IMPORTANT POINT
Devolution of interest in coparcenary property – Daughter of a coparcener shall have same rights in coparcenary property as she would have had if she had been a son.

JUDGMENT (CAV)

Whether the coparcenary property allotted to the share of a father, before 20th December 2004, in a partition among the father and sons, which becomes his separate property after the partition, regains the status of a coparcenary property by virtue of amended Section 6 of the Hindu Succession Act of 1956, enabling the daughters who were born and alive when the partition took place (before 20th December, 2004) to claim a share in the property allotted to the father?

Or to put it simply,

Whether Section 6 of Hindu Succession Act of 1956, elevates the daughter who was already born at the time of a partition that took place before 20th December 2004, between the father and his sons, to the status of the daughter born after the partition, to claim the share in the property allotted to the father?

2. Whether the appellants establish that the registered gift deed dated 21.07.2007 allegedly executed by Mahadev (appellants’ father) is outcome of fraud and misrepresentation?

1. The questions referred to above, arise in this appeal against a decree dismissing the suit for partition filed by the daughters of Mahadev.

2. Five daughters of Mahadev filed the suit claiming a share in the suit properties. The plaintiffs’ two brothers are arrayed as defendants No.2 and 3. Defendants No.4 and 5 are the purchasers of the property from Defendants No.2 and 3.

3. Mahadev’s first wife died in 1992. Defendant No.1 claims to be Mahadev’s second wife and marriage is said to have taken place in 1999. Plaintiffs’ dispute the marriage and contend that she was only a domestic help.

4. Admittedly, the suit properties were ancestral in the hands of Mahadev. On 10.01.1994, a registered partition took place between Mahadev and his two sons. In the said partition, Mahadev was allotted certain properties. Two sons namely defendants No.2 and 3 were also allotted separate properties.

5. All the plaintiffs were married before 10.01.1994. As per the law prevailing then, the plaintiffs had no share in the coparcenary properties in the hands of Mahadev when the partition took place on 10.01.1994 as Mahadev was alive.

6. Mahadev died in 2010. Defendant No.1 who claimed to be Mahadev’s second wife, claimed to be the donee under the registered gift deed 21.07.2007 executed by Mahadev, in respect of the properties allotted to his share in the partition of 1994.

7. The suit is primarily filed on the premise that all the daughters have equal share in the suit properties and the partition dated 10.01.1994 is not binding on the plaintiffs. The plaintiffs also challenged the gift deed alleging fraud and forgery.

8. The Defendants contested the suit. The Trial Court held that the suit is not maintainable as the plaintiffs/daughters cannot challenge the registered partition deed dated 10.01.1994 as they had no right over the properties in 1994. The Trial Court also held that after the partition of 1994, father Mahadev became the absolute owner of the properties allotted to his share, and he was competent to execute a gift deed in favour of defendant No.1. The Court also held that plea of fraud and forgery is not established.

9. Hence the plaintiffs are in appeal.

10. Learned counsel appearing for the plaintiffs/appellants would urge that Section 6 of the Hindu Succession Act of 1956 (Act of 1956) is held to be a retroactive. The plaintiffs/daughters should be deemed to have been the coparceners from 1956 or the date of their birth. Thus, the partition of 1994 is invalid as the plaintiffs are not allotted shares in the said partition.

11. Alternatively, it is urged that, though the property allotted to Mahadev had acquired the characteristic of separate property, after the partition dated 10.01.1994, by operation of amended Section 6 of the Act of 1956, said separate property (coparcenary property is allotted in a partition) in the hands of the father would be the coparcenary property as the daughters are coparceners. Thus the daughters acquire rights in the p