Even earlier the Supreme Court in Karunanidhi v. Union of India , held that by Clause (2) of Article 246, concurrent power is conferred upon both the Union and State Legislatures to legislate with respect to the subjects included in List-Ill. Hence if both the Parliament and a State legislature make laws relating to the same concurrent subject, a question of conflict arises between the two enactments. The conflict is solved by Article 254(1) by providing that in such a case the State Law shall be void to the extent it is repugnant to or inconsistent with the Central Act.
2. The case of the plaintiff, in brief, is that she is the daughter of the 1st defendant. D2 to D5 are her sisters. Her marriage was performed on 11.5.1986. The marriage of 5th defendant was performed subsequently. The marriages of D2 and D3 were performed about 20 years ago. D2 and D4 were given substantial properties from out of the joint family properties and therefore, they were not entitled to any share. She is having 1/3rd share along with D1 and D5. During the pendency of the suit, D1 said to have executed a settlement deed dated 9.3.1996, and a registered Will dated 26.5.1993, in respect of the joint family properties. They are not valid. D6 claims that he is the adopted son of D1. It is not true. This plea was put up to deny her share. She gave a lawyer's notice on 5.2.1996 demanding her share in the properties. Therefore, she sought 1/3rd share in the joint family properties consisting of Ac.4.55 cents mentioned in the plaint A-schedule and a house bearing Door No. 11-1-139 of Pithapuram shown in the B-schedule.
3. D1, D2, D4 and D5 resisted the suit. It is their case that D1 had taken D6, the son of D2 in adoption, on 1.6.1983, as per Hindu rites about ten years prior to 15.5.1993. D1's wife died in the year 1972. His daughter D2 and her husband Satyanaranayana gave their son D6 in adoption to D1. Later he executed registered adoption deed evidencing adoption. Since then D6 has been living with him as his Aurasa son. The plaintiffs marriage was taken place prior to September, 1985 and as such she has no right to demand a share in the properties. D1 gave a reply to the notice issued by the plaintiff. Item No. 3 of the plaint A-schedule consists of Ac.0.41 cents, but not Ac.0.71 cents. Equally, item No. 4 consists of Ac.0.21 cents and not Ac.0.61 cents as mentioned. Item No. 2 was given to the plaintiff towards her share. D1, by his self exertions purchased the plaint B-schedule house, which became old and dilapidated. He gave the remaining items to his other daughters. The total extent of items - 1, 3, 4, 5 and 6 is Ac.2.00. Item No. 2 consists of Ac.0.25 cents. He executed a settlement deed dated 9.3.1996 in favour of D6 in regard to the above properties. Since then, he has been enjoying the said property. He also executed a registered Will dated 26.5.1993 bequeathing his properties to D6. Therefore, they prayed for dismissal of the suit.
4. D5 filed written statement, alleging that the 1st defendant and the husband of the 2nd defendant obtained her thumb impression on typed papers by misrepresentation Except item No. 2, remaining properties are ancestral properties. Plaint-A and B schedule properties are purchased from out of the income from the joint family properties. She along with the plaintiff demanded partition. In order to avoid share to her, D1 had fabricated the documents. She is entitled to a share as per Act 13 of 1986.
5. D6 filed written statement alleging that he was adopted by D1 on 1.6.1983, when he was aged 14 years. There is no age restriction in Kapu community. Plaintiff and D2 to D5 were given Ac.0.50 cents each by Dl at the time of their marriages. His father had purchased B-schedule house from his self exertions. It is not his ancestral property. His father executed registered settlement deed and gave the house to him as well as registered Will in his favour bequeathing the properties. Therefore, he prayed for dismissal of the suit.
6. Upon the pleadings, the Court framed the following issues:
1. Whether the plaintiffs marriage took place on 12.5.1986?
2. Whether the suit schedule properties are the joint family properties of plaintiff and defendants?
3. Whether the plaintiff is entitled to 1/3rd share in the suit schedule properties as prayed for?
4. Whether the 1st defendant is in possession of Ac.0.91 cents in S. No. 291/2, Ac.0.41 cents in S. No. 300/7, Ac.0.21 cents in S. No. 310/19, Ac.0.07 cents in S. No. 314/ 4 and Ac.0.25 cents in S. No. 314/5?
5. Whether item No. 2 of the plaint schedule is the self acquired property of the 1st defendant and he has conveyed different moieties to his daughters out of the said land?
6. Whether the plaintiff is entitled for preliminary decree as prayed for?
7. To what relief?
Additional issue:
Whether D6 is the adopted son of 1st defendant?
7. The plaintiff, in support of her case, examined PWs.1 to 3 and herself as PW.1 and filed Exs.A1 to A-11. Refuting their evidence, the defendants have examined DWs.1 to 14, D5 as DW.1, D1 as DW.3 and D6 as DW.12 and filed Exs.B1 to B15.
8. The trial Court after considering the evidence placed on record held that the marriage of the plaintiff was performed subsequent to the amendment to Section 29 of the Hindu Succession Act, 1956 (for brevity, "the Act") and she is entitled to a share in the plaint-A & B schedule joint family properties. It disbelieved the adoption pleaded by D1 and D6. The sale in favour of DW.11 under Ex.B3 and the land given to D4 under Ex.B5 was upheld, Ac.0.75 cents given to D5 under Ex.B4 was directed to be allotted towards her share in partition. Therefore, the trial Court granted a preliminary decree entitling the plaintiff to 1/3rd share in the plaint schedule properties, excluding Ac.1.00 of land mentioned in A-schedule.
9. Aggrieved by the said decision, D12, D2 and D6 preferred this appeal contending that the trial Court did not appreciate either facts or law in correct perspective. It ought to have seen that the marriage of plaintiff was performed on 12.5.1986. It ought to have held that the plaint schedule properties were acquired by the 1st defendant from his self-exertions. She (plaintiff) was given Rs. 44,000/- towards Ac.0.50 cents of land in lieu of her share. It ought to have held that D6 is adopted son of D1. Therefore, they prayed that the appeal be allowed.
10. The points that arise for consideration are:
1. Whether the plaint schedule properties are self acquired properties of D1?
2. Whether D6 is adopted son of D1?
3. Whether the plaintiff is entitled to a share in the plaint schedule properties and if so to what share?
11. Point No. 1: It is an undisputed fact that the plaintiff, D2 to D5 are the daughters of D1. While the marriages of D2 to D4 were performed prior to 1983, the marriage of plaintiff was performed on 11.5.1986. The marriage of the 5th defendant was performed in the year 1990. The plaintiff and D5 are claiming share by virtue of amendment to Section 29 of the Hindu Succession Act (State amendment). Dl to D4 and D6 had taken a common plea that the marriage of plaintiff was taken place in March, 1984.
12. Since the defendants have disputed the date of marriage of PW.1, she examined herself as PW.1 besides her sister 3rd defendant's husband as PW.2 and filed Ex.A1 certified copy of the marriage certificate issued by the Executive Officer, Kunthi Madhavaswamy Temple, Pithapuram, where her marriage was performed. PW.3, the junior assistant working in the said temple was examined in order to prove Ex.A1. PW.2 and PW.3 deposed that D1 signed in the receipt book maintained by temple evidencing the performance of the marriage. PW.1 and her husband have also signed in the said receipt.
