad v. Sheo Dyal, 3 IA 259 at p. 285 : (26 WR 65 PC). Such custom must be ancient, certain and reasonable, and being in derogation of the general rules of law, it has to be construed strictly : vide Hurpurshad v. Sheo Dyal, 3 IA 259 at p. 285 : (26 WR 65 PC). In this connection it is necessary to bear in mind the distinction between the law as enunciated in the Smritis or the commentaries on them or as laid down in judicial decisions which are based on these commentaries and the law which results from local usage or custom. Both the commentaries and the local usage are independent sources of Hindu law, and in the case of usage if it is properly proved Hindu law provides that such usage "will outweigh the written text of the law" : Collector of Madura v. Moottoo Ramalinga Sathitpathy, 12 MIA 397 at p. 436 : (1 Beng LR 1 PC). Bearing this position in mind let us see whether it would be correct to hold that the position of the sister in the line of succession in the Bombay Province is the result of local usage. 13. The law of inheritance so far as is relevant to the present question is based on this text of Yajnavalkya : "The lawfully wedded wife and the daughters also, both parents, brothers likewise, and their sons, gentiles (or agnates), cognates, a pupil and a follow student on failure of the first among these the next in order is heir to the estate of one who departed for heaven leaving no male issue : this rule on tends to all classes." (Yajnvalkya, II, 135-136). 14. It is on this text that the lines of succession as set out by Vijnaneswara in his Mitakshara and by Nilakantha in his Yyavahara Mayukha are ultimately based. Mitakshaia does not refer to the sisters as heirs to the property of a divided male, nor is there any indication in the Mitakshara that the word bhiatarah (brothers) includes sisters. Thus, on the question as to the sister's position in the line of succession Mitakshara is silent. Nilakantha, the author of Vyavahara Mayukha, however, puts the sister after the father's mother and before the father's father. This is how he deals with the question : "In default of brother's sons, succeed the Gotrajas who are Sapindas. Thus, on the question as to the sister's position in the line of succession Mitakshara is silent. Nilakantha, the author of Vyavahara Mayukha, however, puts the sister after the father's mother and before the father's father. This is how he deals with the question : "In default of brother's sons, succeed the Gotrajas who are Sapindas. Among them also the first is the Paternal Grandmother under the text of Manu viz., :- 'And if the mother also be dead, the father's mother shall take the heritage.' (9-217). Although she is (here) mentioned immediately next to the mother, still as there is no (place of) entry for them in the compact aeries (of heirs) ending with the brother's sons, she is to be entered at the end after the brother's sons after the manner of 'the entry of the uninvited at the end'. In default of her comes the sister ; for says Manu: "To him who is the nearest sapinda the inheritance shall belong" (IX, 187), Brihaspati says : 'Where there are many (claimants), viz. the Jnatis, the Sakulyas and also the Bandhavas he who is the nearest among three, shall take the wealth of a childless man.' Being born in her brother's gotra, she also is in no respect ether than a gotraja. Indeed she has no Sagotrata, but that has not been mentioned here as an operating cause for the right of inheritance." 15. It will thus to seen that Nilakantha gives this higher place to the sister on the ground that she is a gotraja (born in the same gotra as) of the propositus. In this connection it may be pointed out that the word "gotraja" is interpreted by Mitakshara as "samana gotra" that is to say, having the came gotra as the deceased. If this interpretation is strictly applied to the case of the sister, it may be difficult to assign the higher position to her in the line of succession, because under Hindu law though a female is born in the gotra of her father, she loses the gotra on her marriage since after her marriage she adopts the gotra of her husband : (Yajnavalkya, i, 254). But however that may be, Nilakantha has put a somewhat liberal construction on the word "gotraja" and bas assigned to the sister the position already mentioned, and the view which has always prevailed in this Court is that Vijnanesvara cannot be regarded as being expressly opposed to Nilakantha's doctrine as to this right of the sister to inherit to her brother as a gotraja sapinda. Chandavarkar, J., who considered this question exhaustively in Bhagwan v. Warubai, 10 Bom LR 389 : (32 Bom 300), took the view that "the sidelights of the Mitakshara bring about a harmony between the two and warrant our assigning to her the same place in the line of heirs under the Mitakshara which is given to her in the Vyavahara Mayukha." Thus the position is that before the Act of 1929, in Gujarat, Bombay and such other parts of the Bombay Province where the Mayukha prevails the sister was given her position under the test of Mayukha itself and in the other parts of the Province where the Mitakshara prevails the same result followed because it was held that the views expressed in Vyavahara Mayukha on this subject were by no means inconsistent with the views expressed in the Mitakshara and they could therefore be taken to supplement the omission in the Mitakshara in regard to the sister. That being so, it seems to us that this position of the sister in the Bombay Province cannot properly be regarded as baaed on local usage or custom. It is in fact a part of the provisions of the local law, these provisions being contained in Vyavabara Mayukha. In our opinion local law as enunciated in the Smritis or the commentaries or as accepted in judicial decisions on the strength of Smritis or commentaries must obviously be distinguished from local custom or usage which seeks to modify the said local law. It may perhaps be that in some cases where later commentators put a different gloss on the words of the Smritis they wanted to recognise certain customs which had grown in the meanwhile and the attempt on their part was to make the said customs a part of the local law itself by differently interpreting the text of the Smritis. It may perhaps be that in some cases where later commentators put a different gloss on the words of the Smritis they wanted to recognise certain customs which had grown in the meanwhile and the attempt on their part was to make the said customs a part of the local law itself by differently interpreting the text of the Smritis. But once any provision of law was included in the commentaries which themselves constitute a source of Hindu law, that provision bas to be recognised