Case BriefsSupreme Court

Supreme Court: Holding that a testamentary court is not a court of suspicion but that of conscience, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has set aside the High Court’s order in a suit for execution of Will wherein the Court had “unnecessarily created a suspicion when there is none”, merely because it thought that was no logic in the exclusion of the sister of the beneficiary of the Will. Neither the beneficiary nor his siblings had raised any issues regarding the validity of the Will.

Asking the appellate Courts to consider the relevant materials instead of adopting an ethical reasoning, the Court explained,

“A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue.”

Brief Background

  • The Suit Property originally belonged to one Jessie Jayalakshmi, the maternal aunt of the Appellant/Plaintiff, who, being a spinster, adopted the appellant as her son and the appellant took care of her when she suffered an attack of paralysis.
  • The appellant had two siblings, a brother and a sister.
  • A registered Will under Exhibit P4 was executed by Jessie Jayalakshmi on 04.09.1985 in favour of the Appellant. The said Will was attested by the brother of the Appellant.
  • Jessie Jayalakshmi was also brought to the office of the Sub-Registrar by none other than Kantha Lakshmi, the sister of the appellant.
  • The relationship between Kantha Lakshmi and her husband, Respondent No. 1 got strained and they obtained a divorce decree on 26.03.1988.
  • Respondent No. 1, while acknowledging the factum of execution of Exhibit P4, introduced Exhibit D1, an unregistered Will, allegedly executed by Jessie Jayalakshmi in favour of the Respondent No.2 (minor son of Respondent No.1) and claimed that Exhibit P4 has been replaced by Exhibit D1.
  • Trial Court found Exhibit D1 to be forged.
  • The High Court reaffirmed the findings of the Trial Court with respect to the genuineness of Exhibit D1. However, in the absence of any specific pleading coupled with an admission of the execution of Exhibit P4, the High Court suspected that there was no logic in the exclusion of the sister of the Appellant and concluded that there was no basis to leave her out of the Will.

Analysis

The Supreme Court noticed that,

  • The High Court did not give any reasoning whatsoever for differing with the views expressed by the Trial Court.
  • The High Court has also committed an error in misconstruing the presence of the sister of the Appellant, Kantha Lakshmi. Her presence in fact adds strength to Exhibit P4 having been executed properly. It is the specific case of the Appellant and his siblings that the deceased, Ms. Jessie Jayalakshmi wanted the property to be given in his favor.

“Their participation coupled with the subsequent conduct would be sufficient enough to uphold Exhibit P4. When there are no suspicious circumstances surrounding the execution of Exhibit P4, there is no need to remove.”

  • The High Court after giving adequate reasoning for disbelieving Exhibit D1 that it is forged and fabricated should have kept in mind the conduct and attitude of the Respondent No.1.

“The factors such as the fabrication and severance of relationship between himself and his wife in pursuance of the decree for divorce, coupled with the status while squatting over the Suit Property being the relevant materials, ought to have weighed in its mind instead of questioning Exhibit P4. Had that been done, perhaps it would have come to conclusion that such an exercise is not warranted at the hands of the. Respondents, who not only accepted Exhibit P4 but it did not even question it; except by contending that it is replaced by Exhibit D1.”

Conclusion

Noticing that both the Courts have given adequate reasoning for not believing Exhibit D1, the Court concluded that

“In the absence of pleadings to the contrary, followed by issues framed, it is not open to the Appellate Court to embark upon an exercise which is not required and also not permitted under the law.”

[V. Prabhakara v. Basavaraj K., 2021 SCC OnLine SC 896, decided on 07.10.2021]


*Judgment by: Justice MM Sundresh

Counsel:

For appellant: Advocate Kiran Suri

Case BriefsHigh Courts

Andhra Pradesh High Court: M. Satyanarayana Murthy, J., expressed that,

“If a party to the document wants to annul the document, he has to file a suit under Section 31 of the Specific Relief Act before the competent Civil Court and if, third party wants to annul the document, he has to approach the competent Civil Court and seek relief under Section 34 of the Specific Relief Act.”

Murthy and Sodemma were husband and wife with no children. Murthy was the absolute owner of agricultural land and a house, he had alienated his entire property to his wife during his lifetime.

Sodemma who was the maternal aunt of the petitioner, bequeathed the said property to him as he had taken care of their welfare at the old age. Therefore, petitioner became the absolute owner and possessor of the said property as per the registered Will deed executed by Sodemma.

Respondent 15, son of younger brother of Murthy with a mala fide intention to become the owner of Murthy’s property hatched a plan and fabricated an adoption deed to claim that Murthy and Sodemma adopted respondent 14 and got the signature of Murthy and Sodemma on the said fabricated deed by fraud and misrepresentation.

Later, in the year 2002, respondent 15 fabricated unregistered agreement of sale on the blank stamp papers signed by Murthy having believed him.

Respondent 14 filed for partition of the above-mentioned property by claiming that he is adopted son of Murthy and Sodemma.

Respondent 15 also filed for specific performance of unregistered sale agreement alleged to have been executed by Murthy after lapse of more than 17 years from the date of alleged execution of the said unregistered agreement. Murthy and Sodemma contested both the suits and denied the execution of both the fabricated adoption deed dated 24.05.1993 and alleged unregistered agreement of sale.

Further, it was submitted that during the pendency of both the said suits, respondent 17, the then Minister for Animal Husbandry alleged to have purchased the property, which is the subject matter of those two suits, and started construction of palatial building in the subject property and he by abusing his power as the Minister for Animal Husbandry made the authorities concerned to issue antedated permissions in contravention of Rules.

This Court had directed that there shall not be any construction on the subject property.

Crux of the Matter

Alleged playing of fraud on Sub-Registrar in mutating the name of respondents 14 and 15,  registration of property in the name of respondent 16 allegedly at the instance of respondent 17.

Petitioners claim was that when the decree was passed, appeal were pending against both the decrees and common judgment, execution of sale deed by respondents 14 and 15 in favour of respondent 16 allegedly at the instance of respondent 17 deviating the decree was serious illegality and it amounted to ‘fraud’.

Tahsildar, respondent 8 was not supposed to mutate the names of respondents 14 and 15 and only due to influence of respondent 17.

Petitioner claimed that the very mutation of the name of respondents 14 and 15 in the revenue record, now mutated the name of respondent 16 after completion of sale transaction, registered document was tainted by ‘fraud’.

Analysis, Law and decision

To constitute fraud, there must be a suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the active concealment of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; any such act or omission as the law specially declares to be fraudulent. 

In the present matter, Court stated that,

In the absence of any interim direction, registration of a document when presented for registration satisfying the requirements under the Stamp Act and Registration Act is justified.

 Court added that Registrar is bound to register the document presented for registration unless there is prohibition from registration of such document pertaining to the land covered by Section 22A, 35 (3) and Section 71 of the Registration Act. But no such ground was raised in the present matter.

In Court’s opinion, execution of registered sale deed by respondent 14 and 15 in favour of respondent 16 by playing fraud was purely a mixed question of fact and law, such a question cannot be decided in writ petition while exercising power under Article 226 of the Constitution of India.

Supreme Court in Satya Pal Anand v. State of M.P., AIR 2016 SC 4995, held that “a party aggrieved by registration of a document is free to challenge its validity before a competent Civil Court.”

High Court held that while exercising jurisdiction under Article 226, this Court cannot annul document on the ground of ‘fraud’ and ‘misrepresentation’ since they are both mixed questions of fact and law, such roving enquiry cannot be conducted by the Constitutional Court to issue a writ of Mandamus as it is an extraordinary and discretionary relief.

When the documents are presented for registration before the Sub-Registrar, his duty is to register the same subject to any bar contained in any law and satisfying the requirements under the provisions of the Stamps and Registration laws. Such registration of document is nothing but discharging public duty.

Therefore, registration of document while discharging public duty by public officer cannot be said to be fraudulent act and such act will not attract the definition of fraud under Section 17 of the Indian Contract Act.

When can a document be cancelled?

It is settled law that the document can be cancelled only by filing suit before the Civil Court under Section 31 of the Specific Relief Act by a person, who is a party to the document.

If a third party intended to annul the document, he has to file a suit to declare the suit document as illegal and not binding on the plaintiff.

Due to lack in merits, no relief was granted and petition was dismissed.[Manfipudi Nagaraju v. State of Andhra Pradesh, WP No. 1399 of 2021, decided on 8-10-2021]

Case BriefsDistrict Court

Family Court No. 3, Pune: M.R. Kale, J., addressed a petition for divorce by mutual consent under Section 28 of the Special Marriage Act, 1954 and granted the same noting the difference of opinion and incompatibility of petitioner’s temperament. 

Instant petition was filed by the petitioners for dissolving their marriage by a divorce decree by mutual consent under Section 28 of the Special Marriage Act, 1954.

Factual Background

Marriage between the two petitioners was solemnized before the Marriage Officer at Pune as per the provisions of the Special Marriage Act. Due to differences of opinion and incompatibility of temperament, both the petitioners have not been able to live together.

Petitioners with mutual consent filed for divorce.

Question for Consideration

Whether the present matter is a fit case for granting a decree of divorce by mutual consent under Section 28 of the Special Marriage Act, 1954?

Analysis, Law and Decision

Petitioners filed an application for waiving of a statutory period of 6 months.

It was noted that the petitioners were separated since 26-4-2019. Thus, the parties had already undergone a period of separation for more than 18 months, therefore it was not necessary to keep them further waiting for 6 months.

In view of the above, Bench waived off the 6 months period contemplated under Section 28 of the Special Marriage Act.

In the affidavits submitted by the petitioners, they mentioned that petitioner 2 has waived her right of maintenance from petitioner 1. Petitioners won’t have any claim on each other movable or immovable property along with this no dispute regarding the stridhan and articles.

Adding to the above, both the petitioners mentioned in their affidavits that they cannot live together and their consent for divorce was voluntary.

Court allowed the petition and the petitioners marriage was dissolved by a decree of divorce under Section 28 of the Special Marriage Act, 1954 in view of the difference of opinion and incompatibility of the petitioner’s temperament due to which they would not be able to live together and a happy married life together. [A v. B, Petition No. F 1468 of 2021, decided on 29-9-2021]


Advocates before the Court:

For petitioners 1 and 2: Mayur and Ajinkya P. Salunke

Case BriefsHigh Courts

Madras High Court: G. Jayachandran, J., with the lens of this decision addressed the Power under Order XXXVIII, Rule 5 of the Civil Procedure Code.

In the present matter, the plaintiff a Non-banking Finance Company (NBFC) and the First defendant a Micro Level Finance Company were the parties, and the first defendant borrowed a loan from the plaintiff. Other defendants i.e. 2 and 3 were the Director/Chief Executive Officer and Director-cum-Chairman of the first defendant’s company.

It was stated that the defendants failed to repay the loan and it was alleged that the second defendant fraudulently diverted the funds of the first defendant and had misappropriated the first defendant’s fund which led to the default in repayment after September 2020.

Further, it was alleged that the second defendant committed gross fraud by inflating the assets under management by showing fictitious disbursement, withdrawal and deposits as collections.

Liability of Defendants

Due to complete and abject failure of the corporate governance and financial collapse, the corporate veil is to be lifted and defendants 2 and 3 are to be held personally liable for the default of the first defendant.

Defendants had admitted the liability on several occasions and admitted the findings of fraud by the Forensic Auditors. The chance of the defendants fleeing away from the country was imminent.

In view of the above background, present application was filed to furnish security or bank guarantee equal to the suit claim.

It was noted that the 3rd defendant father of second defendant died, and the defendant company was under liquidation. The administrator was appointed to take over the assets and liabilities.

Analysis, Law and Decision

High Court expressed that,

“Power under Order XXXVIII, Rule 5 of the Civil Procedure Code has to be sparingly used and only when, there is sufficient reason to believe that the defendant is about to dispose his property, Attachment or Order to furnish security shall be ordered.”

Madras High Court’s decision in W. Pappammal v. I Chidambaram, 1984 Mad 70, was referred, wherein the Court held that,

“6. The essential requirements for invoking the power of court to effect an attachment under 0. 38, R. 5 (1), C.P.C., are that the Court must be satisfied that the defendant is about to dispose of the whole or any part of his or her property, or the defendant is about to remove the whole or any part of his or her property from the local limits of the jurisdiction of the court and the defendant is intending so to do with a view to cause obstruction or delay the execution of any decree that may be pawed against him or her. it is incumbent that the plaintiff should state precisely the grounds on which the belief or apprehension is entertained that the defendant is likely to dispose of or remove the property. It may even be necessary in some cases to give the source of information and belief. A mere mechanical repetition of the provisions in the Code or the language therein without any basic strata of truth underlying the allegation or vague and general allegations that the defendant is about to dispose of the property or remove it beyond the jurisdiction of the court totally unsupported by particulars would not be sufficient compliance with the first part of 0. 38, R. 5 (1), C.P.C.”

In view of the above, High Court held that the second defendant, who stood as guarantor for the term loan availed in the name of the first defendant, cannot be segregated or delinked from the defendant company, which is now under restructuring.

