This is the case where the daughters had already expired prior to the
coming into force of the amendment Act and prior to any litigation
her son having filed the suit himself. There is nothing in the Section
which shows that it would apply to all females retrospectively
including a daughter who had expired prior to the coparcener
himself, prior to any litigation and prior to the amendment Act itself.
If such a daughter was also to be included the entire population
would come to be included and the children and grandchildren of all
deceased females would claim their share in the estate of their
grandparents and great grandparents through their mother. It would
have to be seen whether the legislation is capable of such an absurd
interpretation.
14.The words “on” and “from” show and suggest that on a date prior to
the Act coming into force the daughter (female) would not be
included as a coparcener. Consequently, all daughters born to
coparceners in a Hindu joint family living at the time the Act came
into force would become coparcener. Daughters (females) who had
expired a day prior thereto, unfortunately, could not, because they
would be covered by the law prior to the amendment. If such
interpretation is not given the words “on” and “from” “the
commencement of the Hindu Succession (Amendment) Act, 2005”
would lose their significance all together and would be rendered
otiose.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
APPEAL FROM ORDER NO. 265 OF 2011
Sadashiv Sakharam Patil Vs. Chandrakant Gopal Desale & Ors.
Dated: 6 September, 2011
1. The main challenge is to the order of injunction restraining creation
of third party interest in the suit properties under the impugned
order of the Second Joint Civil Judge (S.D.) Thane dated 23
rd
November 2010. One Sakharam had three children: two daughters,
Narmadabai and Muktabai and one son, Sadashiv. The two
daughters predeceased him. His son succeeded him.
2. Muktabai died in 1978. Narmadabia, the other daughter died in
1987 prior to Sakharam who died on 4
th
October 1995. Sadashiv,
claiming to be the sole heir and successor of Sakharam, got the
Revenue records altered showing a mutation entry dated 3
rd
December 2002 reflecting his name.
3. The son of Muktabai filed the suit claiming the share of Muktabai in
the properties of her father Sakharam. He claims that the properties
of Sakharam are ancestral properties or properties purchased from
the proceeds of the sale of ancestral properties. Sadashiv, who is the
Defendant No.1 in the suit, claims that the properties were
purchased by Sakharam alongwith Sadashiv himself and are,
therefore, his self acquired properties. These properties are stated to
have been bequeathed by him under the registered Will dated 11
th
September 1989. The son of Muktabai claims that the Will is bogus
and that Sakharam had no bequeathable interest, the properties
being ancestral properties which he could not have disposed off by
Will. The other heirs of Muktabai and Narmadabai similarly claim
the properties of their deceased mothers.
4. Upon the case that they are ancestral properties, the heirs claim that
Muktabai was a coparcener under Section 6 of the Hindu Succession
Act 1956 as amended by the Hindu Succession (Amendment) Act 39
of 2005. It is claimed that Muktabai being a daughter of a
coparcener viz: Sakharam became a coparcener by her birth in her
own right as did Sadashiv.
5. Sadashiv claims that even if the properties are ancestral properties
Muktabai or Narmadabai were not coparceners and cannot claim any
interest therein. It is his contention that only on and from 9
th
September 2005 on which date the Amendment Act 39 of 2005
came into force that the daughter who was then living would
become a coparcener. Muktabai as well as Narmadabai died not
only prior to the Act having come into force, but even prior to their
father. The succession of Sakharam opened on 4
th
October 1995
when he expired. On and from that date his estate had to be
administered. On and from that date his coparcernary interest in
the ancestral property would devolve by survivorship. So far as his
intestate succession is concerned, Sadashiv as also the children of
Muktabai and Narmadabai would take their shares from 1995.
Neither of the children claimed her share. In fact, Sakharam died
testate leaving behind a registered Will. Seven years after his death
the mutation entry came to be made. Sadashiv was shown as the
owner of the suit lands. None challenged the ownership or the
mutation entry within three years of the death of Sakharam and also
within three years of the mutation entry having been made
respectively.