by Courts of law without proof of any custom on which the interpretation of the particular text of the Smritis adopted by the commentary may conceivably be found to be based. Such a provision when included in the commentary really becomes a park of the local law. In this connection we may also point out what West, J. has said about the views expressed in the Vyavahara Mayukha. In Bhagirthibai v. Kahnujirav, 11 Bom 285 at p. 294 (FB), while considering the question as to how the Vyavahara Mayukha attained the position of authority in Gujarat, West, J. remarked that (p. 299) : "it must not be supposed that the Vyavahara Mayukha presents a development of the Hindu law connected in any peculiar way with the religions or social system of the Gujaratis." In our opinion the special family or local custom to which S. 3(1) refers must be such a custom as is in derogation of the law of the school governing the parties. We are not prepared to hold that the Maharashtra or the Mayukha school of law can itself be treated as local custom; for that indeed is what Rangnekar, J.'s view involves. Act II (2) of 1929 purports to modify the Hindu law as enunciated in the commentaries and as laid down in judicial decisions. That being our view we must hold that the position which has been assigned to the sister by judicial decisions in this province must be deemed to be affected by S. 2 of Act II (2) of 1929. It is not covered by the saving clause contained in S. 3(a), since it was obviously based on the interpretation of the Mayukha and the Mitakshara by the Courts in this Province. That being our view, we must hold that the daughter's daughter is entitled to succeed in preference to the sister.” 51. It is not covered by the saving clause contained in S. 3(a), since it was obviously based on the interpretation of the Mayukha and the Mitakshara by the Courts in this Province. That being our view, we must hold that the daughter's daughter is entitled to succeed in preference to the sister.” 51. I may also refer to a decision of the Bombay High Court in the case of Vithappa Bin Kasha Hegde vs. Savitri Kom Ganapbhatta reported in 1910 ILR (Volume XXXIV) page 510. I may quote some of the observations as under: “In the Bombay Presidency a daughter taking property from her father inherits it as stridhan, and it follows that two daughters taking from their father take their shares separately and absolutely.” “Under Hindu Law in the Bombay Presidency the daughter succeeds to an absolute and several estate in her father's immoveable property; Haribhai v. Damodarbhai [(1878) 3 Bom. 171]. It id laid down in Balakidas vs. Keshavlal [(1881) 6 Bomb 85] that in the Bombay Presidency the daughters take not only absolute but several estates.” “In the Vyarahar Mayukha, Chapter IV, Section 8, para 10 (Stokes' Hindu Law Books, page 86) it is laid down following the text of Manu that “If there be more daughters than one then they are to divide (the estate) and take (such a share).” This shows that the daughters take an absolute and several estate. Though this case is governed by the Mitakshara, it is laid down in Bhagwan Vithoba v. Warubai [(1908) 32 Bom 300] that it is a well established rule of the Bombay High Court of that where the Mitakshara is silent and obscure, the Court must, generally speaking, invoke the aid of the Vyavahar Mayukha to interpret it and barmonize both the works so far as that is reasonably possible.” “It is laid down in a case from Dharwar governed by the Mitakshara that a daughter takes an absolute estate in the property inherited from her father Gulappa Doningappa v. Tayawa Kempanna [(1881) 6 Bom 85]. The Mayukha is quite and according to Bhagwan Vithoba v. Warubai [(1908) 32 Bom 300] where the Mitakshara is silent or obscure, the Court should invoke the aid of the Mayukha.” “It is contended that on Kuppi's deth Savitri acquired her interest in the property by survivorship. The Mayukha is quite and according to Bhagwan Vithoba v. Warubai [(1908) 32 Bom 300] where the Mitakshara is silent or obscure, the Court should invoke the aid of the Mayukha.” “It is contended that on Kuppi's deth Savitri acquired her interest in the property by survivorship. This contention is based upon certain Madras decisions of which the latest is to be found in Raja Chelikani Venkayyamma Garu v. Raja Chelikani Venkataramanayyama [(1902) 29 I.A. 156] from which it appears that according to the Mitakshara, as interpreted by the Madras High Court, daughters inheriting from their father take jointly and do not take absolute interests in separate shares. In the Bombay Presidency, however, it has long been held that a daughter taking property from her father inherits it as stridhan and it follows that two daughters taking from their father take their shares separately and absolutely. The result is that where property so inherited has not been physically divided it is held by them as tenants-in-common and not as joint tenants and between them they can be no survivorship.” “The rule, however, which has been always followed in cases affecting the inheritance of property under Hindu Law is to adhere to the decisions of the court to which the district from which the case arose is subject; and it has not been contended that in the district of North Kanara any different rule has been laid down by the Bombay High Court from that which applies to the rest of the Presidency in the case of property inherited by daughters from their father.” 52. I may refer to the decision of the Bombay High Court in the case of Ambabai Bhaichand Gujar vs. Keshav Bandochand Gujar reported in 1941 ILR (Bom) 250. I may quote some of the observations as under: “Among Jains from Gujarat governed by the Mayukha, a sister's son a preferential heir to father's sister of a deceased Hindu male. Jains are governed by Hindu Law of Inheritance (Amendment) Act II of 1929, which applies to all persons governed by the Mitakshara as modified by the Mayukha. I may quote some of the observations as under: “Among Jains from Gujarat governed by the Mayukha, a sister's son a preferential heir to father's sister of a deceased Hindu male. Jains are governed by Hindu Law of Inheritance (Amendment) Act II of 1929, which applies to all persons governed by the Mitakshara as modified by the Mayukha. The phrase “law of Mitakshara” used in Section 1 of the Act includes all subdivisions of the Mitakshara Law and excludes the law of Dayabhaga.” Confining ourselves to Gujarat, it follows, that the law applicable is Mitakshara, but Mayukha is the overruling authority' in the 'few points in which it differs from Mitakshara'. Where, therefore, the Legislature makes use of the words 'only to persons...... subject to the law of Mitakshara' in the Act of 1929, I think it