Whether daughter has right in co-parcenary property from date of her birth?

 In the instant case, even though the daughter i.e. respondent was
married before 1994 and the parents died well before coming into force of
the new Section 6, the respondent would acquire equal rights in the
coparcenary property only by virtue of her birth in the Hindu joint family,
undisputedly governed by Mitakshara Law, in the same manner as the son
and would have the same rights in the coparcenary property as she would
have had, if she had been a son. That means the right of the respondent
as a coparcener, equal in status and effect as that of a son, would have to
be understood as having arisen on the date on which she took birth and,
therefore, she would be entitled to claim her equal share in the
coparcenary property from that date, unless the property has lost its
character as a coparcenary property by disposition or alienation made
before 20/12/1994, as contemplated in proviso to sub-section (1) of
Section 6(1) read with sub-section (5). In the instant case, there has been
no disposition or alienation including any partition or testamentary
disposition as contemplated under Section 6(1) read with sub-section (5)
before 20/12/2004 having taken place and, therefore, the respondent
would have equal share in the coparcenary property and would be entitled

to even re-open the notional partitions, which are not covered under the
explanation to sub-section (5) of Section 6.



IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL No.52 OF 2012
 Smt. Leelabai V Sau. Bhikabai Shriram Pakhare,

CORAM : S.B. SHUKRE, J.

Pronounced on : 28 th MARCH, 2014 .
Citation; 2014(4) MHLJ 312 Bom

By this appeal, the appellants have challenged the judgment and
decree passed on 16/11/2011 in Regular Civil Appeal No.36/2011 by

Principal District Judge, Buldana, whereby the judgment and decree
passed by the 3rd Joint Civil Judge Junior Division, Buldana in Regular
Civil Suit No.171/2007 on 31/01/2011 was quashed, set aside and
modified.
2. The respondent, the original plaintiff, is the sister of one Dagduba
Hingne. The respondent claimed that Kashinath was the original owner
of the suit properties bearing Gat No.293 situated at Village Deulghat
Taluka and District Buldana and house property bearing No.1456 of
Village Deulghat of District Buldana, he having received the same by
way of inheritance. Said Kashinath and his wife Dwarkabai were parents
of respondent and Dagduba. Kashinath and Dwarkabai died on
12/09/1999and 14/01/1995, respectively. After their death, respondent
and Dagduba being the only children surviving their parents, the suit
properties devolved upon them. Dagduba also died on 20/04/2002
leaving behind his wife, appellant no.1 and his daughters, appellants no.2
to 4. The respondent claimed that she had one half share in the suit
properties which was denied to her and, therefore, she filed a suit for
partition and separate possession of the suit properties.
3. The appellants, the original defendants, resisted the suit contending

that respondent did not have one half share in the suit properties as
claimed by her. While they admitted the relationship and also the nature
of the suit properties being ancestral, they disputed the extent of share as
claimed by the respondent in the agricultural land, one of the suit
properties and also claimed that respondent had no share in the house
property, the second of the suit properties. They submitted that since
respondent got married prior to 1994, there would be notional partition in
or about 1994 according to which Kashinath, Dwarkabai and Dagduba
would receive one third share each, and daughter being married would
not get anything, as after her marriage she would not be a coparcener in
the joint family properties. They further submitted that Dwarkabai
predeceased Kashinath on 14/01/1995 and, therefore, after her death, her
share would devolve upon the respondent-plaintiff, Kashinath and
Dagduba. They further submitted that after death of Kashinath on
12/09/1999, again share of Kashinath would be divided equally between
Dagduba and Bhikabai. They submitted that after the death of Dagduba
on 20/04/2002, the appellants were in exclusive possession of the suit
properties. Thus, they submitted that the share of the respondent would
be confined to two ninth share in the suit properties.
4. The Trial Court framed four issues and after considering the