As far as the question of whether the second defendant mismanaged the company and appropriated the funds, the same would be proved through the investigation which was under progress and through trial.

Coming to the issue regarding Order Attachment before Judgment or to furnish security equal to the suit claim, the second defendant though found in a bad light and unacceptable antecedents were all not reasons to allow application under Order XXXVIII, Rule 5 of the Civil Procedure Code.

Lastly, the bench concluded by expressing that,

“…affidavit filed along with the application does not disclose adequate reasons for ordering furnish security that the property available now with the defendant will be disposed or removed from the local limits to cause obstruction or delay the execution of the decree.”

In view of the above application was dismissed. [Northern ARC Capital Ltd. v. Sambandh Finserve Pvt. Ltd., A. No. 2730 of 2020, decided on 6-10-2021]


Advocates before the Court:

For Applicant: Mr Anirudh Krishnan

For Respondents :Mr Supriyo Ranjan Mahaptra for R1

Mr Prashant Rajagopal for R2

Case BriefsHigh Courts

Kerala High Court: N. Anil Kumar, J., decided a matter wherein the son-in-law claimed his right on father-in-law’s property while pleading that he was adopted by his wife’s family after marriage and hence had a right on the property.

Plaintiff aged 69 years was the respondent in the appeal claiming for permanent injunction interdicting the defendant from trespassing into the plaint schedule property or interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property and the house therein or committing any waste therein.

The said suit property belonged to the plaintiff by virtue of a gift deed.

Plaintiff also submitted that he had constructed a concrete house spending his own funds and was also residing with his family on the said property.

The defendant was the son-in-law of the plaintiff and he had no manner of right over the property.

Reason for filing the suit was that the defendant was disturbing the plaintiff’s peaceful possession and enjoyment of the suit property.

What was the son-in law’s contention?

Son-in-law contended that he had married the only daughter of the plaintiff and has been practically adopted as a member of the family subsequent to the marriage. Hence, he maintained that he has a right to reside in the house, as of right. He also added that he had constructed a building in the property expending his own money and has no other place of abode.

Trial Court’s decision

Trial Court held that the plaintiff is the owner in possession of the plaint schedule property and the defendant, who is the son-in-law of the plaintiff, has no manner of right in interfering with the possession of the plaint schedule building.

First Appellate Court upheld the trial court’s decision.

Question for Consideration:

Does a son-in-law have any legal right to his father-in-law’s property and building?

High Court expressed that it would be difficult to hold that the defendant was a member of the family.

It was noted by the Court that the defendant’s behaviour became intolerable, due to which the plaintiff filed a suit seeking a permanent prohibitory injunction restraining the defendant from entering into the plaint schedule property and building.

High Court stated that it is a settled principle of law that even a trespasser, who is in established possession of the property, could obtain an injunction.

In the present matter, the matter would have been different if the plaintiff was the true owner of the property.

Defendant was the son-law in the present case, it is shameful for him to plead that he had been adopted as a member of the family, subsequent to the marriage with the plaintiff’s daughter.

Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, in this decision the 3-Judge Bench of the Supreme Court reiterated the principle that possession is good against all but the true owner.

Therefore,

“A person in possession of the land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner.”

The rightful owner filed a suit for injunction restraining him from entering into the property. The residence of the defendant, if any, in the plaint schedule building is only permissive in nature. The defendant cannot contend that he is in legal possession of the suit property or the building.

Further, the Court opined that it was not necessary to decide the validity of the Gift Deed executed by the Church in favour of the plaintiff.

Contention that the plaintiff was a man of bad character and not on good terms with family members was rejected in view of Section 52 of the Indian Evidence Act which provides that in civil cases, a fact pertaining to the character of an individual is not relevant.

The said section lays down the principle that the character of a party as a piece of evidence cannot be used to manifest that conduct attributed to him is not probable or improbable.

 To be a question of law involved in the case, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

Bench dismissed the appeal on finding no error in the decision of lower courts. [Davis Raphel v. Hendry Thomas, 2021 SCC OnLine Ker 3491, decided on 6-09-2021]


Advocates before the Court:

For Appellant:

Blaze K. Jose, Advocate

Deepa Narayanan, Advocate

For Respondent:

V.A. Satheesh, Advocate

V.T. Madhavanunni

Case BriefsSupreme Court

Supreme Court: The bench of Justice R. Subash Reddy and Hrishikesh Roy*, JJ has held that in a declaratory suit, where ownership over coparcenary property is claimed, the plaintiff cannot be subjected to the DNA test against his wishes.

“When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy.”

The Court explained that DNA is unique to an individual (barring twins) and can be used to identify a person’s identity, trace familial linkages or even reveal sensitive health information. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test.

The Court was deciding the case where, in a declaratory suit for ownership over coparcenary property, the plaintiff had already adduced ‘enough’ documentary evidence to prove relationship between the parties. The Court noticed that in such cases, the Court’s decision should be rendered only after balancing the interests of the parties, i.e, the quest for truth, and the social and cultural implications involved therein.

“The possibility of stigmatizing a person as a bastard, the ignominy that attaches to an adult who, in the mature years of his life is shown to be not the biological son of his parents may not only be a heavy cross to bear but would also intrude upon his right of privacy.”

The Court held that in such kind of litigation where the interest will have to be balanced and the test of eminent need is not satisfied our considered opinion is that the protection of the right to privacy of the Plaintiff should get precedence.

It was, hence, held that the respondent cannot compel the plaintiff to adduce further evidence in support of the defendants’ case. In any case, it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the court should not compel the party to prove his case in the manner, suggested by the contesting party.

Important Rulings

Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

DNA test is not to be directed as a matter of routine but only in deserving cases. The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.

Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633

The discretion of the court must be exercised after balancing the interests of the parties and whether a DNA Test is needed for a just decision in the matter and such a direction satisfies the test of “eminent need”.

Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365

In the said case the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances, it was held that when the wife had denied the charge of infidelity, the Court opined that but for the DNA test, it would be impossible for the husband to establish the assertion made in the pleadings. In these facts, the decision of the High Court to order for DNA testing was approved by the Supreme Court.

[Ashok Kumar v. Raj Gupta, 2021 SCC OnLine SC 848, decided on 01.10.2021]

___________________________________________________________________________________

Counsels:

For appellant-plaintiff: Advocate Sunieta Ojha

For respondent – defendants: Senior Advocate Rameshwar Singh Malik


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Op EdsOP. ED.

The position of law on disruption of the Mitakshara coparcenary has assumed significance in recent times. It has been considered by the courts in three contexts: first whether the device of notional partition introduced by Section 61 of the Hindu Succession Act, 19562 (HSA) disrupts the Mitakshara coparcenary, second in cases concerning applicability, to pending proceedings, of the amendment to Section 6, HSA which recognises daughters as coparceners, and third whether share in coparcenary property devolved by partition becomes self-acquired property thereby disrupting the Mitakshara coparcenary. Clarity on whether Mitakshara coparcenary has ceased to exist is crucial since estate belonging to the Mitakshara coparcenary is subject to distinct rules of devolution which affects the manner in which it is dealt. The most recent formulation of the law on this point is found in the decision of the Supreme Court in Vineeta Sharma v. Rakesh Sharma[3]. In this article, the authors will set out the position of law on this aspect under Mitakshara/classical Hindu Law, changes brought about by the decision in Vineeta Z4 and its implications.

A. Classical Hindu Law/Mitakshara

A Mitakshara coparcenary, prior to the 2005 Amendment5 to Section 6 HSA, comprised only males up to three generations commencing from the common male ancestor.6 Thus, a son, grandson, and great-grandson constituted a Mitakshara coparcenary. After the 2005 Amendment to HSA daughters are also recognised as coparceners.

Since coparcenary property has not been defined under the HSA, courts have continued to attribute the same understanding as Mitakshara.7

Coparcenary property means and includes:

(i) ancestral property;

(ii) acquisitions by coparceners with the help of ancestral property;

(iii) separate property of coparceners thrown into the common stock; and

(iv) joint acquisition by coparceners.8

Ancestral property means property inherited by a male from his father, father’ s father or father’s father’s father and the inheritor’s son, son’s son, and son’s son’s son get a right in such property by birth.9

It is presumed that a Mitakshara coparcenary is joint until it is proved that its members have separated.10 No coparcener can predicate his share in the coparcenary property so long as the coparcenary remains joint and there is no severance of status.11 The shares of a coparcener fluctuate with births and deaths since it devolves by survivorship.12 The members of a Mitakshara coparcenary can agree to separate and upon such agreement the Mitakshara coparcenary ceases.13 Severance of status or separation is a matter of individual volition of the coparcener to enjoy his share severally14 which has to be communicated to other members of the coparcenary from whom he seeks to separate.15 The date on which the severance is effective is the date of unequivocal manifestation of intention to separate16 and such intention can be expressed in many ways including by issuing a notice or filing of a suit or by conduct of the member in dealing with his property separately.17 If a suit is filed to partition the property, the date of institution of the suit is the date on which the Mitakshara coparcenary has ceased to exist.18

When a member of the Mitakshara coparcenary declares his intention to separate, the consequences which follow immediately are:

(i) Mitakshara coparcenary property is held as tenants in common and ceases to be a joint tenancy;

(ii) the share of each member crystallises on the date of expression of intention to separate;

(iii) each member has a right to enjoy and receive proceeds from the property that has fallen to his share;

(iv) if a coparcener dies, after the expression of interest to separate by any of the coparceners, but without having received his actual share, his share on the date of expression of intention will be inherited by his heirs and will not devolve by survivorship; and

(v) subsequent births and deaths will not affect the share fixed on the date of severance of status.19

The title of a Mitakshara coparcenary’s estate stands transformed from joint to separate ownership even without the need for actual partition of the subject-matter by metes and bounds, upon expression of interest by any of the members to separate.20 Severance of status is distinct from de facto division of estate into specific shares which division may be brought about by various modes such as private agreement or arbitration or through court as a last resort upon the failure to arrive at a private agreement.21 Severance of status is effective and complete even though it is not followed by actual partition of the estate by metes and bounds.22Mitakshara does not contemplate actual division and distribution of property for severance of status to be effective and the former is only a result of the latter.23 Even if members of a coparcenary continue to live together and enjoy the property without actual division, after severance of status, they do so as tenants-in-common and not joint tenants and such conduct only affects the mode of enjoyment of property but not the title of the property.24 A member who expresses his intention to separate cannot undo the effect of severance of status and disruption of the coparcenary merely by revoking expression of such intention and the family can continue as a coparcenary only through an agreement to reunite.25

A three-Judge Bench of the Supreme Court in Addagada Raghavamma v. AddagadaChenchamma26has approved the understanding posited by the decisions of the Privy Council cited above and disagreed with contrary view in decisions of the Madras High Court.27In Puttarangamma v. M.S. Ranganna28 the Supreme Court noted the approval of the Privy Council decisions in Raghavamma29.

Formulation of the law on disruption of Mitakshara coparcenary as understood by Mitakshara and approved by the Supreme Court is found in a three-Judge Bench decision of Kalyani v. Narayanan30 wherein it was reiterated that:

  1. an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property….

In Hardeo Rai v. Sakuntala Devi31 the Supreme Court while decreeing a suit for specific performance by an agreement-holder in respect of coparcenary property, held that upon severance of status through expression of intention, even in the absence of division by metes and bounds, a coparcener is the owner of his share and he can alienate through sale or mortgage in the same manner as his separate property. Whilst holding so, the Supreme Court rejected the defence of the vendor that the subject- matter of the contract for sale belongs to the coparcenary and the same was not partitioned by metes and bounds.

The position on severance of status and consequential disruption of the Mitakshara coparcenary spelt out by Mitakshara as recognised by the Privy Council and approved by the Supreme Court held the field even after the enactment of the HSA, till the decision of the Supreme Court in Vineeta32.

(B) Position Post-Vineeta

(i) Partition is complete only upon division by metes and bounds

A question before the Supreme Court in Vineeta33 was whether application of the legal fiction of notional partition contained in Section 6 HSA disrupts the Mitakshara coparcenary.34 Whilst answering this in the negative, which the authors have discussed below, the Court in Vineeta35 has also opined on aspects of severance of status which mark a stark departure from Mitakshara.

The Court in Vineeta36has held that “…mere severance of status by way of filing a suit does not bring about partition….”37 Further, it has held that “…until and unless actual partition is finally worked out, rights have to be recognised as they exist at the time of final decree….”38 Furthermore, “an intention to separate need not be confused with change of rights during the pendency of the suit, which has to be given full effect, to do complete justice.”[4]39

The above formulation in Vineeta40 departs from Mitakshara in that now the Mitakshara coparcenary ceases to exist only upon actual division of the estate by metes and bounds. In other words, expression of intention to separate either by issuance of notice or by agreement or by instituting a suit does not disrupt the Mitakshara coparcenary and only an actual division of the estate by metes and bounds produces such an effect.

In the opinion of the authors, the implications which follow from the decision in Vineeta41are that even after expression of interest to separate,

(i) the property is enjoyed as joint tenants;

(ii) shares do not crystallise until final decree in a suit or at the time of actual division if by agreement; and

(iii) change in the body of coparceners through births and deaths continue to affect the shares of individual coparceners.