13. DW.1 the father denied that the marriage of the plaintiff was performed on 11.5.1986. According to him, it was performed prior to 1985. However, at the time of evidence, he stated that PW.1's marriage was performed in the year 1984. He went to an extent of stating that he was not aware whether the marriage was performed in Kunthimadhavaswamy vari temple, Pithapuram. He admitted that his daughters and sons in law have attended the marriage. He also admitted that PW.2 also attended the marriage. The trial Court observed:
The 1st defendant did not deny his signatures and the signatures of other persons in the original of Ex.A1, stoudy. Ex.A1 was emanated from a public office and the original was produced and proved by PW.3....
Since the record was emanated from a public office, the presumption that it was maintained in the regular course of business has to be invoked, in the light of unimpeachable evidence.
14. It is the case of the defendants that the plaint schedule properties are acquired by Dl from his self exertions. They are not joint family properties. It is the case of the plaintiff that her father D1 is managing the properties and same were acquired from the earnings of the ancestral land. D1 as DW.3 deposed that that there was partition between him, his father and brothers about 30-years ago, wherein, he got Ac.2.00 of land towards his share. He further admitted that partition was reduced into writing and it was available with him. However, he did not file it. D6 was examined as DW.12. He also admitted that there were documents evidencing partition. No explanation, whatsoever, was given as to why the partition deed was not filed. Necessarily an adverse inference could be drawn against his case.
15. Obviously, in order to prove that D1 purchased the properties from his self exertions, he filed Ex.B2 registered sale deed, under which he purchased a vacant site adjacent site to his ancestral house from Chanti Mahalaxmi, wife of his brother Padma Raju. In Ex.B2, there is a mention that there was a partition under an unregistered partition list between the brothers dated 15.7.1962. The trial Court, rightly observed that had the partition list been filed, it would be revealed as to property that fell to his share. Wantonly he did not file it, lest the inadequacy of his case would be revealed.
16. It is further case of D1 that he purchased item No. 2 of A-schedule and B-schedule house with his self exertions. Evidently, he has no source other than the income from ancestral lands. For the first time, he deposed in the chief-examination that he used to cultivate the lands belonging to Malyala Jaggaraju Mastaru and Akondi Raja Rao as tenant, and out of the produce realized from tenancy lands, he purchased the remaining shares of his brothers in the house. He himself admitted that there is no lease deed evidencing the transaction. It is all oral. In order to prove the said fact, he examined DWs.6, 7, 9 and DW.12. Except, reiterating the said fact, they could not give any particulars as to the lands that were given under lease and income derived thereon. The very owners of the land were not examined. Therefore, the plea that Dl had earned amounts by cultivating the lands of others was not substantiated.
17. It is the case of DW.1 that the ancestral land of Ac.2.00 did not yield any income and it was covered by mounds. In order to prove it, he examined DW.4 a brick kiln owner. DW.4 deposed that he maintained a brick kiln in the land of D1 from 1985 to 1991. He stated that he levelled the land and handed over the same to D1. DW.4 admitted that there was no documentary evidence to show that he was doing brick business. He does not know the boundaries and survey number of the land, in which he ran the brick kiln. He did not possess licence to do brick business. Not satisfied with the examination of DW.4, D1 examined DW.7. DW.7 is the maternal grandfather of the wife of DW.6. I may state herein that DW.6 is the son-in-law of D2 and brother-in-law of D6. Curiously, he deposed that D1 used to raise dry crops in the ancestral land prior to levelling of the land. He also stated that D1 purchased two acres of land from out of the income realized from the tenancy land and ancestral land. DW.12 also testified about the tenancy land cultivated by D1. Therefore, it cannot be said that D1 had any independent earnings, apart from the income from the ancestral properties.
18. In fact, DW.12 admitted that the source of irrigation of suit land is from Godavari canal. He also stated that the water of Yeleru Reservoir used to feed the neighbouring lands of the ancestral land. Therefore, the conclusion arrived at by the trial Court that item No. 2 of A-schedule and B-schedule house was purchased by D1, from out of the income of the joint family properties can not be faulted.
19. D1, in order to deny the shares to his daughters, alleged that different extents of land were given to his daughters at the time of their marriages towards their share. When a registered notice was issued by the plaintiff, D1 gave reply under Ex.B12, mentioning that he settled Ac.0.75 cents of land out of Ac.2.00 of ancestral land in favour of the plaintiff. However, when it came to written statement, he alleged that he gave Ac.0.50 cents out of item No. 2 of the plaint A-schedule to the plaintiff towards her share. When it came to evidence, he deposed that he gave Ac.0.80 cents of land to her. It may also be noted that during the evidence he introduced yet another plea that Ac.0.50 cents of land was given to the plaintiff at the time of her marriage and the same was mortgaged to DW.6 for Rs. 10,000/-. Later, she sold her share to DW.1 for a consideration of Rs. 55,000/-. From out of this amount, the mortgage debt due to DW.6 was discharged. The remaining balance was deposited in her name in the State Bank of India.
20. DW.13 the Assistant Manager of the State Bank of India was examined to prove the said fact. He deposed that a sum of Rs. 44,000/- was deposited on 17.7.1993. It may be stated that this fact was not pleaded. There is no document, evidencing the mortgage. In fact, DW.6 stated that he was not present, when the land was delivered to the plaintiff. DW.1 deposed that he was not present when Ac.0.50 cents of land given by D1 to the plaintiff. There is no evidence by way of document that an amount of Rs. 10,000/-was paid. On the other hand, the evidence discloses that D1 was paying land revenue. It is not known, how one can link up the above transaction with Ex.B3. Ex.B3 was executed by Dl in favour of DW.11. The consideration was received by D1. He delivered possession to the purchaser. There was no mention that this land was under simple mortgage. No doubt, the sale deed Ex.B3 was attested by the plaintiff and her husband. She also admitted that an amount of Rs. 44,000/- was in deposit. According to them, the plaintiff was doing money lending business in addition to employment in a private company and therefore, the said amount deposited in the bank. It was nothing to do with the sale transaction.
21. As I have earlier pointed out, in order to prove a so called mortgage, DWs.3, 5, 8, 9, 11 and DW.12 were examined. DW.6 is the son-in-law of D2 and brother-in-law of D6. Importantly DW.6 admitted that D1 Gangaraju tutored as to how he should give evidence before the Court. While DW.11 stated that he paid Rs. 10,000/-to DW.6 before the sub registrar's office, DW.6 stated that he did not go to the sub registrar's office on that day. DW.3 admitted that there was no mention in Ex.B3 that the land was given to the plaintiff towards pasupu kumkuma and it was sold at her request and that she received sale proceeds. According to DW.3, he executed document in favour of DW.3 in respect of Ac.0.50 cents. The said document was not filed into Court. Therefore, it must be held that D1 has not given any property to the plaintiff towards her share or towards pasupu kumkuma.
