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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. DIARY NO.32601 OF 2018
VINEETA SHARMA … APPELLANT(S)
VERSUS
RAKESH SHARMA & ORS. … RESPONDENTS
WITH
SPECIAL LEAVE PETITION (C) NO.684 OF 2016
SPECIAL LEAVE PETITION (C) NO.35994 OF 2015
SPECIAL LEAVE PETITION (C) NO.38542 OF 2016
SPECIAL LEAVE PETITION (C) NO.6403 OF 2019
SPECIAL LEAVE PETITION (C) NO.14353 OF 2019
SPECIAL LEAVE PETITION (C) NO.24901 OF 2019
SPECIAL LEAVE PETITION (C) NOS.17661767 OF 2020
-The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same
rights and liabilities.
- The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
- Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
- The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring
about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener
when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of son above in pending proceedings for final decree or in an appeal.
- In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where
plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a
decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
- on this above question, suits/appeals are
pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by
conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. The pending matters be decided, as far as possible, within six months.In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @
Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision..
J.(Arun Mishra).
J.(S. Abdul Nazeer).
J.(M.R. Shah)
New Delhi:
August 11, 2020.
-------------------------------------------------------------- Before Above Judgement Legal Position --------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- above amendment come into force since 9 September 2005.
- Since amendment Daughter of joint hindu family governed by Mitakshara law become Coparcener as like Son.
- Also Daughter have same right in coparcenary property since amendment like Son.
-Also Daughter have some liabilities in coparcenary property as like Son since amendment.
-Since amendment Hindu Mitakshara coparcenary include Daughter as coparcener.
-Proviso- any disposition, alienation, partition(registered/effected by decree of court ), testamentary disposition of property which had taken place before 20 December 2004 shall not affect, invalidate due to above Amendment.
-Daughter have right to dispose by testamentary disposition(i.e. by Will) his share in the coparcenary since amendment.
- -A Hindu dies after amendment (i.e 09-09-2005) his interest in the Hindu Joint Family property governed by Mitakshara shall devolve by testamentary or intestate succession as per Amended Act & not by survivorship. & Coparcenary property shall be deemed to have been divided as if partition had taken place .
- Since amendment Daughter is allotted same share as is alloted to a Son.
-Pre deceased Daughter's share alloted to her surviving child.
- Share of predeceased child of pre deceased Daughter shall alloted to child of predeceased child of pre deceased daughter.
- Since amendment no court shall recognise any right to proceed against son,grandson, great grandson, great grand father for recovery of any debt due from his father ............. Solely on pious obligation.... Provided debt before amendment shall not affect.
- Nothing contained in amendment shall apply to partition(registered/effected by decree of court) which has been effected before 20 December 2004.
............. Related Judgement.............
-1) Sadashiv Sakharam Patil v/s Chandrakant Gopal Desale 2012(1) Mh.L.J.2011=2011(5)Bin.CR726
-2) Ganduri Koteshwaramm & anr v/s Chakiri Yanadi & and 2012(1) Mh.L.J.613=2011(9)SCC 788
-3) Vaishali Satish Gonarkar v/s Satish Keshavarao Gonarkar 2012 (3) Mh.L.J.669=AIR 2012 Bom 110
- 4) Badrinarayan Shankar Bhandari v/s Omprakash Shankar Bhandari 2014(5)Mh.L.J.(F.B.) 434=AIR 2014 Bom 151
- 5) Prakash & ora v/s Phulavati & ors 2016(1)Mh.L.J.(S.C.)1=2016(2)SCC 36
- 6) Danamma alies Suman Surpur & another v/s Amar & others 2018(3) Mh.L.J.451(S.C.)
- 7) Mangamal Thulasi & anr v/s T.B. Raju & ors Supreme Court - Civil Appeal no. 1933/2009- Decided on 19-04-2018.
..…... Please Comment & give Suggestions.........
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