The decision in Vineeta42 has rendered it impossible for a coparcenary to continue to enjoy the property jointly even though members have expressed an intention to separate. In other words, for a Mitakshara coparcenary to cease to exist, members have to actually divide the estate after expression of such interest.

The distinction between the position under Mitakshara and Vineeta43are illustrated below:

Illustration 1

If A is the propositus and B, C, D are his sons and B1 and C1 are his grandsons being the sons of B and C who are all alive at the time of institution of the suit for partition by B on 1-1-2020 the following is the manner of division of the estate:

Mitakshara:

(i) Filing of a suit on 1-1-2020 is a form of expression of interest by B to separate from the Mitakshara coparcenary consisting of A, B, C, D, B1, C1. The share of each branch crystallises on 1-1-2020.Assuming a complete partition takes place, the coparcenary has ceased to exist from 1-1-2020.Each branch represented by A,B,C,D get ¼th share as on 1-1-2020. B1 and C1 get ⅛th share each (½ of ¼th).

(ii) If B dies during the pendency of the suit, ¼th share of B’s branch is divided within his branch and does not enure to the benefit of the remaining coparceners through survivorship since shares crystallise on the date of the suit and survivorship stands abrogated under HSA. B1 takes a share as heir of B.

(iii) If D has a son D1 after the suit but D has sold his ¼th share after the suit was filed but before the birth of D1, D1 cannot question the sale.

(iv) If A has a son E during the pendency of the suit, E is entitled to a share reserved by A if any and ¼th allotted to other branches per stirpes will not be affected by E’s birth.

(v) As per the law prior to HSA, on account of devolution of coparcenary property by survivorship, the shares increased on deaths and decreased on births of coparceners. However, post HSA and 2005 Amendment to HSA devolution by survivorship has been abrogated. Hence, shares do not fluctuate with births and deaths.

Vineeta:

(i) The Mitakshara coparcenary does not cease to exist till the final decree proceedings have concluded and the property has been divided by metes and bounds.

(ii) If B dies and E is born during the pendency of the suit, A to E get 1/5th share each after the birth of E.

(iii) If D has a son D1, he will be entitled to question the sale since the Mitakshara coparcenary continued even after institution of the suit and D had no right to sell it unilaterally, even if D1 was not born at the time of alienation.

(iv) Purchaser from D can institute a suit for partition and separate possession to identify D’s share which he has purchased. However, after Vineeta44, since D could not have sold the property till such time final decree is drawn up since the Mitakshara coparcenary ceases only on division by metes and bounds and after born sons can question alienations made prior to their birth, it remains to be seen whether such a suit by the alienee is maintainable after Vineeta45.

(ii) Change in the body of coparceners to be noted

The question regarding applicability of 2005 Amendment to pending suits was considered in Vineeta46 and it was held that 2005 Amendment which brought about a change in law wherein daughters are recognised as coparceners, thereby affecting the body of coparceners, has to be taken note till such time actual partition of the estate takes place.47In other words, daughters have to be given a share even though the suit was filed/severance of status took place prior to the amendment so long as property has not been partitioned by actual division. In order to buttress this conclusion, the Court held that Mitakshara coparcenary ceases to exist, as per the amendment to Section 6 HSA, only upon actual division of the estate and not any time prior to that.48The reasoning of the Supreme Court is founded on the intention of the legislature in amending the law to include daughters as coparceners although it has not discussed authority to support the said conclusion. This is a break with the position under Mitakshara where severance of status is complete on expression of intention irrespective of actual division of the estate and the change in the body of coparceners does not affect the shares per stirpes.

Vineeta49 relied on cases pertaining to applicability of State Amendments to HSA which recognise daughters as coparceners in order to support its reasoning. The question regarding the applicability of amendment in Andhra Pradesh recognising daughters as coparceners, to pending partition suits, was considered by the Supreme Court in S. Sai Reddy v. S. Narayana Reddy50 (Sai Reddy) where it was held that “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”. Further, it was held that preliminary decree does not crystallise the shares nor does it bring out severance of status until divided by metes and bounds. Furthermore, Sai Reddy51 noted that such an interpretation is imperative since the amendment recognising daughters as coparceners is a beneficial legislation and ought to be interpreted liberally to give full effect.

Sai Reddy52 was followed in Prema v. Nanje Gowda53wherein the Karnataka amendment recognising daughters as coparceners was made applicable to pending proceedings by holding that since a preliminary decree can be amended to accommodate births and deaths, daughters as coparceners can also be accommodated and any other interpretation would violate Articles 1454 and 1555 of the Constitution. Similar view was articulated in Ganduri Koteshwaramma v. Chakiri Yanadi.56

All the aforesaid decisions did not consider the three-Judge Bench decision in Raghavamma57and Kalyani58 and Coordinate Bench decision in Puttarangamma59 on the point of severance of status and disruption of Mitakshara coparcenary. Further, the reasoning in these decisions has been buttressed by the fact that since a preliminary decree can be modified/amended it is not conclusive. This position has been rejected by a four-Judge Bench of the Supreme Court to hold that the fact that a preliminary decree can be amended to modify the shares allotted does not render it inconclusive or make it a tentative decree but must be rendered conclusive.60Furtherthe Supreme Court has also suggested eliminating two stages in a suit for partition thereby implying that a preliminary decree is final and final decree proceedings are resorted to only if the parties do not come forward to divide the estate as per the preliminary decree.61 In the opinion of the authors, the option to modify a preliminary decree is only a means of effectuating the partition and accommodating changes in shares per capita (not per stirpes which is crystallised upon severance of status) upon death or other arrangements between parties, and is not apposite to justify the proposition that partition is incomplete till the final decree is passed. Two stages of preliminary decree and final decree are a matter of procedure in partition suits62 and whilst determination of shares is a function of substantive personal law. Furthermore, whilst these cases have tried to ameliorate the lot of daughters by giving full effect to the amendment, it has not limited its departure from settled law on disruption of Mitakshara coparcenary only to cases concerning 2005 Amendment.

In summary, per Vineeta63 since disruption of the coparcenary takes place only upon actual division of the estate, change in body of coparceners, namely, births and deaths or change in law affecting body of coparceners, will bring about change in shares (per stirpes and per capita) till such time final decree is not passed.

(iii) Devise of notional partition does not disrupt coparcenary

Notional partition is a legal fiction introduced by the HSA to calculate the interest of a Hindu male in Mitakshara coparcenary property who dies leaving behind certain female heirs.64 It is a beneficial device to enable certain females have a share in coparcenary property which was not available to them under classical Hindu law.65 Therefore, when shares are calculated through the device of notional partition, the question arises as to whethernotional partition sounds a death knell on the coparcenary.

In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh66, the Supreme Court clarified that, upon notional partition the joint family would not cease to exist or that the female claimant would not be separated from the joint family upon the death of the male, though her share would be fixed on such death and determined through the device of notional partition. It was observed that if Explanation I to Section 6 means the coparcenary has ended would be to extend the legal fiction of notional partition beyond its logical end.

(iv) Partition during lifetime of propositus does not disrupt coparcenary

Another question is whether the Mitakshara coparcenary is disrupted upon devolution of coparcenary property through partition during the lifetime of the propositus and consequently, whether the share allotted upon such partition is recharacterised as separate property.

A three-Judge Bench of the Supreme Court in Valliammai Achi v. Nagappa Chettiar67held

“…that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently….”

 In other words, coparcenary property retains its nature upon partition qua the next generation of coparceners and in case of a sole surviving coparcener its nature is revived once he has a male/female issue.

In Rohit Chauhan v. Surinder Singh68(Rohit) the plaintiff’s father, father’s brothers and grandfather entered into a partition in 1969. Thereafter, upon the death of the grandfather, his share in the partitioned property devolved upon the plaintiff’s father and other brothers. The plaintiff was born subsequently in 1982. The plaintiff’s father alienated the property that fell to his share in 2001 and 2004 which was challenged by the plaintiff who claimed coparcenary rights in his father’s property. The Supreme Court upheld the plaintiff’s claim on the ground that though the plaintiff was not born at the time of partition, the property revived its ancestral nature upon his birth. Since the alienations were made after the birth of the plaintiff, it would affect the plaintiff’s coparcenary rights and were therefore, null and void.

Rohit69 was followed in Arshnoor Singh v. Harpal Kaur70where the great-grandfather of the appellant passed away in 1951 with all his properties devolving on his sole child i.e. grandfather of the appellant. During the lifetime of the grandfather, his property was partitioned equally amongst his three sons including the father of the appellant. The grandfather passed away in 1970, and was survived by his widow, 3 sons and a daughter. The father of the appellant thereafter alienated the property devolved upon him. The appellant sought a declaration that the alienation was null and void since the property was coparcenary property. The Supreme Court held that the alienation was null and void since the property alienated was coparcenary in nature.

 In M.Yogendra v. Leelamma N.71it was held that:

  1. 29. It is now well settled in view of several decisions of this Court that the property in the hands of sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.72

The decision in Vineeta73 does not deal with these aspects and the law as stated above remains unaffected by the decision in Vineeta74.

(v) Succession upon death of propositus

Devolution of coparcenary property through survivorship under Mitakshara75was done away with by Section 6(1) HSA, if a male died intestate leaving behind female relations under Section 876. The 2005 Amendment did away with survivorship completely and Section 8 now applies to devolution of coparcenary property also, in the same manner as separate property. The question which arises is whether coparcenary property inherited by a male coparcener by operation of Section 6 read with Section 8 would so retain its nature.

In Bhanwar Singh v. Puran77(Bhanwar), the plaintiff’s grandfather died in 1972 and his children including the plaintiff’s father succeeded to joint family property by operation of Section 8 since succession opened after the HSA came into force. The plaintiff was born in 1977 and the plaintiff’s father alienated his share of property in 1985. The plaintiff sought to challenge the sale on the ground that the property was coparcenary in nature. The Supreme Court upheld the sale on the ground that the coparcenary nature of the property ended when devolution occurred through Section 8 and Section 19 HSA78 which states that the property devolves per capita on the heirs and not per stirpes.

Bhanwar79 was followed in Uttam v. Saubhag Singh80 (Uttam) where the grandfather of the plaintiff passed away in 1973 and his property devolved on his widow and sons. The plaintiff was born in 1978 and filed a suit for partition in 1998 which was decreed in 2000. The Supreme Court, applying the concept of notional partition in Explanation I to Section 6, held that since the grandson was not born at the time of his grandfather’s death, he would not be entitled to a share in his grandfather’s property as a coparcener. It was observed that since the date of death of his grandfather was after the commencement of HSA, Sections 6 and 8 would apply and when ancestral property devolves by application of Section 8, members hold such property as tenants-in-common and not joint tenants by virtue of Sections 481, 8 and 19 of HSA. In effect the Mitakshara coparcenary comes to an end on application of Section 8 and subsequent generations cannot seek coparcenary rights in such properties.

The factual matrix in Rohit82 and Bhanwar83 are similar but the differentiating factor is the mode of devolution of coparcenary property. Uttam84 differentiated Rohit85on the ground that it did not deal with succession under Section 8 HSA since the propositus was alive when properties were partitioned. Similarly, Arshnoor86 differentiated Uttam87with the following observation:

7.8.…the succession opened in 1973 after the Hindu Succession Act, 1956 came into force. The Court was concerned with the share of the appellant’s grandfather in the ancestral property, and the impact of Section 8 of the Hindu Succession Act, 1956. In light of these facts, this Court held that after property is distributed in accordance with Section 8 of the Hindu Succession Act, 1956, such property ceases to be joint family property in the hands of the various persons who have succeeded to it. It was therefore held that the appellant was not a coparcener vis­-à-­vis the share of his grandfather….88

The Supreme Court in Arshnoor89 observed that the succession would open in 1951 when the great-grandfather of the appellant passed away, and therefore HSA would be inapplicable, whereas in Uttam90, the share of a grandson born after the death of the grandfather was in question. Therefore, it was held, as per Mitakshara, the property would be ancestral property in the hands of his grandfather and father and subsequently his son. Property received in partition is self-acquired in the absence of coparceners but once a son is born, the ancestral nature of the property is revived.

It is pertinent to note that in Uttam91 the concept of notional partition has been applied only to the extent of determining the share of the coparcener prior to his death. The share allotted on such notional partition to his male issue has not been distinguished from the share allotted by operation of Section 8 or Section 3092 HSA.

The following illustration demonstrates the above observations.

Illustration 2

A is the propositus of a Mitakshara coparcenary and has a wife W, son B, and daughter C. B has a son D. C has a daughter E. A dies intestate and B files a suit for partition immediately after his death.

Death in 1950: Prior to HSA

On A’s death, the property devolves through survivorship and both B and D can exercise coparcenary rights over it. B holds the property as ancestral property vis-à-vis D irrespective of whether D was born before or after the partition. However, D cannot question any alienation by B prior to D’s birth.

