Whether Daughter can seek partition of ancestral property when there is oral partition of property prior to 2005?

Q. Whether Daughter can seek partition of ancestral property when there is oral partition of property prior to 2005? 

Ans-The right to get your equivalent share of the property can be exercised only in cases where there has been no formal partition (partition either through court final decree or through a registered partition deed) before 20.12.2004. In case a partition has already been finalised before the said date, the right collapses.

Judgment;

 Section 6 as amended by Act 39 of 2005 specifically brought

in an explanation which was added below sub-Section 5. In terms of this

explanation only those partitions which were through a registered

partition deed or by a decree of a Court, were saved from the application

of Section 6(1). Therefore, the legislature by conscious language has

made Section 6(1) prospective only under certain facts, situations and

retrospective under other facts situations i.e where there is no registered

partition deed or decree of a Court the provision of Section 6(1) will be

retrospective

Delhi High Court

Manoj Jain vs Smt. Krishna Jain & Ors on 4 October, 2012

Author: Valmiki J. Mehta

There is no opposition to the application for condonation of

delay in filing of the review petition and therefore delay in filing the

review petition is condoned. IA stands disposed of.

Review Petition No.../2012(to be numbered by the Registry)

1. This review petition is taken across the Board in Court

inasmuch as the defendants no. 2 to 4/review petitioners had filed this

review petition on 25.9.2012, but the same was returned 
under objection  by the Registry. Counsel for the
 defendants no.2 to 4 states that so far as

the court fee is concerned no court fee is payable 
except a sum of Rs.20/-

as paid on the review petition, and with which submission I agree

inasmuch as the suit for partition had been filed with a court fee of

Rs.20/-, and therefore, a review petition containing this stamp duty of

Rs.20/- is sufficient. This is more so because as per the law applicable on

the date of filing of this suit, a decree for partition in a suit is not stamped

on the basis of court fee payable, but the stamp duty is paid by means of a

non-judicial stamp paper in terms of Article 45 of the Indian Stamp Act,

1899 inasmuch as by virtue of Section 2(15) of the Indian Stamp Act,

1899 an instrument of partition includes a decree for partition. This suit

has been filed in 2007 i.e prior to the amendment w.e.f. 1.8.2012 of the

Court Fees Act, 1870 as applicable to Delhi. This review petition be

therefore registered and number be given by the Registry.

2. By this review petition the defendants no. 2 to 4 seek review

of the judgment dated 31.7.2012 by which the suit for partition filed by

the plaintiff was decreed and a preliminary decree was passed giving each

of the parties to the present suit, who are the sons; daughters and the

widow of late Sh. Lakhpat Rai Jain, 1/7th share in the suit property

bearing no. C-9, NDSE, Part-II, New Delhi as also in the other properties

of the HUF.

3. By the judgment dated 31.7.2012, it was held that daughters

have an equal right in the coparcenary property in terms of the amended

Section 6(1) of the Hindu Succession Act, 1956 by virtue of Act 39 of

2005. Para 5 of the said judgment reads as under:-

"5. Learned counsel for the plaintiff argues that let the case of the defendant nos. 2 to 4 as pleaded in the written statement be accepted that the property is a HUF property. Learned counsel for the plaintiff further argues that since after amendment of Section 6 of the Hindu Succession Act, 1956 by Act 39 of 2005 w.e.f. 9.9.2005, the daughters have an equal right to that of the son in the HUF property therefore the suit can be decreed by passing a preliminary decree giving the daughters also their shares of the properties, and only because of which issue/dispute the suit remains pending.

Learned counsel for the plaintiff has in my

opinion rightly relied upon Section 6(1) of the said Act which specifically provides that now daughters will have an equal share as a male coparcener in the HUF properties. Therefore in my opinion once we accept the admitted case of defendant nos. 2 to 4 in their written statement that there was a HUF, the suit accordingly will have to be decreed on that accepted basis that there was a HUF of which father late Sh. Lakhpat Rai was the karta, the plaintiff and defendant nos. 2 to 4 (sons) were male coparceners and defendant nos. 5 and 6 (daughters of Sh. Lakhpat Rai) and defendant

No.1/mother would be the family members of the HUF and all the parties to the suit have an equal share in the properties of the HUF, including the house C-9, NPSE- II, New Delhi."