means, all the subdivisions' of the Mitakshara school, subject of course, to any overruling authorities' in particular provinces. Now on pages 82-89, Sir D.F. Mulla has enumerated the heirs in the order of succession in cases governed by the Mitakshara (pages 82-87) and in cases governed by the Mayukha (pages 87-89). The amendments made by the Act of 1929, have been inserted by the learned author in their appropriate places both under Mitakshara heirs, and Mayukha heirs, i.e. after 'father's father' and before 'a father's brother' between Nos.34 and 35, under Mitakshara and between 13 and 15 under Mayukha.” * * * “The amending Act of 1929, does not affect a father's sister. She remains, where she was, i.e. (as already explained). She comes in, before bandhus, even under the Mayukha. Now a sister's son is a bandhu. As Dr. Gor observes: 'the sister's son has had a strenuous struggle to get admitted into the table of heirs at first he was ruled out as no heir at all, since he was not enumerated in the list of heritable bandhus in the Mitakshara which was take to the exhaustive and this view was even concurred in by the Privy Council, but his claim was too strong to be ignored and it was first conceded almost simultaneously by a Full Bench decision of the Calcutta High Court and by the Privy Council in 1868, and since then in several cases' (page 1361 – Dr. Gour's Hindu Code). Gour's Hindu Code). It is not shown to me that the Mayukha gave him an higher place than that given him by Mitakshara. On the other hand, as regards the succession of bandhus there is no difference between the Mitakshara and Mayukha (vide page 87 of Mulla's Hindu Law). The Act of 1929, has lifted him up still higher in the category of gotraja sapindas and since in this respect, there is no conflict between the Mitakshara and Mayukha, I think in the present case plaintiff is the preferential heir to defendant and must succeed.” “...The contest is thus between sister's son and father's sister...” The plaintiff claimed to be the preferential heir under the Hindu Law of Inheritance (Amendment) Act (II of 1929), Section 2 of which provides that "a son's daughter, daughter's daughter, sister, and sister's son shall, in the order so specified, be entitled to rank in the order of succession next after a father's father and before a father's brother." His case was that defendant No. 1 being the father's sister was a remote gotraja sapinda, and therefore not entitled to priority over him. 2. It is clear that if the Act of 1929 applies, the plaintiff is a preferential heir. Before the passing of this Act a sister's son was only a bandhu, while a father's sister was held to be a gotraja sapinda in cases governed by the Mayukha, and, therefore, came before the bandhus; but under the new Act the sister's son is taken much higher up and placed even before a father's brother. Defendant No. 1, however, contended and that was her main defence to the suit that the case was not governed by the Act, firstly, because it applies only to Hindus and not to Jains, and, secondly, because it applies only to persons who are subject to the law of Mitakshara, while the parties' ancestors, having migrated from Gujarat, were subject to the law of Mayukha. The first two issues were, therefore, framed to cover this contention. The first issue was whether Mayukha or Mitakshara was applicable to the parties, and the second was whether the Act was applicable to Jains, The learned Judge below held that the parties were governed by Mitakshara subject to Mayukha, and that the Act was applicable to Jains. The first two issues were, therefore, framed to cover this contention. The first issue was whether Mayukha or Mitakshara was applicable to the parties, and the second was whether the Act was applicable to Jains, The learned Judge below held that the parties were governed by Mitakshara subject to Mayukha, and that the Act was applicable to Jains. He, therefore, decreed the suit.” ...The parties are governed by the law of succession prevailing in Gujarat where Mayukha is said to be of paramount authority.... Mayukha being the overriding authority in Gujarat and North Konkan, it has superseded in those parts of the Bombay Province the Mitakshara law which applies to all other parts of the province, and the Legislature has confined the operation of the Act to those places which are subject only to the law of Mitakshara. This argument is based upon the assumption that Mitakshara and Mayukha are two schools of Hindu law exclusive of each other and based upon different foundations..........The prevalent law in the Maharashtra at that time was based on the Mitakshara, but thereafter the Mayukha also came to be consulted by the Shastris on points on which they could not get sufficient light from the Mitakshara. As observed by Colebrooke in his preface to the translation of the Mitakshara, the Mayukha had concurrently with the Mitakshara considerable weight among the Marathas and among those works which "agree in generally deferring to the authority of the Mitakshara, in frequently appealing to the text, and in rarely and at the same time modestly dissenting from its doctrines on particular questions." So also Borradaile observes in his preface to the translation of the Vyavahara Mayukha that in all the schools of Hindu law except in Bengal "the Mitakshara, one of the earliest of these compilations, is received with respect as the chief general authority, though in each some more modern local work is allowed to compete with it on a few points. The most remarkable of those are the Mayukha for the Maharashtra and the west, the Smriti Chandrika for the south of India, the Ratnakar and Chintamani for Mithila. The most remarkable of those are the Mayukha for the Maharashtra and the west, the Smriti Chandrika for the south of India, the Ratnakar and Chintamani for Mithila. Bengal proper alone denies authority to the Mitakshara having established for itself a totally different school, of which Jimutavahana is the head." The later development of how the Mayukha came to be regarded as the principal authority in Gujarat and the city of Bombay is well described by West J. in the full bench decision in Bhagirthibai v. Kahnujirav (1886) I.L.R. 11 Bom. 285, F.B.. He says (p. 294): “The special and almost paramount authority which the Vyavahara Mayukha has gained in Gujarat, and in the city of Bombay is not recognized in other parts of this Presidency. Yet it must not be supposed that the Vyavahara Mayukha presents a development of the Hindu law connected in any peculiar way with the religious or social system of the Gujaratis. Before the Maratha conquest of Gujarat in the middle of the last century it had long been under Mahomedan rule. The customary law