Learned Counsel for the appellants argued that Sannamadaiah purchased a site in the name of the third plaintiff and gave gold and silver jewellery as well as cash to the first and second plaintiffs and therefore plaintiffs cannot claim any share in the suit properties. Admittedly, the defendants have not stepped into the witness-box to substantiate their contention, nor is there any plea in the written statement to that effect. Even assuming that Sannamadaiah had purchased a site in the name of third plaintiff and given jewellery and cash to other plaintiffs, the same cannot take away their legal right as daughters to claim a share in the co-parcenary properties by virtue of Section 6 read with Section 8 of Hindu Succession Act. Point No. 4 is therefore answered in the negative.
Equivalent Citation: AIR2016Kant4, 2015(4)KCCR3091
IN THE HIGH COURT OF KARNATAKA
Regular First Appeal No. 58 of 2014
Decided On: 07.09.2015
Lokamani and Ors. Vs. Mahadevamma and Ors.
Hon'ble Judges/Coram:N. Kumar and G. Narendra, JJ.
1. This regular first appeal is filed by defendants 1 to 3, challenging the Judgment and Decree passed by the trial Court decreeing the suit of the plaintiffs for partition and separate possession of their shares in the suit schedule properties. For the sake of convenience, the parties are referred to as they are referred in the original suit.
2. Suit is in respect of four landed properties and one house property, described in the schedule to the plaint as item Nos. 1, 2, 3, 4 and 5 respectively.
3. The case of the plaintiffs is that they and late Mahadevappa, the husband of first defendant and father of defendant Nos. 2 to 4 are the children of one Sannamadaiah. They along with defendants 1 to 4 constitute undivided Hindu Joint Family owning ancestral agricultural lands and house property at item Nos. 1 to 5 of the suit schedule. The katha of these properties was recorded in the name of their brother Mahadevappa and he used to share the agricultural yield from the said properties, during his lifetime with them. After the demise of Mahadevappa, defendants 1 to 4 failed to share the crops and refused to accede to their lawful demand for share in the schedule properties. Further, defendants 1 to 4 trying to alienate the schedule properties as the land prices escalated. On approaching the revenue authority, they came to know that their brother Mahadevappa had sold some extent of land in item No. 3 of the suit schedule without their consent and knowledge. As such, the said Sale Deeds are illegal and not binding on their interest.
4. After service of summons, defendants 1 to 3 filed written statement admitting their relationship with the plaintiffs and that the katha of the schedule properties stood in the name of Mahadevappa. However, it is their specific defense that, Sannamadaiah and Mahadevappa did not share cordial relation and therefore the joint family properties were divided between them; and the terms of partition was reduced into writing, in the form of unregistered partition deed. The katha of the schedule properties continued in Sannamadaiah's name till his death and afterwards, Mahadevappa got the khata of the properties fallen to his share as per the unregistered Partition Deed of the year 2000. Sy. No. 26/2 and some other items of the suit schedule, that had fallen to Sannamadaiah's share, was sold in favour of defendants 5 to 7 during his lifetime. The plaintiffs, therefore, are not entitled for any share therein. The suit schedule properties are the properties fallen to the share of Mahadevappa. After the death of Mahadevappa on 07.11.2005, defendants 1 to 4 being his legal representatives got the katha of the schedule properties mutated in their joint names. The suit is not maintainable for non-inclusion of all the joint family properties.
5. Defendants 4 to 7 have remained ex-parte.
6. The trial Court on the basis of aforesaid pleadings, framed the following issues:
1) Whether the plaintiffs prove that the suit schedule properties are their joint family properties?
2) Whether the defendants 1 to 3 prove that the joint family properties were divided between Sannamadaiah and his son Mahadevappa under registered partition deed and Sannamadaiah sold his share in favour of defendants 5 to 7?
3) Whether the defendants 1 to 3 prove that this is a suit for partial partition and therefore not maintainable?
4) Whether the plaintiffs are entitled for the relief sought?
5) What Order or Decree?
7. The plaintiffs in order to substantiate their claim, examined plaintiffs 1 and 3 as PWs 1 and 2 respectively and got marked Exs. P1 to 12. P.W. 1's evidence was discarded as she did not offer herself for cross-examination. However, defendants neither cross-examined PW2 nor entered the witness box to adduce oral or documentary evidence in support of their defense.