4. The present review petition is predicated on two grounds.

The first ground is that the provision of Section 6(1) brought in by Act 39 of 2005 is prospective (and not retrospective) in nature, and since in the

present case father-Sh.Lakhpat Rai Jain expired on 29.12.1992 i.e before

passing of the Act 39 of 2005, therefore, succession having already

opened on 29.12.1992, the daughters of Sh.Lakhpat Rai Jain (and who are

the defendants no. 5 and 6 to the present suit) did not have a right in the

coparcenary property, and hence Section 6(1) does not give them a legal

right in the present suit filed in 2007. The second ground which is urged

is that the daughters have no rights because relinquishment deeds are

stated to have been executed by them as per the averments made in para

13 of the plaint.

5. The first aspect required to be squarely pronounced upon

thus is that if succession opens on account of death of a coparcener prior

to bringing in of Section 6(1) by Act 39 of 2005, would the daughters by

virtue of subsequent bringing in of the aforesaid Section 6(1) by Act 39

of 2005, get a right to the coparcenary property, i.e did rights finally

crystallize on the death of coparcener on 29.12.1992 in this case when the

provision of Section 6(1) giving right to the daughters did not exist in the

statute book. Putting it differently do the daughters get a right to the

HUF properties even if the succession opens on account of death of the

coparcener prior to coming into force of Section 6(1) by Act 39 of 2005.

Learned counsel for the review petitioners relied upon two judgments of  the Supreme Court in this regard being Sheela Devi & Ors. vs. Lal

Chand & Anr., 2006 (8) SCC 581 and G.Sekar vs. Geetha& Ors., 2009

(6) SCC 1999 to argue that Section 6(1) is only prospective in nature and

cannot apply when succession has already opened prior to bringing in of

Section 6(1) by Act 39 of 2005.

6. Para 21 of the judgment in the case of Sheela Devi (supra) is

relied upon by the review petitioners and the same reads as under:-

"21. The Act indisputably would prevail over the old Hindu law. We may notice that Parliament, with a view of confer right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of the Amendment Act, 2005 would have no application. Sub- section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, the proviso appended to sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal vs. Lal Chand, was, thus, a coparcener. Section 6 is an

exception to the general rules. It was, therefore, obligatory on the part of the respondent-plaintiffs to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the second son, Sohan Lal is concerned, no evidence has been brought on record to show that he was born prior to coming into force of the Hindu Succession Act, 1956."(underlining is added)

7. So far as the judgment in the case of G.Sekar (supra) is

concerned reliance is placed upon para 30 which reads as under:-

 "30. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. The High Court might have committed a mistake in opining that the operation of Section 3 of the 2005 Act is retrospective in character, but, for the reasons aforementioned, it does not make any difference. What should have been held was that although it is not retrospective in nature, its application is prospective." (underlining is added)

8. If we see the observations made in Sheela Devi's (supra)

case and G.Sekar's (supra) case, the observations do speak of the 2005

Act not re-opening the vested rights where succession had already taken

place. However, the question is, are those observations made by the

Supreme Court in Sheela Devi's (supra) case and G.Sekar's (supra) case

the ratios of the said cases.

9. In order to appreciate what is the ratio of a case, it is

apposite to refer to the observations of the Constitution Bench of the

Supreme Court in the case of Padma Sundara Rao (Dead) & Ors. vs.

State of Tamil Nadu & Ors., 2002 (3) SCC 533. The Supreme Court in

this judgment has categorically observed that ratio of a case is dependent

on the facts of a case, and even one single different fact can make a

difference to the ratio of a case. Para 9 of the said judgment reads as

under:-

"9. Courts should not place reliance on decisions without discussion as to how the factual situation fits in with the fact  situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways, Board. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."

10. The aforesaid observations in Padma Sundara Rao's

(supra) case clearly hold that judgments of Courts should not be read like

a statute, and ratio of a case has necessarily to be understood only with

reference to the facts of that particular case. Padma Sundara Rao's

(supra) case has been followed in other judgments of the Supreme Court

including Krishna Mochi & Ors. vs. State of Bihar, 2002 (6) SCC 81 and

Charan Singh & Ors. vs. State of UP, 2004 (4) SCC 205.

11. We will therefore have to see the factual contexts in which

the judgments in the cases of Sheela Devi (supra) and G.Sekar (supra)

were rendered by the Supreme Court, however, before that let me refer to

the direct judgment of the Supreme Court which squarely deals with this

proposition as to whether daughters get a right in the coparcenary

property by virtue of bringing in of Section 6(1) of the Hindu Succession

Act by Act 39 of 2005. This judgment is in the case reported as Ganduri

Koteshwaramma & Anr. vs. Chakiri Yanadi & Anr., 2011 (9) SCC 788.