evidence of the parties and arguments canvased before it, decreed the suit
partly granting three fourth share to the appellants and one fourth share to
the respondent in the agricultural land and refusing any share to the
respondent in the house property. Being aggrieved, both appellants and
respondent preferred appeal and cross-objection before the District Court,
Buldana.
5. Learned Principal District Judge, Buldana, recorded a finding that
respondent was entitled to one half share while the appellants together
were entitled to one half share in the suit properties and dismissed the
suit and allowed the cross-objection of the respondent. He also directed
modification of the judgment and decree passed by the Trial Court so as
to incorporate a declaration that respondent was entitled to partition and
separate possession in respect of her one half share in the suit properties,
while defendants jointly were entitled to one half share in the suit
properties. The judgment and decree to this effect were delivered on
16/11/2011. Same are under challenge in the present Second Appeal.
This appeal has been admitted by this Court on 13/07/2012 on a
substantial question of law in following terms :
“Whether the Hindu Succession (Amendment)
Act, 2005 (No.39 of 2005), which came into force
with effect from 05.09.2005, entitles a married

daughter, not being the member of coparcenary, to
seek reopening of devolution of interest already
devolved before coming into force of the
Amended Act? Put it differently, whether
plaintiff-Bhikabai, claiming through Kashinathher
father, who died intestate in 1999 and the
property having been devolved upon Dagduba,
the sole coparcener (brother of Bhikabai), who
died in 2002 leaving behind four daughters; can
claim her share in the coparcenary property when
no coparcenary was in existence and the interest
of sole surviving coparcener was already
devolved upon his daughters prior to
05.09.2005?”
6. I have heard Shri Anil Mardikar, learned Counsel for appellants
and Shri R.G. Kavimandan, learned Counsel for respondent. With their
assistance, I have carefully gone through the judgments and decrees
passed by both the Courts below and also the paper book of the appeal.
7. In this case, there is no dispute about the fact that respondent got
married prior to 1994. There is also no dispute about the deaths of
mother and father of respondent and Dagduba on 14/01/1995, 12/09/1999
and 20/04/2002, respectively.
8. Learned Counsel for the appellants submits that till the death of
Dwarkabai, properties were not partitioned and so in such a case theory
of notional partition would be applicable according to which deceased

Kashinath, Dwarkabai and Dagduba would get one third share each in the
suit properties, whereas respondent having been married prior to 1994
would get nothing as she could not be treated as coparcener while
effecting partition of the suit properties.
9. Learned Counsel for the appellants further submits that after death
of Dwarkabai her one third share would be equally divided between
Kashinath, Dwarkabai and respondent and after death of Kashinath, again
theory of notional partition would be applicable and Kashinath's share
would be equally divided in between Dagduba and respondent. In this
way, he further submits, the respondent would at the most get two ninth
share in the suit properties and not anything beyond that.
10. Learned Counsel further submits that due to marriage of respondent
prior to 1994, the coparcenary was reduced to only three members i.e.
Kashinath, Dwarkabai and Dagduba and after deaths of Kashinath and
Dwarkabai, the coparcenary came to an end. He further submits that if
coparcenary itself was not in existence, there was no question of
respondent becoming a coparcener in her own right by virtue of new
Section 6 of the Hindu Succession Act, 1956 (for short, “Succession
Act”) introduced into the Act, by Hindu Succession (Amendment) Act,

2005, (for short, “the 2005 Amendment Act”) which came into force on
9/09/2005. He further submits, relying upon Sadashiv Sakharam Patil
and Ors. V/s. Chandrakant Gopal Desale & Ors. reported in 2012 (1)
Mh.L.J. 197, that the 2005 Amendment Act is prospective and it creates a
substantive right in favour of daughter from the date when the
amendment Act came into force. Therefore, according to him, the learned
District Judge has committed a serious error of law in giving benefit of
Section 6 of the Succession Act introduced by the Amendment Act, 2005,
to the respondent.
11. Learned Counsel for the respondent has submitted that there is no
quarrel about the proposition that substantive right created in favour of
the daughter making her a member of the coparcenary in her own right
came into being with effect from 9/09/2005 and it was not available to
daughters before that date. He further submits that it would not mean that
the right cannot be asserted by the daughters in respect of the joint family
properties which have not been alienated or partitioned or disposed of in
accordance with the conditions laid down in Section 6 of the Succession
Act, 1956.

