Daughters born before 1956 are entitled to coparcenary rights under the amended Hindu Succession Act, 2005, irrespective of their marital status.

JUDGMENT :

1. This second appeal involves following substantial questions of law :-

(i) Whether the plaintiff who is a daughter would have the benefit of the amended provisions as amended by the Central Act of 2005 in Hindu Succession Act ?

(ii) The plaintiff is born prior to 1956. The defendant No. 1 is also born prior to 1956. The father of the plaintiff and defendant No. 1 died in the year 1990. In such circumstances, whether the provisions of the Central Amendment in the year 2005, to the Hindu Succession Act, would be available to the plaintiff ?

2. Parties are referred to as Plaintiff and Defendants.

3. Plaintiff is the real sister of Defendant No. 1 and daughter of Tapiram. Plaintiff filed suit for partition and separate possession in respect of five properties as described in paragraph No. 1 of the plaint. She claims that these properties are ancestral properties of Plaintiff and Defendants. It is also claimed that out of the ancestral properties, their father had purchased some of the properties but in the name of himself and Defendant No. 1. It is also claimed that Plaintiff came to know about the revenue record indicating name of defendants in respect of the suit properties, she sought partition. Since, it was refused, suit for partition and separate possession came to be filed.

4. Defendants filed written statement at Exhibit 16 denying the contentions raised by Plaintiff with regard to the properties being joint family properties. It is claimed that during the life time of father of Plaintiff and Defendant No. 1, there was an oral partition in respect of the land and the house. It is claimed that the subject land and house came to the share of Defendant No. 1 and as against this, father of Plaintiff and Defendant No. 1 performed marriage of daughters. It is also claimed that amount received from father’s employment at the time of retirement was also paid to the daughters. It is specifically claimed in paragraph no. 3 of the written statement that on the basis of partition in the year 1974, revenue record was mutated in favour of Defendant No. 1 vide Mutation Entry No. 1209. In paragraph No. 5 of the written statement, it is claimed that inspite of knowledge about the said mutation entry, no objection is raised by the Plaintiff in that regard and as such she has no right to take any exception thereto now. In paragraph No. 10, it is specifically pleaded by Defendant No. 1 that their father had no sufficient income to purchase properties though he was employed. It is further specifically claimed by Defendant No. 1 that he used to do labour work and out of said income, in the year 1962, his father purchased Gat No. 106 but since this Defendant was minor, it was purchased in his name. Thus, there is specific pleading with regard to Gat No. 106 being self-acquired property. On these amongst other contentions, suit was opposed.

5. Learned Trial Court decreed the suit in respect of three properties more particularly described in paragraph Nos. 1B to 1C. Plaintiff has not take exception to the said decree. As such, rejection of partition in respect of remaining two properties has attained finality.

6. Learned counsel for Appellant/Defendant No. 1 submits that though the Hon’ble Supreme Court in case of Vineeta Sharma vs. Rakesh Sharma and others, (2020)9 Supreme Court Cases 1 has held that right of a daughter in the co-parcernary property is by birth however, there is no complete embargo for taking stand of oral partition. It is his submission that in Paragraph No. 137(5) of the said judgment, the Hon’ble Supreme Court has held that 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 the decree of Court, it may be accepted. According to him, in the instant case, theory of oral partition is supported by mutation entry. It is his further submission that the Hon’ble Supreme Court in this judgment has not taken into conside