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2019 DIGILAW 266 (GAU)

Kalpita Deb v. Kajori Deb

2019-02-28

MIR ALFAZ ALI

body2019
JUDGMENT : 1. This appeal is directed against the order dated 28.04.2016 passed by the learned Civil Judge (No. 1), Kamrup in Title Suit No. 100/2015 dismissing the suit of the plaintiff on the preliminary issue of maintainability. 2. The appellant as plaintiff filed the suit for declaration of right, title, interest, partition and recovery of possession. The case of the plaintiff was that the suit property originally belonged to one Sashi Mohan Dev. After death of Sashi Mohan Dev, the property including the suit property of said Sashi Mohan Dev devolved upon his 7 legal heirs and the property left by Sashi Mohan Dev was partitioned amongst his 7 legal heirs. Late Subodh Kumar Dev, the predecessor in interest of the parties to the present suit was one of the son and legal heir of Sashi Mohan Dev and after the family partition, Sobodh Kumar Dev had been possessing the suit property having fallen in his share and after death of Subodh Kumar Dev, the property left by Sobodh Kumar Dev was inherited by the plaintiff, and her brother, Somnath Dev, predecessor of the defendants. 3. The plaintiff was married to a bank officer and as such, she had to remain outside Guwahati with her husband. Therefore, Somnath Dev was looking after the property falling in the share of the plaintiff. The ancestral property of the plaintiff and defendants were in two plots described in Schedule-A & B of the plaint. The land covered by Schedule-B of the plaint was already divided and both the plaintiff and predecessor of the defendants were possessing their respective share. However, Schedule-A land was not partitioned and when the plaintiff/appellant sought for her equal share in Schedule-A land, the defendants informed through legal notice, that the plaintiff relinquished her right over the schedule land as per an alleged agreement dated 25.11.2004. The case of the plaintiff was that she never relinquished her share in the ancestral property by any agreement and such alleged deed was fraudulently prepared by the defendants and therefore, filed the suit for declaration, partition and separate possession. 4. The case of the defendant was that Sobodh Dev executed a WILL in favour of Somnath Dev, predecessor of the defendants in respect of 3.15 Are of land covered by Dag No. 39 and Patta No. 767 (Schedule-A). 4. The case of the defendant was that Sobodh Dev executed a WILL in favour of Somnath Dev, predecessor of the defendants in respect of 3.15 Are of land covered by Dag No. 39 and Patta No. 767 (Schedule-A). Sobodh Dev also gave 10 lessa of land out of 2 katha, covered by Dag No. 50 and K.P. patta No. 933 (Schedule-B) to the plaintiff. Further case of the defendants was that after death of Sobodh Dev an agreement was executed on 25.11.2004 between the plaintiff and Somnath Dev, predecessor of the defendants and as per said mutual agreement and plaintiff took 2200 sqft (15.28 lecha) out of 2 katha from Dag No. 50. The plaintiff also allowed late Somnath Dev to enjoy the interest and profit arising out of the old Assam Type house in the ancestral land. By the mutual agreement dated 25.11.2004, the plaintiff relinquished his right or demand over any other ancestral property movable or immovable, and instituted the suit suppressing all such fact. 5. After filing the written statement, the defendant filed an application raising the question of maintainability of the suit and prayed for deciding the issue of maintainability as preliminary issue. Accordingly, learned Civil Judge, by the impugned order held that the suit was not maintainable, purportedly on the basis of the proviso to sub-section (1) and sub-section (5) of Section 6 of the Hindu Succession Act (as amended in 2005). It was the contention of the defendant/respondent that the plaintiff entered into an agreement for mutual partition of the ancestral property on 25.11.2004 and plaintiff also relinquished all her interest in the movable and immovable property in favour of the defendants, before the amendment of the Hindu Succession Act, 2005 and as such, the suit is not maintainable, because as per the proviso to Section 6(1) of the Hindu Succession Act (as amended in 2005) as well as sub-section (5) of Section 6, any partition or disposition or alienation or testamentary disposition of property having taken place before 20th December, 2004 have been excluded from the purview of the amended section 6 of the Hindu Succession Act, and that the amended provision of Section 6 of the Hindu Succession Act was prospective. 6. Learned counsel Mr. B. Chakraborty for the appellant and learned Sr. Counsel Mr. B.D. Konwar, assisted by Mr. S. Sharma and Mr. B. Sharma, for the respondent were heard. 6. Learned counsel Mr. B. Chakraborty for the appellant and learned Sr. Counsel Mr. B.D. Konwar, assisted by Mr. S. Sharma and Mr. B. Sharma, for the respondent were heard. 