Case BriefsHigh Courts

Bombay High Court: Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband, S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

Substantial Question of Law:

Whether a widow can claim the estate of the husband after re-marriage?

High Court referred to the decision of Supreme Court in Kasturi Devi v. Deputy Director of Consolidation, AIR 1976 SC 2595. In the said decision, “the effect of re-marriage on her right to claim share in the property” was considered, though the status of the woman in the said decision was not of a widow but of a mother. Hence the claim pertained for inheritance not as a widow but as a mother. To this issue it was held that there won’t be any effect on her share of inheritance from a son even after she re-married.

Issue in the present matter was:

What is the effect on widow’s right of inheritance (not in the property of a son) on the property of the deceased husband?

Deceased was married to respondent 1 and the present appellant is the mother of the deceased.

It was stated that deceased had nominated his wife for the dues that he was entitled to from the Indian Railways, though it came on record that the deceased and wife were not living together due to the existence of a dispute between them.

After the death of the husband, defendant-wife re-married.

In view of the above events, the plaintiff claimed dues from Indian Railways and informed Indian Railways about the re-marriage of defendant. On non-provision of marriage certificate, the employer disbursed the dues in favour of the wife.

Trial Court favoured the plaintiff and decreed the suit in toto.

Hence, Indian Railways was directed to pay all the due to the plaintiff, though the Appellate Court recognized the share of defendant and directed the employer to disburse the amount to plaintiff and defendant.

Appellate Court’s decision has been challenged before this Court.

Provisions of Law

It was stated that the dues of employer are nothing but the self-acquired property of the deceased and as per Hindu Succession Act, Section 24, the widow loses rights if she remarries on the date when succession opens. It is also true that the said Section was omitted from the Act o 1956 w.e.f 9th September, 2005.

Since the deceased had expired on 19-04-1991, so we have to see what the position in force at that time was. Section 24 was in existence at that point of time, hence as per the said provision, whether it can be said that defendant can be excluded from succeeding the property of the deceased?

Section 14 of the Act of 1956 makes the female Hindu being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries.

A very pertinent fact that was noted by the Bench was that, if the widow had not re-married when the succession opened, the disqualification under Section 24 of the Act of 1956 wouldn’t be applicable.

Defendant-Sunanda re-married in May, 1991 (i.e. after opening of succession on 19-04-1991).

Furthermore, the Court stated that since the plaintiff and defendant were class 1 heirs, they were entitled to get equal share in the property of the deceased and as contemplated under Section 10 of the Act of 1956, the widow and the mother of the intestate takes one share each.

Therefore, both the wife and mother were entitled to get 50% from the property of the deceased.

Doctrine of enrichment

Since the wife is not solely entitled to get the whole amount, she was bound to return 50% of the amount to the plaintiff.

Respondent 1 was to refund the amount with 6% interest.

Appeal was disposed of in view of the above discussion. [Jaiwantabai v. Sunanda, Second Appeal No. 144 of 2007, decided on 23-08-2021]


Advocates before the Court:

Shri Ved Deshpande h/f Shri A.S. Mardikar, Senior Advocate for the Appellant Shri J.B. Gandhi, Advocate for Respondent 1.
Shri N.P. Lambat, Advocate for Respondent 2.

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J., dismissed the second appeal and held that the first appellate Court is absolutely justified in granting the appeal.

The facts of the case are such that the suit property was originally held by Sugriv who died leaving 4 sons namely Mohan, Abhiram, Goverdhan and Jeeverdhan. Mohan died issueless and Abhiram had a son Ghasi who died and is now left with wife and daughter being defendant 1 and 2 respectively. The third son Goverdhan has a son Loknath who filed a plaint on the ground that since Ghasi died in the year 1942 and his wife defendant 1 entered into second marriage in the year 1954-55 in chudi form, therefore, she ceases to have any interest in the suit property and therefore, defendants 1 & 2 have no right and title over the suit property.

The trial Court after appreciating oral and documentary evidence available on record partly decreed the suit holding that clause 29 of the Raigarh State Wajib-ul-arz applies in the present case and defendant 1 had already entered into second marriage in 1954-55 and as such, she would only be entitled for 5 khandi of land for maintenance. In the appeal preferred by defendant 2 questioning the judgment and decree of the trial Court, the first appellate Court allowed the appeal of defendant 2 and held that in the light of Section 14(1) of the Hindu Succession Act, 1956, Kiya Bai – defendant 1, had become full owner of the suit property on coming into force of the Hindu Succession Act, 1956 and therefore the plaintiff is not entitled for any decree and set aside the judgment and decree of the trial Court, feeling aggrieved against which this second appeal has been preferred by the plaintiff. The defendants 3 to 6 are sons and daughter of Jeeverdhan (4th son).

