Wednesday, 19 February 2014

Rights of daughters in joint Hindu Family Property.


Right of the daughters to become coparceners of a Hindu undivided family.

The plaintiffs claim that the amended Section 6 of the Act provides that the daughterof a coparcener in the joint Hindu family governed by Mitakshara law, shall by birth, become coparcener in her own right in the same manner as a son and, therefore, they alongwith their sister, defendant No.3 being the daughters of late Shri Rajinder Nath, a coparcener of the HUF, became coparceners therein by birth in their own right in the same manner as defendant No.2, their brother and hence, they are entitled to seek partition of the two HUF branches of Shri Rajinder Nath and Shri Ram Chander Nath (defendants No.1 and 4) as the said HUFs had continued with joint family business with undivided common HUF assets that were allocated to them in equal share under the Award dated 26.10.1978.

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 IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A. No.7915/2011 (by defendant No.2 u/O VII R 11 CPC) and I.A. No.7857/2011 (by defendant No.4 u/O VII R 11 CPC) in CS(OS) No.663/2011
Reserved on: 11.01.2013
Date of decision: 11.02.2013
IN THE MATTER OF:
KRISHNA GUPTA AND ANR. ..... Plaintiffs Through: Mr. Sudhanshu Batra, Sr. Advocate
with Mr. S.K. Chaudhary and Mr. H.D. Talwani, Advocates
versus
M/S RAJINDER NATH & CO HUF AND ORS ..... Defendants Through: Mr. D.S. Narula and Mr. Amit Singh
Chadha, Sr. Advocates with Mr. Angad Singh
Narula, Advocate for D-2.
Mr. Mohit Jolly, Advocate for D-3.
Ms. Manmeet Arora, Advocate with Ms. Liza M.
Baruah, Advocate for D-4.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.
1. The defendant No.2 and defendant No.4 have filed these
applications, under Order VII Rule 11 CPC praying inter alia that the
suit for partition of the HUF assets, for possession, rendition of
accounts, permanent and mandatory injunction etc., instituted by the
plaintiffs be rejected as being barred by law, barred by limitation and
CS(OS) 663/2011 Page 1 of 71 for the reason that the plaintiffs not being in actual/constructive or
symbolic possession of any of the suit premises, they are liable to pay
ad valorem court fees on the valuation of their shares in the suit
premises for the relief of partition and the plaint has been insufficiently
stamped by them by paying fixed court fees for the said relief.
2. The factual matrix of the case is as follows. Plaintiffs No.1 and 2
and defendant No.3(daughters) and defendant No.2(son) are siblings
and children of late Shri Rajinder Nath. As per the plaintiffs, the
defendant No.1 is an HUF company with defendant No.2 as its present
Karta. Defendant No.4 is another HUF with Shri Ashok Nath (son of
Sh. Ram Chander Nath and nephew of late Shri Rajinder Nath) as its
Karta. As per the plaintiffs, the defendant No.4/HUF has common
undivided joint family businesses and movable and immovable assets
alongwith defendant No.1/HUF and both the said HUFs are engaged in
joint family businesses with joint undivided common assets.
3. The case set up by the plaintiffs is that Shri Sham Nath had
three sons, including Sh. Rajinder Nath, predecessor-in-interest of the
plaintiffs and the defendants No.2 and 3 and he alongwith his sons
were engaged in ancestral joint family business established in the
early part of the nineteenth century under the firm name, M/s Faqir
Chand Raghu Nath Dass and various other trade names. It is averred
CS(OS) 663/2011 Page 2 of 71 in the plaint that the said joint family business owned various ancestral
movable and immovable assets that were acquired over a period of
time in the name of the firm or Benami in the names of various family
members. The aforesaid joint family businesses and assets were
allegedly partitioned under an Award dated 26.10.1978 made by the
Sole Arbitrator, Shri Rameshwar Nath (son-in-law of Shri Sham Nath).
Plaintiffs claim that under the Award, the Sole Arbitrator had allotted
specific assets to the share of Shri Surinder Nath, one of the sons of
Shri Sham Nath, and the remaining assets were allotted in equal
share jointly to the other two sons and their branch of HUF, i.e., Shri
Rajinder Nath and Shri Ram Chander Nath and that the undivided
businesses and assets allocated to the two HUFs jointly remained
undivided under the said Award. The aforesaid Award was made rule
of the court by the High Court in a suit registered as CS(OS) 427-
A/1979, which was finally decreed on 21.08.2006. The said decree was
challenged in an appeal filed by the legal heirs of late Shri Surinder
Nath and is stated to be pending adjudication.
4. The plaintiffs have laid the foundation of the present suit on the
provisions of the substituted Section 6 of the Hindu Succession Act,
1956 (hereinafter referred to as ‗the 1956 Act') as amended in the
year 2005, which came into force on 09.09.2005(hereinafter referred
CS(OS) 663/2011 Page 3 of 71 to as `the 2005 Act'). The plaintiffs claim that the amended Section
6 of the Act provides that the daughter of a coparcener in the joint
Hindu family governed by Mitakshara law, shall by birth, become
coparcener in her own right in the same manner as a son and,
therefore, they alongwith their sister, defendant No.3 being the
daughters of late Shri Rajinder Nath, a coparcener of the HUF, became
coparceners therein by birth in their own right in the same manner as
defendant No.2, their brother and hence, they are entitled to seek
partition of the two HUF branches of Shri Rajinder Nath and Shri Ram
Chander Nath (defendants No.1 and 4) as the said HUFs had continued
with joint family business with undivided common HUF assets that
were allocated to them in equal share under the Award dated
26.10.1978.
5. It is further averred in the plaint that Shri Rajinder Nath had
died intestate on 24.08.1981, leaving behind his widow, Smt. Kamla
Devi, both the plaintiffs and the defendants No.2 and 3 as his legal
heirs and therefore, all the five legal heirs had inherited 1/5th share
each in the individual assets of Shri Rajinder Nath and further, they
had inherited 1/5th share each in the assets of defendant No.1,
Rajinder Nath and Co. HUF to the extent of his 1/5th share.
Subsequently, Smt. Kamla Devi expired on 14.12.2009 and the
CS(OS) 663/2011 Page 4 of 71 plaintiffs claim that upon her demise, all her individual assets as also
her 1/25th share in the assets of defendant No.1/HUF had also
devolved equally on them and the defendants 2 and 3 by succession.
In other words, both the plaintiffs claim entitlement to 1/4th share
each in the assets of the defendant No.1/HUF in their own right as
coparceners by birth and 1/4th share each in the individual assets left
by their parents. The plaintiffs further claim that as the businesses and
assets of the defendant No.1/HUF and the defendant No.4/HUF have
continued to remain joint and undivided, no further partition having
taken place in respect of the said joint family and its assets after
making of the Award dated 26.10.1978, they have a right to the
extent of 1/8th share each in the total joint businesses and assets of
both the HUFs.
6. As mentioned earlier, the present applications have been filed by
the defendants No.2 and 4 stating inter alia that the suit for partition
instituted by the plaintiffs, is liable to be rejected under the provisions
of Order VII Rule 11 CPC. The defendant No.2 claims that the suit is
liable to be rejected on three counts, firstly because Section 6 of the
2005 Act, does not have application to a case where partition had
opened prior to promulgation of the amended Section 6, secondly, the
plaint has been insufficiently stamped for the relief of partition as the
CS(OS) 663/2011 Page 5 of 71 plaintiffs are not in actual, constructive or symbolic possession of any
of the suit properties and lastly, because the suit is barred by
limitation. The defendant No.4/HUF has stated that apart from the
aforesaid common objections, the plaint ought to be rejected for the
additional reasons that it does not disclose any cause of action against
the defendant No.4 and further, that the suit is bad for misjoinder of
parties as no suit for partition is maintainable against the defendant
No.4/HUF.
7. While the learned counsels have been heard on both the
applications in respect of the common grounds taken by the defendant
No.2 & defendant No.4/HUF, as noted above, counsel for the
defendant No.4/HUF has reserved her right to address arguments on
the other two grounds raised for seeking rejection of the plaint as per
I.A. No.7857/2011, by submitting that in the event the Court decides
to turn down the common pleas raised by the defendants No.2 and 4
for seeking rejection of the plaint, then she may be permitted to
address arguments on the remaining two grounds taken in the
application with regard to non-disclosure of cause of action against the
defendant No.4/HUF and misjoinder of parties.
8. Mr.Amit Chadha, Sr. Advocate appearing for the defendant No.2
had submitted that his client has averred in his written statement that
CS(OS) 663/2011 Page 6 of 71 Shri Rajinder Nath, the predecessor-in-interest of the plaintiffs and the
defendants No.2 and 3 had executed a will dated 17.08.1981 during
his lifetime, whereunder he had excluded all his three daughters
including the plaintiffs from inheritance and therefore, none of the
assets held by him or his HUF would pass on to them. He stated that
as the aforesaid will has remained unchallenged by the plaintiffs ever
since 24.08.1981, the date of demise of Shri Rajinder Nath, they
cannot claim any right, title or interest in his assets or in the joint
family business or the ancestral movable or immovable assets
allegedly acquired by the defendant No.2 in his individual capacity.
9. The maintainability of the present suit has been questioned on
the ground that it is ill-founded as the amended Section 6 of the 2005
Act does not operate retrospectively, but is prospective in nature.
