Joint Family - Partition in the year 1971 - Plaintiff born after partition - father died intestate - suit for partition of the share of father died intestate - No partial Partition as the suit is filed only on the share of father obtained without asking for cancellation of old partition in the year 1971- Pending suit Hindu succession Act amended A.P. Amendment - plaintiff being daughter is entitled for partition - Hindu Succession (Amendment) Act 2005 - sec.29 and sec.23 - Plaintiff whether married or not - entitled for share in the entire property including dwelling house- due to commencement of central act , AP amendment Act is deemed to be repelled - 2015 A.P.(2014) MSK LAW REPORTS 13


 1. Whether the suit is for partial partition and hence not
maintainable for the reasons as set forth in para 4-A of the
written statement of defendant no.1, defendant no.4 and
defendant no.5?


Trial court held that

 It held that if
these properties are not included, then the suit for partition would be a
suit for partial partition, which would not be maintainable, and
therefore they are also liable for partition.  It held that since the
plaintiff has been held to be entitled to partition, the defendants who
are admittedly in possession of the plaint A to C schedule properties
pending suit are liable to account for those properties.  It therefore
directed determination of mesne profits from plaint A to C schedules
as also  from the lands admeasuring Ac.2.56 cts in R.S.No.408/2 and
Ac.1.93  cts in R.S.No.407/3 from the date of suit till the date of
actual partition and delivery of possession and directed that they shall
share them proportionately.

2.  Whether the plaintiff perfected her title to the property
mentioned in para 4-A of the said written statement of
defendant no.1, defendant no.4 and defendant no.5 due to
adverse possession?


Trial court held that

It held that there is no question of acquisition of title
by the plaintiff by adverse possession for these items since the mother
of the plaintiff died only in 1972 and the present suit was filed in
1982, more particularly, when there was a relinquishment deed
admittedly executed by defendant nos.2 and 3 in plaintiffs favour on
20-12-1983

3. Whether the plaintiff is entitled to partition of dwelling
house?


Trial court held that

Since C schedule property was dwelling house of the
property and in that house defendant no.s 1,4 and 5 were living, the
Court held that in view of Section 23 of the Hindu Succession Act,
1956, the plaintiff, being a female heir was not entitled to seek
partition since defendant no.4 did not choose to divide the property.  It
therefore directed that the plaintiff should be given the value of 1/12th
share therein at the time of partition.  It held that the plaintiff failed to
establish the existence of plaint D schedule.

Trial court held that
 It therefore held that a son like defendant no.4, born
after partition by the father Suryarao with the other coparceners of the
joint family, would also be a coparcener with Suryarao  and he would
also have a half share as a coparcener . 
 It held that only the remaining
half share in the plaint schedule property would be liable for partition
on the death of Suryarao.  
In view of the introduction of Section 29-A
by way of amendment to the Hindu Succession Act, 1956 by the
Andhra Pradesh State Legislature, with effect from 05-09-1985, the
trial Court held that defendant no.5, being a daughter born to Suryarao
would also get a right to seek a share in the joint family property
along with her brother.  It therefore held that defendant nos.4 and 5
and Suryarao would each get 1/3rd share, which is liable for partition.
It held that defendant nos.2 and 3 who had already divided from
Suryarao under Ex.A-1 partition deed, would not get any share in
these properties.  
It therefore held that the plaintiff, and defendant
nos.1, 4 and 5 would have equal shares in the 1/3rd share of Suryarao
and thus, the plaintiff would get only 1/12th share in the plaint A and
B schedule properties. It held that the plaintiff should therefore
discharge the debts of Suryarao to the extent of 1/12th share got by
her.

ANALYSES BY THE  HIGH COURT   
      
The following points arise for consideration:
 (a) Whether in respect of A and B schedule properties, the plaintiff
would be entitled to 5/16th share in view of the amendment to the
Hind Succession Act, 1956 in the year 2005?



There is no dispute that the plaint A, B and C schedule
properties are the properties which had fallen to the share of late
Suryarao in a partition between himself and his two sons, Defendant
nos.2 and 3 and these properties were mentioned in Schedule-A to the
said partition deed. 

 It is settled law that if an ancestral property has
been divided between several joint owners, the share which falls to
each of them would continue to be ancestral property in his hands as
regards his male issue.

 In view of the above legal position, it has to be held that
A, B and C schedule properties would continue to be joint family
properties in the hands of late Suryarao in spite of the partition
between himself and Defendant nos.2 and 3.  
From the birth of the
Defendant no.4 (a son) it would be joint family property only.
Defendant no.5 was also born to late Suryarao through his second
wife Defendant no.1 after Defendant no.4. 
the Hindu Succession (Andhra Pradesh 
Amendment) Act, 1986.