Counsel for the appellants Mr. Neelkanth Malaviya submitted that, the first appellate Court has clearly erred in holding that Section 14(1) of the Hindu Succession Act, 1956 would apply and defendant 1 & defendant 2 have become full owners of the suit property as they remained in possession thereof on the date of coming into force of the Hindu Succession Act, 1956, and further erred in holding that clause 29 of the Raigarh State Wajib-ul-arz would not apply. It was further submitted that the finding recorded by the first appellate Court that Defendant 1 (wife) has not entered into second marriage in 1954-55 is erroneous finding being contrary to record and it is against the admission made by defendant 2 (daughter) and therefore the judgment of the first appellate Court deserves to be set aside.

No one was present for respondent 1 i.e. Defendant 2.

There is overwhelming evidence available on record to state that the fact remains that defendant No. 1 remained in physical position of the suit land even after coming into force of the Hindu Succession Act, 1956 and her limited right, if any, has ripened into absolute title by virtue of Section 14(1) of the Hindu Succession Act, 1956 (for short, ‘the Act of 1956’).

The Court observed that on a careful perusal of Section 14 (1) of Hindu Succession Act, 1956 it is quite vivid that under Section 14(1) of the Act of 1956, to get attracted, the property must be possessed by the female Hindu on coming into force of the Act of 1956. The object of this provision is firstly, to remove the disability of a female to acquire and hold property as an absolute owner and secondly, to convert any estate already held by woman on the date of commencement of the Act as a limited owner, into an absolute estate.

The Court relied on judgment Shyam Narayan Singh v. Rama Kant Singh, 2017 SCC OnLine SC 1985 wherein it was held as under

“5. On an analysis of Section 14(1) of the Hindu Succession Act of 1956, it is evident that the Legislature has abolished the concept of limited ownership in respect of a Hindu female and has enacted that any property possessed by her would thereafter be held by her as a full owner. Section 14(1) would come into operation if the property at the point of time when she has an occasion to claim or assert a title thereto. Or, in other words, at the point of time when her right to the said property is called into question. The legal effect of Section 14(1) would be that after the coming into operation of the Act there would be no property in respect of which it could be contended by anyone that a Hindu female is only a limited owner and not a full owner. (We are for the moment not concerned with the fact that Sub-section (2) of Section 14 which provides that Section 14(1) will not prevent creating a restricted estate in favour of a Hindu female either by gift or will or any instrument or decree of a Civil Court or award provided the very document creating title unto her confers a restricted estate on her). There is nothing in Section 14 which supports the proposition that a Hindu female should be in actual physical possession or in constructive possession of any property on the date of the coming into operation of the Act. The expression ‘possessed’ has been used in the sense of having a right to the property or control over the property. The expression ‘any property possessed by a Hindu female whether acquired before or after the commencement of the Act’ on an analysis yields to the following interpretation:

(1) Any property possessed by a Hindu female acquired before the commencement of the Act will be held by her as a full owner thereof and not as a limited owner.

(2) Any property possessed by a Hindu female acquired after the commencement of the Act will be held as a full owner thereof and not as a limited owner.”

 The Court reverting to the facts and relied judgment, observed that Ghasi died in the year 1942 by which his widow Kiya Bai – defendant 1 became the limited owner of his share by virtue of the provisions contained in Section 3(2) of the Hindu Women’s Rights to Property Act, 1937 and after coming into force of the Act of 1956 and by operation of Section 14(1) of the Act of 1956 with effect from 17-6-1956, her limited right in the suit property would blossom into absolute estate as contemplated by Section 14(1) of the Act of 1956 and she would become the absolute owner of the suit property as on date. Defendant 1 had already became limited owner before the coming into force of the Act of 1956 and thereafter, her limited right has became ripened into absolute right.

The objection regarding remarriage of Defendant 1 was rejected as there is neither adequate pleading with regard to the remarriage of Kiya Bai defendant 1 with any person nor there is admissible evidence on record to hold that Kiya Bai had remarried and lost her right to the property as required under Section 6 of the Act of 1856.