Mr.Chadha contended that the said provision applies only to
coparcenary property of a male Hindu holder, who expired after
09.09.2005, the date when the amended provision came into force and
since the predecessor-in-interest of the parties, Shri Rajinder Nath,
had expired on 24.08.1981, a notional partition of the HUF had taken
place on his demise and therefore, the plaintiffs cannot claim the
benefit of Section 6 of the 2005 Act, for seeking devolution of any
interest in the coparcenary property. He urged that when sub-section
CS(OS) 663/2011 Page 7 of 71 (1) and sub-section (3) of Section 6 of the Act are read conjointly,
then it becomes clear that a daughter can be treated as a coparcener
only on the condition that her father was a surviving coparcener when
the amended provision came into force. In the present case,
Sh.Rajinder Nath having expired on 24.8.1981, upon his death, a
national partition of the HUF took place and on the date when the
amendment to Section 6 took place, the plaintiffs were not the
daughters of a male Hindu coparcener, but were sisters. Hence, the
suit is claimed by barred by limitation. In support of his submission
that the law is presumed to be prospective in nature unless and until
the legislature intends it to be retrospective, learned counsel for the
defendant No.2 has relied upon the following decisions:-
(i) Eramma vs. Veerupana [AIR 1966 SC 1879]
(ii) Mukesh (Smt.) vs. Bharat Singh [149(2008) DLT 114]
(iii) Smt. Bagirathi vs. Manivanan [AIR 2008 Madras250]
(iv) G. Sekar vs. Geetha [AIR 2009 SC 2649]
10. It was further canvassed by the learned Senior Advocate
appearing for the defendant No.2 that assuming without admitting that
Shri Rajinder Nath has expired intestate as claimed by the plaintiffs, it
cannot be disputed that the succession had opened only upon his
demise and in the event of his intestate demise, his 1/3rd share would
CS(OS) 663/2011 Page 8 of 71 have devolved to the extent of 1/5th share upon each of the legal heirs
under Section 6 of the 1956 Act. To substantiate the said submission,
reliance was placed on the following decisions:-
(i) Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors. [(1978) 3 SCC 383]
(ii) Anar Devi and Ors. vs. Parmeshwari Devi & Ors. [(2006) 8 SCC 656]
11. The second ground urged by the counsels for the defendants
No.2 and 4 for seeking rejection of the plaint is that the same has
been written on insufficiently stamped papers. It was submitted that
the plaintiffs have been married for over forty years and they have
been residing in their respective matrimonial homes and have not
been in possession of any of the suit premises, nor are they in
constructive possession/control/management of any of the suit
properties. Rather, it was contended that ouster has been admitted by
the plaintiffs themselves in the plaint and therefore, ad valorem court
fee is payable by them on the plaint at ₹100 crores as mentioned in
para 33 of the plaint, under Section 7(iv)(b) of the Court Fees Act,
1870 and that Article 17(vi) of Schedule II does not have any
application to the facts of the present case.
12. The aforesaid submission was sought to be elaborated by the
learned counsel for the defendant No.2, who stated that partition takes
CS(OS) 663/2011 Page 9 of 71 place in two steps; the first step is of severance of status and the
second step is of severance of property and Article 17(vi) of Schedule
II would apply only in circumstances where a person is already in
enjoyment of the joint property but seeks a change in the mode of
enjoyment. He contended that since the plaintiffs are not seeking a
change in the mode of enjoyment of the properties, but are seeking to
enforce their rights in the joint family properties, they cannot be
governed by Article 17(vi) of Schedule II of the Court Fees Act, 1870.
He urged that enjoyment of properties has to be examined on the date
of institution of the suit and the said enjoyment has to be as co-
owners of the properties, but as per the averments that have been
made by the plaintiffs in paras 17, 18, 21, 22, 24, 28, 30, 32 and
prayer clause (iv) of the plaint, they cannot claim to raise a
presumption in law of being co-owners. Besides, the defendants have
disputed their ownership in the light of their reply to the legal notice
issued by the plaintiffs, and it was argued that for this reason too, the
plaintiffs are disentitled from claiming to be members of a joint family.
13. To demonstrate that the plaintiffs have themselves admitted that
they are not in constructive possession or otherwise of the suit
properties and ouster has been duly admitted by them, reference was
particularly made to the averments made in paras 19, 20, 21 and 22
CS(OS) 663/2011 Page 10 of 71 of the plaint as well as the contents of the legal notice issued by the
plaintiffs and enclosed with the list of documents at pages 50 and 60.
The case law cited by the counsel for the defendants No.2 & 4 on this
point is Sudhir Joshi vs. Shanta Joshi reported as 113 (2004) DLT
254 and Harjit Kaur vs. Jagdeep Singh reported as 116 (2005) DLT
392.
14. In opposition to the present applications, Mr. Sudhanshu Batra,
Senior Advocate appearing for the plaintiffs denied that the plaintiffs'
claim for partition based on the 2005 Act is misconceived or that they
are not in possession, control or management of the suit properties
and therefore, are liable to pay ad valorem court fees on the plaint.
With respect to the amendment to the 1956 Act carried out in the year
2005, it was submitted that upon substitution of Section 6 of the Act
w.e.f. 09.09.2005, the right of the daughters to become coparceners
of a Hindu undivided family was given recognition and it is fallacious
on the part of the defendants to contend that the provisions of sub-
section (1) read with sub-section (3) of Section 6 of the Act prescribe
that a daughter can be considered as a coparcener only if her father
was a surviving coparcener at the time the amended provision came
into play and that the succession, which had opened prior to the
amended Act coming into force, cannot be reopened or that any such
CS(OS) 663/2011 Page 11 of 71 attempt would result in giving retrospective effect to Section 6 of the
2005 Act.
15. Learned counsel for the plaintiffs denied that any of the decisions
relied upon by the other side are applicable to the facts of the present
case. Instead, he referred to the following judgments on the
interpretation of Section 6 of the 2005 Act:-
(i) Pravat Chandra Patnaik & Ors vs. Sarat Chandra Patnaik & Anr. [AIR 2008 Orissa 133]
(ii) Prema vs. Nanje Gowda & Ors. [(2011) 6 SCC 462]
(iii) Ganduri Koteshwaramma & Anr. vs. Chakiri Yanadi & Anr. [(2011) 9 SCC 788]
(iv) Manoj Jain vs. Smt. Krishna Jain & Ors. in CS(OS) 2413/2007 decided on 04.10.2012
16. In response to the arguments of the other side that sub-section
(1) has to be read conjointly with sub-section (3) of the amended
Section 6 of the Act, it was submitted on behalf of the plaintiffs that a
bare perusal of sub-section (3) of Section 6 would reveal that the
same would come into force only upon the death of ―a Hindu‖ upon
commencement of the amended Act, i.e., after 09.09.2005 and that all
the other provisions of the substituted Section 6 would come into play
on the date of the death of a Hindu, whether it occurred before or after
the amendment. He further stated that after the amendment to
CS(OS) 663/2011 Page 12 of 71 Section 6, the legislature has done away with the concept of
survivorship by clarifying the said position in sub-section (3) and since
the decision to do away with the concept of survivorship could not be
retrospective in nature, sub-section (3) specifically provides that it
would be attracted only upon the death of ―a Hindu‖ after
commencement of the Act.
17. Coming to the second objection taken by the defendants No.2 &
4 with regard to constructive possession of co-sharers and deficiency
in the court fees, learned counsel for the plaintiffs had submitted that
Section 7(iv)(b) read with Article 17(vi) of Schedule II of the Court
Fees Act, 1870 provides for payment of fixed court fees in suits for
partition of joint family properties as affixed by the plaintiffs and in
support of the said submission, he placed reliance on following
decisions:-
(i) Jagdish Pershad & Ors. vs. Jyoti Pershad & Ors. [ILR 1975 Delhi 841]
(ii) Neelavathi & Ors. vs. N. Natrajan & Ors. [AIR 1980 SC 691]
(iii) Jagannath Amin vs. Seetharama (Dead) by LRs & Ors. [(2007) 1 SCC 694]
(iv) Saroj Salkan vs. Cap Sanjeev Singh & Ors. [155 (2008) DLT 300]
(v) Raj Ahuja vs. Maj General Satish Mediratta (Retd) & Anr. [2012 Law Suit (Del) 2731]
CS(OS) 663/2011 Page 13 of 71
18. Learned counsel for the plaintiffs further stated that neither of
the two judgments of this Court as relied upon by the defendants to
urge that the plaintiffs were not in constructive possession of the suit
properties, are applicable to the facts of the present case as unlike the
fact situation in those cases, in the present case, there was no
exclusion of the plaintiffs. He asserted that the averments contained
in the plaint cannot be understood to mean that the plaintiffs are not
in possession and in fact, the decisions that have been cited by the
counsel for the defendants No.2 & 4, clarify the position that for
claiming to be in constructive possession, the plaintiffs need not be in
actual physical possession of the entire or any part of the joint assets.
It was therefore denied that the suit is barred by limitation as
contended by the other side. In support of the said submission, the
following decisions were relied upon:-
(i) Md. Mohammad Ali (Dead) by LRs vs. Jagdish Kalita & Ors. [(2004) 1 SCC 271]
(ii) Layak Ram vs. Dharamwati & Ors. [AIR 2010 Punjab and Haryana 95]
(iii) Kaka Singh vs. Swaran Singh and Anr. in RSA No.1878/1999 of Punjab and Haryana High
Court decided on 29.05.2012.
CS(OS) 663/2011 Page 14 of 71
19. As regards the objection taken by the defendants No.2 and 4
that the plaintiffs, having valued their share in the movable and
immovable assets of the joint Hindu family properties at ₹100 crores,
are liable to pay ad valorem court fees on the said valuation, learned
counsel for the plaintiffs had submitted that since it is the case of the
plaintiffs that they are coparceners and co-sharers of the movable and
immovable properties and in joint and constructive possession of the
assets, they are liable to pay only fixed court fees for the relief of
partition. He sought to explain that reference of ₹100 crores as made
in the plaint to be in the context of valuation of the suit for the
purpose of jurisdiction for seeking the relief of partition and not for the
relief of possession. He pointed out that a similar view had been taken
by a Division Bench of this Court in the case of Saroj Salkan (supra)
and by a Single Judge of this Court in the case of Raj Ahuja (supra),
where the fixed court fees paid by the plaintiffs therein under Article
17(vi) of Schedule II of the Court Fees Act, was duly accepted.
20. Learned counsel for the plaintiffs also refuted the contention of
the other side that the plaintiffs are not in enjoyment of any portion of
the joint family assets and therefore, they cannot seek separate
enjoyment of their specific share in lieu of their enjoyment of
undivided share in the said assets. He submitted that in the present
CS(OS) 663/2011 Page 15 of 71 suit, the plaintiffs are seeking the relief of allocation of specific assets
separately in lieu of their undivided shares in the joint family
properties and as the conversion of the plaintiffs' undivided share in
the joint family properties into their separate shares cannot be valued
with precision in monetary terms at this stage, they are entitled to pay
fixed court fees and not ad valorem court fees on the plaint.