of the Hindus had almost dwindled away into mere rude caste usages, and the Brahminical influence had almost perished. The Vyavahara Mayukha was one of the latest products of the Maratha school, and had gained the eminent position which it has retained in the Deccan. The Maratha Brahmins, following the Maratha Chiefs into the newly conquered country, naturally took their law books with them. And of these, the Vyavahara Mayukha was the most comprehensive and characteristic. In Gujarat it had virtually no rival; and, as a Hindu polity was revived there, it took a place analogous to that of the Roman law in the mediaeval Europe, with the Maratha Brahmins as its expositors. And of these, the Vyavahara Mayukha was the most comprehensive and characteristic. In Gujarat it had virtually no rival; and, as a Hindu polity was revived there, it took a place analogous to that of the Roman law in the mediaeval Europe, with the Maratha Brahmins as its expositors. Hence arose the somewhat strange consequence that the Maratha doctrines of the Mayukha gained a more undivided sway over Gujarat than amongst the Marathas themselves, who had men of wide learning and copious sources of information at hand.” “In Gujarat, in the island of Bombay and also in the North Konkan, its authority [of Mitakshara] is controlled by the Mayukha on the very few points on which they differ, the general principle however being to construe the Mitakshara and the Mayukha so as to harmonise them as far ass it is reasonably possible.” It would be clear from this discussion that there are only two fundamental schools of Hindu law, the Mitakshara and the Dayabhaga, and Mayukha, in spite of its different interpretation of the ancient texts on some points, belongs to the Mitakshara school of Hindu law. The phrase "the law of Mitakshara" used in Section 1 of the Act of 1929 includes all subdivisions of the Mitakshara law and excludes the law of Dayabhaga. In fact, there is some indication in the Act itself to show that it recognizes the existence of different schools or subdivisions of the general Mitakshara law and is applicable to them all. Section 3, Clause (b), provides that the three female heirs elevated higher up in the order of succession shall have no estate larger than, or different in kind from, that possessed by a female in property inherited by her from a male according to the school of Mitakshara law by which the male was governed. The word "school" here evidently refers to the Bombay school on the one hand and the Benares and the Madras schools on the other. In the former, these heirs take the property absolutely while in the latter they take a limited estate. The Bombay school would include the Mayukha under which also they take an absolute estate. The word "school" here evidently refers to the Bombay school on the one hand and the Benares and the Madras schools on the other. In the former, these heirs take the property absolutely while in the latter they take a limited estate. The Bombay school would include the Mayukha under which also they take an absolute estate. The Act could not have been applied to Bengal without shaking the foundation of the Dayabhaga law based upon the capacity to confer spiritual benefit by the offering of funeral cake which was not possessed by females except the five specified ones mentioned in the Dayabhaga. The object of the Act appears to bring the heirs mentioned therein higher up in the order of succession on the ground of their being nearer in blood to the deceased than many of the heirs who formerly preceded them. The Act was, therefore, meant to apply to all the branches of the main school of the Mitakshara law which based succession on the principle of propinquity and the Mayukha is undoubtedly based on that principle. In the latest edition of Mayne's Hindu Law the opinion is expressed to the effect that the Act would apply to the Mitakshara law in Bombay or even where the Mayukha is supreme. That seems to me to be the correct interpretation of the intention of the Legislature.” * * * But, as my learned brother says, the most reasonable view seems to be that the Mitakshara is mentioned as one of the two main schools of Hindu law, in contradistinction to the Dayabhaga but not in contradistinction to the Mayukha, which is only a subdivision of the Mitakshara school. The reference in Section 3(b) to the school of Mitakshara law by which the male was governed shows that the "Mitakshara law" in the Act was intended to include its subdivisions. * * * It is not as if the Mayukha had a specific text about the father's sister. She is nowhere mentioned. In Ganesh v. Waghu (1903) 27 Bom 610, the case to which I have referred just now, the argument was put forward that the reasons given in the Mayukha for treating a sister as a gotraja sapinda might apply equally to a father's sister. She is nowhere mentioned. In Ganesh v. Waghu (1903) 27 Bom 610, the case to which I have referred just now, the argument was put forward that the reasons given in the Mayukha for treating a sister as a gotraja sapinda might apply equally to a father's sister. But the decision of the Court was based on the principle of stare decisis, and the father's sister was given a place after distant male gotraja sapindas because it had been so decided in a case of 1870. It is clear from Sir Lawrence Jenkin's judgment in that case that no custom justifying the inclusion of the father's sister among gotraja sapindas was found to exist comparable to the custom by which, according to some decisions, the sister had come to be treated as gotraja sapinda in Bombay.” 53. In the present matter, on the death of Motiji, the right to succeed to the property opened in the year 1944. It is trite to say that succession never remains in abeyance and on the death of the last holder or the owner, it immediately opens and the property flows in favour of those who are entitled to succeed to the property under the law governing the field at the material time. In the year 1944, when the succession opened, the daughter had no right in the property. 