22. D1 deposed that he has given lands to his daughters at the time of their marriages, alleging that he gave Ac.0.50 cents of land to D4 and Ac.0.75 cents to D5 evidenced under Exs.B4 and B5. To further prove that they were enjoying property, they filed Ex.B10 and B11 patta pass-books issued in favour of D5 and D4 respectively.
23. The trial Court opined that these documents were executed in order to defeat the claim of the plaintiff. He reasoned that the marriage of D4 was performed in the year 1981, however, the document was executed in 1995. Had the land was delivered at the time of marriage, her name must find a place in the concerned records. I agree with the said finding. Therefore it must be held that all the properties are joint family properties.
24. Point No. 2: It is the case of the defendants that D1 adopted D6, his daughter's son prior to 1993 and in acknowledgment of it, an adoption deed Ex.B8 dated 15.5.1993 was executed. The plaintiff asserts that this plea of adoption was made only to deprive her legitimate share in the suit schedule property.
25. To prove the said adoption, DW.3 the father, DW.9 the mother and DW.12 the very adoptive son deposed that the adoption had taken place in the year 1983. They stated that adoption ceremonies were held, photographs were taken evidenced under Ex.B6. They examined DW.3 to DW.12 to speak about the adoption. The contention of the plaintiff is that these photographs reveal that D6 is more than 25 years. The photos were taken at the time of marriage of D6 at kallagollu ceremony. In spite of the assertion that these photographs were not taken at the time of adoption and DW.3 admitted that photographs were taken at kallagollu ceremony, they could not prove that these photographs relate to the adoption ceremony. DW.14 the photographer deposed that the negatives were destroyed. He admitted that there was no proof that he took these photographs. He could not even file any proof to show that he owns a photo studio.
26. DW.10 a purohit deposed about the ceremonies conducted at the time of adoption. Importantly, DW.10 could not depose as to the age of the adoptee at the time of adoption. Ex.B15 was muhurtham chit to show that muhurtham was fixed for adoption. When the date of adoption was not mentioned in Ex.B8 adoption deed, the chit containing date undoubtedly creates suspicion. Since the chit contains Dated 1.7.1983 as the date on which adoption took-place, when confronted with the pleadings in the written statement, wherein he mentioned as 1.6.1983, he deposed that the adoption took place on 1.7.1983 only. He further stated that on 1.7.1983 the adoption deed was executed in the presence of elders on white paper and the same was registered later. The said document was not filed in the Court. Ex.B3 is the adoption deed dated 15.5.1993. Even before that PW.1's marriage was performed. She was born by the date of adoption. She becomes a coparcener. This aspect I will deal at point No. 3.
27. Ex.B8 is an adoption deed dated 15.5.1993. In Ex.B8, it was mentioned that adoption took place ten years prior to 15.5.1993 and that the adoption should come into effect from 15.5.1993. If really, these recitals are taken to be true the adoption must have been taken place in 1983. D6 must be aged 15 years as per the evidence of DW.1 by the date of adoption. By 1993, he must be aged 25 years. If really, the said adoption was true, D1 could not have executed sale deed Ex.B3 dated 16.7.1993 alone, since both D1 and D6 are entitled to equal shares in the property and D6 had attained majority by then. He must have joined in execution as one of the executants. Even when gift deeds were executed under Exs.B4 and B5 as recently as in 1995, D6 was not joined as an executant.
28. In spite of the serious contention raised by the plaintiff that D6 was aged 25 years even by 1983, no effort, whatsoever was placed in order to prove his date of birth. DW.9 the mother deposed that D6 was born in Christian Missionary Hospital, Pithapuram. No efforts were made to produce the date of birth of D6 by summoning the record from the hospital. DW.9 deposed that when she was 13 years age, her marriage was performed. D6 was born 3 to 4 years after her marriage. D6 was aged 27 years by 1993 and 17 years by 1983. When D6 was aged more than 15 years, the defendants in order to establish that there was valid adoption must prove that there is custom and usage, in their caste to adopt a child above 15 years of age. Sub-section (iv) of Section 10 of Hindu Adoptions and Maintenance Act mandates that the person who may be adopted shall not complete the age of 15 years, unless, custom and usage applicable to the parties. Since the custom is departure from normal rule, therefore, it must be pleaded and proved that such custom was prevailing in their community. When there is no pleading or evidence in this regard, the trial Court has rightly concluded that there was no adoption. Such plea was obviously put forward, in order to deprive the just claims of the plaintiff. I am in agreement with the said finding.
29. Point No. 3: The trial Court opined that the lands sold to DW.11 under Ex.B3, and land given to D4 under Ex.B5, Gift deed be excluded while effecting partition. It was also mentioned that Ac.0.75 cents of land given to D5 under Ex.B4 could be allotted towards her share while effecting partition. Therefore, he directed remaining properties be divided into three shares and to allot one such share to the plaintiff. Except the sale deed Ex.B3 executed by D1, as a manager, the Gift deeds under Exs.B4 and B5 cannot be upheld. It is settled law that father cannot gift out the property.
30. During the course of hearing of the appeal, it is contended that the plaintiff, D1 and D5 are entitled to 1/3rd share each, since the marriages are performed subsequent to 5.9.1985 when the State Act 29-A in Hindu Succession Act has introduced equating their status as coparceners.
31. The learned Counsel for the appellants contended that on 9.9.2005 there was an amendment to Section 6 of the Hindu Succession Act ('Act' in short) by Central Act 39 of 2005. By virtue of the amendment, irrespective of the dates of marriages of the daughters, they were to be treated as coparceners entitled to equal share. Therefore, the plaintiff would get 1/6th share while D1 to D5 get the remaining 5/6th share viz., each 1/6th share.
32. The learned Counsel further contended that the State Act prevails over the Central act more so in view of the non-obstante clause used in Section 29-A of Hindu Succession Act. In other words Section 29-A continues to be in force in spite of amendment by Central Act 39 of 2005 to Section 6 of the Act. The benefits of coparcenary property rights, on the female children were conferred by the State of Andhra Pradesh by introducing Section 29-A to the Act. It was inserted by Amendment Act No. 13 of 1986 w.e.f. 5.9.1985. These coparcenary rights are conferred only on those female children who are not married prior to 5.9.1985 nor there should be a partition by then. However this embargo in regard to marriage was removed and the rights of the daughters are now protected under Section 6 of the Act. When the State Act was introduced, the introduction of non-obstante clause in Section 29-A of the Act is to intend to carve out an exception in favour of the daughters who remained unmarried till 5.9.1985 by conferring coparcenary rights on them. Obviously the Predominant reason is to establish complete equality between male and female children with regard to property rights and the rights of female were declared absolute, completely abolishing all notions of limitations.
33. The learned Counsel for the respondent contended that by virtue of proviso 3 to Article 254 of the Constitution even though the subsequent law of Parliament does not expressly repeal the State law, which was validated under Article 254(2), the State law will become void as soon as amendment is made by Parliament, even if repugnancy is created thereto. The competence of the State Legislature to amend the main Act cannot be doubted because the subject relating to joint family and partition is in Concurrent List (Vide Entry-5 List-III of Seventh Schedule of the Constitution Marriage and divorce; infants and minors, adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law).
