केवल जीवित हमवारिश की जीवित बेटी को पैतृक संपत्ति में हिस्सेदारी अधिकार है || Under Section 6 of Hindu Succession Act 1956
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 191 of 2013
1. Gannu @ Gaanu Ram, S/o Late Ramai Satnami, Aged About
34 Years
2. Deni Bai D/o Late Ramai Satnami Aged About 36 Years
Both R/o village Gomachi, P.O. Tendua, Tah. And Distt.
Raipur C.G.
—- Appellants
Versus
1. Dhanmat Bai D/o Late Ramai Satnami Aged About 58 Years
R/o village Jora, P.O. Krishak Nagar, Tah. And Distt. Raipur
C.G.
2. Vijay
3. Kamal
2 & 3 are S/o Dayalal Chabra R/o village Gomachi, P.O.
Tendua, Tah. And Distt. Raipur C.G.
4. State Of Chhattisgarh Thru- Collector, Raipur C.G.
—- Respondent
For Appellants Shri Raja Sharma, Advoate
For Respondent No.1 Shri Ravindra Sharma, Advocate
For Respondents No.2 & 3 None, despite service of notice
For Respondent/State Shri Rajendra Tripathi, Panel Lawyer
Hon’ble Shri Justice Prashant Kumar Mishra
Hon’ble Smt. Justice Vimla Singh Kapoor
Judgment on Board
By
Prashant Kumar Mishra, J.
17/01/2019
Short issue arising for consideration in this first appeal is -Whether daughter of a pre deceased karta/ coparcener is entitled to have equal share in the ancestral property after the amendment in Section 6 of the Hindu Succession Act, 1956 for short ‘the Act’) w.e.f. 9.9.2005 ?
2. The Trial Court has allowed the plaintiff’s suit for partition granting 1/3rd share each to plaintiff/respondent No.1 Dhanmat Bai, appellant No.1/defendant No. 1 Gannu @ Gaanu Ram & appellant No.2/defendant No. 2 Deni Bai.
The Trial Court has allowed the plaintiff’s suit for partition granting 1/3rd share each to plaintiff/respondent No.1 Dhanmat Bai, appellant No.1/defendant No. 1 Gannu @ Gaanu Ram & appellant No.2/defendant No. 2 Deni Bai.
3. Indisputably, the property at the hands of the common ancestor deceased Ramai was ancestral property.
Ramai died about 8 years back from 14.02.2011 (as stated by plaintiff Dhanmat Bai when she was examined before the Trial Court on 14.02.2011). The exact date of death of Ramai is not available on record, but in any case his death has taken place prior to 9.9.2005 i.e. the date on which Section 6 of the Act suffered amendment.
4. For ready reference and convenience the amended Section 6 of the Act is quoted below :
6. Devolution of interest in coparcenary property.—(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
(Only living daughters of living coparcerns would be entitled to claim share in the ancestral property u/S 6 of Hindu Succession Act, 1956 as amended under the Hindu Succession(Amendment) Act, 2005.)
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.Explanation. —For the purposes of this subsection, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property, that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
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