12. Learned Counsel for respondent further submits that if there has
been no disposition or alienation including partition or testamentary
disposition having taken place before 20/12/2004, the daughter of a
coparcener will have equal rights in the coparcenary properties along with
the other coparceners and in the instant case, there has been no such
disposition or alienation or partition as contemplated under proviso to
sub-section 1 and also under explanation to sub-section 5 of Section 6 of
the Succession Act. Therefore, even though respondent was not the
member of the coparcenary before 2005, by virtue of a substantive right
newly conferred upon her by law, the respondent can reopen the notional
partitions and claim her equal share in the suit properties, so submits
learned Counsel for the respondent. For these submissions, he places his
reliance upon the case of Ganduri Koteshwaramma & Anr. V/s. Chakiri
Yanadi & anr. reported in 2011 (9) SCCC 788.
13. In order to see as to whether or not Section 6 of the Succession Act
has only prospective effect and does not affect the partitions made
notionally before 20/12/2004, the date given in the proviso to sub-section
1 of Section 6, it would be necessary to consider the provisions contained
in this Section. Section 6 reads thus:

6. Devolution of interest in coparcenary property-(1)
On and from the commencement of the Hindu
Succession (Amendment) Act, 2005, in a Joint
Hindu family governed by the Mitakshara law, the
daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in
the same manner as the son;
(b) have the same rights in the coparcenary property
as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the
said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener
shall be deemed to include a reference to a daughter
of a coparcener:
Provided that nothing contained in this sub-section
shall affect or invalidate any disposition or
alienation including any partition or testamentary
disposition of property which had taken place
before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes
entitled by virtue of sub-section (1) 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 testamentary disposition.
(3) Where a Hindu dies after the commencement of
the Hindu Succession (Amendment) Act, 2005, his
interest in the property of a Joint Hindu family
governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may
be, under this Act and not by survivorship, and the
coparcenary property shall be deemed to have been
divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is
allotted to a son;
(b) the share of the pre-deceased son or a predeceased
daughter, as they would have got had they
been alive at the time of partition, shall be allotted
to the surviving child of such pre-deceased son or of
such pre-deceased daughter; and

(c) the share of the pre-deceased child of a predeceased
son or of a pre-deceased daughter, as such
child would have got had he or she been alive at the
time of the partition, shall be allotted to the child of
such pre-deceased child of the pre-deceased son or a
pre-deceased daughter, as the case may be.
Explanation.- For the purposes of this sub-section,
the interest of a Hindu Mitakshara coparcener shall
be deemed to be the share in the property that would
have been allotted to him if a partition of the
property had taken place immediately before his
death, irrespective of whether he was entitled to
claim partition or not.
(4) After the commencement of the Hindu
Succession (Amendment) Act, 2005, no court shall
recognise any right to proceed against a son,
grandson or great-grandson for the recovery of any
debt due from his father, grandfather or greatgrandfather
solely on the ground of the pious
obligation under the Hindu law, of such son,
grandson or great grandson to discharge any such
debt:
Provided that in the case of any debt contracted
before the commencement of the Hindu Succession
(Amendment) Act, 2005, nothing contained in this
sub-section shall affect-
(a) the right of any creditor to proceed against the
son, grandson or great-grandson, as the case may
be; or
(b) any alienation made in respect of or in
satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of
pious obligation in the same manner and to the same
extent as it would have been enforceable as if the
Hindu Succession (Amendment) Act, 2005 had not
been enacted.
Explanation.-For the purposes of clause (a), the
expression "son", "grandson" or "great-grandson"
shall be deemed to refer to the son, grandson or
great-grandson, as the case may be, who was born
or adopted prior to the commencement of the Hindu

Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th
day of December, 2004.
Explanation - For the purposes of this section
"partition" means any partition made by execution
of a deed of partition duly registered under the
Registration Act, 1908 (16 of 1908) or partition
effected by a decree of a court.'
The section, newly added by the 2005 Amendment Act, which
came into force with effect from 9/09/2005, is a step taken as a part of
affirmative action programme to render social justice to women, which is
clear from its statement of objects and reasons. It is aimed at removing of
bias and discriminatory practices against Hindu women in their status in a
Hindu joint family property governed by the Mitakshara Law. It accords
equality to the daughter of a coparcener in holding property rights in the
same manner and to the same extent as the male member of a
coparcenary of such a Hindu joint family. It confers a substantive right
upon the daughter by laying down that on and from the commencement
of the Amendment Act, 2005, the daughter of a coparcener shall be the
coparcener by birth in her own right in the same manner as the son and
shall have the same rights in the coparcenary property as she would have
had, if she had been a son. Likewise, she is also subjected to the same
liabilities in respect of the coparcenary property as that of a son.

14. The substantive right, no doubt, has been conferred upon the
daughter of a coparcener governed by the Mitakshara Law on and from
9/09/2005, but the right so given, one must understand, is in its very
nature a birth right and so cannot be taken away or given restrictive
meaning except in the circumstances and to the extent mentioned in the
section itself. Therefore, once given, it would relate back to and take
effect from the incidence of birth of a daughter in a Hindu joint family
and, therefore, from the date of the birth, the daughter would be treated,
by fiction of law, as a member of a coparcenary in the same manner as the
son and would be entitled to all those rights therein as if she were a son
and would also be liable to share the liabilities in respect of the
coparcenary property in the same measure as a son. The language of the
section is so clear that it leaves no room to doubt that it gives effect to the
substantive right of the daughter from the date of her birth. Therefore,
such right can be asserted by the daughter in respect of all the
coparcenary properties, except those which have been disposed of or
alienated in the manner and subject to conditions as stated in Section
6(1), read with sub-section (5) and she can re-open the earlier partitions
also, not made in accordance with those conditions.

15. No doubt, Section 6, sub-section (1) begins with the expression
“On and from the commencement of the Hindu Succession (Amendment) Act,
2005”, but the expression only declares the date on which the substantive
right is conferred and shall continue to be conferred and nothing more.
Having regard to the language of the entire section, this expression cannot
be used to examine the question of effect and impact of the right on the
coparcenary property, interest in which has already been devolved upon
the surviving coparcener. The effect and impact of the right would be
determined by the nature of the right created and restrictions specifically
placed upon its assertion by the legislature. As already said, the right is in
its nature a birth right, something akin to fundamental right, which is
available intrinsically by virtue of mere birth as a daughter in the Hindu
Joint family governed by Mitakshara Law and hence can be exercised
from birth onwards in accordance with law. The only restrictions on this
right are stated in the proviso to sub-section (1). It lays down that
nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary
disposition of property which had taken place before 20/12/2004. It
suggests two things, (i) the section will affect or invalidate any
disposition or alienation including partition or testamentary disposition
made on or after 20/12/2004 and, (ii) the section will also affect or

invalidate all those dispositions or alienations made before 20/12/2004, if
they are not made in accordance with Section 6, particularly, those
partitions which are not effected by a registered partition deed or by a
decree of a Court, as clarified by explanation to sub-section 5. It may be
stated here that Section 6 came into force w.e.f. 9/09/2005 and language
of the proviso indicates that legislature intended to invalidate all
dispositions or alienations made between 20/12/2004 and the date of
commencement of the Amendment Act, 2005 and intended to save only
those made before 20/12/2004 in accordance with conditions laid down in
the section itself. This only shows that legislature intended Section 6
right to have a retrospective effect in a manner controlled by it.
16. In the case of Ganduri (supra), the Hon'ble Supreme Court has
held that the right accrued to a daughter in the property of a joint Hindu
family governed by Mitakshara Law by virtue of the 2005 Amendment
Act, is absolute except for the circumstances provided in the proviso
appended to sub-section (1) of Section 6. The proviso lays down that
rights given to daughter of the coparcener shall not affect or invalidate
any disposition or alienation including any partition or testamentary
disposition of the property which had taken place before the 20th day of
December, 2004. The Hon'ble Apex Court has further held that for the