21. In rebuttal to the arguments canvassed by the counsel for the
plaintiffs on the applicability of Section 6 of the 2005 Act to the
plaintiffs, Mr.Amit Chadha, Senior Advocate appearing for the
defendant No.2 stated that the decision relied upon by the counsel for
the plaintiffs in the case of Manoj Jain (supra) is per incuriam as the
learned Single Judge had not considered the earlier decisions of the
Supreme Court in the cases of Eramma (supra) and Daya Singh vs.
Dhan Kaur reported as (1974) 1 SCC 700 as also the decision of a
co-ordinate bench of this Court in the case of Mukesh (Smt.) (supra).
He also contended that the said judgment had misinterpreted the
decision of the Supreme Court in the case of G. Sekar (supra). Lastly,
he urged that in the event, this Court is not inclined to accept his
submission as to the manner in which Section 6 of the Act of 2005
ought to be interpreted, then in view of a conflict of opinion between
CS(OS) 663/2011 Page 16 of 71 Mukesh(Smt.)(supra) & Manoj Jain(supra), the said issue may be
referred to a larger Bench for consideration.
22. The Court has perused the averments made by the plaintiffs in
the plaint, carefully considered the submissions made by the counsels
for the parties and examined the decisions relied upon by them.
23. The defendants have raised threefold grounds for seeking
rejection of the plaint. The first ground is premised on the
interpretation of Section 6 of the 2005 Act. The cornerstone of the
argument of learned counsels for the defendants No.2 and 4 is that a
conjoint reading of sub-section (1) and sub-section (3) of Section 6 of
the 2005 Act clearly reflects that a daughter can be considered as a
coparcener only if her father was a surviving coparcener at the time
when the amended provision came into force and that any other
interpretation would result in the amendment being read as
retrospective.
24. There is no quarrel with the proposition urged by learned counsel
for the defendants No.2 & 4 that the law is presumed to be prospective
in nature unless and until the legislature intends it to be retrospective.
The aforesaid argument has however to be tested on the anvil of the
provisions of the amended Section 6 of the Act so as to examine as to
CS(OS) 663/2011 Page 17 of 71 the manner in which it would apply. Section 6 of the 2005 Act is
extracted herein below for ready reference :-
"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 in, 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
CS(OS) 663/2011 Page 18 of 71 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 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.
(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 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: 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
CS(OS) 663/2011 Page 19 of 71 (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."
25. The avowed object of substituting Section 6 of the 1956 Act with
the one incorporated in the 2005 Act, was to ensure that w.e.f.
09.09.2005, female members of a joint Hindu family are treated at par
with male members. The amended Section 6 of the 2005 Act, is a
beneficial legislation directed towards elimination of the discrimination
contained in Section 6 of the 1956 Act, by ensuring that equal rights
are granted to daughters in the Hindu Mitakshara coparcenary in their
own right by birth, in the same manner as granted to the sons. The
said provision is an embodiment of a laudable legislative intent to treat
CS(OS) 663/2011 Page 20 of 71 daughters at par with sons in joint Hindu families governed by the
Mitakshara law.
26. As would be apparent from a perusal of the statement of objects
and reasons for amending Section 6 of the Act, by doing so, the
legislature has recognized the fact that the law, as it stood prior to the
amendment, had excluded daughters from participating in the
coparcenary ownership, which not only contributed to their
discrimination on the ground of gender, but also led to oppression and
negation of their fundamental right of equality as guaranteed under
the Constitution. With the object of removing the said discrimination,
Section 6 of the 2005 Act came to be implemented on the Statute
book. Thus, w.e.f. 09.09.2005, a daughter is also entitled to a share in
the ancestral property and she is to be treated as a coparcener by
birth just as a son in a joint Hindu family governed by Mitakshara law.
27. From amongst all the decisions that have been referred to by the
counsels on both sides, the direct decision of the Supreme Court on
the current legal position of inheritance by female members of joint
Hindu family with specific reference to Section 6 brought into the 1956
Act by the 2005 Act, is found to be in the case of Ganduri
Koteshwaramma(supra). In the aforesaid case, the question raised
was as to whether pending a final decree of partition, a preliminary
CS(OS) 663/2011 Page 21 of 71 decree passed by the Trial Court in the said case on 19.3.1999 and
amended on 27.9.2003 had deprived the appellants (being daughters
of one Chakiri Venkata Swamy) of the benefits of the 2005 Amended
Act.
28. To understand the manner in which the Supreme Court has
interpreted Section 6 of the 2005 Act, it is necessary to give a brief
backdrop of the case. In the aforesaid case, the appellants and the
respondents were siblings being daughters and sons of Chakiri
Venkata Swamy. The first respondent(the plaintiff) had filed a suit for
partition in the court of the Senior Civil Judge impleading his
father(the first defendant), his brother(the second defendant) and his
two sisters(third and fourth defendant respectively). The first
respondent claimed that the properties mentioned in Schedule A, C &
D were coparcenary properties and he, his father and brother had one-
third share each therein. As regards the Schedule property B
belonging to his mother, the first respondent had claimed that all the
parties had one-fifth equal share therein. The father of the parties
expired in the year 1993, during the pendency of the suit. Vide
judgment and a preliminary decree dated 19.3.1999, the Trial Court
declared that the first respondent(the plaintiff) was entitled to one-
third share in Schedule A, C and D properties and further entitled to
CS(OS) 663/2011 Page 22 of 71 one-fourth share in the one-third share left by the father. The first
respondent was also held entitled to one-fifth share in the Schedule B
property. The aforesaid decree was amended on 27.9.2003, wherein it
was declared that the first respondent was entitled to equal share
along with the second, third and fourth defendants in one-fifth share
left by the father in the Schedule B property. Thereafter, the first
respondent(plaintiff) submitted applications before the Trial Court for
passing of a final decree and for determination of mense profits.
29. Before passing of the final decree in the aforesaid case, the
Hindu Succession (Amendment) Act, 2005 came into force on 9.9.2005
whereunder Section 6 of the Hindu Succession Act, 1956 was
substituted. Based on the aforesaid amendment, the appellants (third
and fourth defendants in the aforesaid case) filed an application for
passing a preliminary decree in their favour for partition of the
Schedule A, C & D properties into four equal shares and for allotment
of one share to each of them by metes and bounds and for delivery of
possession. The aforesaid application filed by the appellants was
allowed vide order dated 15.6.2009, and the Trial Court held that they
were entitled for re-allotment of shares in the preliminary decree.
30. The first respondent (plaintiff) challenged the aforesaid order in
appeal before the Andhra Pradesh High Court. The Single Judge
CS(OS) 663/2011 Page 23 of 71 allowed the appeal and set aside the order of the Trial Court.
Aggrieved by the aforesaid order, the appellants filed an appeal before
the Supreme Court. The question as to whether the benefits of the
Hindu Succession (Amendment) Act, 2005 were available to the
appellants, was answered by the Supreme Court in the following
manner:-
―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 to 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.
CS(OS) 663/2011 Page 24 of 71 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.‖
10. With the above object in mind, Parliament substituted the existing Section 6 of the 1956 Act by a new provision vide the 2005 Amendment
Act.
xxxxxx
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 copercener 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
CS(OS) 663/2011 Page 25 of 71 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.
CS(OS) 663/2011 Page 26 of 71
13. The legal position is settled that partition of a Joint Hindu family can be
effected by various modes, inter-alia, two of these modes are (one) by a registered
instrument of a partition and (two) by a
decree of the court. In the present case,
admittedly, the partition has not been effected before 20-12-2004 either by a registered
instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by the Respondent 1 is the determination of shares vide preliminary decree dated 19-3-1999 which came to be amended on
27-9-2003 and the receipt of the report of the Commissioner.
14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the
preliminary decree, the suit continues until
the final decree is passed. If in the
interregnum i.e. after passing of the
preliminary decree and before the final
decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no
impediment for the court to amend the
preliminary decree or pass another preliminary decree redetermining the rights
and interests of the parties having regard to the changed situation.
CS(OS) 663/2011 Page 27 of 71 xxxx
21. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary
decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening
circumstances even if no appeal has been
preferred from such preliminary decree. The view of the High Court is against law and the decisions of this Court in Phoolchand and S.Sai Reddy.‖ (emphasis added)
31. While deciding the aforesaid case, the Supreme Court had
sought to fortify its view by relying on a three-Judge Bench decision in
the case of Phoolchand Vs. Gopal Lal reported as AIR 1967 SC 1470
and the case of S.Sai Reddy Vs.S.Narayana Reddy reported as (1991)
3 SCC 647.
32. The aforesaid decision of the Supreme Court has been followed
by a co-ordinate Bench of this Court in a recent case of Manoj
Jain(supra), while considering a review petition filed by the defendants
No.2 & 4/review petitioners therein in respect of the judgment dated
31.7.2012 whereunder, a suit for partition filed by the plaintiff therein
had been decreed and a preliminary decree was passed giving each of
the parties to the suit(sons and daughters of late Sh.Lakhpat Rai Jain)
CS(OS) 663/2011 Page 28 of 71 1/7th share in the suit property and other properties of the HUF. In
the aforesaid judgment, the learned Single Judge had held that the
daughters had an equal share in the coparcenary property in terms of
the amended Section 6(1) of the 2005 Act. The review petitioners had
filed a review petition on the ground that Section 6(1) of the 2005 Act
operates prospectively and not retrospectively and since the father of
the parties had expired on 29.12.1992 , i.e., before passing of the
2005 Act, and succession having already opened on the date of his
demise, his daughters(defendants No.5 & 6 in the suit) did not have a
right in the coparcenary property and therefore, the amended Section
6(1) did not give them a legal right in the suit that had been instituted
in the year 2007. While deciding the review petition, the learned Single
Judge answered the question, as framed below:-
―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.‖
CS(OS) 663/2011 Page 29 of 71
33. After formulating the question to be answered, the learned
Single Judge considered the decisions of the Supreme Court in the
cases of Sheela Devi & Ors. Vs. Lal Chand & Anr. reported as (2006)
8 SCC 581 and G.Sekar Vs. Geetha & Ors. reported as (2009) 6 SCC
1999, to hold that that the legislature has made Section 6(1) of the
2005 Act prospective under certain fact situations and retrospective
under other fact situations, i.e., where there is no registered partition
deed or a decree of the Court. Furthermore, holding that the facts in
the cases of Sheela Devi(supra) and G.Sekar(supra) were not
applicable to the facts of the case under consideration and based on
the legal position that where the ratio of two judgments are different,
then no conflict would arise, the learned Single Judge opined that the
High Court was bound to follow the recent judgment of the Supreme
Court in the case of Ganduri Koteshwaramma(supra) as it held the
field. As a result, the review petition was dismissed.