  It thus made it clear that in any family governed by
Mitakshara law, the daughter is made a coparcener equating her status
to a son provided she was unmarried prior to 05-09-1985 and no
partition had taken place prior thereto.  Since Defendant no.5 was
born to Suryarao in 1974 and was unmarried by the date of filing of
the suit in 1982 and also on the date of coming into force of Section
29-A i.e. 05-09-1985, she will also be entitled to a share in joint
family property of Suryarao and Defendant no.4.
There is no dispute that the plaintiff was married even
by the date of filing of the suit i.e before 5.9.1985.  Therefore by
virtue of Section 29-A, the plaintiff did not become a coparcener and
therefore she could not have claimed any share in the joint family
properties of late Suryarao during the pendency of the suit.

 However, the Parliament, by Central Act 39 of 2005
again amended the Hindu Succession Act 1956 w.e.f 09-09-2005.
Section 6 of the Act was amended as under:
      6 (l). Devolution of interest in coparcenaries
property
(1) On and from the commencement of the Hindu Succession
(Amendment) Act, 2005, in a Joint Hindu family governed by
the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right the same
manner as the son ;
(b) have the same rights in the coparceners property as she
would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparceners property as that of a son, and any reference to a
Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including
any partition or testamentary disposition of property which
had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled
by virtue of subsection (1) shall be held by her with the
incidents of coparceners ownership and shall be regarded,
notwithstanding anything contained in this Act or any other
law for the time being in force in, as property capable of
being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu
Succession (Amendment) Act, 2005, his interest in the
property of a Joint Hindu family governed by the Mitakshara
law, shall devolve by testamentary or intestate succession, as
the case may be, under this Act and not by survivorship, and
the coparceners property shall be deemed to have been
divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a
son;
(b) the share of the pre-deceased son or a pre-deceased
daughter, as they would have got had they been alive at the
time of partition, shall be allotted to the surviving child of
such pre-deceased son or of such pre-deceased daughter;
and
(c) the share of the pre-deceased child of a pre-deceased son
or of a predeceased daughter, as such child would have got
had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre-
deceased so or a pre-deceased daughter, as the case may be.
Explanation.-- For the purposes of this sub-section, the
interest of a Hindu Mitakshara coparcener shall be deemed
to be the share in the property that would have been allotted
to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was
entitled to claim partition or not.
(4) After the commencement of the Hindu Succession
(Amendment) Act, 2005, no court shall recognize any right to
proceed against a son, grandson or great-grandson for the
recovery of any debt due from his father, grandfather or
great grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or
great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the
commencement of the Hindu Succession (Amendment) Act, 
2005, nothing contained in this sub-section shall affect--
(a) the right of any creditor to proceed against the son,
grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of,
any such debt, and any such right or alienation shall be
enforceable under the rule of pious obligation in the same
manner and to the same extent as it would have been
enforceable as if the Hindu Succession (Amendment) Act,
2005 had not been enacted.
Explanation.--For the purposes of clause (a), the expression
"son", "grandson" or "great-grandson" shall be deemed to
refer to the son, grandson or great-grandson, as the case
may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act, 
2005.
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th day of
December,2004
Explanation- For the purposes of this section "partition"
means any partition made by execution of a deed of partition
duly registered under the Registration Act, 1908 or partition
effected by a decree of a court.]
This provision was introduced in order to bring out
uniformity through out the country, and the stipulation that the
marriage of the daughter should not have been performed before
05-09-1985, was removed.  Therefore, irrespective of the dates of
marriage, all daughters would be deemed to be coparceners with one
exception that partition should not have taken place before
20-12-2004.  Although the Central Act 39 of 2005 did not specifically
repeal Section 29-A introduced in the State of Andhra Pradesh by AP
State Amendment Act 13 of 1986, this Court in Damalanka
Gangaraju (1 supra) has held that the State amendment is deemed to
be repealed and that since both Parliament and the State Legislature
made laws relating to the same concurrent subject, a question of
conflict arises between the two enactments. It held that the said
conflict is resolved by Article 254 (1) of the Constitution of India by
providing that in such a case, the State Law shall be void to the extent
it is repugnant to or inconsistent with the Central Act.  
This Court
therefore held that after 09-09-2005, all the daughters have to be
treated as coparceners entitled to equal shares, irrespective of the fact
whether they are majors or minors or their marriages were performed
before 05-09-1985 or subsequent to 05-09-1985.