Death in 2001: After HSA but prior to 2005 Amendment

On A’s death, proviso to Section 6 applies due to the presence of Class I female heirs W and C. Devolution of property takes place through intestate succession as per Section 8 and not by survivorship. Shares will be determined using the device of notional partition as per Explanation I to Section 6.

On notional partition, A and B would take ½ share each. A’s ½ share would then devolve on B and D on the basis of Section 8 and W takes a share equal to B depending on the school of Mitakshara.

Per Uttam

Entire share held by B (share obtained through notional partition under Explanation I to Section 6 and through Section 8) loses its ancestral nature by virtue of Section 4 read with Section 19 and D will not have right in the coparcenary property although a coparcener irrespective of whether D was born before or after the death of A. Consequently, D’s progeny are coparceners but do not have a right in coparcenary property. In other words, the coparcenary ended with the death of A at all levels/branches of the coparcenary.

Death in 2019: After 2005 Amendment

On A’s death, Section 6(3) of the HSA applies and not survivorship. A’s share in the coparcenary property is determined through the device of notional partition. B and C take shares as coparceners and the share of A determined through notional partition will devolve equally on B and C as per Section 8. Property in the hands of B and C retains its ancestral nature qua D and E respectively. However, on the death of B and C, by operation of Section 6(3), their shares would devolve in accordance with Section 8 or Section 30 HSA as applicable.

From the above discussion, the disparate application of the law can be explained by the fact that continuation of coparcenary nature of property and the coparcenary itself is dependent on its mode of devolution. In case of partition i.e. where coparcenary property is divided between coparcenary when the propositus is alive, the property after partition retains its coparcenary nature qua subsequent generations of coparceners. In the hands of a sole surviving coparcener, it becomes his separate property until a coparcener is born. In case of succession i.e. when the coparcenary property is to be partitioned upon the death of the propositus Sections 6, 8 and 19 HSA have been interpreted to bring about an end to the coparcenary and a share so allotted becomes separate property in the hands of the coparceners and subsequent generations cannot exercise any coparcenary rights over such property.

Vineeta93 cites both Rohit94 and Yogendra95 reiterating that coparcenary property retains its nature upon partition in respect of subsequent generation of coparceners. However, by obliterating the relevance of date of death being the date on which succession opens and devise of notional partition, Vineeta96 alters the nature of coparcenary property qua future generations.97

A close reading of Vineeta98 reveals that it leans towards Uttam99 and rings a death knell on the Mitakshara coparcenary by diluting the devise of notional partition. In the same breathe Vineeta100 has also clarified that “Coparcenary or HUF, as the case may be, does not come to an end by statutory fiction.”101 thereby implicitly overturning Uttam102. Thus, the result in Uttam103remains unchanged byVineeta104 since the latter has only disagreed with Uttam105 reasoning justifying the result but has introduced its own reasoning which supports the same result. The position after Vineeta106 is illustrated hereunder:

Illustration 3

A is the propositus of coparcenary property. W is the wife of A. A has a son B and daughter C. B has a son D and C has a daughter E. A died in 2004 and is survived by W, B, D,C, and E. B files a suit for partition in 2010 which is pending consideration as of date.

Prior to Uttam

Succession opened in 2004 on A’s death. As per the concept of notional partition, A and B would take ½ share each as coparceners. Thereafter, A’s ½ share would devolve on B, W, and C in accordance with Section 8 HSA. The share so received would continue as coparcenary property vis-à-vis B’s branch.

Uttam

As per Uttam107, the entire share received by B would lose the nature of coparcenary property. D would not have any coparcenary rights over the property.

Vineeta

Since the suit is pending, irrespective of date of death of A, both B and C are coparceners. B and C’s share would continue to remain coparcenary vis-à-vis D and E respectively B and C can therefore not alienate the coparcenary property without D’s consent respectively.

(vi) Separation of share does not disrupt coparcenary

A coparcenary does not cease merely upon one or few members expressing their intention to separate and it may continue vis-à-vis the others.108Whether the coparcenary continues is a question of fact to be determined by the court.109Separation of share is only a species of partition.110

In Vineeta111, three decisions112 were relied upon as authority for the proposition that severance of status has to be followed by immediate separation for the Mitakshara to cease.113 In Palani Ammal114 and Ramabadra115whilst discussing the consequences which follow when all members separate as opposed to when only one member separates, it was held that Mitakshara may continue vis-à-vis the others. It was in this context that observations were made that all instances of severance of status do not disrupt the coparcenary and if only one member has separated, the others may continue as a coparcenary. In Gangabai116 the question was whether a family arrangement pleaded resulted in partition of all Mitakshara properties although only certain properties were divided by metes and bounds and others were enjoyed jointly as tenants-in-common. It was held that the family arrangement disrupted the entire family including the lands enjoyed jointly and yet to be divided by metes and bounds. These cases pertaining to separation of shares which does not necessarily disrupt the coparcenary have not departed from Mitakshara and reliance on the same in Vineeta117for the proposition that actual division alone disrupts the Mitakshara may not be wholly apposite.

One of the questions that arise in cases of separation of share is whether the share of the branch which has separated should be deducted from the share due to his branch in a subsequent partition or whether severance of one branch should be ignored and a subsequent partition is to be effected on a clean slate. The same is explained by way of the following illustration:

Illustration 4

A has two sons B and C and they have a son each B1 and C1and A, B, C, B1 and C1 form a coparcenary. In a suit for partition is filed by B1 he is entitled to ½th share. A, B, C, and C1 continue as a joint family and B1 has separated after the suit.

In a subsequent partition between A, B, C and C1 whether the 1/6th share of B1 has to be deducted from B’s branch or ignored. In other words, will B’s share be 1/3-1/6th or 1/3rd of what remains. The Madras school118 advocates deduction of the share of B1 from that of B whilst Bombay school119 advocates the latter view. Eminent commentators on the subject such as Raghavachariar have suggested an amalgamation of both views to correct inequities which may arise in the facts of each case.120

(vii) Death of collateral does not disrupt coparcenary

Vineeta121 has held that death of a coparcener/collateral does not bring about a disruption of the coparcenary and surviving members can continue as a coparcenary until a subsequent partition122 and share of the deceased coparcener has to be calculated with reference to property available “at the time of death of the deceased coparcener.”123 In other words, Vineeta124 is advocating the Madras view stated above in the case of death of a coparcener. However, this has to be reconciled with effect of change of law also formulated by Vineeta125 which is illustrated below.

Illustration 5

In Illustration 4 if C has died prior to the partition leaving behind is wife W and son C1, A, B, B1 are the surviving coparceners. If C1 and W file a suit for partition the share of C will be as it stood on the date of his death. A, B, C will get 1/3rd each and C’s 1/3rd will devolve in his branch as per Section 6 applying the device of notional partition since he is survived by W. After the death of C, the coparcenary can continue with A, B and B1 and discerning the share of C does not disrupt the coparcenary completely. Whether the 1/3rd share which enured to C has to be deducted or partition has to be carried out between surviving coparceners will depend on the Madras or Bombay view cited above.

If A also had two daughters D1 and D2, and C had died prior to 2005 Amendment and State Amendments, a suit for partition was filed after 2005 Amendment the question arises as to whether C’s share will be as on the date of his death or date on which final decree is drawn up.

If suit filed immediately on C’s death

A, B, C will be entitled to 1/3rd share on C’s death. The coparcenary continues. The device of notional partition does not apply to discern C’s share since A the propositus is alive.

If suit decreed after Vineeta

A, B, C, D1, and D2 are entitled to 1/5th each applying the 2005 Amendment and Vineeta126. If share of C crystallised on his death then 1/3rd share of C has to be deducted from the estate and A, B, D1, and D2 take a share in remaining estate.

If A dies after Vineeta

If A also dies during the pendency of the suit and survived by widow W, then A, B, C, D1, W, and D2 will be entitled to 1/6th each (applying notional partition and assuming they follow Bombay school) and the 1/6th share of A will be redistributed amongst B, D1, D2, W.

In the opinion of the authors, one has to bear in mind the distinction between death of a collateral and a propositus/father, which has been brought into focus by the decision in Vineeta127 since it is a decision which pertains to daughters as coparceners of their fathers. Vineeta128 does not deal with share of collaterals. In such cases whether the dictum in Vineeta129 applies remains an unresolved question.130 The above illustration also indicates the difference when C, a collateral has died and A the father remains alive since notional partition does not apply vis-à-vis C’s share when the propositus A is alive while calculating the share of C. Since notional partition does not apply to death of collaterals, the view in Vineeta131on partial partitions is obiter dicta.

(viii) Dichotomy between partition under taxation law and Hindu Law obliterated

Section 171 of the Income Tax Act, 1961132 ascribes a special meaning to “partition” of estate of a Mitakshara coparcenary by confining it to physical division of property.133 Severance of status, or division of income without dividing the estate are not recognised as partition through a deeming fiction.134Such an understanding has been posited under the fiscal statute keeping in mind the interest of the revenue although it does not accord with the understanding under Mitakshara which is the substantive personal law governing this aspect. This dichotomy was noted and justified by the Supreme Court in ITO v. N.K. Sarada Thampatty.135 The decision in Vineeta136, by relying on Sarada137to buttress its finding that partition necessarily means actual division of estate, has overlooked the special meaning ascribed to “partition” under the Income Tax Act and the context in which the decision in Sarada138 was rendered. Resultantly, Vineeta139 has brought personal law (Hindu Law) in line with taxation law on the aspect of disruption of coparcenary.

Conclusion

The following conclusions emerge from the above:

i) Post-Vineeta140 a Mitakshara coparcenary continues till such time actual division of estate has not taken place. The only understating of partition is division by metes and bounds, and severance of status is now irrelevant.

ii) Since actual division of estate alone disrupts the coparcenary, all changes in law pertaining to change in the body of coparceners have to be noted. This alters not only the share per capita but also the share per stirpes.

iii) In the opinion of the authors, the view that severance of status is no longer relevant has to be confined to cases to accommodate the amendment recognising daughters as coparceners since rationale for departing from classical Hindu law in Vineeta141was to give effect to this beneficial amendment.

iv) Severance of status must remain relevant in other cases for instance where alienations are questioned because if severance of status takes place only on division by metes and bounds it sets at naught those alienations/mortgages of individual shares even without division by metes and bounds and cases where severance of status has taken place without actual division and the property is being enjoyed jointly although nature of ownership is tenants-in-common.Vineeta142 severely restricts the manner of enjoyment of coparcenary property and introduces new formalities for dealing with the same.

v) The view of the authors is supported by the fact that Vineeta143 has not overruled the three-Judge Bench decision in Raghavamma144and Puttarangamma145but has only added a rider that in applicable cases change of law is to be noted.

vi) Vineeta146 was a tight rope walk to balance severance of status understood by Mitakshara with ensuring daughters gets a share as coparceners. The question remains whether the amendment to Section 6 recognising daughters as coparceners could have been made applicable to pending cases without departing from the law on severance of status.

vii) Devolution of coparcenary property under Section 6 HSA is closely modelled on the manner of devolution of separate property as per Section 8 HSA on account of dilution of the effect of the devise of notional partition by Vineeta147thereby impeding subsequent generation of coparceners from exercising rights as coparceners.


* BA LLB (Hons.) NALSAR; Advocate, Karnataka High Court. Author can be reached at  aparnabhushan04@gmail.com.

**BA,LLB (Hons.) (NLSIU); BCL (Oxon); Advocate, High Court of Karnataka. Author can be reached at nayanatara.bg@gmail.com.

1http://www.scconline.com/DocumentLink/k0WmkSp1.

2 Hindu Succession Act, 1956. http://www.scconline.com/DocumentLink/7stFp3DE.

[3] (2020) 9 SCC 1 (Vineeta). For a detailed analysis see Aparna and Nayana Tara, “Daughters as Coparceners: Unresolved Questions” (2020) 8 MLJ 32.

4(2020) 9 SCC 1.

5Hindu Succession (Amendment) Act, 2005.

6N.R. Raghavachariar, Hindu Law: Principles and Precedents, 3rd Edn., p. 253 (Raghavachariar).

7Vineeta, (2020) 9 SCC 1, paras  23-25.

8Vineeta, (2020) 9 SCC 1, paras 23-25.

9Vineeta, (2020) 9 SCC 1, paras 23-25.

10Appovier v. Rama Subba Aiyan, (1866) 11 MIA 75 (Appovier).

11Appovier v. Rama Subba Aiyan,(1866) 11 MIA 75 (Appovier).

12Raghavachariar at p. 256.

13Appovier, (1866) 11 MIA 75; Suraj Narain v. Iqbal Narain, 1912 SCC OnLine PC 50 (Suraj); Girja Bai v. Sadashiv Dhundiraj, 1916 SCC OnLine PC 31 (Girija).

14Mukund Dharman Bhoir v. Balkrishna Padmanji, 1927 SCC OnLine PC 68.

15Girja, 1916 SCC OnLine PC 31; Balkrishna v. Ramkrishna, 1931 SCC OnLine PC 31.

16Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136 (Raghavamma).

17Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar, (1979) 4 SCC 60.

18Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar, (1979) 4 SCC 60.

19Appovier, (1866) 11 MIA 75; Raghavchariar at p. 425.