The Court thus held “the finding recorded by the first appellate Court that the suit property fell in the share of Ghasi and after death of Ghasi, defendant No.1 remained in physical possession of the suit land and by virtue of Section 3(2) of the Hindu Women’s Rights to Property Act, 1937, defendant No.1 Kiya Bai became the limited owner of the property during her lifetime till the coming into force of the Act of 1956 and after coming into force of the Act of 1956, she became the absolute of the suit property, is correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record.”

[Shribachahh Kumar Bhoi v. Sindhu, Second Appeal No.356 of 2001, decided on 28-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: G. Jaya Chandran, J., expressed that the individual property can blend with the ancestral property or with the joint family property but not vice versa.

Factual Matrix

In the present matter, it has been stated that the parties engaged in the dispute were descendants of K.N.T Manickam Chettiar. During the lifetime of K.N. Thandavaraya Chettiar, he and his 6 sons entered into a partition deed and got the same registered. Ancestral Properties and the properties accrued through joint family members exertion were divided into 7 lots put under schedule “A” to “G”.

Further, it was added that Schedule “A” was left to parents Thandavaraya Chettiar and his wife Unnamalaiammal, and later after their death to be divided among the 6 sons after clearing the parent’s debts if any.

Manickam Chettiar was allotted properties under “F” schedule and later the said properties were divided into 8 lots under schedule “A” to “H”. Properties listed under ‘A’ schedule was allotted to K.N.T Manickam Chettiar and the ‘B’ Schedule properties were allotted to his son M. Sivasubramaniam. On the demise of K.N.T Manickam Chettiar, properties left by him were divided amongst his children, after which M. Sivasubramaniam was allotted properties listed under Schedule ‘A’.

Sivasubramaniam after getting married had a son named ‘Saravanan’ and a daughter ‘Dhanuja Murali’. Later Sivasubramaniam re-married and from his second marriage he had a son ‘Manikandan’ and two daughters Kavitha and Vidya.

Present Suit by Saravanan for Partition

Sivasubramanian, Mnaikandan, Dhanuja Murali, Kavitha Senthil  and Vidhya Venkataragavan are the defendants. Saravanan contended that ‘A’ and ‘B’ schedule properties are properties in the name first defendant are ancestral properties. ‘C’ Schedule property purchased in the name of First Defendant Sivasubramanian is from out of joint family income.

Trial Court had dismissed the suit holding that the suit properties were not joint family properties and against the said dismissal, the present appeal was filed.

Point for Consideration

Whether the suit properties are ancestral properties to devolve upon the plaintiff by survivorship or it is a self-acquired property acquired by the 1st defendant to dispose of it as self -acquired?

Analysis, Law and Decision

The three categories of properties stood in the name of Sivasubramanian and one property not included stands in the name of Saravanan, who is the plaintiff.

First Category Property: It is the one that devolved upon Sivasubramanian when his father and others divided the ancestral and joint family property. This property is shown under Schedule ‘A’.

Second Category Property: It is the one devolved upon Sivasubramanian under the petition deed between him and his siblings.

Third Category Property: It is the property purchased in the name of Sivasubramanian in the year 2004 upon which, he had constructed a house and the property purchased in the name of Saravanan and construction put upon it.

Property in the name of Sivasubramanian alone is the subject matter of the present suit. Plaintiff excluded the property which stood in his own name and wanted to retain it as his self-acquired individual property and had contended that, it does not form part of the joint family property. Sivasubramanian’s daughters contended that the ‘C’ schedule property in the suit was their father’s self-acquired property and the property in the name of Saravanan was the joint family property purchased in Saravanan’s name.

Controversy:

The controversy is in respect to the property purchased and improved in the name of Saravanan (plaintiff) and Sivasubramanian (1st defendant) – Whether it is the self-acquired property of the individual or joint family property?

If any person says property has been purchased in the name of family members from out of joint contribution of the family members, then, the person who asserts the fact, should prove it.

In the present matter, both plaintiff as well as the 1st defendant were able to show their independent source of income for purchasing the property in their respective names.

Bench opined that since the ‘C’ schedule property stood exclusively in the name of 1st defendant and he had shown his independent source of income for purchasing the said property and improving it, the plaintiff cannot have right or share in the said property.

Trial Court miserably failed to note the ancestral nature of the property and other properties getting blended with the ancestral property.

Further to elaborate on the point of devolution of Hindu Male Mitakshara Property, Bench referred to the Supreme Court decision in: M. Arumugam v. Ammaniammal, (2020) 5 CTC 680.

While concluding, High Court held that an ancestral property is always an ancestral property, unless it gets divided among the existing coparceners. Even then, on the birth of a son and after 2005 amendments also daughter the coparcenary opens to them. Hence, Trial Court erred in the way in which it dealt with ‘A’ and ‘B’ schedule properties.