6. Sadashiv entered into an assignment for development of his
properties with the other Defendants on 24
th
December 2004
followed by a registered development agreement on 10
th
March
2005. The development commenced from 30
th
May 2005. A public
notice dated 10
th
May 2006 was not objected by any party. The
initial claim has been made only in the suit filed in 2010.
7. It may be mentioned that the aforesaid facts are all admitted and
extracted from the pleadings. The seminal aspect to be considered
for seeing the prima facie case of the Plaintiff, the son of Muktabai,
to restrain creation of third party rights in the suit properties taking
them to be the ancestral properties of Sakharam, is whether his
mother was a coparcener and was entitled to coparcenery rights in
the suit properties even assuming that the suit properties are
ancestral properties. If that aspect is seen, it would next have to be
seen whether the suit properties are shown to be the ancestral
properties from the record of rights and if not, whether they are
shown to be purchased from the proceeds of any other properties
which were the ancestral properties of Sakharam which would
constitute a nucleus. If that is shown, the Plaintiff would prima facie
make out a case of having a share in any of the suit properties. This
is in view of the fact that the Defendants have shown that the
properties have been acquired by Sakharam and Sadashiv jointly
from the original owners of the lands under registered documents.
8. The learned Judge has gone into various record of rights,
proceedings under the ULC Act, certain sanctioned layout map and
mutation entries and execution of various documents by and
between Sakharam and/or Sadashiv and the Defendants. He has
also considered that there was no partition in the joint family, the
succession of Sadashiv by Will which has been challenged by the
Plaintiff as also the marriages of two daughters of Sakharam.
9. It may be mentioned that all these aspects would be of secondary
importance, if a primary right as a coparcenery of the two daughters
is not established.
10.The Legislative provision upon which the Plaintiff claims his share
through his mother is Section 6 of the amended Hindu Succession
Act which runs thus:
“6. Devolution of interest in coparcenery property. – (1) On
and from the commencement of the Hindu Succession
(Amendment) Act, 2005, in a Joint Hindu family governed by
the Mitakshara law, the daughter of a coparcener shall, –
(a) by birth become a coparcener in her own right in the same
manner as the son;
(b) have the same rights in the coparcenery property as she
would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenery property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this subsection shall
affect or invalidate any disposition or alienation including
any partition or testamentary disposition of property which
had taken place before the 20
th
day of December, 2004.”
11.The judgments interpreting the relevant aspects of Section 6 have
been shown to me essentially by the Counsel on behalf of the
original Plaintiff.
12.In the case of Sugalabai Vs. Gundappa A. Maradi & Ors. ILR 2007
KAR 4790 the first three words of the aforesaid section came to be
considered and interpreted in paragraph 24. It has been observed
that the words “on and from” mean “immediately and after” – the
commencement of the Act. It is observed that in other words as soon
as the amending Act came into force the daughter of the coparcener
becomes, by birth, a coparcener in her own right in the same manner
as the son. In that case the change in law came into effect during
the pendency of the Appeals. It was held that the changed law
applied to pending Appeals and consequently, the said Appeal.
Hence the daughter in that case was held to be the coparcener. It
was observed that there was nothing in the Act which showed that
only those born on and after the commencement of the Act would
become coparceners. Hence it was held that even a daughter who
was born prior to the amendment Act became a coparcener
immediately on and after the Amendment Act.
13.This is the case where the daughters had already expired prior to the
coming into force of the amendment Act and prior to any litigation,
her son having filed the suit himself. There is nothing in the Section
which shows that it would apply to all females retrospectively
including a daughter who had expired prior to the coparcener
himself, prior to any litigation and prior to the amendment Act itself.
If such a daughter was also to be included the entire population
would come to be included and the children and grandchildren of all
deceased females would claim their share in the estate of their
grandparents and great grandparents through their mother. It would
have to be seen whether the legislation is capable of such an absurd
interpretation.
14.The words “on” and “from” show and suggest that on a date prior to
the Act coming into force the daughter (female) would not be
included as a coparcener. Consequently, all daughters born to
coparceners in a Hindu joint family living at the time the Act came
into force would become coparcener. Daughters (females) who had
expired a day prior thereto, unfortunately, could not, because they
would be covered by the law prior to the amendment. If such
interpretation is not given the words “on” and “from” “the
commencement of the Hindu Succession (Amendment) Act, 2005”
would lose their significance all together and would be rendered
otiose.