8. The trial Court on appreciation of the evidence on record held that the plaintiffs have proved that the suit schedule properties are joint family properties; the suit is maintainable and that it is not a suit for partial partition as contended by the defendants; the plaintiffs and Mahadevappa being Class-I heirs of deceased Sannamadiah, are entitled to equal share in the suit properties as per Section 8 of the Hindu Succession Act, 1956. Observing so, the trial Court decreed the suit and granted 3/4th share in the suit properties to the plaintiffs. Aggrieved by the said Judgment and Decree, defendants 1 to 3 have preferred this appeal.
9. Learned Counsel for the defendants/appellants assailing the impugned Judgment and Decree, argued that the trial Court passed the decree in favour of the plaintiffs relying on Section 6 of the Hindu Succession (Amendment) Act, 2005. The said provision is now repealed by the Repealing and Amending Act, 2015 (Act No. 17/2015). Therefore, the status of coparcener conferred on the daughter of a coparcener under the amended Act is no more available to the plaintiffs. The family properties were all partitioned under an unregistered partition deed in the year 2000, there was no joint family in existence as on the date of amendment to Section 6 of Hindu Succession Act. Similarly, there was no co-parcenary property, or joint family property in existence as on that date. Therefore, the plaintiffs are not entitled to any share in the plaint schedule properties. It was argued with regard to item No. 3 in that, since Mahadevappa had executed sale Deeds favour defendants 5 to 7, vide Exs. P1 to 3, the plaintiffs are not entitled to any share in the said properties and the said aspect has been completely missed by the trial Court. Further, Sannamadiah during his life-time had purchased a site in favour of 3rd plaintiff and gave cash, gold and silver jewellery to plaintiffs 1 and 2 and therefore, the plaintiffs are not entitled to any share in the plaint schedule properties. Lastly it was urged that the defendants could not attend the case or contest it, as the grand daughter of the 1st defendant and daughter of the 4th defendant was suffering from blood cancer.
10. Per contra, learned Counsel for the plaintiffs/respondents addressed arguments supporting the impugned Judgment and Decree.
11. In the light of the points urged during arguments, following points arise for our consideration in this appeal:
1) Whether the Repealing and Amending Act, 2015 (Act No. 17/2015), which repealed the Hindu Succession (Amendment) Act, 2005 to the whole extent, has the effect of repealing amended Section 6 and restoring the old Section 6 of the Hindu Succession Act, and thereby take away the status of co-parcener conferred on the daughters giving them equal right with the sons in the co-parcenary property?
2) Whether the plaintiffs right to a share in the schedule properties is defeated by the alleged partition under an unregistered Partition Deed of the year 2000?
3) Whether the plaintiffs are entitled to a share in the properties covered under Exs. P1 to P4, forming portion of item No. 3 of suit schedule?
4) Whether the plaintiffs' right to share in the schedule properties is taken away by alleged purchase of site by Sannamadaiah in favour of 3rd plaintiff and gifting of gold, cash and silver jewellery to plaintiffs 1 and 2?
POINT No. 1:
12. By Act No. 30/1956, the Hindu Succession Act, 1956 was enacted by the Parliament to amend and codify the law relating to intestate succession among Hindus. The said enactment came into force on 17.6.1956.
13. Section 6 of the Act dealing with devolution of interest in co-parcenary property, before the amendment, read as under:
"Section 6. Devolution of interest in co-parcenary property.--When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara co-parcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:
PROVIDED that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation I: For the purposes of this 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.
Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the co-parcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
14. The aforesaid provision made it clear that, the concept of Mitakshara co-parcenary and devolution of property by survivorship upon the members of the co-parcenary was retained. Thus, the retention of Mistakshara co-parcenary property without including the females meant that the females could not inherit ancestral property as their male counterparts did. The law by excluding the daughter from participating in the co-parcenary ownership not only contributed to discrimination on the ground of gender but also led to oppression and negation of her fundamental right to equality guaranteed by the Constitution.
15. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra made necessary changes in the law giving equal right to daughters in Hindu Mitakshara co-parcenary property: In Kerala, the Legislature enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
16. Thereafter, the Parliament proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters of a coparcener in the Hindu Mitakshara co-parcenary property, by enacting the Hindu Succession (Amendment) Act, 2005.