Hence partly allowing the appeal, Court decided that ‘A’ and ‘B’ schedule property are declared as ancestral property and available for partition, defendant’s 1 to 5 are entitled to share schedule ‘A’ and ‘B’ property equally. As far as ‘C’ schedule property, the plaintiff failed to prove that the said property as purchased from out of the income derived from the ancestral property. [P. Saravanan v. M. Sivasubramanian, 2021 SCC OnLine Mad 927, decided on 04-03-2021]


Advocates before the Court:

For the appellants: R. Subramanian, Senior Counsel for Gupta and Ravi

For R1 to R5: V. Lakshminarayanan, for R. Jayaprakash.

Case BriefsHigh Courts

Bombay High Court: R.D. Dhanuka, J., held that relinquishment of properties held by the legal heirs of a person whose properties were self-acquired properties would enure only for those persons in whose favour such deed of relinquishment was executed.

The First Appeal was filed under Section 96 of the Code of Civil Procedure, 1908.

Respondents (original plaintiffs) case was that the suit properties were the self-acquired properties of Late Shripad Pandit who was the grandfather of the respondents. The said properties were purchased in the name of Late Smt. Usha was the wife of Shripad Pandit and the grandmother of the respondents.

Appellants (original defendants) are the uncles of the respondents (original plaintiffs). Father of the respondents expired and after his death, the mother of the respondents who were defendant 4 got re-married.

Respondents stated that the deceased Usha Pandit and Shripad Pandit had four sons and four daughters. After their demise, each son and daughter had 1/8th share therein. Sisters of appellant1 to 3 relinquished their undivided share in the suit property by a registered release deed and thus had no right, title and interest of any nature in the suit property.

Trial Judge declared that the appellants and respondents 1 to 3 were having 1/4th share each in units/apartments reserved for their joint family. It was further held that respondents 1 to 3 (original plaintiffs) are entitled for partition, separate possession of their 1/4th share in the suit property. Court restrained the appellants permanently from creating third party interest to the extent of 1/4th share of respondents 1 to 3 in the suit property and directed that partition of 1/4th share of respondents 1 to 3 effected by appointing Court Commissioner and separate possession of their share be given to them.

In view of being affected with the trial court judgment, appellants filed the present appeal.

Analysis and Decision

A perusal of the judgment and decree passed by the Trial Court indicates that the trial Court though had rendered a finding that the suit properties were inherited by the parties had rendered perverse finding that the suit properties were co-parcenary properties and release deed executed by the sisters of the appellants were for the benefit of all the members of the family and not only the appellants.

Trial Judge strongly placed reliance on the judgment of the Andhra Pradesh High Court in the case of M. Krishna Rao v. M. L. Narasikha Rao, 2003 SCC OnLine AP 526 & L. Sundaram and Ravichandran v. Lakshmanana (died)2003 (1) Mh. LJ. 195, held that relinquishment of the right and interest by the daughters of Shri Shripad Pandit and Usha was in favour of the entire family and not in favour of the appellants only.

Co-Parcenary & Not Self Acquired | Erroneous

Trial Judge erroneously proceeded on the premise that the Deed of Release by four daughters of Shripad Pandit in favour of the appellants were co-parcenary properties and not his self-acquired properties.

Bench relied on the decision of the Supreme Court in Kishore Tulshiram Mantrim v. Dilip Jank Mantri,  Second Appeal No. 374 of 2018 decided on 14-8-2018 and opined that the suit properties were self-acquired properties of the deceased Shripad Pandit, all the legal heirs of the said deceased were entitled to equal share including the four daughters of the said deceased who were sisters of the appellants. The daughters of the said deceased thus were free to relinquish their undivided share in the suit property in favour of the other legal heirs of the said deceased exclusively.

Relinquishment of properties inherited by the legal heirs of the person whose properties were self-acquired properties would not enure for the benefit of all the legal heirs of the said deceased but would enure only for those persons in whose favour such deed of relinquishment/release was executed.

 In the present matter, Trial Judge erroneously applied the principles applicable to the relinquishment of undivided share by a coparcener in favour of another coparcener to the properties inherited by the legal heirs of a deceased whose properties were self-acquired.