20Appovier,(1866) 11 MIA 75; Kawal Nainv. Budh Singh,1917 SCC OnLine PC 25.

21Girja, 1916 SCC OnLine PC 31; Mukund Dharman Bhoir v. Balkrishna Padmanji, 1927 SCC OnLine PC 68.

22Girja, 1916 SCC OnLine PC 31; Kawal Nain v. Budh Singh, 1917 SCC OnLine PC 25;Hardeo Rai v. Sakuntala Devi,(2008) 7 SCC 46; Syed Kasam v. Jorawar Singh,1922 SCC OnLine PC 21.

23Raghavachariar at p. 373.

24Kalyani v. Narayanan, 1980 Supp SCC 298.

25Puttarangamma v. M.S. RangaAnna, AIR 1968 SC 1018.

26AIR 1964 SC 136.

27Rama Ayyar v. Meenakshi Ammal, 1930 SCC OnLine Mad 216 and Nyapati Narayana Rao v. Mudhavalapu Purushothama Rao,1937 SCC OnLine Mad 231

28AIR 1968 SC 1018.

29AIR 1964 SC 136.

301980 Supp SCC 298, 306.

31(2008) 7 SCC 46.

32(2020) 9SCC 1.

33(2020) 9 SCC 1.

34Vineeta, (2020) 9 SCC 1, para 88.

35(2020) 9 SCC 1.

36(2020) 9 SCC 1.

37(2020) 9 SCC 1, para 103.

38(2020) 9 SCC 1, para 103.

39(2020) 9 SCC 1, para 91.

40(2020) 9 SCC 1.

41(2020) 9 SCC 1.

42(2020) 9 SCC 1.

43(2020) 9 SCC 1.

44(2020) 9 SCC 1.

45(2020) 9 SCC 1.

46(2020) 9 SCC 1.

47Vineeta, (2020) 9 SCC 1, para 107.

48Vineeta, (2020) 9 SCC 1, para 103

49(2020) 9 SCC 1.

50(1991) 3 SCC 647.

51(1991) 3 SCC 647.

52(1991) 3 SCC 647.

53(2011) 6 SCC 462.

54http://www.scconline.com/DocumentLink/h7G5KbD4.

55http://www.scconline.com/DocumentLink/9etOajU7.

56(2011) 9 SCC 788.

57AIR 1964 SC 136.

581980 Supp SCC 298.

59AIR 1968 SC 1018.

60Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992.

61Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689.

62See Or. 20 R. 18 of the Code of Civil Procedure, 1908.

63(2020) 9 SCC 1.

64Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, (1978) 3 SCC 383 (Gurupad).

65Gurupad, (1978) 3 SCC 383.

66(1985) 2 SCC 321.

67AIR 1967 SC 1153, para 10.

68(2013) 9 SCC 419 (Rohit)

69(2013) 9 SCC 419.

70(2020) 14 SCC 436 (Arshnoor). See also, Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646.

71(2009) 15 SCC 184 (Yogendra).

72See also C. Krishna Prasad v. CIT, (1975) 1 SCC 160; Sheela Devi v. Lal Chand, (2006) 8 SCC 581.

73(2020) 9 SCC 1.

74(2020) 9 SCC 1.

75Raghavachariar at p. 285.

76http://www.scconline.com/DocumentLink/045wE16k.

77(2008) 3 SCC 87 (Bhanwar).

78http://www.scconline.com/DocumentLink/Rqmw9c35.

79(2008) 3 SCC 87.

80(2016) 4 SCC 68 (Uttam). See also, Bhanwar Singh v. Puran, (2008) 3 SCC 87; CWT v. Chander Sen, (1986) 3 SCC 567; Yudhishter v. Ashok Kumar, (1987) 1 SCC 204.

81http://www.scconline.com/DocumentLink/lSScsIS2.

82(2013) 9 SCC 419.

83(2008) 3 SCC 87.

84(2016) 4 SCC 68.

85(2013) 9 SCC 419.

86(2020) 14 SCC 436.

87(2016) 4 SCC 68.

88(2020) 14 SCC 436, 446.

89(2020) 14 SCC 436.

90(2016) 4 SCC 68.

91(2016) 4 SCC 68.

92http://www.scconline.com/DocumentLink/6akYcyAr.

93(2020) 9 SCC 1.

94(2013) 9 SCC 419.

95(2009) 15 SCC 184.

96(2020) 9 SCC 1.

97See Aparna and Nayana Tara, “Daughters as Coparceners: Unresolved Questions” (2020) 8 MLJ 32.

98(2020) 9 SCC 1.

99(2016) 4 SCC 68.

100(2020) 9 SCC 1.

101Vineeta, (2020) 9 SCC 1, para 105.

102(2016) 4 SCC 68.

103(2016) 4 SCC 68.

104(2020) 9 SCC 1.

105(2016) 4 SCC 68.

106(2020) 9 SCC 1.

107(2016) 4 SCC 68.

108Palani Ammal v. Muthuvenkatacharla Moniagar, 1924 SCC OnLine PC 61.

109Bal Krishna v. Ram Krishna, 1931 SCC OnLine PC 31.

110Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689.

111(2020) 9 SCC 1.

112Palani Ammal v. Muthuvenkatacharla Moniagar, 1924 SCC OnLine PC 61 (Palani Ammal); T.S. Ramabadra Odayarv. T.S. Gopalaswami Odayar,1930 SCC OnLine Mad 82 (Ramabadra); Gangabai v. Punau Rajwa Teli, 1955 SCC OnLine MP 39 (Gangabai).

113Vineeta, (2020) 9 SCC 1, para 95.

1141924 SCC OnLine PC 61.

1151930 SCC OnLine Mad 82.

1161955 SCC OnLine MP 39.

117(2020) 9 SCC 1.

118A.M. Narayana Sah v. A. Sankar Sah, 1929 SCC OnLine Mad 53.

119Pranjivandas  v. Ichcharam, 17 Bom LR 712.

120Raghavachariar at p. 420.

121(2020) 9 SCC 1.

122Vineeta, (2020) 9 SCC 1, para 111.

123Vineeta, (2020) 9 SCC 1, para 112.

124(2020) 9 SCC 1.

125(2020) 9 SCC 1.

126(2020) 9 SCC 1.

127(2020) 9 SCC 1.

128(2020) 9 SCC 1.

129(2020) 9 SCC 1.

130See Aparna and Nayana Tara, “Daughters as Coparceners: Unresolved Questions”, (2020) 8 MLJ 32.

131(2020) 9 SCC 1.

132http://www.scconline.com/DocumentLink/Ja3Fl274.

133Expln.(a) to S. 171 of the Income Tax Act, 1961.

134Expln.(a) to S. 171 of the Income Tax Act, 1961.

1351991 Supp (2) SCC 737 (Sarada).

136(2020) 9 SCC 1, para 95.

1371991 Supp (2) SCC 737.

1381991 Supp (2) SCC 737.

139(2020) 9 SCC 1.

140(2020) 9 SCC 1.

141(2020) 9 SCC 1.

142(2020) 9 SCC 1.

143(2020) 9 SCC 1.

144AIR 1964 SC 136.

145AIR 1968 SC 1018.

146(2020) 9 SCC 1.

147(2020) 9 SCC 1.

Case BriefsSupreme Court

Supreme Court: Holding that caretaker/servant can never acquire interest in the property irrespective of his long possession, Bench of Ajay Rastogi and Abhay S Oka, JJ., held that trial court committed manifest error in appreciating the pleadings on record from plaint filed at the instance of a caretaker/servant.

Appellant-defendant approached this Court assailing the decision of lower court on the application filed at his instance under Order VII Rule 11, Civil Procedure Code, 1908.

Factual Matrix

Appellant-defendant initially entered into an agreement to sell of the subject property and after a formal conveyance deed a sale deed was executed and his right of ownership over the subject property in question became absolute.

Respondent 1-plaintiff submitted that he was in possession of the subject property as a caretaker/servant.

Respondent-1-plaintiff’s prayer was:

  • For declaration that plaintiff is a lawful occupier as caretaker/servant of the sole owner of the A schedule property and occupied and adverse possessor of the B Schedule property.
  • for the permanent injunction restraining defendant to disturb or evict the peaceful possession of the plaintiff otherwise then the due course of law.

Analysis, Law and Decision

Supreme Court opined that trial court committed a manifest error in appreciating the pleadings on record from plaint filed at the instance of respondent 1-plaintiff who as a caretaker/servant can never acquire interest in the property irrespective of his long possession and the caretaker/servant has to give possession forthwith on demand and so far as plea of adverse possession is concerned as it lacks material particulars and the plaint does not discloses the cause of action for institution of the suit.

Bench held that lower court’s decision was not sustainable on the first principles of law.

Therefore, appeal succeeded and was allowed, and Court directed respondent 1-plaintiff to handover, vacant and peaceful possession of the subject property in question free from all encumbrances within 3 months.[Himalaya Vintrade (P) Ltd. v. Md. Zahid, 2021 SCC OnLine SC 744, decided on 16-09-2021]

Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court:  Rajnesh Oswal, J., dismissed the petition seeking quashment of the criminal challan for the offences under sections 448 and 427 RPC pending before the Trial Court. The Bench expressed,

“…the respondent 3, being the husband of the purchaser of the property has every right to look after and protect the property of his wife and it cannot be said that the respondent 3 is absolutely stranger and has got no locus standi to lodge FIR.”

The brief facts of the case were that respondent 3 and his wife were raising claim over the plot of the petitioner. It was submitted that the wife of respondent 3 filed a suit for permanent prohibitory injunction with regard to her plot against the petitioner and the Trial Court had directed the parties to maintain status quo.

The allegation against the petitioner was that in order to grab the property of the wife of respondent 3, he had trespassed into the plot of the land and broke the boundary wall, gate and room causing loss of 30,000. Pursuant to which a case was registered against him under Sections 448 and 427 RPC. The petitioner assailed the charges on mainly three grounds; civil dispute had been converted into a criminal dispute, plea of alibi and no locus standi of respondent 3.

Contesting the argument of the petitioner that he was not present on the date of occurrence on the spot and was rather present in his office at J&K Bank Branch, Rangreth, the respondent submitted that false ground had been put forth by the petitioner with regard to his absence on the spot on the date of occurrence as he had manipulated the record being the Senior Officer of the Bank. The respondent contended in a contempt petition filed for violating the Trial Court’s order to maintain status co, the petitioner had not made a plea of alibi.

Noticing that it was not the case of the petitioner that one act/transaction had given rise to civil as well as criminal dispute rather, it was evident that during the pendency of the suit between the contesting parties, the petitioner had been alleged to have committed the offence of trespass, the Bench rejected the petitioner’s contention that civil dispute had been converted into a criminal dispute for being without substance.

The second contention raised by the petitioner was that he was not present on spot at the date of occurrence. Relying on the Supreme Court’s decision in Rajendra Singh v. State of U.P., (2007) 7 SCC 378, the Bench stated,

“The petitioner can no doubt raise the plea of alibi but the same is required to be proved like any other fact and cannot be considered as a gospel truth and relied upon by this Court while adjudicating upon the petition under section 482 CrPC.”

Lastly, rejecting the third contention that respondent 3 had no locus standi to lodge the FIR, the Bench stated that the contention was misconceived as respondent 3 being the husband of the purchaser of the property had every right to look after and protect the property of his wife and it could not be said that the respondent 3 was absolutely stranger and had no locus standi to lodge FIR. Accordingly, the petition was dismissed. [Sheikh Nasser Ahmed v. State of J&K, 2021 SCC OnLine J&K 518, decided on 28-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Ajay K. Gandotra, Advocate and Sugandha Sawhney, Advocate

For the State of J&K: Aseem Sawhney, AAG, L. K. Sharma, Sr. Advocate with Mohit Kumar, Advocate

Case BriefsSupreme Court

Supreme Court: The bench of Hemant Gupta and AS Bopanna, JJ has held that in order to determine whether a document is that of a mortgage or a conditional sale, the intention of the parties has to be seen when the document is executed

The proviso to Section 58(c) of the Transfer of Property Act, states that,

“provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale”

As held in Pandit Chunchun Jha v. Sheikh Ebadat Ali, AIR 1954 SC 345, a transaction which takes the outward form of a sale but in essence the documents are of a mortgage, though it is couched in the form of a sale.

“… it is impossible to compare one case with another. Each case must be decided on its own facts and circumstances. The document has to read as a whole and if any word is ambiguous, then to find out the intention of the parties when such document was executed.”

The Court was hearing the case where a sum of Rs.3,000/- was taken as a loan from the defendant for household expenses. The same was to be returned and the defendant was bound to retransfer the land. If the amount was not paid within the stipulated period, the conditional sale deed was to be taken as a permanent one.

A reading of the document showed that the document was executed for the reason that the plaintiff has borrowed a sum of Rs.3,000/- for his household expenses and the defendant is bound to retransfer the land if the amount is paid within one year. The advance of loan and return thereof are part of the same document which creates a relationship of debtor and creditor. Thus, it was held that the deed would be covered by proviso in Section 58(c) of the Act.