34. Another relevant decision of the Supreme Court that has been
relied upon by learned counsel for the plaintiffs is in the case of
Prema(supra) where the appellant therein who had failed in the
challenge laid by her to a preliminary decree passed in a suit for
partition filed by the respondent No.1 therein, could seek
CS(OS) 663/2011 Page 30 of 71 enhancement of her share in the joint family property in the final
decree proceedings in terms of the provisions of Section 6-A inserted
in the Hindu Succession Act, 1956 by the Hindu Succession(Karnataka
Amendment) Act, 1990, that was notified on 30.7.1994. After
discussing the aims and objects that weighed with the Karnataka
legislature for amending the Hindu Succession Act, 1990 by inserting
Section 6-A to 6-C, which was for ensuring that unmarried daughter
got an equal share in coparcenary property, the Supreme Court
adverted to the decision of a Single Judge of the Andhra Pradesh High
Court in the case of S.Narayana Reddy Vs. S.Sai Reddy reported as
AIR 1990 AP 263[wherein reference was made to an earlier decision
of the Supreme Court in the case of Phool Chand(supra)] and had
observed as below:
―13. The learned Single Judge then referred to the judgment of this Court in Phoolchand v. Gopal Lal and observed:
"19. Since the parties have invoked the jurisdiction of the civil court to decide their rights in a partition suit, their rights can be considered at any stage till the passing of the final decree. Till the final decree as stated above is passed in a partition suit, it is well settled that the suit is said to be pending, till the final decree is signed by the Judge after engrossing the same on the stamps. In view of the insertion of S. 29-A in the Hindu Succession Act by Act (13 of 1986)
the statute conferred a right on the daughters
CS(OS) 663/2011 Page 31 of 71 and they become coparceners in their own right in the same manner as sons and have the same
rights in the coparcenary property. In this case, admittedly the daughters are already on record and, therefore, they are entitled to claim a right and request the Court to pass a final decree by taking into account the altered situation....
20. As pointed out by the Supreme Court in
Phoolchand case, there is no prohibition in
the Code of Civil Procedure against passing
a second preliminary decree particularly in
partition suits where shares specified in
the preliminary decree have to be adjusted
so long as a final decree has not been
passed in that suit. On facts in this case, a preliminary decree has been passed giving
1/3rd share to the plaintiff. The shares of the other persons also have to be ascertained and the rights of the unmarried daughters have
been recognised in the preliminary decree.
There is a statutory change by the
introduction of Section 29-A of the Hindu
Succession Act which came into force on 5-
9-1985 and the preliminary decree has
been passed on 26.12.1973, but no final
decree has been passed. The plaintiff
himself filed an application for passing a
final decree and the trial court is bound to
implement the statutory rights conferred
on the daughters and it ought to have
allowed the petition in accordance with
law." (emphasis supplied)
14. While dismissing the appeal preferred against the judgment of the High Court, this Court observed as under:
"7...The crucial question, however, is as to
when a partition can be said to have been
effected for the purposes of the amended
provision. A partition of the joint Hindu
CS(OS) 663/2011 Page 32 of 71 family can be effected by various modes,
viz., by a family settlement, by a
registered instrument of partition, by oral
arrangement by the parties, or by a decree
of the court. When a suit for partition is filed in a court, a preliminary decree is passed
determining shares of the members of the
family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final
decree is passed and the allottees of the
shares are put in possession of the
respective property, the partition is not
complete. The preliminary decree which
determines shares does not bring about
the final partition. For, pending the final
decree the shares themselves are liable to
be varied on account of the intervening
events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of
which clause (ii) of Section 29-A of the Act
became applicable.
.... Since the legislation is beneficial and placed on the statute book with the avowed object of
benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition
completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a
CS(OS) 663/2011 Page 33 of 71 partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment.."
(emphasis supplied)
15. In the present case, the preliminary decree was passed on 11.8.1992. The first appeal was dismissed on 20.3.1998 and the second appeal was dismissed on 1.10.1999 as barred by limitation. By the preliminary decree, shares of the parties were determined but the actual partition/division had not taken place. Therefore, the proceedings of the suit instituted by Respondent No.1 cannot be treated to have become final so far as the actual partition of the joint family properties is concerned and in view of the law laid down in Phoolchand v. Gopal Lal and S. Sai Reddy v. S. Narayana Reddy, it was open to the appellant to claim enhancement of her share in the joint family properties because she had not married till the enforcement of the Karnataka Act 23 of 1994. Section 6-A of the Karnataka Act 23 of 1994 is identical to Section 29A of the Andhra Pradesh Act. Therefore, there is no reason why ratio of the judgment in S. Sai Reddy v. S. Narayana Reddy should not be applied for deciding the appellant's claim for grant of share on par with male members of the joint family. In our considered view, the trial court and the learned Single Judge were clearly in error when they held that the appellant was not entitled to the benefit of the Karnataka Act 23 of 1994 because she had not filed an application for enforcing the right accruing to her under Section 6-A during the pendency of the first and the second appeals or that she had not challenged the preliminary decree by joining Defendants 1, 4 and 5 in filing the second appeal.
xxx
17. In this case, the Act was amended by the State Legislature and Sections 6-A to 6-C were inserted for achieving the goal of equality set out in the Preamble of
CS(OS) 663/2011 Page 34 of 71 the Constitution. In terms of Section 2 of the Karnataka Act 23 of 1994, Section 6-A came into force on 30.7.1994, i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practised against the unmarried daughter had been removed by the
legislative intervention and there is no reason why the court should hesitate in giving effect to an amendment made by the State Legislature in
exercise of the power vested in it under Article 15(3) of the Constitution."
35. In the case of Pravat Chandra Patnaik(supra), cited by the
plaintiffs, while discussing the issue of prospectivity of the 2005 Act in
the context of the amended Section 6 and upon examining a
preliminary decree that was passed by the Trial Court in a suit for
partition filed by the respondent No.1 therein(plaintiff) against his
brother(defendant No.1) and sisters(defendants No.4 & 5) and sons of
defendant No.1(defendants No.2 & 3), the Orissa High Court was
confronted with the argument that the 2005 Act was not applicable to
the said case as the Trial Court had passed a preliminary decree in the
year 2001 which preceded the date of promulgation of the
amendment. The relevant paras of the said decision are extracted
below:-
CS(OS) 663/2011 Page 35 of 71 ―5. Being aggrieved by the above, the defendant preferred this appeal. The learned counsel appearing for the appellants submitted that after amendment of the Hindu Succession Act, 1956 by the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), the shares allotted by the Learned Civil Judge are not in accordance with law because parties have not yet settled the partition in final decree proceeding. Thus partition has not been effected finally. The learned counsel appearing for the respondents submitted that the aforesaid Amendment Act is prospective one. Hence, it is not applicable to the present case as the Court below has passed preliminary decree in the year 2001 prior to the date of amendment. According to him, as per Section 6 of the Hindu Succession Act as amended by Act 39 of 2005, the daughters, who have born only after 2005 are to be treated as coparceners and not otherwise. The learned counsel for both parties have not raised any other points in this appeal.
xxx
7. The above section was amended with an intention to remove the discrimination as contained in S.6 of Hindu Succession Act, 1956 by giving equal rights to the daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 6 of the new Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. 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
CS(OS) 663/2011 Page 36 of 71 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 legislature with their wisdom for the benefit of the women and to give them equal status in the society, amended the Hindu Succession Act by giving better right to the women to protect themselves against the torture and harassment, if any. The (Amendment) Act, 2005 was enacted to remove the discrimination as contained in S.6 of the Hindu Succession Act, 1956 by giving equal rights and liabilities to the daughters in the Hindu Mitakshara coparcenary property as the sons have. The said Act was come into force with effect from 9.9.2005 and the statutory provisions create new right. The provisions are not expressly made retrospectively by the legislature. Thus, the Act itself is very clear and there is no ambiguity in its provisions. The law is well settled that where the statutes meaning is clear and explicit, words cannot be interpolated. The words used in provisions are not bearing more than one meaning. The amended Act shall be read with the intention of the legislation to come to a reasonable conclusion. Thus, looking into the substance of the provisions and on conjoint reading of sub-sections (1) and (5) of S.6 of the said Act are clear and one can come to a conclusion that the Act is prospective. It creates substantive right in favour of the daughter. The daughter got a right of
coparcener from the date when the amended Act was come into force i.e. 9.9.2005.
8-9. Hence, the submission of the learned counsel appearing for the respondents that the daughters, who
CS(OS) 663/2011 Page 37 of 71 have born only after 2005, will be treated as coparceners is not accepted. If the provision of the Act is read with the intention of the legislation the irresistible conclusion is that S.6 (as amended by Act 39 of 2005) rather gives a right to the daughter as coparcener, from the year 2005, whenever they may have born. They can claim for partition of the property which has not been partitioned earlier. But if the same was effected earlier i.e. prior to 20th December, 2004 the same should not be reopened. The daughters are entitled to a share each equal with the son as a coparcener. Admittedly, this appeal is directed against the Judgment and decree passed by the learned Civil Judge (Senior Division), Baripada in a suit for partition who has passed the preliminary decree. Since the appeal is a continuation of a suit, it cannot be said that said preliminary decree was made final and the preliminary decree can be vary if the appeal is allowed and this Court comes to a conclusion that partition was not effected finally. Thus, the amended Act is applicable to the present case. As per Order 20, Rule 18(2) of the Code of Civil Procedure by passing a preliminary decree only share of the parties are determined and the actual partition is effected as per the final decree.‖ (emphasis added)
36. To examine the submission of learned counsel for the defendants
No.2 & 4 that the judgment in the case of Mukesh(Smt.) & Ors. Vs.