34. In order to resolve this question, the purpose and intention of the amending Acts have to be seen. In the Statement of Objects and Reasons of the A.P. Act, it was mentioned:
The Hindu Succession Act, 1956 governs the property rights of Hindus and provides for devolution of property. Women are not members of the coparcenary under the Hindu Mitakshara Law and therefore they are not entitled to claim partition in coparcenary property, and such exclusion of daughters has led to the creation of socially pernicious dowry system with its attendant social ills. In order to eradicate this ill by positive means which will simultaneously ameliorate the conditions of women in Hindu Society; it is proposed to confer equal rights on Hindu women along with the male members so as to achieve the constitutional mandate of equality by suitably amending the said Act.
The Bill seeks to give effect to the above proposal.
Section 29-A of the Hindu Succession Act, 1956, reads as follows:
Section 29-A: Equal rights to daughter in coparcenary property:-Notwithstanding anything contained in Section 6 of this Act:
(i) 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 and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter;
Provided further that the share allotable to the pre-deceased child of a predeceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the pre-deceased son or of the pre-deceased daughter as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(iv) Nothing in Clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
A reading of the above provision makes it clear that any joint family governed by Mitakshara, the daughter is made a coparcener equating her status to a son. Exceptions were carved out. The exceptions are that the marriage of the daughter should not have been performed prior to 5.9.1985 or partition should not have been taken place.
35. The Parliament obviously after taking cognizance of the amendments made by States of Andhra Pradesh besides Tamil Nadu, Karnataka and Maharashtra, amended Section 6 of the Hindu Succession Act in tune with Section 29-A barring some exceptions by way of Amendment Act 39 of 2005 to the Hindu Succession (Amendment) Act, 1956, which came into force with effect from 9.9.2005. In the Statement of Objects and Reasons it was mentioned:
The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relating to women's property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies inter alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkayyam, Aliyasantana and Nambudri Laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.
Section 6 of the Act deals with devolution of interest of a male Hindu in Coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara Coparcenary property without including the female in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara Coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara Coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.
The above proposals are based on the recommendations of the Law Commission of India which is contained in its 174th report on "Property Rights of women proposed reform under the Hindu Law".
The bill seeks to achieve the above objects.
36. Obviously, the Central Act 39 of 2005 was introduced in order to bring out uniformity through out the country. The stipulation that the marriage of the daughter should not have been performed before 5.9.1985 was removed. Therefore, irrespective of the dates of marriage, all the daughters would be deemed to be coparceners with one exception that partition should not have taken place before 20.12.2004. The expression 'partition' herein means that partition under a duly registered partition deed or partition effected by a decree of Court. While bringing out amendment, the Union Government has dropped the condition as to the date of marriage. Obviously the condition that partition should have taken place as evidenced above was kept in tact as the rule that amendment made affecting the rights of parties already accrued in favour of others shall not disturb so vested. Now, then the daughter is declared as a coparcener, she will naturally takes a share in the family along with the other coparceners. No doubt, while amending Section 6, the enactments made by the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra were not repealed. In other words, the Central Amending Act did not repeal Section 29-A of the State Amendment.
37. The learned Counsel for the appellant contended that Section 29-A of A.P. Amendment starts with a non-obstante clause which commences with the words:
Notwithstanding anything contained in Section 6 of this Act....
By virtue of this non-obstante clause, even though Section 6 is amended, Section 29-A remains in the Statute at least in the State of Andhra Pradesh. It did not say that Section 6 will apply irrespective of any local law. Therefore, by virtue of Section 29-A, amended Section 6 of the Act stands excluded. Though, Parliament noticed these local amendments in all the four states, this aspect seems to have unnoticed. However, it does not sustain in the teeth of Article 254 of the Constitution of India. Article 254 of the Constitution reads as follows:
254. Inconsistency between laws made by Parliament and Laws made by the Legislatures of States:-(1) If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
38. Whenever a statute comes up for consideration, the Judge has to necessarily find out the intention of Parliament when he finds ambiguity. I recall a passage from the book entitled. The Discipline of Law by Lord Denning (Butter Worths) at page-12:
Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Act of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the Legislature....
The Supreme Court in Sai Reddy v. Narayana Reddy , referring to the amendment held:
It is obvious that under the aforesaid provision, the difference between daughter and son of the Mitakshara Hindu family is removed and the daughter is conferred rights in the joint family property by birth in the same manner and to the same extent as the son. She is, therefore, now entitled to claim partition and her share in the family property. The amending provision is a beneficial legislation, which, among other things, is also directed towards eradicating social evils such as dowry and dowry deaths. It also achieves the constitutional mandate of equality between sexes.
39. The Parliament has unfettered power of legislating the law in question. It may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the "same matter". The Parliament while passing the amendment, had evidently ignored the State amendments. In introducing Act 39 of 2005 it intends to correct the anomaly created between male and female children. It intends to set right the Law. In the process, while taking cognizance of those enactments made by different States, it further bestowed some more rights. The embargo created in State Acts like the daughters marriages to be performed after a particular date etc., were lifted undoubtedly it is an improvement over the State Acts.
40. The Supreme Court in T. Barai v. Henry Ah Hoe and Anr. , considered the question as to what would happen if there is conflict between Union and a State law in the Concurrent List.
There is no doubt or difficulty as to the law applicable. Article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is 'repugnant' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in Clause (1), Clause (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in mat State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to Clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the Present's assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1). That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament "with respect to the same matter", the West Bengal Amendment Act stood impliedly repealed.
41. Even earlier the Supreme Court in Karunanidhi v. Union of India , held that by Clause (2) of Article 246, concurrent power is conferred upon both the Union and State Legislatures to legislate with respect to the subjects included in List-Ill. Hence if both the Parliament and a State legislature make laws relating to the same concurrent subject, a question of conflict arises between the two enactments. The conflict is solved by Article 254(1) by providing that in such a case the State Law shall be void to the extent it is repugnant to or inconsistent with the Central Act.
42. Undoubtedly the Central enactment prevails over the State Act and the latter is deemed to have repealed. In case of overlappings of a matter as between them, predominance has to be given to the Union legislation.
43. Therefore, after 9.9.2005, all the daughters have to be treated as coparceners entitled to equal shares, irrespective of the fact whether they are majors or minors or their marriages were performed before 5.9.1985 or subsequent to 5.9.1985. In view of the subsequent events, viz., the amendment to Section 6 of Hindu Succession Act, I hold that the plaintiff is entitled to 1/6th share instead of 1/3rd share in the plaint schedule properties including property covered under Exs.B4 and B5. However, the land covered under Ex.B3 sale deed has to be excluded from partition. The plaintiff is entitled to 1/6th share in the plaint A-schedule properties as well as B-schedule house. Except this modification indicated above, the appeal is dismissed. No costs.