17. Section 6 under the Hindu Succession (Amendment) Act, 2005 reads as under:
"3. For Section 6 of the principal Act, the following section shall be substituted, namely.--
6. Devolution of interest in co-parcenary 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;(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 co-parcenary 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.
(b) have the same rights in the co-parcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said co-parcenary 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.
(3) Where of 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 co-parcenary 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;(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
(b) the share of the pre-deceased son or a pre-deceased 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 pre-deceased 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.
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--(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
(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.
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."
18. It is clear from these wordings that Section 6 of the Hindu Succession Act, 1956 was substituted by Section 6 of the Hindu Succession (Amendment) Act, 2005. The effect of substitution of a provision by way of an amendment is that, the amended provision is written in the place of earlier provision with pen and ink and automatically the old Section is wiped out. So, there is no need to refer to the amending Act at all. The amendment should be considered as if embodied in the whole statute of which it has become a part. The statute in its old form is superseded by the statute in the amended form. The amending Section of the statute takes the place of the original section, for all intent and purpose as if the amendment had always been there. Though the Amended Act came into force on 9.9.2005, Section 6 as amended is deemed to have been there in the statute book since 17.6.1956 when the Hindu Succession Act came into force.
19. The Constitution Bench of the Apex Court in the case of Shamrao V. Parulekar & Others Vs. District Magistrate Thana, Bombay And Others, reported in MANU/SC/0017/1952 : AIR 1952 SC 324, dealing with the scope of the substitution of a provision by way of amendment, has held as under:
"The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act, must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter these is no need to refer to the amending Act at all. This is the rule in England. It is the law in America. It is the law which the Privy Council applied to India."
20. In the case of Sha Chunnilal Sohanraj Vs. T. Gurushantappa, 1972 (1) Mys. L.J. 327, a Division Bench of this Court held as under:
"An amending act is not regarded as an independent statute. The statute in its old form is superseded by the statute in its amended form, the amended section of the statute taking the place of the original section, for all intents and purposes as if the amendment had always been there. The amendment should be considered as if embodied in the whole statute of which it has become a part. Unless a contrary intent is clearly indicated, the amended statute is regarded as if the original statute had been repealed and the whole statute re-enacted with the amendment".
Therefore, by such amendment, the amending Act has become a part of the original Act. By virtue of the amendment by way of substitution, the said provisions are given retrospective effect. On the basis of the said amendment, the daughters who were denied right in the co-parcenary property earlier have initiated proceedings in the Court. The pending proceedings are also to be decided in the light of the amended provision.
21. Section 23 of the Principal Act provided for rights of female heir to seek partition in respect of a dwelling house wholly occupied by a joint family only when the male heirs choose to divide their respective shares therein. To remove the said disability, Section 23 was omitted by the Hindu Succession (Amendment) Act, 2005. Similarly, Section 24 of the Principal Act which disentitled female Hindu to succeed to the property of male Hindu if she has re-remarried on the day the succession opened, was also omitted by the Hindu Succession (Amendment) Act, 2005. Under Section 30, the word 'disposed of by him' was substituted by the words "disposed of by him or by her" since the right was conferred on a daughter in the co-parcenery property.
22. By amendment to Hindu Succession Act in the above terms, the Parliament has removed the inequality between a son and a daughter, a discrimination on the ground of gender, nearly 50 years after the Constitution came into force. Thus, the fundamental right of equality guaranteed by the Constitution is restored and a historical wrong has been rectified.
23. Nearly, 10 years after coming into force of Hindu Succession (Amendment) Act, 2005 the Parliament enacted The Repealing and Amending Act, 2015 (Act No. 17/2015) on 13.5.2015, to repeal certain enactments and to amend certain other enactments. Section 2 of the Act No. 17/2015 specifies the Acts which are repealed and the extent of repeal in the First Schedule; at Sl. No. 39 thereof is the Hindu Succession (Amendment) Act, 2005 showing that the whole of the Amendment Act is repealed.
24. The argument of the Counsel for the appellants is that, the Act No. 17/2015 has repealed the whole of the Hindu Succession (Amendment) Act, 2005 and it has the effect of repealing amended Section 6 and reviving Section 6 of the Principal Act. Thus the status of a co-parcener conferred on the daughter of a coparcener who is governed by the Mitakshara law is taken away and she ceases to be co-parcener. As such a daughter is not entitled to equal share in the co-parcenary property along with a son who is a co-parcener.