54. A person who was offered the property towards the maintenance, if was in possession and continued to be in possession till coming into force of the Hindu Succession Act, would become absolute owner of the property under Section 14 of the Hindu Succession Act. A person who simply had a right of maintenance, but was not given any property, would not be entitled to a partition of property after coming into force of the Hindu Succession Act, because, succession had already opened much before coming into force of the Hindu Succession Act. The Hindu Succession Act, in fact, conferred rights in favour of those who had no right in the property, the Act did not revive the lost rights nor is retrospective in operation. Hindu Succession Act was simple to crystallize and codify the Hindu Law relating to succession. The Hindu Succession Act, in fact, conferred rights in favour of those who had no right in the property, the Act did not revive the lost rights nor is retrospective in operation. Hindu Succession Act was simple to crystallize and codify the Hindu Law relating to succession. For the first time under the codified law, right was conferred upon widow, daughter, widow of the pre-deceased son and other females, who, otherwise, had no right in the property before coming into force of the Hindu Succession Act. 55. Section 6 of the Hindu Succession Act provides that in case there is a Joint Hindu Family Property, the property would be succeeded by other coparceners of the family and they would enjoy the joint possession over the same. Clause (b) of Section 6 of Hindu Succession Act provides that if a co-parcener-cum-owner in the Joint Hindu Family leaves any female heir as provided under Section 8 of the Act, then, there would be a deemed partition and the property would devolved upon by succession and not by survivorship. Section 6 would govern the field of succession after coming into force of Hindu Succession Act and would not reopen the subject which already came to an end. 56. Section 8 of the Hindu Succession Act provides natural course of succession, it provides different heads and different class of the successors-cum-heirs. Widow or widow of a pre-deceased son would be Class-I heir while, sister would be Class-III heir. 57. The principal argument of Mr. Kapadia in this Second Appeal is that in the year 1944, Gangaben succeeded to the property being daughter of deceased Motiji Ajuji Thakor on the strength of Mayukha School of Hindu Law. According to Mr. Kapadia, in Gujarat, the succession could be governed by the Mayukha School of Hindu Law. I am not impressed by such submission of Mr. Kapadia. I could have dismissed this Second Appeal on the short ground that the suit filed by the plaintiffs is otherwise hopelessly time barred, however, as something relating to the Mayukha Branch of Hindu Law has been argued on behalf of the plaintiffs, though for the first time in the Second Appeal, I intend to look into the same. 58. Chapter IV of the Mulla Hindu Law 23rd Edition (page 109) refers to the Order of Inheritance of Males according to the Mitakshara Law. 58. Chapter IV of the Mulla Hindu Law 23rd Edition (page 109) refers to the Order of Inheritance of Males according to the Mitakshara Law. Paragraph 43 (page 129) gives the order of succession in respect of the self acquired property and stipulates that the specified heirs would succeed in the following order. A daughter finds place at Sr. No.5 in the order of succession. This would mean that only in the absence of the heirs at Sr. Nos.1 to 5 above her in the order of succession, she would succeed to the property of the Hindu Male. This is evident from the commentary. Therefore, the Mitakshara law always recognized daughter as an heir but she would succeed in the order of succession as stated above and not simultaneously with the heirs above her in the order of succession. 59. Chapter VI (page 179) refers to the Order of Succession to Males in the Bombay State. Paragraph 71 (page 179) states that the order of succession to males in the Bombay State is different from the other parts of India where the Mitakshara law prevails and even within Bombay there is a difference between the order of succession in cases governed by Mayukha. Paragraph 72 (page 179) sets out the order of succession in cases of males in the Bombay State governed by the Mitakshara but not Mayukha. The daughter is recognized as an heir at Sr. No.7 in the order of succession. As stated above, the daughter would succeed only in the absence of any heir above her in the order of succession and not simultaneously with them. Paragraph 77 (page 180) sets out the order of succession in cases governed by Mayukha and stipulates that in such cases the order of succession from 1 – 6 is the same as that set out in paragraph 72 for males in Bombay State governed by Mitakshara law. In fact the order of succession set out in paragraph 71 (page 183) for succession to males in cases error in paragraph 77 of Mulla's Hindu Law since the said paragraph refers to the order of succession of 1-6 being the same as paragraph 72 followed by father at No.7 and mother at No.8. The heirs at Nos.16 in paragraph 72 do not include the daughter, who features at No.7. The heirs at Nos.16 in paragraph 72 do not include the daughter, who features at No.7. By the extract submitted by the appellant, the Mayukha Law appears to exclude the daughter. However, this is an apparent error and what was meant in paragraph referred to in paragraph 77 would be paragraph 43 of the commentary. A table set out in the commentary by Manohar and Chitaley 4th Edition clarifies the position. Therefore, Mayukha Law makes no change on recognizing a daughter as an heir or her position in the order of succession from the Mitakshara Law, and the contention of appellant is wholly fallacious. 60. I would also like to observe that the Hindu Women's Rights to Property Act, 1937 (for short, “the Act of 1937”) introduces important changes in the Law of Succession. This Act does not provide for or confer any right on any other women in the family where a Hindu male dies intestate leaving behind him any property, either separate or his interest in family property. It does not make reference to any right of a daughter married or otherwise. The layout of the Act seems to be consistent with the then Hindu culture and a joint Hindu family set up. The Hindu family set up was such that a daughter could not have inherited any property or a share therein of her deceased father, who left behind his son/s and/or widow/s. It appears that only in the absence of son/s and/or widow/s, a daughter could have inherited any property or a share therein. The Hindu culture and philosophy, as it then prevailed, strongly believed in the institution of marriage and that a daughter was inherently destined to be married into another family once she came of an age. This culture and philosophy was primarily because her marriage would entitle her to have a right in the joint family property of her husbands family or her husbands separate property. The concept of a daughter remaining unmarried forever was not either known or recognised. Therefore, this marks a possibility that no rights in a daughter were either conferred or recognised when the Act of 1937 was introduced. The Hindu Succession Act, 1956 was introduced and the law relating to intestate succession amongst the Hindus came to be codified. The concept