J U D G M E N T

NEENA BANSAL KRISHNA, J I.A. 12452/2020 & I.A. 12460/2020

1. The two applications under Order VII Rule 11 CPC read with Order XII Rule 6 and Order VI Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) have been filed on behalf of the defendant No.1/Mr. Rakesh Kapur (father of the plaintiff) and by defendant No.2/Mr. Ravi Kapur (brother of defendant No. 1 and defendant No. 3), and Ms. Ritu Kapur/ mother of defendant Nos. 1 and 2 (paternal grandmother of the plaintiff) respectively for rejection of the Partition Suit filed by the plaintiff, claiming a share in the property of her father/defendant no.1 by claiming it to be HUF property in which she has a share being a coparcener.

2. The plaintiff through her mother/Ms. Sapna Kapur (estranged wife of defendant No.1), has filed the present Suit for Partition against the defendants on the assertion that all the parties to the suit constituted a joint family/Hindu Undivided Family (HUF) under Mitakshara law by virtue of them living and working jointly, and the suit properties so acquired constitute joint family properties owned by HUF of late Major K.C. Kapur comprising of defendant Nos. 1, 2 and 3. The grandfather (late Major K.C. Kapur) died on 29.06.2007 intestate and the plaintiff automatically became a coparcener at birth and has a share in properties enumerated in Annexure-A of the Plaint.

3. The defendants in their respective applications (and also the Written Statement) have claimed that the suit properties are not joint family properties nor do they belong to HUF nor that the plaintiff’s grandfather died intestate. It is asserted that he had left a registered Will dated 04.11.2004 which is on the court record. It is submitted that without prejudice to contentions made by the defendants in their respective written statements, even if it is assumed that the suit properties belonged to the alleged HUF, then too, the Suit is liable to be rejected for the following reasons.

4. The grandfather had died on 29.06.2007, while the plaintiff was born on 16.05.2008. She was therefore not conceived at the time of his demise. The legislation had carved out an exception vide Section 6 of the Hindu Succession Act, 1956 providing that on the demise of the coparcener, his interest in coparcenary property would not be governed by this Act, but would devolve by survivorship. However, presence of Class I female heirs took away the exception and brought the proviso to Section 6 into effect. According to this proviso, the devolution of deceased coparcener’s share in the property was brought under the exclusive purview of the Act and intestate or testamentary succession governed by Section 8 and 30 of the Act respectively, became the only available mode of devolution.

5. The Hindu Succession Act, 1956 underwent a sea of change after passing of Hindu Succession Amendment Act, 2005. On 09.09.2005, Section 6 of Hindu Succession Act, 2005 was amended and vide Section 6 (1) and 6 (2) daughters were made coparceners in Joint Hindu Family with all their rights and liabilities being equal to that of the son. Section 6 (3) of the HSA, 2005 completely changed the laws of inheritance. When a Hindu coparcener dies, after commencement of the Act, the application of this Act was made mandatory and the survivorship as a mode of succession or devolution of property of a Mitakshara coparcener, has been abrogated with effect from 09.09.2005. Section 6(3) of the amended Hindu Succession Act, 2005 provides for “deemed division” of the coparcenary property on the demise of a coparcener; abrogation of inheritance by survivorship and omission of any share to children of living son/daughter in deemed division of property. Therefore, intestate or testamentary succession vide Section 8 or 30 of HSA Act, 1956 (as amended in 2005) became the only mode of devolution. On the death of a coparcener, the Act explicitly states that the coparcenary property shall be deemed to have been divided