25. In order to appreciate and understand the effect of repealing and amending Act, it is necessary to consider Section 6A of the General Clauses Act, 1897 and Section 4 of the Repealing and Amending Act, 2015. The said provisions are extracted here below for convenience sake.
Section 6A of the General Clauses Act:
"6-A. Repeal of Act making textual amendment in Act or Regulation.--Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal".Section 4 of the Repealing and Amending Act, 2015 (Act No. 17/2015):
"The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred to;
and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing;
nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed, recognized or derived by, in or from any enactment hereby repealed;
nor shall the repeal by this Act of any enactment provide or restore any jurisdiction, office, custom, liability, right, title privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force."
A plain reading of Section 6A of the General Clauses Act makes it clear that unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.
26. The Repealing and Amending Act, 2015 does not disclose any intention on the part of the Parliament to take away the status of a coparcener conferred on a daughter giving equal rights with the son in the co-parcenary property. Similarly, no such intention can be gathered with regard to restoration of Section 23 and 24 of the Principal Act which were repealed by the Hindu Succession (Amendment) Act, 2005. On the contrary, by virtue of the Repealing and Amending Act, 2015, the amendments made to Hindu Succession Act in the year 2005, became part of the Act and the same is given retrospective effect from the day the Principal Act came into force in the year 1956, as if the said amended provision was in operation at that time.
27. The main object of a Repealing and Amending Act is only to strike out the unnecessary Acts and excise dead matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to remove confusion from the public mind. In other words, the Repealing and Amending Act is enacted not to bring in any change in law, but to remove enactments which have become unnecessary. Thus, the Repealing and Amending Act, 2015 only expurgates the Hindu Succession (Amendment) Act, 2005 (Act No. 39/2005) along with similar Acts, which had served the purpose.
28. The repeal of an amending Act, therefore, has no repercussion on the parent Act which together with the amendments remains unaffected. The general object of a repealing and amending Act is stated in Halsbury's Laws of England, 2nd Edition, Vol. 31, at p. 563, thus:
"A statute Law Revision Act does not alter the law, but simply strikes out certain enactments which have become unnecessary. It invariably contains elaborate provisos."
29. In Khuda Bux Vs. Manager, Caledonian Press, MANU/WB/0165/1954 : AIR 1954 Cal 484 Chakravartti, C.J., neatly brings out the purpose and scope of such Acts. The learned Chief Justice says at p. 486 as under:--
"Such Acts have no Legislative effect, but are designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending Acts, because having imparted the amendments to the main Acts, those Acts have served their purpose and have no further reason for their existence. At times, inconsistencies are also removed by repealing and amending Acts. The only object of such Acts, which in England are called Statute Law Revision Acts, is legislative spring-cleaning and they are not intended to make any change in the law. Even so, they are guarded by saving clauses drawn with elaborate care,...".
30. This view has been affirmed by the Supreme Court in the case of Jethanand Betab Vs. The State of Delhi [MANU/SC/0032/1959 : AIR 1960 SC 89].
31. The Repealing and Amending Act, 2015 which repeals the Hindu Succession Act (Amendment) Act, 2005 in whole, therefore, does not wipe out the amendment to Section 6 from the Hindu Succession Act. The existence of the Hindu Succession (Amendment) Act, 2005 since became superfluous and did not serve any purpose and might lead to confusion, the Parliament in its wisdom thought of repealing the said Amendment Act. It is only a case of legislative spring-cleaning, and not intended to make any change in law.
32. The amended Section 6 has already been substituted in the Hindu Succession Act, 1956 as if it was in the enactment from its inception. When the amending provision takes the place of the earlier provision, the object of the Amendment Act is fulfilled and thereafter the Amendment Act serves no purpose. Therefore, such an Amendment Act requires to be repealed and that is what has been precisely done by Act No. 17/2015. Accordingly, Point No. 1 is answered in the negative.
POINT No. 2:
33. It is undisputed that the plaint schedule properties were ancestral properties of the parties and stood in the name of plaintiffs' father Sannamadaiah. By Act No. 39 of 2005, Section 6 of the Hindu Succession Act, 1956 came to be amended, conferring on the daughters of a coparcener the status of co-parcener giving equal right in the co-parcenary property along with the son.
