Amended act 2005 is retrospective and would apply to all daughters who born after 17/06/1956 and no matter whether succession had opened or not
Amended act 2005 is retrospective and would apply to all daughters who born after 17/06/1956 and no matter whether succession had opened or not
AIR 2010 Karnataka 124
CDJ 2010 Kar HC 485
Hindu Succession Act, 2005 – Partition of property – Person entitled to share in Suit property – Plaintiff’s Appeal filed against judgment and decree of Trial Court, granting her decree for partition holding that she was entitled to 1/20th share in Schedule properties and not 1/5th share in Suit properties as claimed by her – Whether Plaintiff was entitled to 1/5 th share n suit property as claimed by her.
Court held – It was conceded by Defendants that schedule properties were co-parcenary properties – Kartha of Joint Hindu Family, died on 31.12.1984 intestate – There was no partition between him and his sons during his lifetime – Kartha left behind 2 sons and two daughters including Plaintiff apart from 1st Defendant widow – By virtue of the 2005 Act, Plaintiff-daughter of co-parcener in Joint Hindu Family governed by Mitakshara Law by birth became co-parcenar in her own right in same manner as son and had same rights in co-parcenary property as she would have had if she had been son – There were 5 co-parcenars of Hindu Undivided Family on date prior to date of death of her father – She acquired right by birth in co-parcenary property – Therefore, she would be entitled to equal share in co-parcenary property, i.e., 1/5th share – On date of death of her father, the 2005 Act had not come into force – Therefore, unamended Section 6 of the 2005 Act was applicable – Notional partition was to be effected prior to date of death of her father in which even her father, Plaintiff, two sons defendants 3 and 4 and her sister defendant No.2 would have 1/5th share each – 1/5th share of Kartha did not devolve by survivorship as it devolves by testamentary or intestate succession – Admittedly, he had not made any Will and he left behind female heirs – Therefore, in 1/5th share to be allotted to Kumar, two sons, daughters and wife would be entitled to equal share, i.e., each one of them would be entitled to 1/5th share in the 1/5th share of Kartha – Share to which first defendant-wife would be entitled to was governed by unamended Section 6 – Therefore, she would be entitled to 1/5th share in 1/5th share of her husband, i.e., she would be entitled to 1/25th share in schedule properties – Plaintiff, defendants 2 to 4 would be entitled to 6/24th share each.
(para 126, 127, 128)
Case Referred:
BHAGWAN DAYAL (SINCE DECEASED) Vs. MST. REOTI DEVI (DECEASED) reported in AIR 1962 SC 287
SINIL KUMAR AND ANOTHER v. RAM PRAKASH AND OTHERS [(1988) 2 SCC 77]
KALYANJI VITHALDAS Vs. COMMISSIONER OF INCOME-TAX, BENGAL, reported in AIR 1937 PC 36
SMT. SITABAI AND ANOTHER Vs. RAMACHANDRA reported in AIR 1970 SC 343
GOWLI BUDDANNA Vs., COMMISSIONER OF INCOME-TAX, MYSORE reported in AIR 1966 SC 1523
BHAGWATI PRASAD SAH AND OTHERS Vs. DULHIN RAMESHWARI KUER AND ANOTHER reported in AIR 1952 SC 72
MAHADFOLAL KANODIA vs ADMINISTRATOR GENERAL OF WEST BENGAL reported in AIR 1960 SC 936
COMMISSIONER OF INCOME TAX VS. INDIAN BANK LIMITED (AIR 1965 SC 1473)
S.R. Bommai Vs. Union of India (AIR 1994 SC 1980).
