IN THE SUPREME COURT OF INDIA
Civil appellate jurisdiction
Civil appeal nos. 188-189 of 2018
Appellant
Danamma @ Suman Surpur & Anr.
Respondent
Amar & Ors.
Date of Judgement
1st February 2018
Bench
Justice. A. Bhushan, A.K Sikri

Facts of the case:

The appellants herein, are the daughters of Gurulingappa Savadi, propositus of a Hindu Joint Family. Apart from these two daughters, he had two sons, namely, Arunkumar and Vijay. Gurulingappa Savadi died in the year 2001 leaving behind the aforesaid two daughters, two sons and his widow, Sumitra. After his death, Amar, S/o Arunkumar filed the suit for partition and a separate possession of the suit property described at Schedule B to E in the plaint stating that the two sons and widow were in joint possession of the aforesaid properties as coparceners and properties mentioned in Schedule B was Signature Not Verified Digitally signed by ASHWANI KUMAR acquired out of the joint family nucleus in the name of Gurulingappa Savadi. Case set up by him was that the appellants herein were not the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act, 1956. It was also pleaded that they were married daughters and at the time of their marriage they had received gold and money and had, hence, relinquished their share.

The appellants herein contested the suit by claiming that they were also entitled to share in the joint family properties, being daughters of Gurulingappa Savadi and for the reason that he had died after coming into force the Act of 1950.

The trial court, while decreeing the suit held that the appellants were not entitled to any share as they were born prior to the enactment of the Act and, therefore, could not be considered as coparceners. The trial court also rejected the alternate contention that the appellants had acquired share in the said properties, in any case, after the amendment in the Act vide amendment Act of 2005. This view of the trial court has been upheld by the High Court in the impugned judgement dated January 25, 2012 thereby confirming the decree dated August 09, 2007 passed in the suit filed for partition.

Issues raised:-

1. Whether, the appellants, daughters of Gurulingappa Savadi, could be denied their share on the ground that they were born prior to the enactment of the Act and, therefore, cannot be treated as coparceners?

2. Whether, with the passing of Hindu Succession (Amendment) Act, 2005, the appellants’ become coparcener like sons’, therefore entitled to equal share as that of a son?

Argument advanced:-

Argument In favour of Appellants:-

The appellant argued that they were also entitled to their share in the property. After framing the issues and recording the evidence, the trial court by its judgment and decree dated August 09, 2007 held that the suit schedule properties were joint family properties except CTS No. 774 (one of the house properties in plaint C schedule).

Argument In favour of Respondents:-

The respondent argued that the plaint schedule C comprised of the house properties belonging to the joint family. The plaint schedule D comprised of the shop properties belonging to the joint family. The plaint schedule E comprised of the machineries and movable belonging to the joint family. The plaintiff averred that the plaint schedule properties belonged to the joint family and that defendant no. 1, the father of the plaintiff was neglecting the plaintiff and his siblings and sought partition of the suit schedule properties. The plaintiff contended that all the suit schedule properties were the joint family properties.

The plaintiff contended in para 5 of the plaint that the propositus, Guralingappa died 1 year prior to the filing of the suit. In para 7 of the plaint, the plaintiff contended that defendant no. 1 had 1/3rd share and defendant no. 5 and 8 had 1/3 rd share each in the suit schedule properties. The plaintiff also contended that defendants 6 and 7 did not have any share in the suit schedule properties.

Held:-

The trial court held that the plaintiff, defendant nos. 2 to 4 were entitled to 1/8th share in the joint family properties. The trial court further noted that defendant no. 8 (wife of Gurulingappa Savadi) died during the pendency of the suit intestate and her share devolved in favour of defendants’ no. 1 and 5 only and, therefore, defendant nos. 1 and 2 were entitled to ½ shares in the said share.

The trial court passed the following order:

The suit of the plaintiff is decreed holding that the plaintiff is entitled for partition and separate possession of his 1/8th share in the suit B, C and D schedule properties (except CTS No. 774) and also in respect of the Machinerys stated in the report of the commissioner. The commissioners report Ex. P16 which contains the list of machineries to form part of the decree. The defendants 2 to 4 are each entitled to a/8th share and the 5th defendant is entitled for 4/8 share in the above said properties. The trial court, thus, denied any share to the appellants.

But,

The case was further presented before the high court:-

Reference to the decision of this Court, in the case of State Bank of India v. Ghamandi Ram7 in essential to understand the incidents of coparcener ship as was always inherited in a Hindu Mitakshara coparcenary: According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members’ then living and thereafter to be born. The incidents of coparcener ship under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation acquire on birth ownership in the ancestral properties is common; secondly, that such descendants can at anytime

work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity,

Without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. Hence, it is clear that the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.

In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, section 6 of the Act was amended as the decree was passed by the trail court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr.8 held that the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree.Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

On facts, there is no dispute that the property which was the subject matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property. In view of our aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since, Savadi died leaving behind two sons, two daughters and a widow, both the appellants would be entitled to 1/5 th (2011) 9 SCC 788 share each in the said property. Plaintiff (respondentNo.1) is son of Arun Kumar (defendant No.1). Since, Arun Kumar will have 1/5 th share, it would be divided into five shares on partition i.e. between defendant No.1 Arun Kumar, his wife defendant No.2, his two daughters defendant Nos.3 and 4 and son/plaintiff (respondent No.1). In this manner, therespondent No.1 would be entitled to 1/25 th share in the property. The appeals are allowed in theaforesaid terms and decree of partition shall be drawn by the trial court accordingly.

Edited by Sree Ramya

Approved & Published – Sakshi Raje