A perusal of the release deed which was produced on record in evidence executed by the four daughters of the said deceased i.e. Pushpalata, Bharti, Hemlata and Varsha clearly show that they had released all their undivided share right, title and interest in the suit property in favour of the appellant exclusively. Hence respondents 1 to 3 would be entitled to only 1/8th share in the suit property and not 1/4th share. [Shashikant Shripad Pandit v. Kaustubh Subhash Pandit, 2020 SCC OnLine Bom 309, decided on 25-02-2020]


Advocates before the Court:

Girish R. Agrawal for the appellants.

Jaydeep Deo for the respondents 1 to 3

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan* and R. Subhash Reddy, JJ has held that consent decree recognising pre-existing rights created by oral family settlement does not require registration under section 17 of  Registration Act, 1908.

Background

In the present case, Shri Sher Singh, husband of Jagno had half share in the agricultural land situate in village Garhi Bajidpur, which was suit property. Sher Singh died in 1953. Jagno after enforcement of the Hindu Succession Act, 1956 by virtue of Section 14 became the absolute owner of the half share of the suit property.

She had succeeded to half share in the agricultural land and she was the absolute owner when she entered into family settlement with her nephews i.e. sons of her brother.

On 19.08.1991, the trial court passed the consent decree in favour of the plaintiffs declaring the plaintiffs owners in possession of the half share in the land.

The descendants of brother of husband of Jagno filed a Civil Suit praying for declaration that the decree dated 19.08.1991 is illegal, invalid and without legal necessity. They also claimed decree of declaration in their favour declaring them owners in possession of land in question.

Analysis 

The Court took note of the judgment in Som Dev v. Rati Ram, (2006) 10 SCC 788 wherein decree was based on an admission recognising pre-existing rights under family arrangement. It was held that the decree did not require registration under Section 17(1)(b).

In in K. Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102, the Court interpreted Section 17 and held,

“… a property which is not the subject-matter of the suit or a proceeding would come within the purview of exception contained in clause (vi) of sub-section (2) of Section 17 of the Act. If a compromise is entered into in respect of an immovable property, comprising other than that which was the subject-matter of the suit or the proceeding, the same would require registration.”

The recent judgment in in Mohammade Yusuf v. Rajkumar, (2020) 10 SCC 264 was also taken note of wherein it was held that if decree which was sought to be exhibited was with regard to the property which was subject matter of suit, hence, was not covered by exclusionary clause of Section 17(2) (vi) and decree did not require registration. (Justice Ashok Bhushan, the author of the present judgment had also penned the said judgment.)

Hence, in the present case, the Court held that in view of the fact that the consent decree dated 19.08.1991 relate to the subject matter of the suit, hence it was not required to be registered under Section 17(2) (vi) and was covered by exclusionary clause.

[Khushi Ram v. Nawal Singh, 2021 SCC OnLine SC 128, decided on 22.02.2021]


*Judgment by: Justice Ashok Bhushan 

Appearances before the Court by:

For appellant – Advocate Ranbir Singh Yadav

For respondent – Senior Advocate Manoj Swarup

ALSO READ 

Married woman’s heirs on paternal side are not strangers; she can enter in family settlement with such heirs: Supreme Court

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan* and R. Subhash Reddy, JJ has held that when heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.

Factual Summary and arguments 

In the present case, Shri Sher Singh, husband of Jagno had half share in the agricultural land situate in village Garhi Bajidpur, which was suit property. Sher Singh died in 1953. Jagno after enforcement of the Hindu Succession Act, 1956 by virtue of Section 14 became the absolute owner of the half share of the suit property.

She had succeeded to half share in the agricultural land and she was the absolute owner when she entered into family settlement with her nephews i.e. sons of her brother.

It was contended by the appellants that no family settlement could have been entered by Jagno in favour of defendant Nos.1 to 3, they being strangers to the family. A Hindu widow cannot constitute a Joint Hindu Family with the descendants of her brother, i.e., her parental side. Family settlement can take place only between members, who have antecedent title or pre-existing right in the property proposed to be settled. Smt. Jagno could have transferred her absolute share in favour of the respondents or to any stranger only in accordance with law by complying with the provisions of the Transfer of Property Act, 1882, the Indian Registration Act, 1908 and the Indian Stamp Act, 7 1899.

Respondents, on the hand, argued that the defendants being brother’s sons of Jagno, they were not strangers to Jagno and family settlement could have been very well entered by Jagno with them. Also, the expression “family” for the purpose of family settlement is not to be given any narrow meaning; it should be given a wide meaning to cover the members, who are by any means related.

