Daughters have equal rights in coparcenary property regardless of marriage status, and oral partitions not supported by registered documents are not recognized.

JUDGMENT :

RAJESH S. PATIL, J.

1. This second Appeal is filed by legal heirs of Original Defendant No. 1, challenging the concurrent findings recorded by Civil Judge Junior Division, Ulhasnagar and as confirmed by District Court, Kalyan. Respondent no. 1 in this second appeal is the Original Plaintiff being the sister of Original Defendant no. 1 to 4, who had filed Regular Civil Suit No. 258 of 1991, in the Court of Civil Judge Junior Division, Ulhasnagar praying for declaration that she has 1/5 share in the properties of her deceased father Janu, and for possession of the said 1/5 share of her’s, and further for a declaration that her brother Maruti (Defendant No. 1) and brother Gannupath (Defendant No. 2), and her two sisters Gulab (Defendant No. 3) and Hirabai (Defendant No. 4), also have 1/5 share, in each of the properties of their father.

2. For the sake of brevity, parties are referred as per their original nomenclature in the Trial Court. It was the case of the plaintiff (who is the sister of Defendant) in her suit for partition, that her father died somewhere in the year 1959. And subsequently, thereto even her mother died in the year 1982. The said suit being R.C.S. No. 258/1991, filed by Plaintiff was decreed and the plaintiff was granted 1/5 share in suit property. An Appeal preferred by Original Defendant No. 1 along with his wife (Defendant No. 5) was dismissed. Hence, the present Second Appeal is filed, by Defendant No. 1 (who is the brother of Plaintiff), challenging concurrent findings.

3. The present second appeal has been ‘Admitted’ by an Order dated 17/8/2012 and two Questions of Law were framed:

(a) Whether Respondent No. 1 entitled to claim any share in the property of her father who had expired in 1951, when the Respondent No. 1 has married in the year in 1976 as per section 29 A (iv) of the Hindu Succession (Maharashtra Amendment) Act, 1994?

(b) Whether the Hindu Succession (Maharashtra Amendment) Act, 1994 would apply to the daughter married before the date of commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994?

SUBMISSIONS:

4. Mrs. Seema Sarnaik, appeared for Appellant (Original Defendant No. 1) and made her submissions:

(i) She submitted that she has two fold arguments. The first leg of her argument is that the suit properties are not ancestral properties, but are the self-acquired properties of the deceased Janu, who was the father of the both Plaintiff and Defendants. Therefore, these proceedings are not covered u/s. 6 of the Hindu Succession Act, 1956.

(ii) The second line of her argument is that there was an oral partition amongst the siblings after the death of their mother. Evidence to that effect was given by one Balu Dayre (defendant witness No. 2). Pursuant to the said oral partition, plaintiff got her share and on her piece of land which she received by oral partition, she built a chawl. So also, the other siblings built chawl on the portion which they received in the partition. Therefore, since there was already an oral partition, a suit for declaration of 1/5 share and further partition would not be maintainable.

5. Mr. Vijay Killedar appeared for the Respondent (original plaintiff) and made his submissions:

(i) Mr. Killedar submitted that as of today all the siblings are at one side and only Appellants who are legal heirs of original defendant No. 1 are on the other side.

(ii) He submitted that in an admitted Second Appeal, the appellants have to argue on the question of law as formulated by the court. However, there is no bar to make submissions on the other question of law, provided such questions of law are formulated. Mr. Killedar submitted that the argument on behalf of the appellant as regard to the oral partition, cannot be considered, as no such questions of law, have been formulated and the submissions are made without formulating any question of law. Therefore, such submissions should be discarded.

(iii) Mr. Killedar submitted that the submission as regards to the oral par