Entitlement of equal rights of daughter in coparcenary property.

This appeal is directed against the order in E.A.No.135 of 1992 in E.P.No.26 of 1987 in O.S.No.18 of 1984 on the file of the Subordinate Judge, Padmanabhapuram, in which the Subordinate Judge has dismissed the petition filed by the appellant herein under O.21, Rule 58, C.P.C.

2. The short facts are: The first respondent filed a suit against the second respondent for arrears of lease amount and has obtained a money decree. In execution of the same, the first respondent is bringing the property concerned in the execution petition for sale. While so, the appellant, the daughter of the second respondent, has filed the petition in E.A.No.135 of 1992 under 0.21, Rule 58, C.P.C. making a claim over the property concerned in the execution proceedings which was attached and brought to sale. The said application was opposed by the first respondent/decree-holder. After hearing the parties, the learned Subordinate Judge dismissed the claim petition. Aggrieved by the same, the claimant has come forward with the above appeal.

3. Learned counsel appearing for the appellant would submit that the appellant is the daughter of the second respondent. Under Sec.29-A of the Hindu Succession Act, 1956, as amended by Tamil Nadu Act 1 of 1990, now the appellant is entitled to a share in the suit property and as such her share ought to have been declared and attachment over that share ought to have been raised by the court below. But the court below has misconstrued the entire provisions of law and has come to the conclusion that the appellant is not entitled to a share in the property on two premises, namely, (1) The appellant was given in marriage prior to the date on which the amendment came into effect, namely on 23. 1989 and (2) By reason of the theory of pious obligation, i.e. the appellant’s share is also bound by the decree which was not incurred for immoral purposes. He contended that the reasonings given by the court below are not correct.

4. Per contra, learned counsel for the first respondent would submit that when the appellant wants to claim the benefits of Sec.29-A, it is for the appellant to prove that she got married only after 23. 1989; but she has not proved it and as such she is not entitled to make any claim. He would further submit that by virtue of the aforesaid amendment, the right of a daughter is placed on a par with the right of a son. While so, when the share of a son is liable for any debt which was not incurred for immoral or illegal purposes, the share of a daughter would also be bound by the debt which was not incurred for illegal for immoral purposes and as such her share is liable for the decree debt.

5. I have carefully considered the submissions made by the rival counsel. The appellant is claiming a share in the suit property as the daughter of the second respondent by virtue of Sec.29-A of the Hindu Succession Act. In the counter filed by the first respondent, in para 8, it is affirmatively stated that the appellant was given in marriage in the year 1984 or 1985 and so she is not entitled to any share in the property attached and brought to sale. In the affidavit filed by the appellant, in the court below, there is no allegation that she was not given in marriage prior to the material date. While so, when a positive allegation is made that she was given in marriage in 1984 or 1985, it is the duty of the appellant to prove that she is entitled to the benefits of the said section. But no proof is forthcoming to that effect. While so now she cannot claim the benefits of Sec.29-A.

6. Regarding the liability of a daughter for a debt incurred by her father, which is not for illegal or immoral purposes, in view of the language of Sec.29-A. I am inclined to accept the submissions made by Mr.K.Sreekumaran Nair, learned counsel appearing for the first respondent. Sec.29-A is relevant for our purpose and it is extracted below:

"29-A. Equal rights to daughter in coparcenary property: Notwithstanding anything conta