purposes of Section 6, partition means any partition, as explained in the
explanation to sub-section (5), made by Deed of Partition registered
under the Registration Act, 1908 or effected by a decree of Court.
17. Interpreting thus, the Hon'ble Supreme Court gave the benefit of
the substantive right so created to the appellants in the said case, who
were also the daughters of a coparcener of a Hindu joint family property
governed by the Mitakshara Law. While giving such benefit to the
appellants, the Hon'ble Apex Court considered the fact that the judgment
and preliminary decree in that case were passed on 19/03/1999 and the
preliminary decree was amended on 27/09/2003. It was further
considered that before the final decree could be passed, the Amendment
Act of 2005 introducing new Section 6 came into force on the basis of
which an application came to be made by the appellants/daughters for
modifying the preliminary decree so as to give them one fourth share
each in the coparcenary property which was equal to shares of their two
brothers and father. It was further noted that this application was
allowed by the Trial Court but in appeal, the Trial Court's order allowing
the application was set aside against which appeal was preferred before
the Hon'ble Supreme Court. It was in this appeal that the Hon'ble Apex
Court decided the issue in favour of the daughters by declaring that the

daughters would have equal share along with the sons in the coparcenary
property, if conditions prescribed in newly added Section 6 were fulfilled.
18. The decision of the Hon'ble Apex Court in the said case of
Ganduri, therefore, makes it clear to us the following things:
(i) The equal share given to the daughter of a coparcener governed by
Hindu Mitakshara Law along with brothers is by way of a substantive
right;
(ii) Though the substantive right is created on and from 9/09/2005, it
relates back to the incidence of birth;
(iii) The substantive right would not be available only if the coparcenary
property is disposed of or alienated including by any partition or
testamentary disposition of property before 20/12/2004 and;
(iv) If there is disposition of a coparcenary property by any partition,
such partition must be by execution of a Deed of Partition duly registered
under the Registration Act, 1908 or effected by a decree of the Court.
19. Having regard to the nature of provisions contained in Section 6 as
discussed earlier and interpretation placed upon it by the Hon'ble
Supreme Court in the aforestated case of Ganduri, I find that there is no
substance in the argument of learned Counsel for the appellants that

Section 6 is prospective in nature and it does not relate back to the
incidence of birth of the daughter.
20. In the instant case, even though the daughter i.e. respondent was
married before 1994 and the parents died well before coming into force of
the new Section 6, the respondent would acquire equal rights in the
coparcenary property only by virtue of her birth in the Hindu joint family,
undisputedly governed by Mitakshara Law, in the same manner as the son
and would have the same rights in the coparcenary property as she would
have had, if she had been a son. That means the right of the respondent
as a coparcener, equal in status and effect as that of a son, would have to
be understood as having arisen on the date on which she took birth and,
therefore, she would be entitled to claim her equal share in the
coparcenary property from that date, unless the property has lost its
character as a coparcenary property by disposition or alienation made
before 20/12/1994, as contemplated in proviso to sub-section (1) of
Section 6(1) read with sub-section (5). In the instant case, there has been
no disposition or alienation including any partition or testamentary
disposition as contemplated under Section 6(1) read with sub-section (5)
before 20/12/2004 having taken place and, therefore, the respondent
would have equal share in the coparcenary property and would be entitled