Analysis

In Kale. v. Deputy Director of Consolidation, (1976) 3 SCC 119, the Court had elaborately considered all contours of the family settlement. This Court laid down that term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis. In the said case, Kale, with whom the two sisters of his mother entered into family settlement was not a legal heir within meaning of U.P. Tenancy Act, 1939 but the family settlement entered with Kale was upheld by the Supreme Court.

Hindu Succession Act, 1956, Section 15, deals with the general rules of succession in the case of female Hindus for properties inherited by female Hindus, which are devolved in according to Sections 15 and 16.

“15. General rules of succession in the case of female Hindus.—

(1)The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,—

(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

 (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother.”

Hence, Section 15(1)(d) indicates that heirs of the father are covered in the heirs, who could succeed and when heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.

The Court, hence, held that  Jagno, who as a widow of Sher Singh, who had died in 1953, had succeeded to half share in the agricultural land and she was the absolute owner when she entered into settlement. Therefore, there is no merit in the submission that the defendants-respondents were strangers to the family.

[Khushi Ram v. Nawal Singh, 2021 SCC OnLine SC 128, decided on 22.02.2021]


*Judgment by: Justice Ashok Bhushan 

Appearances before the Court by:

For appellant – Advocate Ranbir Singh Yadav

For respondent – Senior Advocate Manoj Swarup

ALSO READ

Consent decree recognising pre-existing rights created by oral family settlement does not require registration under section 17 of Registration Act, 1908: Supreme Court

Case BriefsHigh Courts

Madras High Court: R. Subramanian, J., dismissed the second appeal filed in regard to suit for partition and granting possession of share to a daughter as coparcener on finding no substantial question of law.

In the instant second appeal, plaintiffs are aggrieved by the dismissal of their suit for partition and separate possession of their 1/3rd share.

What did the plaintiffs contend?

Plaintiffs stated that the suit properties belonged to Rasappa Gounder who died in the year 1980 leaving behind one son and two daughters. One of the daughters is the wife of the first plaintiff and mother of the second plaintiff, died on 20-04-1987.

Plaintiffs claimed that as the daughter she would become a coparcener upon enactment of Hindu Succession (Amendment Act 39 of 2005) Act, the plaintiff’s would seek a 1/3rd share in the estate of Rasappa Gounder.

Defendants Contention

Defendants contended that the predecessor in interest viz., Rasappa Gounder died in the year 1980 and after his death, there was an arrangement under which the daughters and the second defendant Subbayal relinquished their share in Rasappa Gounder’s estate upon receipt of Rs 25,000.

It was also stated that defendant 1 was in possession of the property as an absolute owner and sold a portion of the properties to the knowledge of Poornam, plaintiffs and second defendant.

Therefore, it was contended that the plaintiffs were effectively ousted from the enjoyment of the property by the first defendant.

Second defendant supported the above contentions and stated that she and her sister had received a sum of Rs 25,000 in full quit of their share and have no claim over the properties of the deceased.

Trial Court

Trial Court had held that since Rasappa Gounder died in 1981, the succession having opened on the death of Rasappa Gounder, Poornam would not become a coparcener.

Vineeta Sharma v. Rakesh Sharma, (2020) SCC Online 641

Change in law brought by the above-cited decision of the Supreme Court would not have helped the plaintiff, since the daughter herself had died in 1987 even prior to the enactment of the Hindu Succession (Amendment Act 39 of 2005) Act.

Hence, the claim that the daughter becomes a coparcener was rejected by the trial court.

In view of the above, a second appeal was filed.

Counsel A. Thiyagarajan appeared for the appellants.

Decision

Bench stated that if the claim of the plaintiffs was to be restricted to Section 8 of the Hindu Succession Act, then the devolution of the estate happened on the death of Rasappa Gounder in the year 1981. The instant suit has been filed 30 years thereafter in the year 2011.

Hence the Court stated that it is a stale claim which is sought to be resurrected for some other reason.

Therefore, Court found no substantial question of law and dismissed the second appeal. [C.P. Subramaniam v. Deivasigamami,  2020 SCC OnLine Mad 5206, decided on 16-10-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ has held that daughters have right in coparcenary by birth and that it is not necessary that the father coparcener should be living when the Hindu Succession (Amendment) Act, 2005 came into force.

The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.”

BACKGROUND OF THE CASE

The Court was dealing with a reference relating to the interpretation of section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 in view of the conflicting verdicts rendered in two Division Bench judgments in Prakash v. Phulavati, (2016) 2 SCC 36 and Danamma v. Amar, (2018) 3 SCC 343.

Prakash v. Phulvati ruling

section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. The provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect.