SAVITA SAMVEDI Vs. UNION OF INDIA reported in 1996 SCC (L & S) 521
T. BARAI Vs. HENRY AH HOE reported in AIR 1983 SC 150
THIRUMURUGA KURUPANANDA VARIAYA THAVATHIRU SUNDRA SWAMIGAL MEDICAL EDUCATIONAL and CHARITABLE TRUST Vs. STATE OF TAMIL NADU, reported in AIR 1996 SC 2384
M KARUNANIDHI Vs. UNION OF INDIA reported in 1979 (3) SCC 431
M.P. SHIKSHAK CONGRESS Vs. R.P.F. COMMISSIONER, JABALPUR, reported in AIR 1999 SC 443
KULWANT KAUR Vs. GURDIAL SINGH MANN, reported in AIR 2001 SC 1273
Zaverbhai amaidas v. The State of Bombay (1955) 1 SCR 799: (AIR 1954 SC 752 : 1954 Crl. L.J. 1822)
B. PRABHAKAR RAO AND OTHERS ETC., Vs. STATE OF ANDHRA PRADESH AND OTHERS ETC., reported in AIR 1986 SC 210
BHAGAT RAM SHARMA VS. UNION OF INDIA AND OTHERS [AIR, 1988 SC 740
SHAMRAO V PARULEKAR & OTHERS Vs. DISTRICT MAGISTRATE THANA, BOMBAY AND OTHERS, reported in AIR 1952 SC 324
SHA CHUNNILAL SHOHANRAJ – VS. T GURUSHANTAPPA, 1972(1) Mys. L. J 327
SHYAM SUNDER AND OTHERS vs RAM KUMAR AND ANOTHER (AIR 2001 SC 2472)
LAKSHMI NARAYAN GUIN AND OTHERS vs NIRANJAN MODAK [1985 (1) SCC 270]
Ram Sarup v. Munshi (1963)3 SCR 858: (AIR 1963 SC 553), which was followed by this Court in Mulla v. Godhu (1970)2 SCR 129: (AIR 1971 SC 89). We may point out that in Dayawati v. Inderjit (1966)3 275: (AIR 1966 SC 1423 at p. 1426)
UNITED BANK OF INDIA, CALCUTTA vs. ABHIJIT TEA CO.PVT. LTD., & OTHERS [AIR 2000 SC 2957]
M. PRITHVIRAJ AND OTHERS vs SMT. LEELAMMA N AND OTHERS [2008 (4) KCCR 2333]
Sheela Devi and Others Vs Lal Chand and Another [2007 (2) Civil LJ 364
BHANWAR SINGH vs PURAN AND OTHERS [(2008) 3 SCC 87].
Comparative Citations:
2010 ILR(Kar) 1484, 2010 (3) KantLJ 549, 2010 (2) KCCR 1249, 2010 AIR(Kar) 124,
Court held – It was conceded by Defendants that schedule properties were co-parcenary properties – Kartha of Joint Hindu Family, died on 31.12.1984 intestate – There was no partition between him and his sons during his lifetime – Kartha left behind 2 sons and two daughters including Plaintiff apart from 1st Defendant widow – By virtue of the 2005 Act, Plaintiff-daughter of co-parcener in Joint Hindu Family governed by Mitakshara Law by birth became co-parcenar in her own right in same manner as son and had same rights in co-parcenary property as she would have had if she had been son – There were 5 co-parcenars of Hindu Undivided Family on date prior to date of death of her father – She acquired right by birth in co-parcenary property – Therefore, she would be entitled to equal share in co-parcenary property, i.e., 1/5th share – On date of death of her father, the 2005 Act had not come into force – Therefore, unamended Section 6 of the 2005 Act was applicable – Notional partition was to be effected prior to date of death of her father in which even her father, Plaintiff, two sons defendants 3 and 4 and her sister defendant No.2 would have 1/5th share each – 1/5th share of Kartha did not devolve by survivorship as it devolves by testamentary or intestate succession – Admittedly, he had not made any Will and he left behind female heirs – Therefore, in 1/5th share to be allotted to Kumar, two sons, daughters and wife would be entitled to equal share, i.e., each one of them would be entitled to 1/5th share in the 1/5th share of Kartha – Share to which first defendant-wife would be entitled to was governed by unamended Section 6 – Therefore, she would be entitled to 1/5th share in 1/5th share of her husband, i.e., she would be entitled to 1/25th share in schedule properties – Plaintiff, defendants 2 to 4 would be entitled to 6/24th share each.