Paras 9, 11, 12 of the said judgment read as under:- CS(OS)No.2413/2007 Page 7 of 15 "9. The 1956 Act is an Act to codify the law relating to intestate succession among Hindus. This Act has brought about important changes in the law of succession but without affecting the special rights of the members of a Mitakshara Coparcenary. Parliament felt that non-inclusion of daughters in the Mitakshara coparcenary property was causing discrimination them and, accordingly, decided to bring in necessary changes in the law. The Statement of Objects and Reasons of the 2005 Amendment Act, inter alia, reads as under:

"2. .... The retention of the Mitakshara coparcenary property without including the females 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."

........

11. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9.9.2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.

12. The right accrued to a daughter in the property of  a joint Hindu family governed by the Mitakshara law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before

20.12.2004; and (ii) where testamentary disposition of property has been made before 20.12.2004. Sub-section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before 20.12.2004. For the purposes of new Section 6 it is explained that "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub- section (5) of Section 6, for determining the non- applicability of the section, what is relevant is to find out whether the partition has been effected before 20.12.2004 by deed of partition duly registered under the

Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on 19.3.1999 and amended on 27.9.2003 deprives the appellants of the benefits of the 2005 Amendment Act although final decree for partition has not yet been passed."

12. In the facts of Ganduri's (supra) case, there was an HUF,

and the Court was dealing with partitioning of the HUF property. A

preliminary decree had already been passed, giving shares only to the

male coparceners and holding that the female members of the family had

no right. The Supreme Court in Ganduri's (supra) case has held that

even if a preliminary decree has been passed, the preliminary decree  should be amended in view of amended Section 6(1) brought in by Act 39

of 2005 whereby the daughters have to get a share equal to that of a male

coparceners. Para 12 reproduced above in Ganduri's (supa) case refers

to the explanation to sub-Section 5 of Section 6 of the Act making it clear

that only those partitions prior to the enacting of Section 6(1) are binding

and conclusive which are evidenced either by registered instrument of

partition or by decree of a Court (i.e a final decree of a court) i.e. no other

partition is recognized, and, with respect to such latter state of facts

Section 6(1) becomes retrospective in nature so to say. Another

exception stated by the Supreme Court in para 12 is, if there is a

testamentary disposition or an existing alienation of a property of the

HUF in favour of a third person (and obviously which is so provided in

order to protect third party rights which have come into existence) prior

to 20.12.2004.

13. In view of the aforesaid direct judgment of the Supreme

Court in Ganduri (supra) case the question is that whether the law as

stated in the cases of Sheela Devi (supra) and G.Sekar (supra) is correct

as to the Section 6(1) being prospective in nature? Of course, I am aware

of the legal position as stated by the Supreme Court in its judgments that

an earlier judgment prevails over a later judgment, however, that would

be the position only if the ratios of the two judgments are exactly the  opposite, and in which case the earlier judgment prevails although the

latter judgment does or does not notice earlier judgment vide Rattiram

Vs. State of M.P., 2012 (4) SCC 516. Thus where the ratio of the two

judgments are different or the earlier judgment's observations are not the

ratio of that judgment then the issue of conflict would not arise. Further

Rattiram's case also holds that a judgment, even of a Supreme Court if

given in ignorance of a binding legal provision, that judgment is per

incuriam. This aspect of Rattiram's case will also be relevant and will be

touched upon later.

14. The facts in the case of Sheela Devi (supra) show that

except for an observation in para 21 of the judgment that if succession

opens in 1989; i.e prior to coming into force of Act 39 of 2005; the

amended provision of Section 6(1) will not apply, however, the ratio in

that case turned upon the facts which had more to do with whether there

did or did not exist a coparcenary inasmuch as in that case one son of

Sh.Babu Ram namely Sh. Lal Chand was born in 1938 before the Hindu

Succession Act, 1956 came into force and another son Sh.Sohan Lal was

born in 1956. Therefore, the facts in the case of Sheela Devi (supra)

basically turned only on the issue of the existence or otherwise of the

HUF of Babu Ram and his family and there was no issue required to be

decided on the prospectivity or retrospectivity of Section 6(1) brought by  Act 39 of 2005. The issue of female members of a Hindu Undivided