Bharat Singh & Others reported as 149(2008) DLT 114 has laid
down that the amended Section 6(1) & (3) is not retrospective, but
CS(OS) 663/2011 Page 38 of 71 prospective in nature, the facts of the said case are relevant. In the
said case, the appellants therein had filed a suit for partition and
injunction against their three brothers and a sister in respect of an
agricultural land owned by their father, claiming 1/6th share in the suit
land. In their defence, the brothers had stated that their father had
expired on 10.6.1993 and as the succession to holding was governed
by Section 50 of the Delhi Land Reforms Act, 1954, they alone were
entitled to succeed to the holding as sons since all their sisters were
married. In defence, the defendants also took a stand that on the
demise of their father, the suit land had been mutated in their names
and the said mutation entry had attained finality. The maintainability
of the suit was challenged in view of the bar in Section 185 of the
Delhi Land Reforms Act, 1954 and on the ground that the remedy
available to the plaintiffs was before the revenue authorities. In their
replication, the appellants had stated that since sub-section(2) to
Section 4 of the 1956 Act had been deleted by the 2005 Act,
succession to the holding of their father had to be discharged as per
the amended Act.
37. In the aforesaid case, the focus of the learned Single Judge was
on the amendments carried out in Section 4 of the 1956 Act and the
effect thereof in a case, where succession had opened when the father
CS(OS) 663/2011 Page 39 of 71 of the parties had died in the year 1993 and the applicability of the law
then prevalent, which was in favour of the sons. While examining
Section 4 of the Hindu Succession Act, 1956 as originally enacted,
which contained the non-obstante clause, with reference to Section 50
of the Delhi Land Reforms Act, 1954, that lays down the general order
of succession from males, the learned Single Judge had observed that
due to sub-section (2) to Section 4 of the 1956 Act, rule of succession
under the said Act was subject to any law for the time being in force
relating to agricultural holdings and the effect of deletion of the said
sub-section (2) to Section 4 post amendment, would be that from the
date when the amending Act was promulgated, succession would be as
per the Hindu Succession Act, 1956. It was in the aforesaid context
that the learned Single Judge had expressed a prima facie view that
the 2005 Act could not be read retrospectively as the amending Act
had not been given retrospective operation and he proceeded to hold
that where successions had taken place prior to the promulgation of
the 2005 Act, they could not be disturbed.
38. The facts of the present case are however on an entirely
different footing and not predicated on an interpretation of Section 4 of
the Hindu Succession Act, pre-amendment or post-amendment. Just
because a passing reference was made in the aforesaid case to the
CS(OS) 663/2011 Page 40 of 71 legislative intent that could be derived from sub-section(3) of Section
6 of the 2005 Act, cannot be sufficient to treat the said judgment as
the ratio of the said case for purposes of interpretation of Section 6 of
the 2005 Act .
39. As for the contention of learned counsel for the defendants No.2
& 4 that while pronouncing the judgment in the case of Manoj
Jain(supra), the learned Single Judge had failed to consider an earlier
decision of the Supreme Court in the case of Eramma Vs. Veerupana
reported as AIR 1966 SC 1879, it may be noted that in the said case,
the Supreme Court was examining the language of Section 8 of the
1956 Act that deals with general rules of succession in the case of a
male and it was in that context that it was held that the said provision
was not retrospective in operation and where a male Hindu died before
the Act came into force and where succession had opened before the
said Act, Section 8 would hardly have any application. The aforesaid
judgment having been rendered in a different field, non-consideration
thereof would not have any bearing on the decision in the case of
Manoj Jain(supra) as the proposition of law being considered in the
two cases was entirely different.
40. Furthermore, reliance placed by the learned counsel for the
defendants No.2 & 4 on the decisions in the case of Smt.
CS(OS) 663/2011 Page 41 of 71 Bagirathi(supra) and G. Sekar(supra) may not be of any avail as
neither of the said judgments apply to the facts of the case in hand.
In the case of G.Sekar(supra), the Supreme Court was examining the
effect of the amendment in the 1956 Act by reason of the 2005 Act in
so far as Section 23 therein had been omitted. Section 23 of the Hindu
Succession Act curtails the rights of the daughters to obtain a decree
for partition in respect of dwelling houses. In the said case, the
Supreme Court was not examining a situation where daughters were
claiming entitlement as coparceners by birth to Hindu undivided
properties. Rather, the factual backdrop was that the properties in
question were admittedly self-acquired properties of the deceased and
upon his demise, disputes and differences had arisen between his legal
heirs and his daughters had then instituted a suit for partition on the
premise that he had expired intestate. The discussion of the Supreme
Court therefore hinged on the question as to whether Section 23 as it
stood was to be applicable on the date of institution of the suit.
Therefore, it cannot be stated that the aforesaid decision has laid down
the ratio in so far as interpretation of Section 6 of the 2005 Act is
concerned.
41. Coming to the decision of a Division Bench of the Madras High
Court in the case of Smt. Bagirathi(supra), it is pertinent to note that
CS(OS) 663/2011 Page 42 of 71 the said judgment that was delivered in the year 2008, is premised on
the decisions of the Supreme Court in the cases of Eramma(supra) and
Sheela Devi(supra), and as noted above, both the said decisions do
not have any application to the facts of the present case. Furthermore,
now that the Supreme Court has put to rest the debate with regard to
the prospectivity/retrospectivity of the operation of Section 6 of the
2005 Act, in the case of Ganduri Koteshwaramma(supra) that was
pronounced in the year 2011, which is subsequent to the aforesaid
decision of the Madras High Court, nothing further is left to be said on
this aspect.
42. Having catalogued the decisions referred to by both the sides on
the aspect of applicability of Section 6 of the 2005 Act for maintaining
a suit for partition by the plaintiffs herein and the
retrospectivity/prospectivity of the said provision, what clearly
emerges is that the only direct authority that has crystallized the
proposition that has been raised for consideration in the present case
is the one that has been rendered by the Supreme Court in the case of
Ganduri Koteshwaramma(supra) and the decision in the case of Manoj
Jain(supra) is in tune with the said decision. In view of the clear
sweep of the decision of the Supreme in the above case, this court
need not travel beyond it.
CS(OS) 663/2011 Page 43 of 71
43. As noted above, in the case of Ganduri Koteshwaramma(supra),
the Supreme Court has categorically held that a suit for partition is not
disposed of by passing a preliminary decree and that it is by a final
decree that the immovable property of joint Hindu family is partitioned
by metes and bounds and further, if in the interregnum, after passing
of the preliminary decree and before the final decree is passed, events
and supervening circumstances occur necessitating change in the
shares, there is no impediment for the court to amend the preliminary
decree or pass another preliminary decree redetermining the rights
and interests of the parties having regard to the changed situation.
44. The plaintiffs in the present case are on a better footing, as the
stage of passing of a preliminary decree has not even arrived and the
suit is still at the nascent stage of conducting admission/denial of
documents. In the light of the discussion of the Supreme Court in the
case of Ganduri Koteshwaramma(supra), the argument of the learned
counsel for the defendants No.2 & 4 that since the succession had
opened upon the demise of the father of the parties on 24.8.1981, i.e.,
prior to the promulgation of the 2005 amendment, then Section 6 of
the 2005 Act would not apply and on this ground alone, the suit is
liable to be rejected, rings quite hollow. Keeping in mind the language
used in the proviso to sub-section(1), in sub-section (3) and in the
CS(OS) 663/2011 Page 44 of 71 Explanation appended to sub-section (5) of Section 6 of the 2005 Act,
it has to be held that in the absence of any partition undertaken by
execution of a deed of partition duly registered under the Registration
Act, 1908 or a partition effected by a decree of a court, or in the
absence of any testamentary disposition of a property that has taken
place before 20.12.2004, in respect of a Joint Hindu family governed
by the Mitakshara law, as envisaged in the proviso to Section 6(1), the
daughter of a coparcener shall, by birth become a coparcener in her
own right in the same manner as the son and she shall have the same
rights in the coparcenary property as she would have had, had she
been a son. The concept of notional partition taking place on the date
of death of a coparcener as canvassed by the counsels for the
defendants No.2 & 4, was based on the interpretation of the pre-
amended Section 6 of the 1956 Act, as elaborated by the Supreme
Court in the case of Gurupad (supra) and Anar Devi (supra), but after
promulgation of the 2005 Act, those judgments cannot have any
application to the facts of the present case.
45. In such circumstances, the submission of the learned counsel for
the defendants No.2 & 4 that the present suit is liable to be rejected at
the outset on the ground that the same is barred by law and that
Section 6 of the 2005 Act cannot be invoked by the plaintiffs to seek
CS(OS) 663/2011 Page 45 of 71 partition, is found to be untenable and is turned down as being devoid
of merits. It is a different matter that after the suit is taken to trial,
the defendants No.2 & 4 may be in a position to succeed on the merits
of their defence as taken in their written statements, when all the
pleas including the claim of the defendant No.2 that the father of the
parties had executed a will, excluding all his daughters, including the
plaintiffs and that their mother had not expired intestate, shall have to
be proved and adjudicated upon. However, the plaintiffs cannot be
non-suited on the said ground at this preliminary stage.
46. The court is also not inclined to accept the submission made by
learned counsel for the defendants No.2 & 4 that the issue raised
hereinabove, ought to be referred to a larger Bench for consideration,
as it is of the opinion that the judgments in the cases of Manoj
Jain(supra) & Mukesh(Smt.) (supra) operate in different fields and
therefore, by following the ratio of the former judgment, which is only
a reiteration of the law spelt out by the Supreme Court on the
interpretation of Section 6 of the 2005 Act, no conflict of opinion shall
arise that requires reference to a larger Bench for settling the issue.
47. Coming next to the second limb of the objection taken by the
defendants No.2 & 4 which is with regard to the constructive
possession of co-sharers and the deficiency in the court fees affixed on
CS(OS) 663/2011 Page 46 of 71 the plaint, it is trite that while deciding an application under Order VII
Rule 11 of the CPC wherein rejection of plaint is prayed for, the court
is required to confine itself to the averments made in the plaint and at
that stage, it is not required to examine the stand that has been taken
by the defendants in the written statement as the provisions of Order
VII Rule 11 CPC are in the nature of demurrer. In this regard,
reference may be made to a decision of the Supreme Court in the case
of Saleem Bhai & Ors. Vs. State of Maharashtra reported as (2003) 1
SCC 557.