(b) Whether the trial Courts view that the dwelling house in C
schedule cannot be partitioned at the instance of the plaintiff would
still hold good after deletion of Section 23 of the Hind Succession
Act, 1956 by Hind Succession Amendment Act, 2005 with effect from
09-09-2005? And

 Section 23 of the Hindu Succession Act, 1956
stated as follows:
     23. Special Provision respecting dwelling houses:-
Where a Hindu intestate has left surviving him or her both
male and female heirs specified in Class I of the Schedule and
his or her property includes a dwelling-house wholly occupied
by members of his or her family, then, notwithstanding
anything contained in this Act, the right of any such female heir
to claim partition of the dwelling-house shall not arise until the
male heirs choose to divide their respective shares therein; but
the female heir shall be entitled to a right of residence therein:
      Provided that where such female heir is a daughter, she
shall be entitled to a right of residence in the dwelling-house
only if she is unmarried or has been deserted by or has
separated from her husband or is a widow.
      33.       This provision was in force when the trial Court decided
the suit.  Therefore, the trial Court held that the plaintiff cannot ask
for partition of the C schedule dwelling house and is entitled to the
value to the extent of her share which it had determined at 1/12th.
      34.       However, Section 23 was omitted by the Hindu
Succession Amendment Act 39 of 2005 with effect from 09-09-2005.
The effect of this omission was considered by the Supreme Court in
G.Sekar (3 supra).  The Supreme Court held that the omission of
Section 23 of the Hindu Succession Act, 1956 by Section 3 of the
Hindu Succession Amendment Act, 2005 would no doubt have 
prospective operation.  But in view of the nature of the said provision
it could affect pending proceedings also.  It held that right of a son to
prevent the daughters of the last male owner to seek for partition of a
dwelling house being a right of the male owner to keep the same in
abeyance till the division takes place, it is not a right of enduring
nature and cannot be said to be an accrued right or a vested right.  It
held that such a right indisputably can be taken away by operation of a
statute and/or by removing the disablement clause and therefore it
would apply to even pending proceedings.  In this view of the matter,
since Section 23 of the Hindu Succession Act has now been repealed,
the plaintiff cannot be deprived of her 5/16th share therein. Therefore,
to this extent, the decision of the trial Court in giving her only the
value of her share in C schedule dwelling house cannot be sustained
and it has to be held that she is entitled to partition and separate
possession of  5/16th share therein.

 (c) Whether the plaintiff would be entitled to a larger share in the
lands in R.S.Nos.408/2 and 407/3 belonging to her mother, who is the
first wife of late Suryarao?


In this view of the matter, there is no doubt that even the
plaintiff, after coming into force of the Hindu Succession Act, 1956 as
modified by Act 39 of 2005 with effect from 09-09-2005, would also
have a share in the joint family property of late Suryarao and
Defendant nos.4 and 5. 

Sec.6 of Hindu Succession ( Amendment ) Act 2005- This provision was introduced in order to bring out uniformity through out the country, and the stipulation that the marriage of the daughter should not have been performed before 05-09-1985, was removed.  Therefore, irrespective of the dates of marriage, all daughters would be deemed to be coparceners with one exception that partition should not have taken place before 20-12-2004.  Although the Central Act 39 of 2005 did not specifically repeal Section 29-A introduced in the State of Andhra Pradesh by AP State Amendment Act 13 of 1986, this Court in Damalanka Gangaraju (1 supra) has held that the State amendment is deemed to be repealed and that since both Parliament and the State Legislature made laws relating to the same concurrent subject, a question of conflict arises between the two enactments. It held that the said conflict is resolved by Article 254 (1) of the Constitution of India by providing that in such a case, the State Law shall be void to the extent it is repugnant to or inconsistent with the Central Act.  This Court therefore held that after 09-09-2005, all the daughters have to be treated as coparceners entitled to equal shares, irrespective of the fact whether they are majors or minors or their marriages were performed before 05-09-1985 or subsequent to 05-09-1985.


She is not seeking to reopen the partition
which occurred in 1971 but is seeking a share in the joint family share
of Suryarao after his death as his heir invoking the amended section 6.
So the fact that there was a partition in 1971 does not come in her
way.

  So on the death of Suryarao, a notional partition of the
plaint A, B and C schedules has to be presumed in which late
Suryarao, plaintiff and Defendant no.4 and 5 would each have a 1/4th
share.  
The 1/4th share of late Suryarao would then devolve under
Section 8 of the Hindu Succession Act among plaintiff and Defendant
nos.1, 4 and 5.  Defendant nos.2 and 3 having already got divided
from Suryarao would not be entitled to any share in these properties.
Therefore, in addition to the 1/ 4th  share mentioned above, plaintiff,
Defendant no.1, 4 and 5 would get an additional 1/4th X 1/4th = 1/16th
share each.  
Therefore in plaint A, B and C schedule properties,
plaintiff, Defendant no.4 and 5 would each have 5/16th share (1/4 +
1/16) and Defendant no.1 would have 1/16th share.
   When the trial Court decided the suit on 15-04-1991, the
Hindu Succession Amendment Act 39 of 2005 was not on the statute
book and  had come into force pending this appeal.  Since no final
decree had been passed pending appeal, the benefit of the Hindu
Succession Amendment Act, 2005, in particular the new Section 6
would enure to the plaintiff.  Therefore, I hold that the plaintiff would
be entitled to 5/16th share in the plaint A, B and C schedule properties.
Point (a) is answered accordingly.



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