Family inheriting the property by virtue of Section 6(1) of the amendment

Act 39 of 2005 was directly not in question in the said case as there were

no arguments of any of the parties referred to in the said judgment on that

aspect. With utmost respect therefore in my opinion, the ratio of the

Constitution Bench judgment in Padma Sundra Rao (supra) has to be

applied which holds that ratio of each case depends on the facts of each

case and thus the case of Sheela Devi (supra) cannot apply to the present

case where the facts are different. The facts of this case are the same as

the direct judgment of the Supreme Court in the case of Ganduri (supra)

where an HUF was in existence and where the observations of the

Supreme Court are specifically qua females acquiring rights equal to a

male coparceners in HUF properties.

15. So far as the judgment in the case of G.Sekar (supra) is

concerned, once again, the said judgment does not apply inasmuch as

admittedly the Supreme Court in the facts of the said case was not dealing

with a Hindu Undivided Family property but was only dealing with self-

acquired property of the deceased, who in that case was one Sh. Govinda

Singh. The observations of the Supreme Court in G.Sekar (supra) case

are also not directly on the issue of the entitlement of the daughters to get

a right by virtue of amended Section 6(1) of the Hindu Succession Act, 1956, brought in by Act 39 of 2005 inasmuch as the judgment in the case

of G.Sekar (supra) was dealing with the issue of the effect of Act 39 of

2005 qua removing/deleting of Section 23 of the Hindu Succession Act

and which contained a bar upon females in certain conditions to seek

partition. Since G.Sekar (supra) case did not concern Section 6(1) which

was brought in by virtue of Act 39 of 2005 and therefore that judgment

cannot be said to lay down the ratio qua Section 6(1).

16. In view of the above, I respectfully feel bound by the

judgment in Ganduri's (supra) case and hold that judgments in the cases

of Sheela Devi (supra) and G.Sekar (supra) will not apply to the facts of

the present case.

17. Section 6 as amended by Act 39 of 2005 specifically brought

in an explanation which was added below sub-Section 5. In terms of this

explanation only those partitions which were through a registered

partition deed or by a decree of a Court, were saved from the application

of Section 6(1). Therefore, the legislature by conscious language has

made Section 6(1) prospective only under certain facts, situations and

retrospective under other facts situations i.e where there is no registered

partition deed or decree of a Court the provision of Section 6(1) will be

retrospective. The categorical intention so expressed by the legislature

has to be abided to. Since the judgments of the Supreme Court in the  cases of Sheela Devi(supra) and G. Sekar (supra) are based in ignorance

or overlooking the explanation added below sub-Section 5 of Section 6,

these judgments in view of the ratio in the Division Bench judgment of

three Judges in Rattiram's case cannot be treated as binding precedents.

Thus it will be the judgment in Ganduri's case which will hold the field.

18. So far as the second head of argument that the daughters,

namely defendants no. 5 and 6, have relinquished their rights, this

argument is liable to be forthwith rejected inasmuch as the plaintiff in

para 13 of the plaint only stated that to the best of his knowledge the

sisters had relinquished their rights, and to which aspect the sisters have

in fact filed their written statements and said that the property should be

in fact partitioned and the sisters should be given their shares. Therefore

it is not the case that the sisters have admitted to any alleged

relinquishment deeds. Admittedly, no relinquishment deeds (much less

registered ones) have been filed by any of the parties including the review

petitioners/defendants no.2 to 4 in this Court, and therefore, once there

are no registered relinquishment deeds of the sisters, the sisters will have

rights equal to their brothers and mother in the HUF properties.

19. Finally I must state that when the judgment dated 31.7.2012

was passed by this Court, the issues which have now been argued today

before me by the review petitioners were not argued, however, in order to ensure that complete justice is done, I have heard the review petitioners in

detail again and hence the present judgment.

20. In view of the above, the review petition is without any merit

and is accordingly dismissed.

21. The Local Commissioner appointed in terms of the judgment

dated 31.7.2012 is directed now to forthwith and expeditiously take steps

with respect to deciding whether partition by metes and bounds of the suit

properties is possible, and if yes how. All the parties will be duty bound

to give necessary cooperation to the Local Commissioner. If any of the

parties have not paid their share towards the fee of the Local

Commissioner, they shall make the payment within 2 weeks from today.

22. List for further proceedings on 6th December, 2012.

VALMIKI J. MEHTA, J

OCTOBER 04, 2012