48. The amount of court fees that is required to be paid by the
plaintiffs, for seeking the relief of partition of suit properties, has to be
examined in the context of Section 7 of the Court Fees Act, 1870
which prescribes computation of fees payable in suits. The relevant
extract of Section 7 is reproduced hereinbelow:-
"7. Computation of fees payable in certain
suits:- The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:-
......
(iv) In suits-
.....
to enforce a right to share in joint family
property - (b) to enforce the right to share in any property on the ground that it is joint family property;
CS(OS) 663/2011 Page 47 of 71 .....
according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.‖
49. Further, Section 8 of the Suits Valuation Act, 1887 prescribes
that in suits other than those referred to in the Court Fees Act, Section
7, paragraphs V, VI, IX and X, clause (d), court fees is payable ad
valorem, the value as determinable for the computation of court fees
and the value for purpose of jurisdiction shall be the same.
50. Thus, Section 7(iv)(b) of the Act prescribes the court fees at
which the relief sought is valued in the plaint and under Section 8 of
the Suits Valuation Act 1987, the plaintiff is required to value the suit
for the purpose of court fee and jurisdiction identically, barring the
exceptions carved out under Section 7 of the Court Fee Act, 1870.
51. It is settled law that in a suit for partition, if joint possession is
pleaded by the plaintiff, on the basis that he is a co-owner of the suit
property sought to be partitioned, fixed court fees is to be paid under
Article 17(vi) of Schedule II of the Court Fees Act, 1870 on the
presumption of joint possession of the plaintiff, even if the plaintiff is
not in actual possession. Equally, it is not necessary that the plaintiffs
should be getting a share or some income from the property. This is
because by creating a fiction of law, it is deemed that in case of co-
CS(OS) 663/2011 Page 48 of 71 owners, the possession of one in law is the possession of all, unless
upon perusal of the averments in the plaint that must be read as a
whole, a clear cut case of ouster is made out. Only in such
circumstances would the plaintiff be liable to pay ad valorem court fees
on the market value of his share as provided for under Section 7(iv)(b)
of the Court Fees Act.
52. In the case entitled Sudershan Kumar Seth vs. Pawan Kumar
Seth & Ors., reported as 124 (2005) DLT 305, it was held that it is
settled law that in order to decide as to what relief has been claimed
by the plaintiff, the averments made in the plaint are germane and
only upon reading the entire plaint can it be inferred that the plaintiff
is in possession of any of the properties to be partitioned, and if so,
then the court fees is payable under Article 17(vi) of Schedule II of the
Court Fees Act, i.e., fixed court fees at the time of institution of the
suit. However, if the conclusion is contrary thereto, then the plaintiff
has to pay the court fees under Section 7(iv)(b) of the Court Fees Act,
i.e., on the value of the plaintiff's share. [Ref.: Chief Inspector of
Stamps Vs. Indu Prabha Vachaspati & Ors., 1998 (9) SCC 157,
Jamila Khatoon vs. Saidul Nisa, AIR 1999 Delhi 48, Smt. Prakash
Wati vs. Smt. Daywanti, AIR 1999 Delhi 48, Ms. Ranjana Arora vs.
Satish Kumar Arora, 80(1999) DLT 357, Rajiv Oberoi & Ors. vs.
CS(OS) 663/2011 Page 49 of 71 Santosh Kumar Oberoi & Ors. 2005 (80) DRJ 120) & Smt. Sonu Jain
vs. Shri Rohit Garg & Ors., 128 (2006) DLT 633 & Sarabjit Prakash &
Another Vs. Udyajit Prakash & Ors., FAO(OS) No.319 of 2010].
53. In the case of Commercial Aviation and Travel Co.Vs. Vimla
Pannalal reported as AIR 1988 SC 1636, the Supreme Court had
referred to an earlier decision in the case of S.Rm.Ar.S.Sp.Sathappa
Chettiar Vs. S.Rm.Ar.Rm.Ramanathan Chettiar reported as AIR 1958
SC 245 and observed as below:
―11. In this connection, we may refer to a Five Judge Bench decision of this Court in S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar, 1958 SCR 1021(1024) : (AIR 1958 SC 245 at pp. 251-52) Gajendragadkar, J. speaking for the Court observed as follows:
"If the scheme laid down for the computation of fees payable in suits covered by the several sub- sections of Section 7 is considered, it would be clear that, in respect of suits falling under sub-
section(iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court-fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property
CS(OS) 663/2011 Page 50 of 71 in respect of which a share is claimed is joint family property. In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified
properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiff's alleged undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court fees. It really means that in suits falling under Section 7(iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief."
12. In the above decision, this Court took the view that the conversion of the plaintiff's undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. It is true that the Court did not consider whether the plaintiff had been given an absolute right or option to place any valuation whatever on his relief under the provision of Section 7(iv) of the Court Fees Act, but the difficulty that would be felt by the court in exercising its power under Order
CS(OS) 663/2011 Page 51 of 71 VII, Rule 11(b) of the Code of Civil Procedure is that if it is unable to determine the correct value of the relief, it cannot direct the plaintiff to correct the valuation. Order VII, Rule 11(b) contemplates correct valuation and not approximate correct valuation and such correct valuation of the relief has to be determined by the court. If the court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and, consequently, Order VII, Rule 11(b) will not be applicable." (emphasis added)
54. In the case of Neelavathi(supra), the following observations were
made by the Supreme Court in para 6 which are extracted
hereinbelow:
―6...It is settled law that the question of court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole, vide S.Rm.Ar.Sp.Sathappa Chettiar v.S.Rm. Ar.Rm.Ramanathan Chettiar, (1958) S.C.R.1021.... The plea in para 12 which was relied on by the High Court states that the defendants 1 to 6 failed to give the plaintiffs their share of the income and the plaintiffs could not remain in joint possession. The plea that they were not given their due share would not amount to dispossession. Reading the plaint at its worst
CS(OS) 663/2011 Page 52 of 71 against the plaintiffs, all that could be discerned is that as the plaintiffs were not given their share of the income, they could not remain in joint
possession. The statement that they are not being paid their income, would not amount to having been excluded from possession. The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession. ― (emphasis added)
55. In the case of Jagannath Amin(supra), the Supreme Court had
held as below:
―9...The general principle of law is that in the case of co- owners, the possession of one is in law
possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the
property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Section 37 (1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family
CS(OS) 663/2011 Page 53 of 71 property would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession." (emphasis added)
56. In the case of Jagdish Persad (supra), a Single Judge of this
court had observed as under:
― As already noted above for determining the
court-fees payable on the plaint only the
allegations of the plaint are to be taken into consideration. The court is not required to
examine the truthfulness of the said allegation. From the allegations set out in the plaint it is evident that the respondent has filed the suit as a coparcener of the Joint Hindu Family claiming separate possession of his share by metes and bounds instead of the joint possession which he, at present, alleges, to possess in the joint family property with the other co-parceners. All that he seeks is a change in the mode of enjoyment of his share and not to seek to enforce it. If that be so, can it be said that he is enforcing his right in the property. Mere denial of right or title would not amount to ouster in the case of co-parceners.
xxx
There is a catena of authorities in support to the proposition that in a suit for partition of joint family property by metes and bounds when the
plaintiff alleges to be in possession, either actual or constructive, of a portion of that property, the Court-fee payable is as prescribed by Article 17 (vi) of Schedule II of the Act as in such a suit
CS(OS) 663/2011 Page 54 of 71 what is sought is a change in the mode of
enjoyment of the property and not to enforce a right to title of his share in the property. In such a case the relief is merely for change of joint enjoyment of the property into separate enjoyment and as such the suit is incapable of valuation.
In Asa Ram v. Jagan Nath and others, A.I.R. 1934 Lahore 563, a Full Bench of the Court after
examining the case law observed at page 573 that consensus of judicial opinion is that in a suit for partition of joint property, where the plaintiff alleged joint possession, court-fee was leviable under Article 17(vi) of Schedule II of the Act and that section 7(iv)(b) does not apply to such a suit, the ratio disendi being that the plaintiff was not enforcing any right to share in joint family
property but merely sought to change the mode of his enjoyment of the joint property and that the relief in such a case was not capable of being valued in money. It was further held that section 7(iv)(b) applies only to cases relating to joint family property where the plaintiff had been
ousted from its enjoyment and sought to be
restored to joint enjoyment. Further in determining the provisions of the Act applicable to a particular suit the allegations made by the plaintiff alone must be considered and that the pleas raised by the defendant did not affect the question.‖ (emphasis added)
CS(OS) 663/2011 Page 55 of 71
57. In the case of Prakash Wati (supra), a Single Judge of this Court
had followed the aforesaid decision in the case of Jagdish
Pershad(supra) and observed as below:
―4. Counsel for the plaintiff has made
reference to Jagdish Pershad v. Joti
Pershad, 1975 Rajdhani Law Reporter 203,
wherein it has been laid down that keeping
in view the peculiar facts of the case that
where the plaintiff claims to be in joint
possession of the property of which partition is sought, the plaintiff is to pay only fixed Court-fee as per Article 17(vi) in Schedule
II. There is no dispute about this
proposition of law. Counsel for the plaintiff has then placed reliance on Neelavathi and others v. N. Natarajan and others, AIR 1980 SC 691,
wherein the Supreme Court has laid down that it is settled law that the question of court fees must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. It was held that the general principle of law is that in the case of co-owners the possession of one is in law the possession of all, unless ouster or exclusion is proved. ‖ (emphasis added)
58. In the case of Saroj Salkan(supra), a Division Bench of this
Court had referred to the decisions of the Supreme Court in the case
CS(OS) 663/2011 Page 56 of 71 of Neelavathi(supra) and Jagannath Amin(supra) and of this Court in
the case of Prakash Wati (supra) & held that :-
―13. It is settled law that in a suit for partition, the court fees to be paid if joint possession is pleaded by the plaintiff on the basis that he is the co-owner of the property sought to be
partitioned, fixed court fees would be payable under Article 17(vi) of Schedule II of the Court Fees Act presuming the joint possession of the plaintiff even if the plaintiff is not in actual possession. It is because of the reason that in the case of co-owners, the possession of one is in law possession of all, unless from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff is liable to pay ad- valorem court fees on the market value of this share as provided under Section 7(iv)(b) of the Court Fees Act notwithstanding the fact that it is also pleaded that the plaintiff was in constructive possession.‖ (emphasis added)
59. Before the plaintiffs herein can be called upon to pay ad valorem
court fees on the plea of the defendants No.2 & 4 that they are not in
joint or constructive possession of any of the assets partition whereof
has been sought by them in the suit, it is necessary that on a reading
of the plaint, it should emerge that the plaintiffs have admitted ouster
from joint possession. The attention of the court has been drawn by
the counsels for the parties to certain paragraphs of the plaint and in
CS(OS) 663/2011 Page 57 of 71 particular, to a prayer clause that are being extracted hereinbelow for
ready reference:
"17. ....As such, the defendants are illegally holding on to whole of the joint family business and all the HUF assets depriving the plaintiffs of their legitimate claim in the said business & assets. Both the plaintiffs, therefore, decided to severe their connection with the said HUF both in status and in property and therefore, though a legal notice dated 18.08.2010 claimed & demanded the partition of M/s Rajinder Nath and Co HUF assets by metes & bounds and demanded 1/4th share for each of them in the family assets of M/s Rajinder Nath & Co HUF which work out to 1/8th share for each of them in the undivided assets jointly held by the aforesaid two HUFs i.e. M/s Rajinder Nath & Co HUF and M/s Ram Chander Nath HUF. ............