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Whenever a statute comes up for consideration, the Judge has to necessarily find out the intention of Parliament when he finds ambiguity. I recall a passage from the book entitled. The Discipline of Law by Lord Denning (Butter Worths) at page-12:
Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Act of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the Legislature....
Andhra High Court
Damalanka Gangaraju And Ors. vs Nandipati Vijaya Lakshmi And Ors. on 21 March, 2007
Equivalent citations: 2007 (4) ALD 694
1. This is an appeal preferred by the Defendants 1, 2 and 6 against granting of a Preliminary Decree for partition in the suit filed in O.S. No. 7 of 1996, on the file of the learned Senior Civil Judge, Pithapuram.2. The case of the plaintiff, in brief, is that she is the daughter of the 1st defendant. D2 to D5 are her sisters. Her marriage was performed on 11.5.1986. The marriage of 5th defendant was performed subsequently. The marriages of D2 and D3 were performed about 20 years ago. D2 and D4 were given substantial properties from out of the joint family properties and therefore, they were not entitled to any share. She is having 1/3rd share along with D1 and D5. During the pendency of the suit, D1 said to have executed a settlement deed dated 9.3.1996, and a registered Will dated 26.5.1993, in respect of the joint family properties. They are not valid. D6 claims that he is the adopted son of D1. It is not true. This plea was put up to deny her share. She gave a lawyer's notice on 5.2.1996 demanding her share in the properties. Therefore, she sought 1/3rd share in the joint family properties consisting of Ac.4.55 cents mentioned in the plaint A-schedule and a house bearing Door No. 11-1-139 of Pithapuram shown in the B-schedule.
3. D1, D2, D4 and D5 resisted the suit. It is their case that D1 had taken D6, the son of D2 in adoption, on 1.6.1983, as per Hindu rites about ten years prior to 15.5.1993. D1's wife died in the year 1972. His daughter D2 and her husband Satyanaranayana gave their son D6 in adoption to D1. Later he executed registered adoption deed evidencing adoption. Since then D6 has been living with him as his Aurasa son. The plaintiffs marriage was taken place prior to September, 1985 and as such she has no right to demand a share in the properties. D1 gave a reply to the notice issued by the plaintiff. Item No. 3 of the plaint A-schedule consists of Ac.0.41 cents, but not Ac.0.71 cents. Equally, item No. 4 consists of Ac.0.21 cents and not Ac.0.61 cents as mentioned. Item No. 2 was given to the plaintiff towards her share. D1, by his self exertions purchased the plaint B-schedule house, which became old and dilapidated. He gave the remaining items to his other daughters. The total extent of items - 1, 3, 4, 5 and 6 is Ac.2.00. Item No. 2 consists of Ac.0.25 cents. He executed a settlement deed dated 9.3.1996 in favour of D6 in regard to the above properties. Since then, he has been enjoying the said property. He also executed a registered Will dated 26.5.1993 bequeathing his properties to D6. Therefore, they prayed for dismissal of the suit.
4. D5 filed written statement, alleging that the 1st defendant and the husband of the 2nd defendant obtained her thumb impression on typed papers by misrepresentation Except item No. 2, remaining properties are ancestral properties. Plaint-A and B schedule properties are purchased from out of the income from the joint family properties. She along with the plaintiff demanded partition. In order to avoid share to her, D1 had fabricated the documents. She is entitled to a share as per Act 13 of 1986.
5. D6 filed written statement alleging that he was adopted by D1 on 1.6.1983, when he was aged 14 years. There is no age restriction in Kapu community. Plaintiff and D2 to D5 were given Ac.0.50 cents each by Dl at the time of their marriages. His father had purchased B-schedule house from his self exertions. It is not his ancestral property. His father executed registered settlement deed and gave the house to him as well as registered Will in his favour bequeathing the properties. Therefore, he prayed for dismissal of the suit.
6. Upon the pleadings, the Court framed the following issues:
1. Whether the plaintiffs marriage took place on 12.5.1986?
2. Whether the suit schedule properties are the joint family properties of plaintiff and defendants?
3. Whether the plaintiff is entitled to 1/3rd share in the suit schedule properties as prayed for?
4. Whether the 1st defendant is in possession of Ac.0.91 cents in S. No. 291/2, Ac.0.41 cents in S. No. 300/7, Ac.0.21 cents in S. No. 310/19, Ac.0.07 cents in S. No. 314/ 4 and Ac.0.25 cents in S. No. 314/5?
5. Whether item No. 2 of the plaint schedule is the self acquired property of the 1st defendant and he has conveyed different moieties to his daughters out of the said land?
6. Whether the plaintiff is entitled for preliminary decree as prayed for?
7. To what relief?
Additional issue:
Whether D6 is the adopted son of 1st defendant?
7. The plaintiff, in support of her case, examined PWs.1 to 3 and herself as PW.1 and filed Exs.A1 to A-11. Refuting their evidence, the defendants have examined DWs.1 to 14, D5 as DW.1, D1 as DW.3 and D6 as DW.12 and filed Exs.B1 to B15.
8. The trial Court after considering the evidence placed on record held that the marriage of the plaintiff was performed subsequent to the amendment to Section 29 of the Hindu Succession Act, 1956 (for brevity, "the Act") and she is entitled to a share in the plaint-A & B schedule joint family properties. It disbelieved the adoption pleaded by D1 and D6. The sale in favour of DW.11 under Ex.B3 and the land given to D4 under Ex.B5 was upheld, Ac.0.75 cents given to D5 under Ex.B4 was directed to be allotted towards her share in partition. Therefore, the trial Court granted a preliminary decree entitling the plaintiff to 1/3rd share in the plaint schedule properties, excluding Ac.1.00 of land mentioned in A-schedule.
9. Aggrieved by the said decision, D12, D2 and D6 preferred this appeal contending that the trial Court did not appreciate either facts or law in correct perspective. It ought to have seen that the marriage of plaintiff was performed on 12.5.1986. It ought to have held that the plaint schedule properties were acquired by the 1st defendant from his self-exertions. She (plaintiff) was given Rs. 44,000/- towards Ac.0.50 cents of land in lieu of her share. It ought to have held that D6 is adopted son of D1. Therefore, they prayed that the appeal be allowed.
10. The points that arise for consideration are:
1. Whether the plaint schedule properties are self acquired properties of D1?
2. Whether D6 is adopted son of D1?
3. Whether the plaintiff is entitled to a share in the plaint schedule properties and if so to what share?
11. Point No. 1: It is an undisputed fact that the plaintiff, D2 to D5 are the daughters of D1. While the marriages of D2 to D4 were performed prior to 1983, the marriage of plaintiff was performed on 11.5.1986. The marriage of the 5th defendant was performed in the year 1990. The plaintiff and D5 are claiming share by virtue of amendment to Section 29 of the Hindu Succession Act (State amendment). Dl to D4 and D6 had taken a common plea that the marriage of plaintiff was taken place in March, 1984.