34. Explanation to sub-section (5) of Section 6 of the Hindu Succession Act, 1956 categorically declares that nothing contained in Section 6 applies to a partition, which has been effected before 20th day of December 2004. In other words, if a partition had taken place in the family before 20th December 2004, by virtue of the amendment, a daughter cannot claim share in the co-parcenary property.
35. Explanation to sub-section (5) explains the meaning of partition for the purpose of Section 6 as below:
"Explanation: For the purposes of Section 6, "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."
Thus oral partition, palu-patti, unregistered Partition Deed are excluded from the purview of the word "partition" used in Section 6. It is only the partition effected by way of a registered Deed prior to 20th December 2004, which debars a daughter from staking an equal share with a son in a co-parcenary property.
36. In the case on hand, admittedly there is no registered Partition Deed between Sannamadaiah and Mahadevappa, evidencing the alleged partition that took place in the year 2000. Even if there was a partition, oral or by an unregistered Partition Deed of the year 2000 as contended by the defendants, it cannot be treated as partition for the purpose of Section 6 and the rights of the daughters to claim an equal share as coparceners along with Sannamadaih's son Mahadevappa remains unaffected.
37. We do not find any substance in the argument of the appellants that there was a partition in the year 2000 and in the said partition, the schedule properties had fallen to the share of Mahadevappa. The trial Court is fully justified in rejecting the contention of the defendants and holding that the plaintiffs are entitled to equal share with the son of Sannamadaiah in the schedule properties, which are admittedly co-parcenary properties. Therefore, point No. 2 is answered in the negative.
POINT No. 3:
38. The proviso to sub-section (1) of Section 6 of the Hindu Succession Act after conferring the status of a co-parcener on a daughter, categorically provides that nothing contained in sub-section (1) 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.
39. The plaintiffs themselves have produced Exs. P1 to 3, certified copies of the Sale Deeds dated 8.2.2002 executed in favour of defendants 5 to 7 in respect of a portion of item No. 3 of the plaint schedule. However, Ex. P4, the certified copy of the sale deed dated 25.2.2009 came into existence subsequent to 20th December 2004, as such the said sale is not saved by proviso to sub-section (1) of Section 6 of the Hindu Succession Act. Therefore, the Court below has rightly ignored the said sale deed and granted a share to the plaintiffs in respect of the property covered under Ex. P4.
40. By virtue of Exs. P1 to P3 which are registered documents, the properties sold thereunder had gone out of the joint family as on the day Section 6 was substituted. Therefore, the plaintiffs who acquired right to claim a share with their brother Mahadevappa as coparceners because of amended Section 6, are not entitled to any share or interest in the said property.
41. Unfortunately, the trial Court without properly appreciating this legal position, proceeded on the assumption that the defendants 4 to 7 have not contested the matter; the said sale was not for legal necessity and benefit of estate and therefore contended that the plaintiffs have a right in the said properties. In view of Section 6 proviso sub-section (1), the question of legal necessity and benefit of estate should not have gone into by the trial Court. This is not a case where an alienation is challenged on those grounds and therefore, the Judgment and Decree of the trial Court to this extent requires to be set aside. Therefore, point No. 3 is answered partly in the affirmative holding that the plaintiffs are entitled to a share only in the property sold under Ex. P4 and not the one sold under Exs. P1 to P3.
POINT No. 4:
42. Learned Counsel for the appellants argued that Sannamadaiah purchased a site in the name of the third plaintiff and gave gold and silver jewellery as well as cash to the first and second plaintiffs and therefore plaintiffs cannot claim any share in the suit properties. Admittedly, the defendants have not stepped into the witness-box to substantiate their contention, nor is there any plea in the written statement to that effect. Even assuming that Sannamadaiah had purchased a site in the name of third plaintiff and given jewellery and cash to other plaintiffs, the same cannot take away their legal right as daughters to claim a share in the co-parcenary properties by virtue of Section 6 read with Section 8 of Hindu Succession Act. Point No. 4 is therefore answered in the negative. In the result, we pass the following:--
ORDER
(a) The appeal is partly allowed.
(b) The Judgment and Decree of the trial Court is hereby confirmed in all respects except the properties sold under Exs. P1 to P3, which forms part of item No. 3 of the plaint schedule; the plaintiffs are not entitled for any share in the properties sold under Exs. P1 to P3.
(c) No costs.
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