of a daughter remaining unmarried forever was not either known or recognised. Therefore, this marks a possibility that no rights in a daughter were either conferred or recognised when the Act of 1937 was introduced. The Hindu Succession Act, 1956 was introduced and the law relating to intestate succession amongst the Hindus came to be codified. By this Act and more particularly Section 14 thereof, whatever property was possessed by a woman whether acquired before or after the commencement of the Act of 1956, it shall be held by her as full owner and not limited owner. In other words, any property acquired and possessed by a Hindu woman, whether before or after the commencement of the Act of 1956, it shall be her absolute property. The concept of womens "limited estate" was abolished by this Act and she is given an absolute right in the property she acquired and possessed in its entirety, either limited or absolute, prior to or after coming into force of the Act of 1956. Section 15 of the Act provides for the general rules of succession in the case of female Hindus. The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16 and in the order of succession mentioned in Section 15. 61. Before 1937, the "simultaneous heirs" of a Hindu male dying intestate comprised only the son, the son of a pre-deceased son and the son of a pre-deceased son of a pre-deceased son. The Act of 1937 added to the list the widows of the first two as well as the intestates own widow. Class I of the preferential heirs in the Schedule, however, for the first time, added to the then existing list of simultaneous heirs, the daughter, and further seeks, as far as possible, to treat the other grandchildren of an intestate, whose parent has pre-deceased the intestate, on the same footing as the son of a pre-deceased son, except that in the former case the share to be divided among the children will be less than in the later case. This is made clear in the Statement of Objects and Reasons to Sections 8 to 10 of the Act of 1956. 62. What has been submitted by Mr. Joshi is fortified by the relevant paragraphs in the Mulla's Hindu Law referred to above. This is made clear in the Statement of Objects and Reasons to Sections 8 to 10 of the Act of 1956. 62. What has been submitted by Mr. Joshi is fortified by the relevant paragraphs in the Mulla's Hindu Law referred to above. At the cost of repetition, I may state that paragraph 43 provides for order of succession among sapindas. Note 4 to paragraph 43 deals with widow whereas note 5 deals with daughter. Note 5(i) provides for priority among daughter to succeed the property of a Hindu, either separate or his interest in a joint family property. It clearly provides that "daughters do not inherit until all the widows are dead". Rule 4 in note 5 of paragraph 43 provides that Rule (ii) and (iii) do not apply in Bombay State. (See paragraph 72, No. 7 in Mulla's Hindu Law (Seventeeth Edition). These rules in note 5 to paragraph 43 clearly show that the Rule (i) is not excluded from its application in the Bombay State. In other words, Rule (i) clearly applies to the males governed by Mitakshara in the Bombay State. Chapter VI of the Mulla's Hindu Law provides for order of succession to males in the Bombay State. Paragraph 71 therein deals with succession in the Bombay State. The order of succession to males in the Bombay State is different from that in other parts of India where the Mitakshara Law prevails. The difference arises from the fact that the Bombay School recognises as heirs certain females who are not recognised as heirs in other parts of India. Paragraph 72 in Chapter VI provides for order of succession in cases governed by Mitakshara. It provides a list of 77 sapindas in the order of succession in the Bombay State. The list of first seven sapindas given in paragraph 72 reads thus: “1.6 Son, sons son (whose father is dead), and sons sons son (whose father and grandfather are both dead). These inherit simultaneously. Under Act XVIII of 1947 the widow, the pre-deceased sons widow, and the widow of a Pre-deceased son of a pre-deceased son, are also recognised as heirs. (see para 43). See notes to para 43 nos. 1, 3 and 4. 7. Daughter. These inherit simultaneously. Under Act XVIII of 1947 the widow, the pre-deceased sons widow, and the widow of a Pre-deceased son of a pre-deceased son, are also recognised as heirs. (see para 43). See notes to para 43 nos. 1, 3 and 4. 7. Daughter. (See para.43, No. 5, notes (i), (iv), (v), (vi) and (vii)." A bare perusal of paragraph 43 with notes and the relevant rules mentioned therein would clearly indicate that "daughters do not inherit until all the widows are dead." (See para 43, No. 5 rule (i)). The contention that such note, that is, "daughters do not inherit until all the widows are dead" does not exist in paragraph 72 must be rejected. Paragraph 72 cannot be read in isolation and it will have to be read with paragraph 43, No. 5 notes (i), (iv), (v), (vi) and (vii). In the Bombay State, a daughter does not take a limited estate in her fathers property, but takes the property absolutely, provided there is no widow living at the time of the death of her father. It is only in that eventuality a daughter is entitled to take the property and if she takes that property, she takes it as her absolute property. If a Hindu governed by the Bombay School dies leaving two daughters, each daughter takes an absolute interest in a moiety of her fathers estate, and holds it as her separate property, and on her death her share will pass to her own heirs as her stridhana. (See para 170). 63. It deserves to be noted that if one looks at the evolution of the law since 1937, it further supports the case of the appellant that prior to 1956 a daughter had no right in the property if a widow was alive. The Act of 1956 also does not confer any right on a daughter over the property succeeded/possessed by a widow prior to 1956. A daughter is entitled to succeed to the property of a female Hindu dying intestate under Section 15 read with Section 16 of the Act of 1956. The Act of 1956 also does not confer any right on a daughter over the property succeeded/possessed by a widow prior to 1956. A daughter is entitled to succeed to the property of a female Hindu dying intestate under Section 15 read with Section 16 of the Act of 1956. However, if a widow, who was the exclusive owner of the property possessed by her when the Act of 1956 came into force, disposed of her property in whatsoever manner she desired, such as by way of will or gift, even to a stranger, daughters did not get any right in such property, even though she was first in the order of succession with sons under Section 15 of the Act of 1956. A plain reading of Section 15 would reflect that a female Hindu was entitled to the property left behind by a female Hindu dying intestate. 