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BOMBAY HIGH COURT
S.B. Shukre, J.
Smt. Leelabai & Ors. —Appellants
versus
Sau. Bhikabai Shriram Pakhare —Respondent
Second Appeal No.52 of 2012
Decided on 28.3.2014
Facts of the case and Finding of the court.
Section 6 of Hindu Succession Act 1956 newly added by the 2005 Amendment Act, which came into force with effect from 09-09-2005, is a step taken as a part of affirmative action programme to render social justice to women, which is clear from its statement of objects and reasons. It is aimed at removing of bias and discriminatory practices against Hindu women in their status in a Hindu joint family property governed by the Mitakshara Law. It accords equality to the daughter of a coparcener in holding property rights in the same manner and to the same extent as the male member of a coparcenary of such a Hindu joint family. It confers a substantive right upon the daughter by laying down that on and from the commencement of the Amendment Act, 2005, the daughter of a coparcener shall be the coparcener by birth in her own right in the same manner as the son and shall have the same rights in the coparcenary property as she would have had, if she had been a son. Likewise, she is also subjected to the same liabilities in respect of the coparcenary property as that of a son. (Para 13)
B. Hindu Succession Act, 1956—Section 6—Amendment Act of 2005—Whether retrospective—Amendment Act, enforced with effect from 9-9-2005, providing rights to a daughter in coparcenary property as of a son —Right is given from the date of her birth and so the right would relate back to and take effect from the date of her birth in a Hindu joint family.
Facts of the case and Findings of the court.
The Substantive right, no doubt, has been conferred upon the daughter of a coparcener governed by the Mitakshara Law on and from 9-9-2005, but the right so given, one must understand, is in its very nature a birth right and so cannot be taken away given restrictive meaning except in the circumstances and to the extent mentioned in the section itself. Therefore, once given, it would relate back to and take effect from the incidence of birth of daughter in a Hindu joint family and, therefore, from the date of the birth, the daughter would be treated, by fiction of law, as a member of a coparcenary in the same manner as the son and would be entitled to all those rights therein as if she were a son and would also be liable to share the liabilities in respect of the coparcenary property in the same measure as a son. The language of the section is so clear that it leaves no room to doubt that it gives effect to the substantive right of the daughter from the date of her birth. Therefore, such right can be asserted by the daughter in respect of all the coparcenary properties, except those which have been disposed of or alienated in the manner and subject to conditions as stated in Section 6(1), read with sub-Section (5) and she can re-open the earlier partitions also, not made in accordance with those conditions.
No doubt, Section 6, Sub-Section (1) begins with the expression “On and from the commencement of the Hindu Succession (Amendment) Act, 2005” , but the expression only declares the date on which the substantive right is conferred and shall continue to be conferred and nothing more. (Paras 14 and 15)
S.B. Shukre, J.—By this appeal, the appellants have challenged the judgment and decree passed on 16/11/2011 in Regular Civil Appeal No.36/2011 by Principal District Judge, Buldana, whereby the judgment and decree passed by the 3rd Joint Civil Judge Junior Division, Buldana in Regular Civil Suit No.171/2007 on 31/01/2011 was quashed, set aside and modified.
2. The respondent, the original plaintiff, is the sister of one Dagduba Hingne. The respondent claimed that Kashinath was the original owner of the suit properties bearing Gat No.293 situated at Village Deulghat Taluka and District Buldana and house property bearing No.1456 of Village Deulghat of District Buldana, he having received the same by way of inheritance. Said Kashinath and his wife Dwarkabai were parents of respondent and Dagduba. Kashinath and Dwarkabai died on 12/09/1999and 14/01/1995, respectively. After their death, respondent and Dagduba being the only children surviving their parents, the suit properties devolved upon them. Dagduba also died on 20/04/2002 leaving behind his wife, appellant no.1 and his daughters, appellants no.2 to 4. The respondent claimed that she had one half share in the suit properties which was denied to her and, therefore, she filed a suit for partition and separate possession of the suit properties.
3. The appellants, the original defendants, resisted the suit contending that respondent did not have one half share in the suit properties as claimed by her. While they admitted the relationship and also the nature of the suit properties being ancestral, they disputed the extent of share as claimed by the respondent in the agricultural land, one of the suit properties and also claimed that respondent had no share in the house property, the second of the suit properties. They submitted that since respondent got married prior to 1994, there would be notional partition in or about 1994 according to which Kashinath, Dwarkabai and Dagduba would receive one third share each, and daughter being married would not get anything, as after her marriage she would not be a coparcener in the joint family properties. They further submitted that Dwarkabai predeceased Kashinath on 14/01/1995 and, therefore, after her death, her share would devolve upon the respondent-plaintiff, Kashinath and Dagduba. They further submitted that after death of Kashinath on 12/09/1999, again share of Kashinath would be divided equally between Dagduba and Bhikabai. They submitted that after the death of Dagduba on 20/04/2002, the appellants were in exclusive possession of the suit properties. Thus, they submitted that the share of the respondent would be confined to two ninth share in the suit properties.
4. The Trial Court framed four issues and after considering the evidence of the parties and arguments canvased before it, decreed the suit partly granting three fourth share to the appellants and one fourth share to the respondent in the agricultural land and refusing any share to the respondent in the house property. Being aggrieved, both appellants and respondent preferred appeal and cross-objection before the District Court, Buldana.
5. Learned Principal District Judge, Buldana, recorded a finding that respondent was entitled to one half share while the appellants together were entitled to one half share in the suit properties and dismissed the suit and allowed the cross-objection of the respondent. He also directed modification of the judgment and decree passed by the Trial Court so as to incorporate a declaration that respondent was entitled to partition and separate possession in respect of her one half share in the suit properties, while defendants jointly were entitled to one half share in the suit properties. The judgment and decree to this effect were delivered on 16/11/2011. Same are under challenge in the present Second Appeal. This appeal has been admitted by this Court on 13/07/2012 on a substantial question of law in following terms :
“Whether the Hindu S
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