Further, on the question of in the absence of any positive evidence of any improvement and the cost incurred, the defendants were entitled to recover anything more than the mortgage amount, the Court explained that Section 63 of the Act contemplates that any accession by the mortgagee, during the continuance of the mortgage, the mortgagor shall on redemption be entitled to such accession in the absence of a contract to the contrary.

Under Section 63(a) of the Act, the liability of mortgagor to pay for improvement will arise if the mortgagee had to incur the costs to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient or being made in compliance with the lawful order of any public servant or public authority.

However, none of the eventualities arose in the present case compelling the mortgagor to pay for the improvements if any carried out by the mortgagee.

The Court, further, stated that

“A mortgagee spends such money as is necessary for the preservation of the mortgaged property for destruction, forfeiture or sale; for supporting the mortgagor’s title to the property; for making his own title thereto good against the mortgagor; and when the mortgaged property is a renewable lease-hold, for the renewal of the lease, such expenditure incurred by the mortgagee can be added to the cost of improvements in the principal amount due.”

However, in the absence of any positive evidence of any improvement and the cost incurred, the defendants are not entitled to recover anything more than the mortgage amount.

In the case at hand, since the possession was given to the mortgagee, he has enjoyed usufruct from the mortgage property which compensates not only of the user of the land but also improvements made by him. The improvements were to enjoy the usufruct of the property mortgaged.

[Bhimrao Ramchandra Khalate v. Nana Dinkar Yadav, 2021 SCC OnLine SC 582, decided on 13.08.2021]


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

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: The Division Bench of P.N. Prakash and R. Pongiappan, JJ., addressed a contempt petition filed under Section 10 of the Contempt of Courts Act.

Petitioner aged 87 years old was blessed with 5 children. He was in service when his children were young and was allotted a plot by the Tamil Nadu Housing Board, wherein he built a two-storeyed house. After his retirement, he started living peacefully with his wife and 4th son viz. Laxmi Rajah on the first floor. Apart from this he also owned a few more properties in and around Chennai.

After the death of his wife, petitioners’ children started demanding their shares in the properties and two of his sons Vijay and Suraj took possession of the ground floor and after a year started giving him trouble.

Due to the fear of being dispossessed from the house, a settlement deed in favour of the 4th son was executed.

On being infuriated with the above stated, the 4th son’s wife assaulted the petitioner and the other three daughter-in-law lodged a police complaint against the petitioner based on which an enquiry was conducted and the case as closeld as the same was a ‘civil dispute’.

The disgruntled sons gave a complaint of cheating and fraudulent transaction against their father. Again, the same was closed as “family quarrel”.

Vijay and Suraj filed a suit before the VII Additional City Civil Court for partition alleging that their father the petitioner did not have any means to purchase the Anna Nagar house property and it was bought with the funds of their grandfather and hence, they have a share in it.

The above mentioned two sons also assaulted their father, after which the petitioner sought protection under the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Police filed an FIR against the two sons for the offences under Sections 294(b), 352 and 506(I) Penal Code, 1860 and Section 24 of the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Two sons pleaded to Murthi at Metropolitan Magistrate’s house to withdraw the complaint and they will vacate the premises and show the bonafide they filed a written memo of undertaking before the Metropolitan Magistrate.

Reason for filing the present petition

After earning freedom, the two sons turned turtle, reneged from their undertaking and refused to vacate the premises and therefore, Murthi/ Petitioner was before this Court with the instant contempt petition.

Analysis, Law and Decision

Whether the undertaking given by Vijay and Suraj before the Metropolitan Magistrate was under coercion when they were in police custody or they gave it voluntarily?

Bench noted that when Vijay and Suraj’s counsel submitted before the Court that if some more time would be granted, they would vacate the house, the duo refused to toe their counsel’s line as well. Mainly they stuck on to the issue that their father did not give any share to them in his property.

Order passed by the V MM stated that the advocate for the accused pleaded to the V MM not to remand the accused and only thereafter, Murthi came into the picture, resulting in the duo filing a memo of undertaking to vacate the house, followed by Murthi filing a memo accepting the undertaking given by his sons.

Court expressed that the accused were represented by an advocate at the time of remand, and he would not have been so guile to make his clients file a memo of undertaking had the V MM been disinclined to remand them in judicial custody.

In view of the above, it is limpid that the alleged contemnors had filed an undertaking into the Court, which they had no intention of honouring, and had successfully extricated themselves from remand proceedings and their contention that the undertaking was given by them under coercion defies credulity.

Power of High Court to punish for Contempt of Courts subordinate to it, is recognized in Section 10 of the Contempt of Courts Act and it is well settled that a wilful breach of an undertaking given to the Court would constitute civil contempt.

Therefore, the subsequent act of deliberately reneging from the terms of the undertaking by the alleged contemnors constitutes a serious interference in the administration of justice, and the respondents were held to be guilty of Section 2(b) of the Contempt of Courts Act, 1971.

The contempt petition was allowed.[P.S. Murthi v. P.S. Vijay, 2021 SCC OnLine Mad 2052, decided on 04-06-2021]


Advocates before the Court:

For petitioner:  Mr. T. Arun Kumar for M/s. Tamizh Law Firm

For respondents: Mr. V. Krishnamoorthy

Op EdsOP. ED.

Introduction

In 2020, the State Legislature of Uttar Pradesh passed the U.P. Revenue Code (Amendment) Act, 2020 which received the assent of the Governor on 28-8-2020. The much welcomed, progressive and liberative Amendment Act recognised rights of the third gender in matters regarding property ownership, inheritance and succession which before any such amendment were available only to male and female members of the society. However, the amendment fails to put an end to the preferential treatment given under Sections 108[1], 109[2], 110[3] and 112[4]of the U.P. Revenue Code, 2006 to the male relatives and unmarried women relatives in line of succession, the 2006 Code discriminates the married women relatives to their disadvantage by placing them on lower order of succession.

Section 108(1) lays down the principles to be followed for devolution of holdings of a male bhumidhar, asami or government lessee, it reads out to realise a preference in treatment of the heirs mentioned in any preceding clause of Section 108(2), it further states that the heirs in preceding clauses shall inherit exclusively and irrespective of the rights of heirs mentioned in succeeding clauses, that is to say, those in clause (a) shall be preferred to those in clause (b) and so on, in succession.

The abovesaid principles when put into action give out a discriminating effect against the married female class, due to the arrangement of heirs in Section 108(2) extracted below:

(2) The following relatives of the male third gender bhumidhar, asami or government lessee are heirs subject to the provisions of sub-section (1), namely–

(a) Widow, or third gender spouse, unmarried daughters, third gender issue and the male lineal descendants in the male line of descent per stirpes:

Provided that widow, unmarried daughters, third gender issue and sons howsoever low shall inherit per stripes the share which would have devolved upon the predeceased son had he been alive.

(b) Mother and father.

(c) Married daughter.

(d) Brother, unmarried sister, third gender sibling being respectively the son and daughter, third gender issue of the same father as the deceased, and son, unmarried daughter, third gender issue of predeceased brother, the predeceased brother, having been the son of the same father as the deceased.

(e) Son’s daughter and third gender issue.

(f) Father’s mother and father’s father.

(g) Daughter’s son, third gender issue and unmarried daughter.

(h) Married sister.

(i) Half-sister, being the daughter of the same father as the deceased.

(j) Sister’s son, third gender issue and unmarried daughter.

(k) Half-sister’s son, third gender issue and unmarried daughter the sister having been the daughter of the same father as the deceased.

(l) Brother’s son’s son, third gender issue and unmarried daughter.

(m) Father’s father’s son, third gender issue and unmarried daughter.

(n) Father’s father’s son’s son, third gender issue and unmarried daughter.

(o) Mother’s mother’s son, third gender issue and unmarried daughter.

The above arrangement is purposefully arranged to deprive the married female relatives of the bhumidhar, asami or government lessee from inheriting holdings at par with other relatives to protect and safeguard the holdings from alienation.

Section 109 of the 2006 Code lays down the provisions regarding succession to women inheriting interest as a female heir. Under the scheme of this section where before or after the commencement of the Code, any woman inherits the interest of a male [third gender] bhumidhar, asami or government lessee in any holding and such woman dies, marries or remarries after such commencement then, her interest in the holding shall, subject to the provisions of Sections 107[5] and 112, devolve upon the nearest surviving heir of the last male [third gender] bhumidhar, asami or government lessee. The words and expression, “nearest surviving heir” are to be understood as per the provisions of the abovestated Section 108.  In case any woman inherits as a daughter, who has a surviving heir as mentioned in clause (a) of Section 110 then her interest shall devolve upon such surviving heirs, preferring the nearer heir against the remoter in same branch and excluding a widow who has remarried.

In the above set-up, it is evident even from blind eyes that a woman is made to choose between her right of inheritance and her right to marry or remarry and upon her death if she has no surviving heirs, her interest in the holding shall devolve upon the nearest surviving heir of the last male [third gender] bhumidhar, asami or government lessee.

The arrangement of heirs of a female bhumidhar, asami or government lessee under Section 110 of the 2006 Code again classifies on sex and marital status of heirs, it becomes immaterial of what marital status a male heir holds but it is imperative to determine the marital status of a female heir before she can even stand in line for succession, here again from protecting the holding from alienation.

Under Section 112 if two or more co-widows inherit the interest of a male tenure-holder, and any one of them dies or remarries without leaving any heir entitled to succeed in accordance with Section 108, the interest of such co-widow shall pass by survivorship to the surviving widow and where there are two or more surviving co-widows, then to the surviving co-widows in equal shares.

Therefore, in case a widow chooses to remarry she has to waive off her claim to the holding, if wanting to retain her interests, she must opt out of a resettlement in life and continue to live with the misery of a widow.

Bharat Ratna Dr B.R. Ambedkar stated, on the floor of the Constituent Assembly that in future both the legislature and the executive should not pay mere lip service to the directive principles but they should be made the bastion of all executive and legislative actions. Legislative and executive actions must be conformable to and effectuation of the fundamental rights guaranteed in Part III[6] and the directive principles of State policy enshrined in Part IV[7] and the Preamble[8] of the Constitution which constitutes conscience of the Constitution. Covenants of the United Nations Organisation (UNO) add impetus and urgency to eliminate gender-based obstacles and discrimination. Legislative action should be devised suitably to constellate economic empowerment of women in socio-economic restructure for establishing egalitarian social order. Law is an instrument of social change as well as the defender for social change. Article 2(e) of CEDAW enjoins the courts to breathe life into the dry bones of the Constitution, international conventions and the Protection of Human Rights Act, 1993[9] and to prevent gender-based discrimination and to effectuate right to life including empowerment of economic, social and cultural rights to women.

The friction in law 

I. The bare text of law

A. International law

The General Assembly of the United Nations adopted a declaration on 4-12-1986 entitled “The Declaration on the Right to Development” in which India played a crusading role for its adoption and ratified the same. Its preamble recognises that all human rights and fundamental freedoms are indivisible and independent. Article 1(1) assures right to development an inalienable human right, by virtue of which every person and all people are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realised. Article 6(1) obligates the State to observance of all human rights and fundamental freedoms for all without any discrimination as to race, sex, language or religion. Sub-article (2) enjoins that … equal attention and urgent consideration should be given to implement, promote and protect civil, political, economic, social and cultural rights.

Vienna Declaration on the Elimination of All Forms of Discrimination against Women (for short “CEDAW”) was ratified by the UNO on 18-12-1979. The Government of India which was an active participant to CEDAW ratified it on 19-6-1993 and acceded to CEDAW on 8-8-1993 with reservation on Articles 5(e), 16(1), 16(2) and 29 of CEDAW. The preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes more difficult for the full development of potentialities of women in the service of their countries and of humanity. Poverty of women is a handicap. Establishment of a new international economic order based on equality and justice will contribute significantly towards the promotion of equality between men and women, etc. Article defines discrimination against women to mean “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. Article 2(b) enjoins the States parties while condemning discrimination against women in all its forms, to pursue, by appropriate means, without delay, elimination of discrimination against women by adopting “appropriate legislative and other measures including sanctions where appropriate, prohibiting all discrimination against women”. To take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Clause (c) enjoins to ensure legal protection of the rights of women on equal basis with men through constituted national tribunals and other public institutions against any act of discrimination to provide effective protection to women. Article 3 enjoins States parties that it shall take, in all fields, in particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 13 states that “the States parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular”. Article 14 laid emphasis to eliminate discrimination on the problems faced by rural women so as to enable them to play in the economic survival of their families including their work in the non-monetised sectors of the economy and shall take all appropriate measures. Participation in and benefit from rural development and, in particular, shall ensure to such women the right to participate in the development programme to organise self-groups and cooperatives to obtain equal access to economic opportunities through employment or self-employment, etc. Article 15(2) enjoins States parties to accord to women in equality with men before the law, in particular, to administer property.