64. Therefore, the question proposed by the appellants that the Mayukha recognizes and confers a right of succession on the daughter to succeed equally along with the son does not arise for consideration at all and in any case is thoroughly misconceived and without any basis. It is otherwise well settled that before the enactment of the Hindu Succession Act, 1956, a daughter did not have any share in the property of the father. 65. The Supreme Court in the case of Smt. Raj Rani vs. Chief Settlement Commissioner, Delhi and others reported in (1984) 3 SCC 619 has observed as under: “12. The decision of this case hinges on the question whether Nanak Chand had died before or after the enforcement of the Hindu Succession Act. If he died before the enforcement of the Hindu Succession Act obviously the daughters could not get any share in the property left by Nanak Chand. If on the other hand he died after the enforcement of the Hindu Succession Act, the daughters would be equally entitled to a share in the property left by Nanak Chand. In any case the widow of Nanak Chand would be entitled to a share in the property irrespective of the fact whether Nanak Chand died before or after the Hindu Succession Act. This aspect of the case has been completely lost sight of by the High Court. In any case the widow of Nanak Chand would be entitled to a share in the property irrespective of the fact whether Nanak Chand died before or after the Hindu Succession Act. This aspect of the case has been completely lost sight of by the High Court. If Nanak Chand disappeared in December, 1954 on the report of Dewan Chand himself and has not been heard of for seven years by those who would naturally have heard of him if he has been alive, there could be raised a presumption of death when the question arises. But in the instant case no presumption arises as the question arose just two years after the date of disappearance. 13. As regards the actual date of death the High Court dealing with the death certificate observed as follows : "As an administrative officer doing quasi-judicial work, the Additional Settlement Commissioner was entitled to give credence to the death certificate. He was bound only to make a preliminary enquiry as to who were the heirs of Nanak Chand. He did not have to decide that question finally. For a preliminary enquiry the death certificate signed by the respectable person of the place where the family resided was sufficient. Therefore, the Additional Settlement Commissioner was satisfied that the substitution of the sons of Nanak Chand in place of the deceased would not prejudicially affect his daughter. It was not, therefore, necessary for him to have given an opportunity to the daughter of being heard under sub-sec. (2) of Sec. 5 of the Displaced Persons (Claims) Supplementary Act, 1954." A certificate given by respectable person of the place where the deceased once resided, to say the least, is not admissible in evidence. Section 35 of the Evidence Act provides that an entry in any public or other official book, register, or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. 14. In the instant case a certificate by certain respectable person of the place where the family once resided does not satisfy the requirements of S. 35 of the Evidence Act. 14. In the instant case a certificate by certain respectable person of the place where the family once resided does not satisfy the requirements of S. 35 of the Evidence Act. There is no proof that any statutory duty was cast upon the person issuing the certificate to keep a record of birth and death and therefore, the certificate of death has no evidentiary value. It is very easy for a person to obtain death certificate from the so-called respectable person in order to grab the property. If according to Dewan Chand, Nanak Chand had died he must also indicate where did he die and it is the place of his death which will be relevant and not the place of his birth or residence. The certificate obviously is not of the place where Nanak Chand died. We are of the view 'the authorities have gravely erred in relying upon the certificate of death which was inadmissible in evidence. 15. The High Court repelled the contention raised on behalf of the appellant that opportunity should have been given to the appellant under S. 5 (2) of the Displaced Persons (Claims) Supplementary Act, 1954 merely on the assumption that Nanak Chand had died much before the enforcement of the Hindu Succession Act and, therefore, no prejudice has been caused to the daughters as they would not be an heir. It is simply begging the question. Whether daughters would be entitled to an interest in the property left by Nanak Chand will depend upon the death of Nanak Chand before or after the enforcement of Hindu Succession Act. It was an important question, therefore, to decide whether Nanak Chand died before the enforcement of Hindu Succession Act or not. For that it was absolutely essential that an opportunity should have been afforded to the appellant in accordance with the principle of natural justice. As observed earlier, if an opportunity had been given to the appellant she would have produced the admission of Dewan Chand that his father Nanak Chand disappeared sometime in December, 1954 and as a result of an enquiry by the police, no trace of him could be found out. 16. The finding that Nanak Chand died before the enforcement of the Hindu Succession Act. based on the death certificate, cannot be sustained for a moment as it is based on an inadmissible piece of evidence. 16. The finding that Nanak Chand died before the enforcement of the Hindu Succession Act. based on the death certificate, cannot be sustained for a moment as it is based on an inadmissible piece of evidence. If that finding is set aside, there is no escape from the conclusion that Nanak Chand died not before but after the enforcement of the Hindu Succession Act, that is, after 25th October, 1956. 