15.This aspect is essentially decipherable from the proviso to Section
6(1) of the Act cited above. This provision has been specifically
enacted to lay down a cutoff date for the daughter of a coparcener
to claim her right as a coparcener including her right of partition
which is restricted by any disposition or alienation made prior to 20
th
December 2004. Hence when the Act came into force on 9
th
September 2004 partition could be claimed by a daughter, if the
coparcenery property was not partitioned about nine months prior
thereto. This shows that the earlier dispositions and alienations
could not be challenged so that whilst the daughter was not a
coparcener and certain rights were created they would stand. This is
to lend stability to facts and circumstances that may have prevailed
in innumerable families having joint family properties prior to the
creation of the new right in favour of the daughter. Counsel on
behalf of the original Plaintiff sought to show that the proviso has
been held to be ultra vires the constitution by the Karnataka High
Court which judgment shall be considered presently.
16.It has been held in the case of Pravat Chandra Pattnaik & Ors. Vs.
Sarat Chandra Pattnaik & Anr. AIR 2008 Orissa 133 that the
aforesaid Section was enacted for removing the gender
discrimination that prevailed leading to oppression and negation of
the fundamental right of equality to women and to render social
justice by giving them equal status in the Society. The Act came into
force from 9
th
September 2005 and the statutory provisions under
Section 6 of Hindu Succession Act, 1956 thereof created a new right.
The provisions are not expressly made retrospective by the
legislature. The Act is clear and there is no ambiguity. Therefore,
words cannot be interpolated. They do not bear more than one
meaning. The Act is therefore, prospective. It creates a substantive
right in favour of the daughter. The daughter gets a rights of a
coparcener from the date when the amended Act came into force.
Consequently, the contention that only the daughters who were born
after 2005 would be treated as coparceners was not accepted. It
specifically clarifies that the daughter gets a right as a coparcener
from the year 2005 whenever she may have been born. She can
claim a partition of the property which was not partitioned earlier.
However, the judgment specifies a rider. That is in view of the
proviso to Section 6(1) of the Act.
“But if the same was effected earlier i.e., prior to 20
th
December, 2004 the same should not be reopened.”
17.Hence the prospectivity of the Act is clear. There can be no
retrospective operation for the reason that it is not expressly made
retrospective by the legislature and it is specified not to effect
transactions prior to the specified date in the proviso.
18.It would, therefore, have to be seen when in this case the daughters
of Sakharam would become coperceners. Both the daughters had
died prior to Sakharam and definitely prior to the Act coming into
force. Consequently, on and from 9
th
September 2005 they were not
living to be coparceners in their own right in the same manner as
Sadashiv had. Had they been living on 9
th
September 2005 they
would have had the same right in their father’s property as his son.
It is, therefore, that it is rightly contended on behalf of the
Defendants in the suit that Sakharam’s succession opened on 4
th
October 1995 on that date his daughters Muktabai and/or
Narmadabai were not coparceners. His coparcenery property would
devolve by survivorship to his only son Sadashiv. The devolution of
interest in the coparcenery property as specified in the sub
title/heading of Section 6 would take place only to the son. The
words in the subtitle “devolution of interest” also therefore, show
that for an interest to devolve upon a person that person must be
alive. No devolution of interest in coparcenery property can take
place upon a deceased coparcener. On the date of the death of
Sakharam his daughters were not even coparceners; they were not
even alive. No devolution of interest upon them could take place.