12. Since the defendants have disputed the date of marriage of PW.1, she examined herself as PW.1 besides her sister 3rd defendant's husband as PW.2 and filed Ex.A1 certified copy of the marriage certificate issued by the Executive Officer, Kunthi Madhavaswamy Temple, Pithapuram, where her marriage was performed. PW.3, the junior assistant working in the said temple was examined in order to prove Ex.A1. PW.2 and PW.3 deposed that D1 signed in the receipt book maintained by temple evidencing the performance of the marriage. PW.1 and her husband have also signed in the said receipt.
13. DW.1 the father denied that the marriage of the plaintiff was performed on 11.5.1986. According to him, it was performed prior to 1985. However, at the time of evidence, he stated that PW.1's marriage was performed in the year 1984. He went to an extent of stating that he was not aware whether the marriage was performed in Kunthimadhavaswamy vari temple, Pithapuram. He admitted that his daughters and sons in law have attended the marriage. He also admitted that PW.2 also attended the marriage. The trial Court observed:
The 1st defendant did not deny his signatures and the signatures of other persons in the original of Ex.A1, stoudy. Ex.A1 was emanated from a public office and the original was produced and proved by PW.3....
Since the record was emanated from a public office, the presumption that it was maintained in the regular course of business has to be invoked, in the light of unimpeachable evidence.
14. It is the case of the defendants that the plaint schedule properties are acquired by Dl from his self exertions. They are not joint family properties. It is the case of the plaintiff that her father D1 is managing the properties and same were acquired from the earnings of the ancestral land. D1 as DW.3 deposed that that there was partition between him, his father and brothers about 30-years ago, wherein, he got Ac.2.00 of land towards his share. He further admitted that partition was reduced into writing and it was available with him. However, he did not file it. D6 was examined as DW.12. He also admitted that there were documents evidencing partition. No explanation, whatsoever, was given as to why the partition deed was not filed. Necessarily an adverse inference could be drawn against his case.
15. Obviously, in order to prove that D1 purchased the properties from his self exertions, he filed Ex.B2 registered sale deed, under which he purchased a vacant site adjacent site to his ancestral house from Chanti Mahalaxmi, wife of his brother Padma Raju. In Ex.B2, there is a mention that there was a partition under an unregistered partition list between the brothers dated 15.7.1962. The trial Court, rightly observed that had the partition list been filed, it would be revealed as to property that fell to his share. Wantonly he did not file it, lest the inadequacy of his case would be revealed.
16. It is further case of D1 that he purchased item No. 2 of A-schedule and B-schedule house with his self exertions. Evidently, he has no source other than the income from ancestral lands. For the first time, he deposed in the chief-examination that he used to cultivate the lands belonging to Malyala Jaggaraju Mastaru and Akondi Raja Rao as tenant, and out of the produce realized from tenancy lands, he purchased the remaining shares of his brothers in the house. He himself admitted that there is no lease deed evidencing the transaction. It is all oral. In order to prove the said fact, he examined DWs.6, 7, 9 and DW.12. Except, reiterating the said fact, they could not give any particulars as to the lands that were given under lease and income derived thereon. The very owners of the land were not examined. Therefore, the plea that Dl had earned amounts by cultivating the lands of others was not substantiated.
17. It is the case of DW.1 that the ancestral land of Ac.2.00 did not yield any income and it was covered by mounds. In order to prove it, he examined DW.4 a brick kiln owner. DW.4 deposed that he maintained a brick kiln in the land of D1 from 1985 to 1991. He stated that he levelled the land and handed over the same to D1. DW.4 admitted that there was no documentary evidence to show that he was doing brick business. He does not know the boundaries and survey number of the land, in which he ran the brick kiln. He did not possess licence to do brick business. Not satisfied with the examination of DW.4, D1 examined DW.7. DW.7 is the maternal grandfather of the wife of DW.6. I may state herein that DW.6 is the son-in-law of D2 and brother-in-law of D6. Curiously, he deposed that D1 used to raise dry crops in the ancestral land prior to levelling of the land. He also stated that D1 purchased two acres of land from out of the income realized from the tenancy land and ancestral land. DW.12 also testified about the tenancy land cultivated by D1. Therefore, it cannot be said that D1 had any independent earnings, apart from the income from the ancestral properties.
18. In fact, DW.12 admitted that the source of irrigation of suit land is from Godavari canal. He also stated that the water of Yeleru Reservoir used to feed the neighbouring lands of the ancestral land. Therefore, the conclusion arrived at by the trial Court that item No. 2 of A-schedule and B-schedule house was purchased by D1, from out of the income of the joint family properties can not be faulted.
19. D1, in order to deny the shares to his daughters, alleged that different extents of land were given to his daughters at the time of their marriages towards their share. When a registered notice was issued by the plaintiff, D1 gave reply under Ex.B12, mentioning that he settled Ac.0.75 cents of land out of Ac.2.00 of ancestral land in favour of the plaintiff. However, when it came to written statement, he alleged that he gave Ac.0.50 cents out of item No. 2 of the plaint A-schedule to the plaintiff towards her share. When it came to evidence, he deposed that he gave Ac.0.80 cents of land to her. It may also be noted that during the evidence he introduced yet another plea that Ac.0.50 cents of land was given to the plaintiff at the time of her marriage and the same was mortgaged to DW.6 for Rs. 10,000/-. Later, she sold her share to DW.1 for a consideration of Rs. 55,000/-. From out of this amount, the mortgage debt due to DW.6 was discharged. The remaining balance was deposited in her name in the State Bank of India.
20. DW.13 the Assistant Manager of the State Bank of India was examined to prove the said fact. He deposed that a sum of Rs. 44,000/- was deposited on 17.7.1993. It may be stated that this fact was not pleaded. There is no document, evidencing the mortgage. In fact, DW.6 stated that he was not present, when the land was delivered to the plaintiff. DW.1 deposed that he was not present when Ac.0.50 cents of land given by D1 to the plaintiff. There is no evidence by way of document that an amount of Rs. 10,000/-was paid. On the other hand, the evidence discloses that D1 was paying land revenue. It is not known, how one can link up the above transaction with Ex.B3. Ex.B3 was executed by Dl in favour of DW.11. The consideration was received by D1. He delivered possession to the purchaser. There was no mention that this land was under simple mortgage. No doubt, the sale deed Ex.B3 was attested by the plaintiff and her husband. She also admitted that an amount of Rs. 44,000/- was in deposit. According to them, the plaintiff was doing money lending business in addition to employment in a private company and therefore, the said amount deposited in the bank. It was nothing to do with the sale transaction.
21. As I have earlier pointed out, in order to prove a so called mortgage, DWs.3, 5, 8, 9, 11 and DW.12 were examined. DW.6 is the son-in-law of D2 and brother-in-law of D6. Importantly DW.6 admitted that D1 Gangaraju tutored as to how he should give evidence before the Court. While DW.11 stated that he paid Rs. 10,000/-to DW.6 before the sub registrar's office, DW.6 stated that he did not go to the sub registrar's office on that day. DW.3 admitted that there was no mention in Ex.B3 that the land was given to the plaintiff towards pasupu kumkuma and it was sold at her request and that she received sale proceeds. According to DW.3, he executed document in favour of DW.3 in respect of Ac.0.50 cents. The said document was not filed into Court. Therefore, it must be held that D1 has not given any property to the plaintiff towards her share or towards pasupu kumkuma.