Danamma v. Amar Ruling

The amended provisions of section 6 confer full rights upon the daughter coparcener. Any   coparcener, including a daughter, can claim a partition in the coparcenary property. The father, in the said case, died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener’s father was not alive when the substituted provision of section 6 came into force. The daughters, sons and the widow were given 1/5th share apiece.

DETAILED EXPLANATION OF LAW IN REFERENCE

On the law on Coparcenary and Joint Hindu Family

Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great grandfather. Property inherited from others is held in his rights and cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners. Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption.

“As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise.”

On unobstructed and obstructed heritage

Unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner. It is significant to note that under section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner’s death.Thus, coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6.

On effect of death of father before the Amendment Act, 2005 came into force

Rejecting the argument that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. It said,

“It is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6.”

On possibility of uncertainty if daughter is given the right to be a coparcener by birth

The Court also rejected the contention that if the daughter is given the right to be a coparcener by birth and deemed to become a coparcener at any point in the past, in the normal working of the law, uncertainty would be caused.

It said that no uncertainty is brought about by the provisions of section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005.

“There is no doubt about it that advancement brings about the enlargement of the size of the coparcenary and disabling it from treating the daughter unequally. Even otherwise, its size could be enlarged by the birth of a son also.”

By applying section 8, the joint possession was not repudiated by the fact that a female, whether a wife or daughter, inherited the share of coparcener under the proviso to original section 6. She was an equal member of the joint Hindu family and deemed statutory partition did not bring disruption of the coparcenary.

KEY TAKEAWAYS

  • The provisions of section 6 have been held to be prospective. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
  • The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
  • Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
  • The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
  • In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted.  A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

[Vineeta Sharma v. Rakesh Sharma, 2020 SCC OnLine SC 641, decided on 11.08.2020]


SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India

Case BriefsSupreme Court

Supreme Court: Explaining the requirement under Section 69 of the Evidence Act pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, the bench of SK Kaul and KM Joseph, JJ has held if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting.

The Court was deciding the following questions:

  • Is it still the requirement of law when both the attesting witnesses are dead that: under Section 69 of the Evidence Act, the attestation as required under Section 63 of the Indian Succession Act, viz., attestation by the two witnesses has to be proved?
  • Or Is it sufficient to prove that the attestation of at least one attesting witness is in his handwriting, which is the literal command of Section 69 of the Evidence Act apart from proving the latter limb?

Writing a detailed judgment running into over 270 pages, the Court said that in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It explained

“It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act.”

In short, the Court held that, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.

The Court further said that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness.

“This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.”

It was further added:

  • in a case, where there is evidence which appears to conform to the requirement under Section 69, the Court is not relieved of its burden to apply its mind to the evidence and find whether the requirements of Section 69 are proved. The reliability of the evidence or the credibility of the witnesses is a matter for the Court to still ponder over.
  • making a totally incorrect statement in a will arouses suspicion. This is on the principle that the testator would not make an incorrect statement when he makes a will. If he makes a rank incorrect statement the inference is that he would not have made that will.
  • the requirements under Section 33 of the Evidence Act are not to be confused with the ingredients to be fulfilled even in a case under Section 11 of the CPC. The applicability of Section 33 of the Evidence Act also does not depend upon the nature of the decision which is rendered in the earlier proceeding.
  • while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same.

On the limits on power of a Hindu to execute a will and effect of Section 30 of the Hindu Succession Act, 1956 thereon

The Court explained that under Mitkashara Law, a Hindu could bequeath his separate and self-acquired properties even prior to the Hindu Succession Act being enacted. A Hindu being a member of the joint family could also possess his separate property which are of various kinds. They include obstructed heritage which is property inherited by a Hindu from another who is a person other than his father, father’s father or great grandfather, Government grant, income of separate property, all acquisitions by means of learning. A Hindu could execute a will bequeathing his separate and selfacquired property. As regards his authority to execute a will concerning his interest in the property of the joint family of which he is a coparcener, the law did not permit such an exercise.

The Court further stated n the case of property of the joint family as long as the property is joint, the right of the coparcener can be described as an interest.

“as long as the family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share. The share remains shrouded and emerges only with division in title or status in the joint family. Once there is a division the share of a coparcener is laid bare.”

Further, after the passage of the Hindu Succession Act even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family.

“In other words, the words “interest in coparcenary property” can be predicated only when there is a joint family which is in tact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the right of a Hindu in the coparcenary joint family is an interest. Upon disruption or division, it assumes the form of a definite share. When there is a metes and bounds partition then the share translates into absolute rights qua specific properties.”