19.In the case of Sheela Devi & Ors. Vs. Lal Chand & Anr. (2006) 8
SCC 581 the Court considered the estate of one Babu Ram who died
in the year 1989. He was one of the 5 sons of Tulsi Ram and one of
the members of the coparcenery property. He left behind two sons
and three daughters. Babu Ram had inherited 1/5
th
share of the
property of his father and 1/20
th
share through another brother who
had died intestate without issues. The succession between the two
brothers and their descendants was in issue. The applicability of the
Section 6 of the Hindu Succession Act of 1956 was under
consideration. Though that is a different matter, observation in
paragraph 21 of the judgment relates to the new Act of 2005. It was
inter alia observed that the succession was opened in 1989 and
hence the provisions of the amendment Act 2005 would have no
application. Thereupon Section 6(1) of the old Act of 1956 which
related to succession on the death of a coparcener in the event the
heirs were only male descendants came to be considered.
We are not concerned with the interpretation of the old Section 6
which was the issue in the case of Sheela Devi (supra). We are
concerned with only the aspect of the applicability of the
amendment Act on the date the succession opened. Since it was
held that the new Act would not apply when succession opened prior
to the date on which it came into force – in that case in 1989 – the
Court considered Section 6 of the earlier Act.
20.My attention has been drawn by Counsel on behalf of the original
Plaintiff to the judgment in the case of G. Sekar Vs. Geetha & Ors.
(2009) 6 SCC 99 to show that this aspect has been negated in the
later judgment of the Supreme Court. Paragraph 49 of the judgment
extracts the case of Sheela Devi and the entire paragraph 21 thereof.
It is observed that in the case of Sheela Devi the amendment Act had
no application as the succession has opened prior to 1989 and hence
that contention came to be negatived to consider and interpret the
vesting of the right of the coparcener under the old Act. It is,
therefore, entirely erroneous to contend upon reading the word
“negatived” that the contention that upon the succession opening in
1989 the amendment would have no application was negatived
without reading the entire paragraph 49 as a whole. It may be
clarified that in the case of Sheela Devi upon the applicability of
Section 6 of the old Act, the contention with regard to the
applicability of the new Act was negatived and the old Section was
considered. Consequently, the fact that succession did open in 1989
when Babu Ram died which did not make the new Act applicable
was accepted. We would do well to read the two judgments
together.
21.In the case of Champabai W/o. Darshrathsingh Pardeshi & Ors.
Vs. Shamabai @ Shamkuwarbai Gajrajsingh Pardeshi & Anr.
2010 (3) ALL MR 262 this Court considered the dwelling house
and the agricultural properties of the deceased, one Dashrathsingh.
He died in 1998 having married twice and leaving behind two
married daughters born to his first wife and two sons born to his
second wife. In this case the retrospectivity of the Act was to be
considered. It was observed that succession had opened in 1998
when Darshrathsingh died. There was no amendment to the Hindu
Succession Act at the relevant time. The division of shares was
immediate without the rights being deferred to the married
daughters who were married prior to the Maharashtra Amendment
to the Hindu Succession Act. The Maharashtra Amendment with
regard to the grant of coparcenery rights to daughter made an
exception for married daughters. That amendment, of course, would
no longer be applicable in view of the Central Amendment Act. The
contention with regard to the dwelling house that the deceased
would not take the share was accepted. The shares devolved upon
the two sons in 1998 by application of Section 6 r.w. Section 8 of the
old Hindu Succession Act of 1956.
22.The judgment in the case of Champabai relates to the earlier State
amendment. The Central amendment is not in terms thereof
entirely. Hence the bifurcation of retrospectivity amongst the
property which is a dwelling house and the agricultural properties
cannot be read into it after the Central Amendment Act of 2005 was
enacted. Consequently, the reliance upon the earlier case of Lata @
Bhagyashree Arunkumar Sangole Vs. Madhukar Rajaram
Ganjare, 2008(5) All MR 302 of the same learned Judge applying
retrospectivity to the agricultural properties and not dwelling house
cannot be considered as applicable law after the amendment Act of
2005.
23.In fact the observation in paragraph 8 of the judgment in the case of
Miss. R. Kantha, d/o Doddarmaiah Reddy Vs. Union of India &
Anr. AIR 2010 Karnataka 27 to which also my attention has been
drawn by Counsel on behalf of the original Plaintiff would be
material. It runs thus:
“It follows, therefore, that the provisions of the Act can be
enforced when the right to succession opens and not before. The
petitioner’s father is said to be alive and hence her right to
succession as a coparcener has not opened.”