xxxx
18. That through the notice dated 18.08.2010, the plaintiffs called upon the defendants to comply with the demand of the plaintiffs for severance and partition by metes and bounds of the joint family status & assets and for allocation of specific assets falling to their shares in the aforesaid undivided assets jointly held by the two HUFs and also the assets separately held by M/s Rajinder Nath & Co HUF and hand over the possession to the plaintiffs of the said specific assets falling to their share under the demanded partition. The plaintiffs also called upon the defendants to pay to the plaintiffs their 1/8th share each in the monthly rent received from ITC for the leased premises at 25, Golf Links, New Delhi and for rendition of accounts of the firm m/s Faqir Chand Raghunath Dass and M/s Rajinder Nath & Co (HUF) to ascertain the individual shares of the plaintiffs in the said business income.
xxxx
21. That inspite of categorical admission in the reply dated
CS(OS) 663/2011 Page 58 of 71 15.09.2010 to notice dated 18.08.2010 as stated in paras 19 and 20 above, the claim of the plaintiffs in the said notice for partition of joint family business and assets by metes and bounds was declined in the said reply dated 15.09.2010 on the alleged grounds that Sh. Rajinder Nath, before his death, had executed an alleged Will, wherein he had allegedly excluded his three daughters from inheritance. It is also stated in the said reply that Rajinder Nath (HUF), which after the death of Sh. Rajinder Nath was named Rajinder Nath & Co (HUF) was allegedly partially partitioned in the year 2004. It is further alleged in the said reply dated 15.09.2010 that Smt. Kamla Devi, during her lifetime, had allegedly executed a Will and neither of the plaintiffs is beneficiary of the said alleged Will. The defendants also declined to render the accounts of joint family business carried on by the two HUFs i.e. the defendants No.1 and 4.
22. That it is respectfully submitted that the grounds taken in the reply dated 15.09.2010 to refute the claim of the plaintiffs and decline the partition of joint family business and assets are absolutely false, malafide and concocted by the defendants to escape the legal and legitimate claim of the plaintiffs and their demand for partition of the joint family business and assets by metes and bounds. It is absolutely wrong that Sh. Rajinder Nath, before his death, had executed any Will. No copy of any such alleged WILL has been supplied to the plaintiffs. It is pertinent to mention that Sh. Rajinder Nath expired on 24.08.1981 but there has never been any mention of any such alleged WILL since then in the family circules or any other family gatherings or functions. If the defendants are relying on any such alleged document, then it is absolutely forged and concocted with malafide intentions. It is also wrong that there was any partial partition of Rajinder Nath & Co (HUF) in the year 2004. The reliance by the defendants on any such alleged document of the allege partial partition in the year 2004 is an afterthought. Any such alleged document is absolutely forged, concocted & fudged. Even otherwise, no such partial partition is valid and binding under the substituted Section 6 of the Hindu Succession Act, 1956. It is further wrong on the part of the defendants
CS(OS) 663/2011 Page 59 of 71 that Smt. Kamla Devi, during her life time, had executed a Will under which neither of the plaintiffs is a beneficiary. No copy of any such alleged WILL has been supplied to the plaintiffs. If the defendants are relying on any such alleged Will, then it is absolutely forged and concocted and therefore, totally invalid. It is respectfully submitted that, as aforesaid, Smt. Kamla Devi, mother of the plaintiffs, and the defendants No.2 and 3, who expired on 04.12.2009, till her last days had been insisting on Sh. Narender Nath, the defendant No.2 to give to her three daughters their rightful share in the family business and assets but the defendant No.2 had somehow or the other been avoiding the desire and intentions of his mother and did not comply with her desire to give the share of her daughters to them. Under the circumstances, Smt. Kamla Devi could not have executed any such Will excluding her daughters from any benefit/share in joint family business/assets. "
24. That the property 25, Golf Links, New Delhi, with a double storey building which, under the aforesaid partition, was allotted jointly to the aforesaid two HUFs, is leased out to ITC Ltd. The lease deed though executed by and in the names of Smt. Kamla Devi & Smt. Maya Devi as the lessors but is on behalf of M/s Rajinder Nath & Co HUF and M/s Ram Chander Nath HUF as lessors and income derived from the said property is being contributed in equal shares to the income of respective HUFs and taxed accordingly. However, the plaintiffs are not aware of the period of lease deed & the monthly rent for the same being received by the said two HUFs. Inspite of repeated requests by the plaintiffs, no amount has been paid by the defendants to the plaintiffs against their proportionate share in the rental income accruing from the said property i.e. 25, Gold Link, New Delhi and the defendants are unauthorisedly and illegally holding on to the said share of the plaintiffs. It is respectfully submitted that the defendants may be directed to place on record the copy of the lease deed for the said property with further directions to pay to the plaintiffs from month to month 1/8th share each in the monthly rent received for the said property.
CS(OS) 663/2011 Page 60 of 71
28. That, as aforesaid, the plaintiffs are entitled to their respective 1/8th share each in the undivided joint family business and assets of M/s Rajinder Nath & Co HUF and M/s Ram Chander Nath HUF as stated in para 17(a) to (n). However, the defendants, the defendant No.2 in particular, are illegally holding on to the said share of the plaintiffs using the share of the plaintiffs illegally and unauthorizedly, for which they are jointly and severally liable to account for and pay use & occupation charges/damages.
30. That both the plaintiffs Smt. Krishna Gupta and Smt. Madhu Agarwal, the daughters of Sh. Rajinder Nath, since deceased and Smt. Kamla Devi, since deceased, were born and spent their childhood at House No.2426, Churiwalan, Delhi, one of the suit properties and were thereafter brought up at 92 & 94, Sunder Nagar, New Delhi, the other suit property, had their education while residing in the said premises and their marriages were also solemnized from the said premises. After their marriage, they, alongwith their husbands and children, have been going to the said premises to live with their parents and other family members from time to time as and when they desired. Being the coparcener members by birth of M/s Rajinder Nath & Co HUF and class I legal heirs of Late Sh. Rajinder Nath and Late Smt. Kamla Devi, the plaintiffs are co- owners of the said residential house and the joint family business and the joint assets and are in joint and constructive possession of all the assets forming subject matter of this suit.
32. The cause of action arose in favour of the plaintiffs and against the defendants when coparcenary right in M/s Rajinder Nath & Co HUF devolved on the plaintiffs by birth in their own right under the substituted Section 6 of the Hindu Succession Act, 1956 having come to be substituted w.e.f. 17-05-1956 under the Hindu Succession (Amendment) Act, 2005. The cause of action also arose further on 26-10-1978 when award for partition of main parent HUF was passed whereafter the two HUFs i.e. M/s Rajinder Nath & Co HUF and M/s Ram Chander Nath HUF continued their joint family and business with the
CS(OS) 663/2011 Page 61 of 71 undivided common assets in equal share allocated to them jointly under the said partition award. The cause of action also arose on the death of Sh. Rajinder Nath on 24.08.1981 intestate when the plaintiffs, besides being entitled to their shares in joint family assets by birth as coparceners in their own right, also became entitled, as class I legal heirs of Sh. Rajinder Nath, to succeed to and inherit their shares in the individual assets left behind by Sh. Rajinder Nath as well as in his share of joint family assets as coparcener of Rajinder Nath HUF. Cause of action further arose in July, 2009 when the plaintiffs requested the defendants No.2 to give them their share in the joint family business and assets. The cause of action arose again in favour of the plaintiffs on the death of Smt. Kamla Devi, on 04.12.2009 intestate when the plaintiffs, as class I legal heirs of Smt. Kamla Devi, succeeded to and inherited their share in the assets left behind by Smt. Kamla Devi. Cause of action also arose in favour of the plaintiffs on 18.08.2010 when they claimed partition by metes and bounds of the joint family business and assets of Rajinder Nath & Co (HUF) and also claimed their share in the individual assets left behind by Sh. Rajinder Nath and issued notice for the same. The cause of action arose again on 15.09.2010 when the partition of the joint family business and assets and claim of the plaintiffs to their proportionate shares was declined by the defendants through aforesaid reply dated 15.09.2010. The cause of action is continuous one and shall continue till the defendants agree to have partition by metes and bounds of joint family business and assets and give possession of their respective shares to the plaintiffs. Therefore, the suit filed is well within the limitation.