to even re-open the notional partitions, which are not covered under the
explanation to sub-section (5) of Section 6.
21. Learned Counsel for the appellants has sought to place his reliance
upon the case of Sadashiv Sakharam Patil (supra), wherein the learned
Single Judge of this Court has observed that new Section 6 of the
Succession Act creating substantive right in favour of the daughter, is
prospective in nature. Upon carefully going through the entire judgment,
in my humble opinion, this is not the ratio of the said case. The learned
Single Judge considering the peculiar facts of that case has made the said
observation and, therefore, it is necessary to refer to those facts. One
Sakharam had three children; two daughters, Narmadabai and Muktabai
and one son, Sadashiv. The two daughters predeceased Sakharam and his
son succeeded him. Sadashiv claimed to be the sole heir and successor of
Sakharam, which was disputed by son of Muktabai who filed a suit
claiming the share of Muktabai in the coparcenary property. Against this
backdrop, that the learned Single Judge held that since the daughters of
the coparcener had died prior to the coparcener and definitely prior to the
Amendment Act, 2005 coming into force, the daughters could not be said
to be living on and from 9/09/2005 to be the coparceners in their own
right. The learned Single Judge further observed in paragraph 16 that

had they been living on 9/09/2005, they would have had the same right in
their father's property as his son.
22. It is pertinent to mention here that the learned Single Judge has also
observed that the daughter can claim, by virtue of newly added Section 6,
partition of the property which was not partitioned earlier. However, the
learned Single Judge, in the aforestated facts and circumstances of the
case, held that son of Muktabai cannot be said to have made any prima
facie case of having a share in any of the suit properties. It is also
important to note here that these observations have been made at an
interlocutory stage of the suit when the order of injunction restraining
creation of third party interest in the suit property passed on 23/11/2010
by 2nd Joint Civil Judge Senior Division, Thane challenged in Appeal
From Order before the High Court was under consideration of the learned
Single Judge.
23. It can, therefore, be seen that it has not been held in the said case of
Sadashiv Sakharam Patil and Ors. (supra) that a living daughter cannot
claim partition in respect of a coparcenary property not partitioned earlier
by fulfilling the conditions laid down in Section 6(1) read with subsection
(5) of the Succession Act. Besides, the Hon'ble Supreme Court, as

discussed earlier, has already cleared the doubts about the law in this
regard.
24. Another argument of learned Counsel for the appellants is that
when the substantive right under Section 6 of the Succession Act was
created in the year, 2005, there was no coparcenary in existence in
relation to the joint family of which the respondent claimed to be a
member together with deceased Dagduba. Therefore, according to him,
question of respondent claiming any share in the coparcenary property
equally with Dagduba would not arise.
25 I have already held that right conferred under new Section 6 relates
back to the event of birth and if at that time the coparcenary is in
existence, in the instant case, it was in existence, all the rights of a male
coparcener would flow towards the daughter-coparcener and enrich the
daughter-coparcener in accordance with the Section. In the instant case,
there would also be no question of devolution of the property upon
Dagduba, the sole coparcener, as per the earlier law, as respondent has not
claimed her share in the property through Kashinath and has claimed it in
her own right. New Section 6, it cannot be forgotten, makes her a
coparcener in her own right. The property was admittedly ancestral and,

it is nobody's case that there was disposition of the property through
testamentary succession. Therefore, I find no merit in the argument so
canvassed in this behalf by the learned Counsel for the appellants.
26. Learned Counsel for the appellants has further submitted that the
cross-objection which has been allowed by the First Appellate Court
could not have been considered as it was belatedly filed without being
accompanied by any application seeking delay condonation. A perusal of
the judgment of the First Appellate Court discloses that this objection has
been considered by the learned District Judge by following the law laid
down in the case of Mahadev Govind Gharge V/s. Special Land
Acquisition Officer reported in 2011 (5) Mh.L.J. 532. The discretion has
been exercised in favour of the respondent by the learned District Judge
even when there was no separate application filed for condoning the
delay. Exercise of discretion in the absence of any specific application
would, at the most, be an irregularity not affecting the merits of the case.
It has also not been shown by the appellants as to why the delay should
not have been condoned and resultantly one has to say that by exercise of
the discretion in favour of the respondent, no prejudice has been caused
to the appellants and that there has been no miscarriage of justice.

27. In the result, I find that there is no merit in this appeal and it
deserves to be dismissed with costs. Substantial question of law is
answered accordingly. The appeal stands dismissed with costs.
S.B. SHUKRE, J.

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