22. D1 deposed that he has given lands to his daughters at the time of their marriages, alleging that he gave Ac.0.50 cents of land to D4 and Ac.0.75 cents to D5 evidenced under Exs.B4 and B5. To further prove that they were enjoying property, they filed Ex.B10 and B11 patta pass-books issued in favour of D5 and D4 respectively.
23. The trial Court opined that these documents were executed in order to defeat the claim of the plaintiff. He reasoned that the marriage of D4 was performed in the year 1981, however, the document was executed in 1995. Had the land was delivered at the time of marriage, her name must find a place in the concerned records. I agree with the said finding. Therefore it must be held that all the properties are joint family properties.
24. Point No. 2: It is the case of the defendants that D1 adopted D6, his daughter's son prior to 1993 and in acknowledgment of it, an adoption deed Ex.B8 dated 15.5.1993 was executed. The plaintiff asserts that this plea of adoption was made only to deprive her legitimate share in the suit schedule property.
25. To prove the said adoption, DW.3 the father, DW.9 the mother and DW.12 the very adoptive son deposed that the adoption had taken place in the year 1983. They stated that adoption ceremonies were held, photographs were taken evidenced under Ex.B6. They examined DW.3 to DW.12 to speak about the adoption. The contention of the plaintiff is that these photographs reveal that D6 is more than 25 years. The photos were taken at the time of marriage of D6 at kallagollu ceremony. In spite of the assertion that these photographs were not taken at the time of adoption and DW.3 admitted that photographs were taken at kallagollu ceremony, they could not prove that these photographs relate to the adoption ceremony. DW.14 the photographer deposed that the negatives were destroyed. He admitted that there was no proof that he took these photographs. He could not even file any proof to show that he owns a photo studio.
26. DW.10 a purohit deposed about the ceremonies conducted at the time of adoption. Importantly, DW.10 could not depose as to the age of the adoptee at the time of adoption. Ex.B15 was muhurtham chit to show that muhurtham was fixed for adoption. When the date of adoption was not mentioned in Ex.B8 adoption deed, the chit containing date undoubtedly creates suspicion. Since the chit contains Dated 1.7.1983 as the date on which adoption took-place, when confronted with the pleadings in the written statement, wherein he mentioned as 1.6.1983, he deposed that the adoption took place on 1.7.1983 only. He further stated that on 1.7.1983 the adoption deed was executed in the presence of elders on white paper and the same was registered later. The said document was not filed in the Court. Ex.B3 is the adoption deed dated 15.5.1993. Even before that PW.1's marriage was performed. She was born by the date of adoption. She becomes a coparcener. This aspect I will deal at point No. 3.
27. Ex.B8 is an adoption deed dated 15.5.1993. In Ex.B8, it was mentioned that adoption took place ten years prior to 15.5.1993 and that the adoption should come into effect from 15.5.1993. If really, these recitals are taken to be true the adoption must have been taken place in 1983. D6 must be aged 15 years as per the evidence of DW.1 by the date of adoption. By 1993, he must be aged 25 years. If really, the said adoption was true, D1 could not have executed sale deed Ex.B3 dated 16.7.1993 alone, since both D1 and D6 are entitled to equal shares in the property and D6 had attained majority by then. He must have joined in execution as one of the executants. Even when gift deeds were executed under Exs.B4 and B5 as recently as in 1995, D6 was not joined as an executant.
28. In spite of the serious contention raised by the plaintiff that D6 was aged 25 years even by 1983, no effort, whatsoever was placed in order to prove his date of birth. DW.9 the mother deposed that D6 was born in Christian Missionary Hospital, Pithapuram. No efforts were made to produce the date of birth of D6 by summoning the record from the hospital. DW.9 deposed that when she was 13 years age, her marriage was performed. D6 was born 3 to 4 years after her marriage. D6 was aged 27 years by 1993 and 17 years by 1983. When D6 was aged more than 15 years, the defendants in order to establish that there was valid adoption must prove that there is custom and usage, in their caste to adopt a child above 15 years of age. Sub-section (iv) of Section 10 of Hindu Adoptions and Maintenance Act mandates that the person who may be adopted shall not complete the age of 15 years, unless, custom and usage applicable to the parties. Since the custom is departure from normal rule, therefore, it must be pleaded and proved that such custom was prevailing in their community. When there is no pleading or evidence in this regard, the trial Court has rightly concluded that there was no adoption. Such plea was obviously put forward, in order to deprive the just claims of the plaintiff. I am in agreement with the said finding.
29. Point No. 3: The trial Court opined that the lands sold to DW.11 under Ex.B3, and land given to D4 under Ex.B5, Gift deed be excluded while effecting partition. It was also mentioned that Ac.0.75 cents of land given to D5 under Ex.B4 could be allotted towards her share while effecting partition. Therefore, he directed remaining properties be divided into three shares and to allot one such share to the plaintiff. Except the sale deed Ex.B3 executed by D1, as a manager, the Gift deeds under Exs.B4 and B5 cannot be upheld. It is settled law that father cannot gift out the property.
30. During the course of hearing of the appeal, it is contended that the plaintiff, D1 and D5 are entitled to 1/3rd share each, since the marriages are performed subsequent to 5.9.1985 when the State Act 29-A in Hindu Succession Act has introduced equating their status as coparceners.
31. The learned Counsel for the appellants contended that on 9.9.2005 there was an amendment to Section 6 of the Hindu Succession Act ('Act' in short) by Central Act 39 of 2005. By virtue of the amendment, irrespective of the dates of marriages of the daughters, they were to be treated as coparceners entitled to equal share. Therefore, the plaintiff would get 1/6th share while D1 to D5 get the remaining 5/6th share viz., each 1/6th share.
32. The learned Counsel further contended that the State Act prevails over the Central act more so in view of the non-obstante clause used in Section 29-A of Hindu Succession Act. In other words Section 29-A continues to be in force in spite of amendment by Central Act 39 of 2005 to Section 6 of the Act. The benefits of coparcenary property rights, on the female children were conferred by the State of Andhra Pradesh by introducing Section 29-A to the Act. It was inserted by Amendment Act No. 13 of 1986 w.e.f. 5.9.1985. These coparcenary rights are conferred only on those female children who are not married prior to 5.9.1985 nor there should be a partition by then. However this embargo in regard to marriage was removed and the rights of the daughters are now protected under Section 6 of the Act. When the State Act was introduced, the introduction of non-obstante clause in Section 29-A of the Act is to intend to carve out an exception in favour of the daughters who remained unmarried till 5.9.1985 by conferring coparcenary rights on them. Obviously the Predominant reason is to establish complete equality between male and female children with regard to property rights and the rights of female were declared absolute, completely abolishing all notions of limitations.