7. Learned counsel for the appellant/plaintiff submitted that Section 6 of the Hindu Succession Act pertains to coparcenery property of joint Hindu family governed by Mitakshara law. The parties in the instant suit are governed by Dayabhaga school of law, and as such, the amended provision of Section 6 has no effect, so far as the devolution and succession to property governed by dayabhaga law is concerned. Learned counsel for the respondent Mr. B.D. Konwar, referring to the object of the Hindu Succession Act (as amended in 2005), submitted that the amendment of 2005 was brought with the object and purpose, to eliminate the discrimination against woman and daughter and such amendment is applicable to both the schools, Dayabhaga as well as Mitakshara. It is no doubt true, that the amendment of 2005 was intended to eliminate the discrimination against daughter in respect of succession into coparcenery property of joint Hindu family and some other provisions which were discriminatory against the female member (daughter). The amended Section 6 of the Hindu Succession Act (as amended in 2005) is amply clear from the plain language, whereby, the discrimination against daughter in respect of devolution of interest in coparcenery property of Hindu joint family governed by Mitakshara law was eliminated and daughters were also given the equal right with the son in respect of coparcener property. Therefore, Section 6(1) relates to the interest in coparcenary property only. So far as the general rule of succession or devolution in respect of the property of a Hindu dying intestate or the Dayabhaga school of law is concerned, the amended Hindu Succession Act, 2005 has not made ay change except deleting the provision of Section 23 and 24 of the 1956 Act. Therefore, the amended provision of Section 6 of the Hindu Succession Act, has nothing to do with the succession to the property, governed by the Dayabhaga law. Or the general rule of succession under the Act. 8. Looking from another angle, evidently, the plaintiff has taken a plea of fraud against the defendants in respect of the suit property and the case of the plaintiff was that the deed of agreement or relinquishment sought to be relied by the defendant was fraudulent one. Or the general rule of succession under the Act. 8. Looking from another angle, evidently, the plaintiff has taken a plea of fraud against the defendants in respect of the suit property and the case of the plaintiff was that the deed of agreement or relinquishment sought to be relied by the defendant was fraudulent one. It is the common knowledge, that fraud vitiates everything and as such, sub-section (5) or proviso to Section 6(1) of the Act can by no stretch of imagination be held to have intended to exclude any fake or fraudulent transaction (this court should not be misunderstood to have expressed any opinion on merit of the plea of fraud raised in the suit) from the purview of the main provision of Section 6. Therefore, even in case of Mitaksara coparcenery property governed by Section 6, the proviso to Section 6(1) and sub-section (5) shall not be applicable when fraud is alleged. The Apex Court in Prakash & Ors. Vs. Phulbati & Ors. reported in (2016) 2 SCC 36 observed that -"In this background, we find that the proviso to Section 6(1) and sub- section (5) of Section 6 clearly intend to exclude the transaction referred to therein which may have taken place prior to 20.12.2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which have valid when effected. Object of giving finality to trasanction prior to 20.12.2004 is not to make the main provision retrospective in any manner. The object is that by fake transaction available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced.." 9. When the plea of fraud was raised in respect of the transaction, learned trial court could not have dismissed the suit on preliminary issue of maintainability taking recourse to subsection (5) or proviso to Section 6(1) of the Hindu Succession Act, 2005. The object of subsection (5) or the proviso to sub-section (1) of Section 6 was to given finality to the transaction having taken place prior to 20.12.2004. But the provision of sub-section (5) or proviso to subsection (1) of Section 6 cannot be construed to have excluded any fake transaction. The object of subsection (5) or the proviso to sub-section (1) of Section 6 was to given finality to the transaction having taken place prior to 20.12.2004. But the provision of sub-section (5) or proviso to subsection (1) of Section 6 cannot be construed to have excluded any fake transaction. Therefore, when the plea of fraud was raised, in respect of any transaction effected prior to the 2005 amendment came into force, the suit cannot be disposed on preliminary issue taking recourse to the proviso of Section 6(1) or sub-section (5) of the Section. 10. Be that as it may, since admittedly the parties in the case in hand are governed by Dayabhaga law and the property involved was not a coparcenery property of Hindu joint family, Section 6 of the Hindu Succession Act has no application or relevance in the subject matter of the suit of the present case. Therefore, in my considered view, the learned trial court was totally mis-directed to hold the suit to be not maintainable on the basis of the proviso to Section 6(1) and sub-section (5) of Section 6 of the Hindu Succession Act and thereby fell in grave error by dismissing the suit on such premise on a preliminary issue. Accordingly, the impugned order is set aside and the appeal is allowed. Since the suit was not decided on merit, the matter be remanded back to the learned trial court to decide the suit on merit. 11. Send down the LCR.