Prayer clause (iv)
Pass a final decree of partition (on receipt of the report of the local commissioner) in respect of the aforesaid joint & undivided business and assets of the firm M/s Faqir Chand Raghu Nath Dass and M/s Rajinder Nath and Co HUF forming the subject matter of this suit and the plaintiffs be directed to be placed in separate & independent possession, user and enjoyment of part/portion of the business and assets falling to their respective shares.‖
CS(OS) 663/2011 Page 62 of 71
60. As noted above, reading certain sentences of the plaint in
abstract is impermissible and the entire plaint has to be read to
understand the context of the pleadings. If the plaint is read as a
whole, what emerges is that the plaintiffs have pleaded that they are
coparceners by birth of the HUF and Class-I heirs of Late Sh.Rajinder
Nath and Late Smt.Kamla Devi and in the said capacity, they are co-
owners of the residential premises, the joint family business and the
joint assets. In fact, they profess to be in joint and constructive
possession of the assets that form the subject matter of the present
suit and partition whereof has been prayed for. The factum of the
plaintiffs being Class-I heirs of Late Sh.Rajinder Nath and Late
Smt.Kamla Devi is not denied by the other side, but the defendants
seek to exclude them on the basis of wills propounded by their
parents, that have been denied by the plaintiffs and on the ground
that Section 6 of the 2005 Act is not retrospective in operation and
thus inapplicable to the plaintiffs. In para 22 of the plaint, the
plaintiffs have denied that Late Sh.Rajinder Nath or Late Smt.Kamla
Devi had executed any wills and have stated that the said documents,
if any, are forged and fabricated. In the light of the averments made
in the plaint, the argument of the defendants No.2 & 4 that the
CS(OS) 663/2011 Page 63 of 71 plaintiffs are not governed by Article 17 (vi) of Schedule II of the Court
Fees Act 1870 or that ouster has been admitted by them, cannot be
acceded to and is turned down.
61. Further, reliance on the judgments of the learned Single Judge of
this court in the cases of Sudhir Joshi(supra) and Harjit Kaur(supra)
will not advance the case of the defendants No.2 & 4 when the
plaintiffs have pleaded constructive possession based on the demise of
the owners of the suit properties, and when all the parties are Class-I
legal heirs. The observations of the learned Single Judge in both the
aforesaid cases were based on the averments made in the plaints in
those cases from where the Court had inferred that the plaintiffs
therein had been ousted from possession of the suit properties. The
decisions in those cases are based on their own facts and no parallel
can be drawn between the said cases and the present suit where the
plaintiffs have categorically stated that they are in joint and
constructive possession of the suit properties and ouster/exclusion has
not been pleaded by them.
62. Similarly, the submission of the learned counsel for the
defendants No.2 & 4 that the decision of the Supreme Court in the
case of Neelavathi(supra) was in the light of Section 37(1) of the Tamil
Nadu Court Fees and Suit Valuation Act, 1955 and the decision in the
CS(OS) 663/2011 Page 64 of 71 case of Jagannath Amin(supra) is with reference to Section 35(1)(2) of
the Karnataka Court Fees and Suit Valuation Act, 1958 and neither of
the two decisions can be treated as precedents, would not upset the
apple-cart for the plaintiffs as closer home, a learned Single Judge of
this court had taken a similar view in the case of Jagdish
Pershad(supra) decided as long back as in the year 1975. The said
decision was founded on a Full Bench judgment of the Lahore High
Court in the case of Asa Ram(supra), and it was held that in a suit for
partition of joint property where the plaintiff alleged joint possession,
the court fees was leviable under Article 17(vi) of the Schedule II of
the Court Fees Act and that Section 7(iv)(b) does not apply to such a
suit.
63. Finally, dovetailed to the plea of ouster, is the plea of limitation
raised by the counsels for the defendants No.2 and 4. Once the Court
has arrived at a conclusion that the plaintiffs, having categorically
stated that they are in joint and constructive possession of the suit
properties and ouster/exclusion has not been pleaded by them, the
onus would shift on the defendants to prove the ouster of the plaintiffs
and in such circumstances, it would be obligatory on them to prove as
to since when their possession had become adverse to the plaintiffs for
raising the plea of limitation. In the case of Md. Mohammad Ali
CS(OS) 663/2011 Page 65 of 71 (supra), while deciding the legal principles relating to ouster and
adverse possession, it was observed by the Supreme Court as below:-
―19. Long and continuous possession by itself, it is trite, would not constitute adverse
possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by
prescription. A co-sharer, as is well settled, becomes a constructive trustee of other co-
sharer and the right of the appellant and/or
his predecessors in interest would, thus, be
deemed to be protected by the trustee. ............ The courts in a given situation may on reading of the written statement in its entirety come to the conclusion that a proper plea of adverse possession has been raised if requisite allegations therefor exist. In the event the plaintiff proves his title, he need not prove that he was in possession within 12 years from the date of filing of suit. If he fails to prove his title, the suit fails.
xxxxxx
25. Possession of a property belonging to
several co-sharers by one co-sharer, it is trite, shall be deemed that he possesses the
property on behalf of the other co-sharers
unless there has been a clear ouster by
denying the title of other co-sharers and
mutation in the revenue records in the name of one co-sharers would not amount to ouster
unless there is a clear declaration that the title of the other co-sharers was denied and
disputed. No such finding has been arrived at by the High Court.‖ (emphasis added)
64. While returning the aforesaid finding, the Supreme Court had
CS(OS) 663/2011 Page 66 of 71 relied on the principles that were enunciated in its earlier decisions in
the following cases:-
(i) Karbalai Begum vs. Mohd. Sayeed [(1980) 4 SCC 396]
(ii) Annasaheb Bapusaheb Patil vs. Balwant [(1995) 2 SCC 543)
(iii) Vidya Devi vs. Prem Prakash [(1995) 4 SCC 496]
(iv) Darshan Singh vs. Gujjar Singh [(2002) 2 SCC 62]
65. The observations made by the Supreme Court in the case of
Vidya Devi (supra) are apposite and are extracted hereinbelow:-
"27...it will be seen that in order that the possession of co-owner may be adverse to others, it is
necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen.
28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will,
however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three
elements are necessary for establishing the
plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the
knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession
CS(OS) 663/2011 Page 67 of 71 against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law." (emphasis added)
66. Similarly, in the case of Darshan Singh (supra), the Supreme
Court had observed as below:-
"7. ...... It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an
ouster of other co-sharers.
9. In our view, the correct legal position is that possession of a property belonging to several co- sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co- sharers unless there has been a clear ouster by denying the title of other co- sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied." (emphasis added)
67. To condense the aforesaid legal proposition, it has been held
that a co-sharer cannot succeed in claiming absolute title by adverse
possession and mere possession however long, does not oust the other
co-sharer unless it is established by convincing evidence that there has
been ouster of such a co-sharer as in the eyes of law, possession of
joint property by one co-sharer is possession of all and passage of
time does not extinguish the right of the co-owner, who has been out
CS(OS) 663/2011 Page 68 of 71 of possession of the joint property, except in the event of ouster or
abandonment.
68. In the facts of the present case, where the plaintiffs have
pleaded that they are coparceners by birth of the HUF and class I heirs
of their parents and on the said premise, they claim to be co-owners in
joint possession of the residential premises, joint family businesses
and the assets and upon the demise of their father in the year 1981
and their mother in December 2009, they seek partition of the said
joint assets, immovable properties etc. on the ground that both the
parents died intestate, it cannot be inferred at this prima facie stage
that the suit is barred by limitation, so as to non-suit the plaintiffs
outright. If the defendants wish to defeat the plaintiffs' claim for
partition on the ground of ouster and limitation, it would be for them
to so prove it in the course of evidence.
69. As for the submission of the learned counsel for the defendants
No.2 & 4 that the plaintiffs having valued their share in the movable
and immovable assets of the joint Hindu family properties, they are
liable to pay ad valorem court fees on the said specific valuation as
given by them, it is relevant to note that in para 33 of the plaint, the
plaintiffs have stated that the exact valuation of their 1/8th share in
the business and assets of their deceased parents and the joint Hindu
CS(OS) 663/2011 Page 69 of 71 family properties is not possible and they have further averred that the
valuation of the suit for purposes of jurisdiction for the relief of
partition is fixed at ₹100 crores, whereas for purposes of court fees for
the relief of partition, the court fees of ₹200/- has been fixed.
70. The Court finds merit in the submission of the learned counsel
for the plaintiffs that reference to ₹100 crores is only in the context of
valuation of the suit for purposes of jurisdiction for seeking the relief of
partition and not for the relief of possession and the averments made
by the plaintiffs to the effect that they have not been given their due
share in the immoveable properties or the profits earned from the joint
family business or even in the rent in respect of properties that are
under tenancy, shall not make any difference for payment of court
fees.
71. The said conclusion is fortified with the opinion expressed by the
Division Bench in the case of Saroj Salkan(supra) and by a learned
Single Judge of this court in the case of Durga Parmar(Dr.) & Ors. Vs.
V.K.Verma & Ors. reported as (2004) 7 AD (Delhi) 452, wherein the
legal position was reiterated as follows:
― 3.....The law is well-settled that the valuation of a suit for the purposes of Court-fee depends upon the prayers made in the plaint and in partition suits where immovable property sought to be partitioned is with the tenants, the co-owners are deemed to be in constructive possession. In such cases, they cannot be, prima facie, held to be out
CS(OS) 663/2011 Page 70 of 71 of possession of the property and cannot be made to pay Court-fee on the value of the share being claimed by them. The judgment of the Apex Court in Chief Inspector of Stamps Vs.Indu Prabha Vachaspati(Smt.) and Ors.1998 9 SCC 157, is a direct authority on this question........‖
72. In view of the averments made in the plaint where the plaintiffs
claim to be in joint and constructive possession of the suit properties
partition whereof is sought, the Court is of the opinion that at this
stage, they are only required to pay fixed court fees as per Article
17(vi) of Schedule II of the Court Fees Act, 1870 and not ad valorem
court fees on the share claimed by them.
73. As a result of the aforesaid discussion, IA No.7915/2011, filed by
the defendant No.2 is dismissed in entirety and IA No.7857/2011 filed
by the defendant No.4/HUF is partly dismissed, while leaving open the
remaining issues of non-disclosure of cause of action and the plea of
misjoinder of parties raised by the said defendant, to be decided
separately.
(HIMA KOHLI)

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