33. The learned Counsel for the respondent contended that by virtue of proviso 3 to Article 254 of the Constitution even though the subsequent law of Parliament does not expressly repeal the State law, which was validated under Article 254(2), the State law will become void as soon as amendment is made by Parliament, even if repugnancy is created thereto. The competence of the State Legislature to amend the main Act cannot be doubted because the subject relating to joint family and partition is in Concurrent List (Vide Entry-5 List-III of Seventh Schedule of the Constitution Marriage and divorce; infants and minors, adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law).
34. In order to resolve this question, the purpose and intention of the amending Acts have to be seen. In the Statement of Objects and Reasons of the A.P. Act, it was mentioned:
The Hindu Succession Act, 1956 governs the property rights of Hindus and provides for devolution of property. Women are not members of the coparcenary under the Hindu Mitakshara Law and therefore they are not entitled to claim partition in coparcenary property, and such exclusion of daughters has led to the creation of socially pernicious dowry system with its attendant social ills. In order to eradicate this ill by positive means which will simultaneously ameliorate the conditions of women in Hindu Society; it is proposed to confer equal rights on Hindu women along with the male members so as to achieve the constitutional mandate of equality by suitably amending the said Act.
The Bill seeks to give effect to the above proposal.
Section 29-A of the Hindu Succession Act, 1956, reads as follows:
Section 29-A: Equal rights to daughter in coparcenary property:-Notwithstanding anything contained in Section 6 of this Act:
(i) 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 and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter;
Provided further that the share allotable to the pre-deceased child of a predeceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the pre-deceased son or of the pre-deceased daughter as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(iv) Nothing in Clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
A reading of the above provision makes it clear that any joint family governed by Mitakshara, the daughter is made a coparcener equating her status to a son. Exceptions were carved out. The exceptions are that the marriage of the daughter should not have been performed prior to 5.9.1985 or partition should not have been taken place.
35. The Parliament obviously after taking cognizance of the amendments made by States of Andhra Pradesh besides Tamil Nadu, Karnataka and Maharashtra, amended Section 6 of the Hindu Succession Act in tune with Section 29-A barring some exceptions by way of Amendment Act 39 of 2005 to the Hindu Succession (Amendment) Act, 1956, which came into force with effect from 9.9.2005. In the Statement of Objects and Reasons it was mentioned:
The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relating to women's property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies inter alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkayyam, Aliyasantana and Nambudri Laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.
Section 6 of the Act deals with devolution of interest of a male Hindu in Coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara Coparcenary property without including the female in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara Coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara Coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.
The above proposals are based on the recommendations of the Law Commission of India which is contained in its 174th report on "Property Rights of women proposed reform under the Hindu Law".
The bill seeks to achieve the above objects.
36. Obviously, the Central Act 39 of 2005 was introduced in order to bring out uniformity through out the country. The stipulation that the marriage of the daughter should not have been performed before 5.9.1985 was removed. Therefore, irrespective of the dates of marriage, all the daughters would be deemed to be coparceners with one exception that partition should not have taken place before 20.12.2004. The expression 'partition' herein means that partition under a duly registered partition deed or partition effected by a decree of Court. While bringing out amendment, the Union Government has dropped the condition as to the date of marriage. Obviously the condition that partition should have taken place as evidenced above was kept in tact as the rule that amendment made affecting the rights of parties already accrued in favour of others shall not disturb so vested. Now, then the daughter is declared as a coparcener, she will naturally takes a share in the family along with the other coparceners. No doubt, while amending Section 6, the enactments made by the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra were not repealed. In other words, the Central Amending Act did not repeal Section 29-A of the State Amendment.
37. The learned Counsel for the appellant contended that Section 29-A of A.P. Amendment starts with a non-obstante clause which commences with the words:
Notwithstanding anything contained in Section 6 of this Act....
By virtue of this non-obstante clause, even though Section 6 is amended, Section 29-A remains in the Statute at least in the State of Andhra Pradesh. It did not say that Section 6 will apply irrespective of any local law. Therefore, by virtue of Section 29-A, amended Section 6 of the Act stands excluded. Though, Parliament noticed these local amendments in all the four states, this aspect seems to have unnoticed. However, it does not sustain in the teeth of Article 254 of the Constitution of India. Article 254 of the Constitution reads as follows:
254. Inconsistency between laws made by Parliament and Laws made by the Legislatures of States:-(1) If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
38. Whenever a statute comes up for consideration, the Judge has to necessarily find out the intention of Parliament when he finds ambiguity. I recall a passage from the book entitled. The Discipline of Law by Lord Denning (Butter Worths) at page-12:
Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Act of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the Legislature....
The Supreme Court in Sai Reddy v. Narayana Reddy , referring to the amendment held:
It is obvious that under the aforesaid provision, the difference between daughter and son of the Mitakshara Hindu family is removed and the daughter is conferred rights in the joint family property by birth in the same manner and to the same extent as the son. She is, therefore, now entitled to claim partition and her share in the family property. The amending provision is a beneficial legislation, which, among other things, is also directed towards eradicating social evils such as dowry and dowry deaths. It also achieves the constitutional mandate of equality between sexes.
39. The Parliament has unfettered power of legislating the law in question. It may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the "same matter". The Parliament while passing the amendment, had evidently ignored the State amendments. In introducing Act 39 of 2005 it intends to correct the anomaly created between male and female children. It intends to set right the Law. In the process, while taking cognizance of those enactments made by different States, it further bestowed some more rights. The embargo created in State Acts like the daughters marriages to be performed after a particular date etc., were lifted undoubtedly it is an improvement over the State Acts.
40. The Supreme Court in T. Barai v. Henry Ah Hoe and Anr. , considered the question as to what would happen if there is conflict between Union and a State law in the Concurrent List.
There is no doubt or difficulty as to the law applicable. Article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is 'repugnant' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in Clause (1), Clause (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in mat State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to Clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the Present's assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1). That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament "with respect to the same matter", the West Bengal Amendment Act stood impliedly repealed.
41. Even earlier the Supreme Court in Karunanidhi v. Union of India , held that by Clause (2) of Article 246, concurrent power is conferred upon both the Union and State Legislatures to legislate with respect to the subjects included in List-Ill. Hence if both the Parliament and a State legislature make laws relating to the same concurrent subject, a question of conflict arises between the two enactments. The conflict is solved by Article 254(1) by providing that in such a case the State Law shall be void to the extent it is repugnant to or inconsistent with the Central Act.
42. Undoubtedly the Central enactment prevails over the State Act and the latter is deemed to have repealed. In case of overlappings of a matter as between them, predominance has to be given to the Union legislation.
43. Therefore, after 9.9.2005, all the daughters have to be treated as coparceners entitled to equal shares, irrespective of the fact whether they are majors or minors or their marriages were performed before 5.9.1985 or subsequent to 5.9.1985. In view of the subsequent events, viz., the amendment to Section 6 of Hindu Succession Act, I hold that the plaintiff is entitled to 1/6th share instead of 1/3rd share in the plaint schedule properties including property covered under Exs.B4 and B5. However, the land covered under Ex.B3 sale deed has to be excluded from partition. The plaintiff is entitled to 1/6th share in the plaint A-schedule properties as well as B-schedule house. Except this modification indicated above, the appeal is dismissed. No costs.
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