24.In that case the Plaintiff/Petitioner applied for partition of the
coparcenery property whilst her father was alive under Section 6 of
the new Act of 2005 upon the premise that she, as a coparcener, was
entitled to all the rights of coparcener including partition. Her
father was alive at that time. It was held that Section 6 of the new
Act of 2005 was the law relating to intestate succession which
regulates the succession of properties of all Hindus by its heading
itself which speaks of “devolution” of interest. It was held that
“Devolve” means to pass from a person dying to a person living.
Hence, the right of a daughter to be treated like a son should be
construed only with regard to the share that “devolves” on her when
her right to succession opens having regard to the scope and ambit
of the Act itself.
Hence the judgment in the case of Ms. R. Kanta shows the
restrictive operation of Section 6 as applying to devolution of
interest upon the death of coparcener only.
25.This judgment has however been relied upon by Counsel on behalf
of the original Plaintiff to show that the proviso to Section 6(1) has
been declared ultra vires. That has been declared by a single Judge
of the Karnataka High Court. The same proviso and its logic has
been considered by a single Judge of this Court in the case of
Champabai (supra) in paragraph 11 thereof. The proviso sets the
cutoff date beyond which claims cannot be made. It, therefore, sets
out a specific classification based upon an intelligible criteria so as
not to undo all that has been done in the distant past. We cannot
read into that proviso anything which would render it discriminatory
or arbitratory. The reasoning of the proviso as mentioned herein
above, therefore, must stand.
26.It may be mentioned that this was main aspect which was required
to be considered to see the prima facie case of the Plaintiff. Unless
the Plaintiff had shown a legal right in the estate of Sakharam he
cannot proceed with the suit and derail various transfers effected
earlier. The filing of the suit decades after Sakharam died, mutation
entries came to be made and also five years after the amendment
itself came into force would even otherwise be barred by the law of
limitation.
27.It is no good for a Court to consider the prima facie case upon seeing
irrelevant aspects or aspects of secondary importance. The
observations of the learned Judge in the impugned order that all this
will be seen in trial is avoiding the issue of consideration of the
prima face case. The seminal case of the Plaintiff setting out his legal
rights must be first seen. If that is not shown, no prima facie case can
be said to have been made out.
28.In this case Sadashiv is the only son of Sakharam has been
bequeathed the entire property of Sakharam. It would otherwise be
a natural Will. It is also a registered Will. Sadashiv has acted upon
the Will and shown himself as owner of the suit properties at least
since 3
rd
December 2002 when the mutation entry came to be made
to alter the record of rights. He has dealt with that property by
assignment since 2004 and under the registered development
agreement since March 2005. The initial developers have, in turn,
transferred their properties. Hence transfers have come to be
effected from Defendant Nos.14 to 15 to 16 etc.
29.The Defendants further claim that Sadashiv initially obtained the
power of attorney from the original owners. The development
agreement itself was entered into along with the power of attorney.
The initial power of attorney was dated 26
th
March 1965. A later
registered power of attorney has been executed on 16
th
January
1991. The registered development agreement has been executed on
24
th
December 2004 by Sakharam and Sadashiv. The developers
have been put in possession of the suit properties under possession
letters executed in December 2004. With regard to the other
property bequeathed under the Will also similarly possession receipt
has been executed. The developers, therefore, claim that the suit
properties under the development did not even belong to Sakharam
at the time of his death.
30.Upon such contention the Counsel on behalf of the original Plaintiff
claims that the properties claimed to be purchased by Sakharam and
Sadashiv were out of the proceeds of other ancestral properties
which formed the nucleus. No document in that regard has been
produced. None is seen to have been shown in the trial Court. The
impugned order makes no reference to such nucleus.
31.Consequently, on facts as well as law the Plaintiff is not seen to have
made out any prima facie case for grant of any interim reliefs. No
party can stall all development at such a late stage without showing
an iota of legal right.
32.Consequently the impugned order deserves to be and is set aside.
This order is stayed for 3 weeks.
(SMT. ROSHAN DALVI, J.)
No comments:
Post a Comment