Article 5(a) of CEDAW to which the Government of India expressed reservation, does not stand in its way and in fact Article 2(f) denudes its effect and enjoins to implement Article 2(f) read with its obligation undertaken under Articles 3, 14 and 15 of the Convention vis-à-vis Articles 1, 3, 6 and 8 of the Declaration on the Right to Development. The directive principles and fundamental rights, though provided the matrix for development of human personality and elimination of discrimination, these conventions add urgency and teeth for immediate implementation. It is, therefore, imperative of the State to eliminate obstacles, prohibit all gender-based discriminations as mandated by Articles 14[10] and 15[11] of the Constitution of India. By operation of Article 2(f) and other related articles of CEDAW, the State should take all appropriate measures including legislation to modify or abolish gender-based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.

B. Domestic law

A combined reading of Articles 15(1) and (3) of the Constitution of India positively protects acts or actions made in favour of empowerment or upliftment of women. Article 21[12] of the Constitution of India reinforces “right to life”. Equality, dignity of person and right to development are inherent rights in every human being. Life in its expanded horizon includes all that gives meaning to a person’s life including culture, heritage and tradition with dignity of person. The fulfilment of that heritage in full measure would encompass the right to life. For its meaningfulness and purpose every woman is entitled to elimination of obstacles and discrimination based on gender for human development. Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on a footing of equality. Equally in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Articles 51-A(h) and (j)[13] of the Constitution of India, facilities and opportunities not only are to be provided for, but also all forms of gender-based discrimination should be eliminated. It is a mandate to the State to do these acts. Property is one of the important endowments or natural assets to accord opportunity, source to develop personality, to be independent, right to equal status and dignity of person. Therefore, the State should create conditions and facilities conducive for women to realise the right to economic development including social and cultural rights.

The Hindu Succession (Amendment) Act, 2005[14] has availed the Hindu women coparcenary rights and thereby equal rights of succession as male coparceners, and being a central legislation, it enjoys primacy over any State law that may stand in contravention of it.

The U.P. Revenue Code, 2006, is a secular law that applies to all persons irrespective of their religion or belief. Therefore, the Hindus under the Hindu Succession Act, 1956[15] may draw significant benefits with regard to equal rights of succession, however there lies one area of discrimination which has not effectively been addressed by the 2005 Amendment.

Agriculture falls under the State List in the Seventh Schedule[16] to the Constitution and therefore any law made by the State of Uttar Pradesh in this regard prevails over the Hindu Succession Act, in such a case the 2006 Code enjoys primacy over the central law and therefore the married and unmarried women are placed on different pedestals for succession and find themselves in a situation of second graders, similar is the case with members of the other religion and belief.

Judicial pronouncements

The Supreme Court of India in C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil[17], observed that women have right to elimination of gender-based discrimination particularly in respect of property so as to attain economic empowerment, this forms a part of universal human rights that they have right to equality of status and opportunity which also forms part of the basic structure of the Constitution. Supreme Court is obliged to effectuate these rights of women, personal laws inconsistent with the constitutional mandates are void under Article 13[18].

In Valsamma Paul v. Cochin University[19], it was held that:

  1. Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth – cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. Convention on the Elimination of All Forms of Discrimination Against Women (for short “CEDAW”) was ratified by the UNO on 18-12-1979 and the Government of India had ratified as an active participant on 19-6-1993 and acceded to CEDAW and reiterated that discrimination against women violates the principles of equality of rights and respect for human dignity and it is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; it hampers the growth of the personality from society and family, making more difficult for the full development of potentialities of women in the service of the respective countries and of humanity.

In G. Sekar v. Geetha[20], the amendment introduced in Sections 6 and 23 of the Hindu Succession (Amendment) Act, 2005 was declared valid on the ground that the amendment is intended to achieve the object of Articles14 and 15 i.e. removal of gender inequality.

In C.B.Muthamma v. Union of India[21], it was held that in the face of equality of sexes being guaranteed under Articles 14 and 16(1)[22], any rule which debars a married woman being appointed or requires a woman employee to resign on her marriage, would be struck down as unconstitutional, because there is no such corresponding bar in the case of men who, too, are likely to be involved on domestic commitments, on marriage.

In Vineeta Sharma v. Rakesh Sharma[23], the Court concluded as under:

(i) The provisions contained in substituted Section 6[24] 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.

(ii) 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.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.

(iv) 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 Class I as specified in the Schedule[25] to the Act of 1956 or male relative of such female.

Conclusion

 It is only reasonable to deduce that the classification of women based on their marital status to decide their place in the order of succession under the 2006 Code is violative of their rights recognised under Articles 14, 15, 16 and 21 as present in the constitutional schema.  They cannot be made to choose between their right to marry and right to inherit property simply because such a mandate is against their dignity and an anathema to right to equality.

These issues having been much abated by the legal academia and even the Law Commission of India in its 174th[26], 204th[27] and 208th[28] Reports. After decades of legislative and judicial businesses, there still remains the stigma attached to inheritance of property by women, it is time that gender-based untouchability or second-grade treatment is done away with by way of social activism, targeted legislation and judicial guidance.


± 4th year student, Faculty of Law, BVDU, Pune.

[1]<http://www.scconline.com/DocumentLink/IN6YyRR0>.

[2]<http://www.scconline.com/DocumentLink/aQf7F7bi>.

[3]<http://www.scconline.com/DocumentLink/cg0s18Kq>.

[4]<http://www.scconline.com/DocumentLink/0B6xRe8j>.

[5]<http://www.scconline.com/DocumentLink/Au2n96uP>.

[6]<http://www.scconline.com/DocumentLink/aU9cZ86r>.

[7]<http://www.scconline.com/DocumentLink/K5tB3p6b>.

[8]<http://www.scconline.com/DocumentLink/8bvjrn3W>.

[9]<http://www.scconline.com/DocumentLink/2K2MTxa4>.

[10]<http://www.scconline.com/DocumentLink/h7G5KbD4>.

[11]<http://www.scconline.com/DocumentLink/9etOajU7>.

[12]<http://www.scconline.com/DocumentLink/VN1u87S9>.

[13]<http://www.scconline.com/DocumentLink/mAj3qHzU>.

[14]<http://www.scconline.com/DocumentLink/S9rw2b75>.

[15]<http://www.scconline.com/DocumentLink/7stFp3DE>.

[16]<http://www.scconline.com/DocumentLink/7x8jhePz>.

[17] (1996) 8 SCC 525

[18]<http://www.scconline.com/DocumentLink/cXoE51V8>.

[19] (1996) 3 SCC 545, 562-632

[20] (2009) 6 SCC 99

[21](1979) 4 SCC 260

[22]<http://www.scconline.com/DocumentLink/k8TMppSJ>.

[23] (2020) 9 SCC 1

[24]<http://www.scconline.com/DocumentLink/k0WmkSp1>.

[25]<http://www.scconline.com/DocumentLink/mv0LINWg>.

[26]<http://www.scconline.com/DocumentLink/N5gyaXFt>.

[27]<http://www.scconline.com/DocumentLink/VjqB7HZ8>.

[28]<http://www.scconline.com/DocumentLink/1cQGtHGS>.

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., dealt with the provisions in regard to the concept of the shared household while referring to a very pertinent decision of the Supreme Court.

In the instant case, the petitioner is stated to be the daughter-in-law and respondents her parents-in-law.

It has been added that multiple proceedings have been pending between the husband and wife but the focus and purpose due to which the parties were present before the Court was the Agreement to Sell entered between respondent 1 mother-in-law with third-party qua property which was purportedly in her name.

Shared Household Property

As per the petitioner, the property in question was a shared household property where she had lived with her husband due to which the said property could not be alienated from the said property.

Petitioner with regard to the above, filed an application under Section 19(1)(d) of the Protection of Women from Domestic Violence Act, 2005 (DV Act) and Magistrate after issuance of notice, vide an order granted interim relief to petitioner restraining respondents from selling or alienating the property in question.

Revision Petition was preferred against the interim order before the Sessions Court under Sections 395/397 CrPC which was converted into an appeal and vide judgment dated 03-05-2021, the said appeal was allowed.

Petitioner sought aside the judgment passed by the Appellate Court.

Analysis, Law and Decision

Bench perused the impugned judgment, provisions of DV Act as well as Supreme Court’s decision in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414.

What was the crux of the matter?

Petitioner filed an application to restrain the parent-in-law from selling or alienating the subject property. Since Agreement to Sell had to be executed with a limited time frame, aggrieved parents-in-law filed an appeal against the restraint order, which was allowed by the Appellate Court after giving due opportunity of being heard.

Appellate Court referred to Section 2(s) of the Statute, which defined shared household and relied upon the Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 where the rights of an aggrieved woman as provided under Sections 17 & 19 of the Statute, came to be revisited by the Supreme Court.

Appellate Court had observed that daughter-in-law was not residing at the house in question on the day of presentation of the complaint nor any time soon before. It was added to the observation that she was occupying a staff quarter allotted to her husband and lived in the house in question only for a short duration and occasionally visited parents-in-law, to say only thrice.

What did the appellate court held?

“…that these short durational visits or stay of daughter-in-law at the house of the parents-in- law would not get the house a colour of being a shared house hold.”

Bench in the instant case agreed with the ratio laid down by the Supreme Court decision in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, however, the facts were different in the present case in comparison to the Supreme Court decision.

High Court added that the fact remained that petitioner never resided with parents-in-laws and always stayed at the place of posting of her husband and visited them occasionally.

Bench added that the intent and purpose of DV Act was to safeguard the interest of distressed women.

Though it is stated that the provisions of Section 17 of the DV Act stipulate that every woman in a domestic relationship shall have a right to reside in the shared household whether or not she has any right, title or beneficial interest in the same, but in the present case, petitioner had in fact neither permanently nor for a longer period resided in the house of parents-in-law and so, it could not be termed as ‘shared household’. Hence, there was no question of evicting or dispossessing her from there.

Pertinent Question in the present case

Whether the old aged parents-in-law, who at the fag-end of their life, wish to sell off their property to relocate themselves in a better place of their choice, be restrained to sell of the house or permitted to do it?

Supreme Court’s observation in Satish Chandra Ahuja v. Sneha Ahuja, (2021) 1 SCC 414 was referred to, wherein it was stated:

90. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of the 2005 Act or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by the High Court [Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886] in para 56 adequately balance the rights of both the parties.”

Hence, in light of the above observations, Court found that the impugned judgment did not suffer from illegality or infirmity.

Therefore, the present application was accordingly dismissed while making it clear that the observations made by this Court are in the peculiar facts of the present case and shall not be treated as a precedent in any other case. [Vibhuti Wadhwa Sharma v. Krishna Sharma,2021 SCC OnLine Del 2104, decided on 17-05-2021]


Advocates before the Court:

For the petitioner: Jatan Singh, Saurav Joon & Tushar Lamba, Advocates

For the respondents: Roopenshu Pratap Singh, Advocate

Case BriefsHigh Courts

Chhattisgarh High Court: Rajendra Singh Samant, J., dismissed the petition being devoid of merits.

The facts of the case are such that the applicant was charge-sheeted for trial in offence under Sections 13(1)(e) read with 13(2) of Prevention of Corruption Act which was challenged before this Court and was disposed off vide directions to receive the passbooks of the bank accounts, which were under seizure nut will not be able to operate the bank accounts, as there is no specific direction of the Special Court for operation of the accounts. The instant Criminal Revision was filed challenging the legality, propriety and correctness of this order by Special Judge (Prevention of Corruption Act), Raipur, by dismissing the prayer of the applicant to defreeze the bank account, which has been seized by the respondent.

Counsel for the petitioners Mr Kishore Bhaduri and Sunny Agrawal submitted that the prohibitory order of the respondent regarding operation of the bank account is uncalled for in the present situation, hence, it is prayed that the revision petition may be allowed and the impugned order may be set aside and relief be granted to the applicant.

Counsel for the respondent Mr Adil Minhaj submitted that the amount in the bank accounts can be regarded as property under seizure has been acquired unlawfully, cannot be allowed to be disbursed or disposed when the charge sheet has been filed and the prosecution has not come to an end.

The Court relied on judgment State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685 wherein it was held as under

“Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in  interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation is `property’ within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into.”

The Court observed that the money in the bank account may be regarded as a property and the seizure of such property on suspicion that it is connected with commission of offence held as property within the meaning of Section 102 of Criminal Procedure Code i.e. Cr.PC and the police officer also has power to prohibit the operation of such account, if such assets have linkages with the commission of offence.

The Court thus held that there is a clear conclusion of the Investigation Agency against the applicant that he has amassed wealth, acquired assets, which are disproportionate to his income “…and the prosecution against the applicant is under contemplation by the respondent side, therefore, no order can be passed to defreeze the bank accounts, which have been seized from this applicant.”

In view of the above, the instant petition was dismissed and disposed off.[Ramesh Kumar Sharma v. State of Chhattisgarh, 2021 SCC OnLine Chh 902, decided on 12-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

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 BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing a matter expressed that:

“…a transaction hit by lis pendens would not result in the same being rendered void or illegal or of no effect. It will only be subject to the result of the litigation and the purchaser would be bound by the same.”

The instant case was with regard to the property originally belonging to a partnership firm which was subsequently dissolved and the same was said to have been vested on the de facto complainant by virtue of decree. Thereafter the building in the property was demolished to put up new construction and a joint venture agreement was also entered into with a developer.