On the impact of the Hindu Women’s Right to Property Act, 1937

The Court explained that Section 3(2) of the 1937 Act contemplates the situation, where, at the time when the Hindu dies after the enactment of the Act in 1937 (it came into force on 14th April, 1937 and it was repealed by Section 31 of the Hindu Succession Act 1956), in order that the widow acquires the same interest as her husband had under Section 3(2), the Hindu must die when he is not separated from the joint property. If a Hindu, when he dies, is separated and, at least, qua him, there is no Hindu Joint Family, it would not be a case where Section 3(2) would apply.

“… a Hindu when he dies intestate he may have an interest in a Hindu joint family and at the same time also have separate properties. Then qua his separate properties, Section 3(1) would apply whereas in regard to his interest in the joint family, Section 3(2) would govern. Section 3(1) cannot apply as the properties in dispute were not his separate properties.”

[V. Kalyanaswamy (D) v. L. Bakthavatsalam (D), 2020 SCC OnLine SC 584 , decided on 17.07.2020]

Case BriefsSupreme Court

Supreme Court: In a case where a widow claimed possession of a property mutated in her name on the basis of the oral gift from her husband before the enforcement of the Hindu Succession Act, 1956, the bench of AM Khanwilkar and Ajay Rastogi, JJ said,

“Section 14(1) of the Act, 1956 clearly envisage that the possession of the widow, however, must be under some vestige of a claim, right or title or under any of the devise which has been purported under the law.”

The Court also explained the concept of mutation and said.

“the mutation of a property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation has been ordered, to pay the land revenue. At the same time, the effect of a declaratory decree to restore the property alienated to the estate of the alienor and until and unless the alienees are able to convince the court that they have no subsisting interest in the property, the heirs of the alienees would be entitled to the benefits of the property as per the law of succession.”

The Court, hence, held that in the instant case, the widow although was holding possession but not under any of the devise referred to under explanation to Section 14(1) of the Act, 1956 and mere possession would not confer pre­existing right of possession over the subject property to claim full ownership rights after the Act, 1956 came into force by operation of law.

[Ajit Kaur v. Darshan Singh, 2019 SCC OnLine SC 470, decided on 04.04.2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Dr. Shalini Phansalkar-Joshi, J. heard a petition filed against the husband (respondent) of deceased Sundarabai who died intestate.

The petitioners contended that the suit property was received by the deceased from her parents and that the husband’s children were not her children as they were born to the respondent’s second wife. Therefore, there was no cause of action to the suit for declaration, partition and injunction filed by the respondent (as original plaintiff) since neither the respondent husband nor his children had any shares to the said properties.

The trial court partially allowed the application by rejecting the claims of the children and accepting the husband’s claim. Relying on Section 15 of the Hindu Succession Act which states that in cases where a female dies intestate then the property she had inherited from her father or mother does not devolve upon the husband or his issues but upon the heirs of the deceased’s father, the High Court held that the trial court should have rejected the plaint in respect of the husband and not just his children. Further, it was held that the respondent had no cause of action to file the suit for partition of the deceased’s property. [Tarabai Dagdu Nitanware v. Narayan Keru Nitanware, 2018 SCC OnLine Bom 91, decided on 15-01-2018]

Case BriefsHigh Courts

Delhi High Court: A Bench comprising of Valmiki J. Mehta, J. dismissed the appeal filed by the appellant for revocation of the succession certificate granted to the legal heirs in a case filed by the sister of the deceased.

The appellant was the real sister of the deceased and she challenged the succession certificate granted to the daughter and the husband of the deceased, on the ground that they remained separated from the deceased before 35 years prior to her death, and the appellant is the nominee in the government records.

The Court took recourse to Section 15(1)(a) of the Hindu Succession Act, 1956, and affirmed the conclusion of the lower court that the respondents being the daughter and husband of the deceased, are her legal heirs, and they are entitled to the succession certificate. The Court followed the Supreme Court judgment in Sarbati Devi v. Usha Devi, (1984) 1 SCC 424 and stated that nomination is not a will in law, thus rejecting the plea of the appellant that there is a nomination in her favour in the government records. The High Court dismissed the appeal by holding that in the absence of any will of the deceased in favour of the appellant, only those persons who are the legal heirs of the deceased under the Hindu Succession Act, can inherit her properties. [Rampali v.  State Govt. of NCT of Delhi , 2017 SCC OnLine Del 7999, decided on 24-04-2017]