17. There is no dispute that Nanak Chand died leaving behind his widow, three sons and three daughters. Dewan Chand fraudulently obtained an order alleging that Nanak Chand died leaving behind only three sons. If Nanak Chand died after the enforcement of the Hindu Succession Act, as found earlier, obviously his widow, three sons and three daughters would succeed to his interest in equal shares, which would work out to 1/7th. Now the question arises what was the interest of Nanak Chand at the time of his death. As the property in question was Mitakshara co-parcenery property, his interest would be determined in accordance with the provisions of Explanation I of S. 6 of the Hindu Succession Act. It would be appropriate at this stage to read Sec. 6 insofar as it is material for the purposes of this case : "6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara co-parcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parcenery and not in accordance with this Act : Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara co-parcenery property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation I. :- For the purposes of this section, the interest of a 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." The interest of Nanak Chand shall be deemed to be the share in the property that would have been allotted to him it a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. In view of Explanation I of Sec. 6, Nanak Chand would have got 1/5th interest on partition between him and his wife and three sons. If once the interest of Nanak Chand is determined to be 1/5th before his death, his interest would devolve upon his widow, three sons and three daughters equally and thus the share of each one of them would be 1/5 x 17, that is, 1/35th each. The claim of these heirs cannot be denied merely because some of them have not advanced the claim. When the question of determination of share, among the heirs crops up before the Court, the Court has to see that every heir gets his due. Shri Itorora appearing for the respondents could not successfully meet the point raised on behalf of the appellant.” 66. The Supreme Court in a very recent pronouncement in the case of Shyam Narayan Prasad vs. Krishna Prasad and others reported in (2018) 7 SCC 646 has observed as under: “12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. 13. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. 13. In C. Krishna Prasad v. C.I.T, Bangalore, 1975 (1) SCC 160 , this Court was considering a similar question. In the said case, C. Krishna Prasad, the appellant along with his father Krishnaswami Naidu and brother C. Krishna Kumar formed Hindu undivided family up to October 30, 1958, when there was a partition between Krishnaswami Naidu and his two sons. A question arose as to whether an unmarried male Hindu on partition of a joint Hindu family can be assessed in the status of undivided family even though no other person besides him is a member of 7 the family. It was held that the share which a coparcener obtains on partition is ancestral property as regards male issue. It was held as under: "8. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of Mulla's Principles of Hindu Law, 14th Ed.). A person who for the time being is the sole surviving coparcener is entitled to dispose of the co-parcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten". (emphasis supplied) 14. In M. Yogendra and Ors. v. Leelamma N. and Ors. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten". (emphasis supplied) 14. In M. Yogendra and Ors. v. Leelamma N. and Ors. 2009 (15) SCC 184 , it was held as under: "It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a co-parcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the 8 sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid." (emphasis supplied) 15. In Rohit Chauhan v. Surinder Singh and Ors. 2013 (9) SCC 419 , a contention was raised by the defendant No. 1 that after partition of the joint Hindu family property, the land allotted to the share of defendant No. 2 became his self acquired property and he was competent to transfer the property in the manner he desired. It was held that the property which defendant No. 2 got by virtue of partition decree amongst his father and brothers was although separate property qua other relations but it attained the characteristics of co-parcenary property the moment a son was born to defendant No. 2. It was held thus: "A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the co-parcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which Defendant 2 got on partition was an ancestral property and till the birth of the plaintiff he was the sole surviving coparcener but the moment plaintiff was born, he got a share in the father's property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of Defendant 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth Defendant 2 could have alienated the property only as karta for legal necessity. It is nobody's case that Defendant 2 executed the sale deeds and release deed as karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire co-parcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed, the parties can work out their remedies in appropriate proceeding." 67. On the issue of the suit being hopelessly time barred, Mr. Joshi the learned senior counsel appearing for the respondent No.17 has rightly placed reliance on the Supreme Court decision in the case of Prem Singh vs. Birbal reported in AIR 2006 SC 3608 , wherein the Supreme Court has observed as under: “11. Limitation is a statute of repose. It ordinarily bars a remedy, but, does not extinguish a right. The only exception to the said rule is to be found in Section 27 of the Limitation Act, 1963 which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. 12. An extinction of right, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits. 12. An extinction of right, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits. The Schedule appended to the Limitation Act, as prescribed by the Articles, provides that upon lapse of the prescribed period, the institution of a suit will be barred. Section 3 of the Limitation Act provides that irrespective of the fact as to whether any defence is set out is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed. 13. Article 59 of the Limitation Act applies specially when a relief is claimed on the ground of fraud or mistake. It only encompasses within its fold fraudulent transactions which are voidable transactions. 14. A suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act, which reads as under : "31. When cancellation may be ordered.- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation." 15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable document. It provides for a discretionary relief. 16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity. 17. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary Article would be. 18. 17. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary Article would be. 18. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid.” 68. In the overall view of the matter, I have reached to the conclusion that no interference is warranted with the concurrent findings recorded by the two Courts below. This Second Appeal, therefore, fails and is hereby dismissed. 69. In view of the dismissal of this Second Appeal, the connected civil application would not survive and the same is also disposed of.