(para 126, 127, 128)
Case Referred:
BHAGWAN DAYAL (SINCE DECEASED) Vs. MST. REOTI DEVI (DECEASED) reported in AIR 1962 SC 287
SINIL KUMAR AND ANOTHER v. RAM PRAKASH AND OTHERS [(1988) 2 SCC 77]
KALYANJI VITHALDAS Vs. COMMISSIONER OF INCOME-TAX, BENGAL, reported in AIR 1937 PC 36
SMT. SITABAI AND ANOTHER Vs. RAMACHANDRA reported in AIR 1970 SC 343
GOWLI BUDDANNA Vs., COMMISSIONER OF INCOME-TAX, MYSORE reported in AIR 1966 SC 1523
BHAGWATI PRASAD SAH AND OTHERS Vs. DULHIN RAMESHWARI KUER AND ANOTHER reported in AIR 1952 SC 72
MAHADFOLAL KANODIA vs ADMINISTRATOR GENERAL OF WEST BENGAL reported in AIR 1960 SC 936
COMMISSIONER OF INCOME TAX VS. INDIAN BANK LIMITED (AIR 1965 SC 1473)
S.R. Bommai Vs. Union of India (AIR 1994 SC 1980).
SAVITA SAMVEDI Vs. UNION OF INDIA reported in 1996 SCC (L & S) 521
T. BARAI Vs. HENRY AH HOE reported in AIR 1983 SC 150
THIRUMURUGA KURUPANANDA VARIAYA THAVATHIRU SUNDRA SWAMIGAL MEDICAL EDUCATIONAL and CHARITABLE TRUST Vs. STATE OF TAMIL NADU, reported in AIR 1996 SC 2384
M KARUNANIDHI Vs. UNION OF INDIA reported in 1979 (3) SCC 431
M.P. SHIKSHAK CONGRESS Vs. R.P.F. COMMISSIONER, JABALPUR, reported in AIR 1999 SC 443
KULWANT KAUR Vs. GURDIAL SINGH MANN, reported in AIR 2001 SC 1273
Zaverbhai amaidas v. The State of Bombay (1955) 1 SCR 799: (AIR 1954 SC 752 : 1954 Crl. L.J. 1822)
B. PRABHAKAR RAO AND OTHERS ETC., Vs. STATE OF ANDHRA PRADESH AND OTHERS ETC., reported in AIR 1986 SC 210
BHAGAT RAM SHARMA VS. UNION OF INDIA AND OTHERS [AIR, 1988 SC 740
SHAMRAO V PARULEKAR & OTHERS Vs. DISTRICT MAGISTRATE THANA, BOMBAY AND OTHERS, reported in AIR 1952 SC 324
SHA CHUNNILAL SHOHANRAJ – VS. T GURUSHANTAPPA, 1972(1) Mys. L. J 327
SHYAM SUNDER AND OTHERS vs RAM KUMAR AND ANOTHER (AIR 2001 SC 2472)
LAKSHMI NARAYAN GUIN AND OTHERS vs NIRANJAN MODAK [1985 (1) SCC 270]
Ram Sarup v. Munshi (1963)3 SCR 858: (AIR 1963 SC 553), which was followed by this Court in Mulla v. Godhu (1970)2 SCR 129: (AIR 1971 SC 89). We may point out that in Dayawati v. Inderjit (1966)3 275: (AIR 1966 SC 1423 at p. 1426)
UNITED BANK OF INDIA, CALCUTTA vs. ABHIJIT TEA CO.PVT. LTD., & OTHERS [AIR 2000 SC 2957]
M. PRITHVIRAJ AND OTHERS vs SMT. LEELAMMA N AND OTHERS [2008 (4) KCCR 2333]
Sheela Devi and Others Vs Lal Chand and Another [2007 (2) Civil LJ 364
BHANWAR SINGH vs PURAN AND OTHERS [(2008) 3 SCC 87].
Comparative Citations:
2010 ILR(Kar) 1484, 2010 (3) KantLJ 549, 2010 (2) KCCR 1249, 2010 AIR(Kar) 124,
Pushpalwtha.n.v vs v.padma
#partition
#retrospective
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