But since the agreement did not go through the property continued to be vacant.

Prosecution’s case was that the petitioner’s vendor had trespassed into the property and had created documents and managed to obtain a patta.

Petitioner knew about the dispute between the parties and the pending criminal case against the vendor, yet they entered into the sale agreements and agreed to purchase properties including the property belonging to respondent 2. Ultimately, a registered sale Deed was executed in favour of the petitioners by undervaluing the property, after which the petitioners started taking steps to take possession of the property and on coming to know of the same, respondent 2 gave a complaint on the basis of which an FIR was registered against the vendor and petitioners.

Analysis and Decision

Bench noted that the petitioners came into the scene in 2016 when they entered into a sale agreement with the vendor Mr Iqbal. On agreeing to purchase certain items of properties which also included the subject property for a total sale consideration of Rs 4 crores.

Further, it was seen that out of the total sale consideration of Rs 4 crores, more than ninety percent of the sale consideration has been paid by way of RTGS transfer from the bank account maintained by the Petitioners. Thereafter, the patta has also been transferred in favour of the Petitioners. That apart, there was also a name transfer by the Corporation in the property tax records from the name of Mr Iqbal to the names of the Petitioners, respectively.

FIR was registered for the offences of making a false document and cheating. Without undertaking the exercise of a mini investigation, it had to be seen whether the offence was made out against the petitioners or not?

Dispute was with regard to the right and title over the subject property between respondent 2 and the vendor of the petitioners.

Vendor of the petitioners was positively claiming a right and title over the subject property and he believed that he was the owner of the property.

Further, it was observed that at the time when the sale deed was executed, in favour of the

Petitioners, and at the time when the parties entered into an agreement of sale, the suit filed by the 2nd Respondent had been dismissed for default, hence no compelling material was available that could have prevented the petitioners from purchasing the subject property.

Property was free from any encumbrance after it was purchased by Mr Iqbal in the year 2010.

It is now a well-settled position of law that even when a document is executed by a person claiming a property which is not his, that does not by itself satisfy the requirements of a false document as defined under Section 464 IPC. If it does not satisfy the requirements of Section 464 IPC, there is no forgery and if there is no forgery, automatically neither Section 467 nor Section 471 IPC will be attracted. 

For the above position of law, Supreme Court referred to the decision in Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751, Sheila Sebastian v. R. Jawaharaj, 2018 (3) MLJ (Crl) 39.

Even in the extreme case of branding the Petitioners as speculative buyers of the subject property, knowing fully well about the dispute in title over the subject property, that by itself does not amount to an offence of cheating, forgery and making of false document.

Allegations made by respondent 2 did not make out any offence against the petitioners and the continuation of investigation against the petitioners would be an abuse of process of law, which requires interference of the Court.

Hence in view of the above discussion, present petition was allowed.[Dr Subba Somu v. Inspector of Police, 2021 SCC OnLine Mad 877, decided on 01-03-2021]


Advocates who appeared before the Court:

For Petitioners: Mr ARL. Sundaresan, Senior Counsel and Mr R. Umasuthan

For 1st Respondent: Mr A. Natarajan, State Public Prosecutor for R1

Asstd: by Mr M/Mohamed Riyaz Additional Public Prosecutor

Mr G. Mohanakrishnan Mr S. Janarthanan for R 2

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar*, Indi Malhotra and Ajay Rastogi has held that the condition predicated in Section 31 of the Foreign Exchange Regulation Act, 1973 of obtaining “previous” general or special permission of the RBI for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India, is mandatory.

“Until such permission is accorded, in law, the transfer cannot be given effect to; and for contravening with that requirement, the concerned person may be visited with penalty under Section 50 and other consequences provided for in the 1973 Act.”

The important question to be decided before the Court was whether transaction specified in Section 31 of the 1973 Act entered into in contravention of that provision is void or is only voidable and it can be voided at whose instance.

Object of the Statute

1973 Act was brought into force to consolidate and amend the law relating to certain payments, dealings in foreign exchange and securities, transactions indirectly affecting foreign exchange and the import and export of currency, for the conservation of the foreign exchange resources of the country and the proper utilisation thereof in the interests of the economic development of the country.

Object of Section 31

While introducing the Bill in the Lok Sabha and explaining the object of Section 31 of the 1973 Act,  Mr. Y.B. Chavan, the then Minister of Finance stated:

“As a matter of general policy it has been felt that we should not allow foreign investment in  landed property/buildings constructed by foreigners and foreign controlled companies as such investments offer scope for considerable amount of capital liability by way of capital repatriation. While we may still require foreign investments in certain sophisticated branches of industry, there is no reason why we should allow foreigners and foreign companies to enter real estate business.”

The object of Section 31 of the 1973 Act was thus to minimise the drainage of foreign exchange by way of repatriation of income from immovable property and sale proceeds in case of 16 disposal of property by a person, who is not a citizen of India.  Section 31, hence, puts restriction on acquisition, holding and disposal of immovable property in India by foreigners – non citizens.

Absence of explicit mention of failure to seek previous permission

It is true that the consequences of failure to seek such previous permission has not been explicitly specified in the same provision or elsewhere in the Act, but then the purport of Section 31 must be understood in the context of intent with which it has been enacted, the general policy not to allow foreign investment in landed property/buildings constructed by foreigners or to allow them to enter into real estate business to eschew capital repatriation, including the purport of other provisions of the Act, such as Sections 47, 50 and 63.

Section 47

Sub-Section (1) clearly envisages that no person shall enter into any contract or agreement which would directly or indirectly evade or avoid in any way the operation of any provision of the 1973 Act or of any rule, direction or order made thereunder.  What is significant to notice is that sub¬Section (2) declares that the agreement shall not be invalid if it provides that thing shall not be done without the permission of the Central Government or the RBI.  That would be the implied requirement of the agreement in terms of this provision.

In other words, though ostensibly the agreement would be a conditional one made subject to permission of the Central Government or the RBI, as the case may be and if such term is not expressly mentioned in the agreement, it shall be an implied term of every contract governed by the law — of obtaining permission of the Central Government or the RBI before doing the thing provided for in the agreement.

In that sense, such a term partakes the colour of a statutory contract. Notably, Section 47 of the 1973 Act applies to all the contracts or agreements covered under the 1973 Act, which require previous permission of the RBI.

Section 50

Section 50 reinforces the position that transfer of land situated in India by a person, who is not a citizen of India, would visit with penalty. Indeed, inserting such a provision does not mean that the 1973 Act is a penal statute, but is to provide for penal consequence for contravention of provisions, such as Section 31 of the 1973 Act.

Section 63

Section 63 of the 1973 Act empowers the court trying a contravention under Section 56 which includes one under Section 51 of the 1973 Act, to confiscate the currency, security or any other money or property in respect of which the contravention has taken place. The expression “property” in Section 63, takes within its sweep immovable property referred to in Section 31 of the 1973 Act.

Effect of reading Section 31 with Sections 47, 50 and 63 

“The requirement specified in Section 31 is mandatory and, therefore, contract or agreement including the gift pertaining to transfer of immovable property of a foreign national without previous general or special permission of the RBI, would be unenforceable in law.”

From the analysis of Section 31 of the 1973 Act and upon conjoint reading with Sections 47, 50 and 63 of the same Act, we must hold that the requirement of taking “previous” permission of the RBI   before executing the sale deed or gift deed is the quintessence; and failure to do so must render the transfer unenforceable in law.

“The dispensation under Section 31 mandates “previous” or “prior” permission of the RBI before the transfer takes effect.  For, the RBI is competent to refuse to grant permission in a given case. The sale or gift could be given effect and taken forward only after such permission is accorded by the RBI. There is no possibility of ex post facto permission being granted by the RBI under Section 31 of the 1973 Act.”

Before grant of such permission, if the sale deed or gift deed is challenged by a person affected by the same directly or indirectly and the court declares it to be invalid, despite the document being registered, no clear title would pass on to the recipient or beneficiary under such deed. The clear title would pass on and the deed can be given effect to only if permission is accorded by the RBI under Section 31 of the 1973 Act to such transaction.

“Merely because no provision in the Act makes the transaction void or says that no title in the property passes to the purchaser in case there is contravention of the provisions of Section 31, will be of no avail. That does not validate the transfer referred to in Section 31, which is not backed by “previous” permission of the RBI.”

In light of the general policy that foreigners should not be permitted/allowed to deal with real estate in India; the peremptory condition of seeking previous permission of the RBI before engaging in transactions specified in Section 31 of the 1973 Act and the consequences of penalty in case of contravention, the transfer of immovable property situated in India by a person, who is not a citizen of India, without previous permission of the RBI must be regarded as unenforceable and by implication a prohibited act. That can be avoided by the RBI and also by anyone who is affected directly or indirectly by such a transaction. There is no reason to deny remedy to a person, who is directly or indirectly affected by such a transaction.  He can set up challenge thereto by direct action or even by way of collateral or indirect challenge.

“In other words, until permission is accorded by the RBI, it would not be a lawful contract or agreement within the meaning of Section 10 read with Section 23 of the Contract Act. For, it remains a forbidden transaction unless permission is obtained from the RBI. The fact that the transaction can be taken forward after grant of permission by the RBI does not make the transaction any less forbidden at the time it is entered into. It would nevertheless be a case of transaction opposed to public policy and, thus, unlawful.”

[Asha John Divianathan v. Vikram Malhotra, 2021 SCC OnLine SC 147, decided on 26.02.2021]


*Judgment by: Justice AM Khanwilkar

Know Thy Judge| Justice AM Khanwilkar

Appearances before the Court by:

For appellant: Advocate Navkesh Batra

For respondent: Senior Advocate C.A. Sundram

Case BriefsHigh Courts

Madhya Pradesh High Court: Rohit Arya, J., dismissed a revision petition which was filed after the dismissal of Petitioner’s application under Order 7 Rule 11 CPC.

The respondent/wife and three children were plaintiffs in the suit seeking relief that they were entitled to half share of the property managed by petitioner. Suit had been filed on the premise that marriage was solemnized between them 17 years ago, they were blessed with three children. Since October 2019 petitioner had ousted plaintiffs from the home and prior to that, he used to come home in a drunken state and picking up fights with his wife and also used to physically assault her. To add pain to the injury, he had also kept a lady with him by the name Pushpa and was living like husband and wife, gradually he started creating the third party right in the existing properties managed by him.

In the aforesaid backdrop of factual matrix, wife and children (now respondents) had filed the suit alleging mishandling of the property and alienation thereof to their prejudice with the assertion that they were entitled for their share in the property. The petitioner had in turn filed an application under Order 7 Rule 11 CPC styling himself to be the exclusive owner of the properties allegedly self-acquired by him.

The Trial Court had rejected the application under Order 7 Rule 11 CPC opining that only plaint averments were to be seen for deciding such an application, it further had held that the claim of share in the properties or right of succession were not pure questions of law instead they were mixed question of law and fact. Unless parties lead evidence in support of their pleadings, said questions could not be answered.

This Court while dismissing the revision held that the trial Court had applied correct principles of law while rejecting the application under Order 7 Rule 11 CPC and there was no illegality or jurisdictional error warranting interference under Section 115 of CPC.[Rajesh Vishwakarma v. Sapna Vishwakarma, 2021 SCC OnLine MP 388, decided on 19-02-2021]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., disposed of a writ petition setting aside the orders passed by the Board of Revenue and Additional Commissioner in relation to a matter of Will.

The petition contained that the husband of the petitioner had one-half share in the agricultural land bearing survey nos.1031 area 0.81 hectare, 1033 area 0.15 hectare, 1040 area 0.72 hectare, 1084 area 0.76 hectare total area 2.44 hectare situated in a village. The husband of the petitioner had died issue-less on 17-5-2006 due to illness. The respondents had then filed an application for mutation of their names on the basis of a “Will” purportedly executed by the deceased. The petitioner submitted her objection and claimed that she is the sole legal heir of deceased, being his legally wedded wife. After which the Tehsildar had rejected the application filed by the respondents, being aggrieved an appeal was filed before the Court of SDO which was again rejected. Finally respondent made n appeal before the Additional Commissioner which was allowed after relying upon the so called “Will” executed by deceased and the names of the respondents were directed to be mutated in the revenue records, aggrieved by which the petitioners had preferred an appeal before the Additional Commissioner which was dismissed. Thus, the instant appeal was filed.

The Court relied on the decision given in Ranjit v. Nandita Singh, MP No.2692 of 2020 which talked about the Conferral of Status of Courts on Board and Revenue Officers where it was clearly held that the revenue authorities have no jurisdiction to decide the correctness and genuineness of a “Will” and if the propounder of the “Will” wants to take advantage of the “Will”, then he had to get his title declared from the Civil Court of competent jurisdiction.

The Court while setting aside the orders passed by the Board of Revenue and Additional Commissioner directed that the revenue authorities restore the names of the petitioner in the revenue records.[Ramkali v. Banmali, 2021 SCC OnLine MP 359, decided on 17-02-2021]


Suchita Shukla, Editorial Assistant has put this story together.