Hindu Succession Act , 1956 , Class I heirs includes daughters who are also entitled to the share of property when parents die intestate

HINDU SUCCESSION ACT : DAUGHTERS ALSO ENTITLED TO PROPERTY SHARE IF PARENTS DIE INTESTATE

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The Supreme Court bench consisting of Justice Uday Umesh Lalit and Justice Indu Malhotra noted that as per the 

HINDU SUCCESSION ACT : DAUGHTERS ALSO ENTITLED TO PROPERTY SHARE IF PARENTS DIE INTESTATE

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The Supreme Court bench consisting of Justice Uday Umesh Lalit and Justice Indu Malhotra noted that as per the Hindu Succession Act , 1956 , Class I heirs includes daughters who are also entitled to the share of property when parents die intestate. The court allowed the appeal by the daughter and set aside the judgments of the Allahabad High Court and Trial Courts .

The case was about property share for daughters. But the case began with the filing of suit by son for getting certain properties which fell into his share after partition between father , mother and three sons. Later , four daughters joined in as defendants .

The Trial Court gave decree in favour of the plaintiff son .

Defendant daughter,Maya Prakash Jain , filed a suit before Court of Civil Judge (Senior Division ), Meerut . Then another daughter , Srikanta jain , filed an application before the same court seeking to be a defendant in the said suit which the court dismissed.

Aggrieved , Civil Revision was filed before the High Court of Allahabad where the court dismissed the same.

So, an appeal was filed before the top Court where the court opined :

“On the death of father and mother , if they died intestate , then under the principles of the Hindu Succession Act , every Class I heir including the daughters , would be entitled to a share in the property left behind by their parents .” This is one of the top legal judgments in India.

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. The court allowed the appeal by the daughter and set aside the judgments of the Allahabad High Court and Trial Courts .

The case was about property share for daughters. But the case began with the filing of suit by son for getting certain properties which fell into his share after partition between father , mother and three sons. Later , four daughters joined in as defendants .

The Trial Court gave decree in favour of the plaintiff son .

Defendant daughter,Maya Prakash Jain , filed a suit before Court of Civil Judge (Senior Division ), Meerut . Then another daughter , Srikanta jain , filed an application before the same court seeking to be a defendant in the said suit which the court dismissed.

Aggrieved , Civil Revision was filed before the High Court of Allahabad where the court dismissed the same.

So, an appeal was filed before the top Court where the court opined :

“On the death of father and mother , if they died intestate , then under the principles of the Hindu Succession Act , every Class I heir including the daughters , would be entitled to a share in the property left behind by their parents .” This is one of the top legal judgments in India.

Read the Judgement

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Daughters Have Equal Rights In Ancestral Property, Even If They Were Born Before Enactment Of Hindu Succession Act, Holds Supreme Court

Daughters Have Equal Rights In Ancestral Property, Even If They Were Born Before Enactment Of Hindu Succession Act, Holds Supreme Court [Read Judgment] Feb 4th 2018, 09:07, by Sukriti Manu Sebastian The Supreme Court has held that daughters who were born before the enactment of Hindu Succession Act 1956 are entitled to equal shares as son in ancestral property.  The ruling was rendered in an appeal filed by daughters challenging a decree in a partition suit, which excluded them from partition.  The partition suit was filed by the grandson of the deceased propositus of a joint family in 2002. The Trial Court held that daughters were not entitled to share in property, as they were born before 1956, the year of enactment of Hindu Succession Act. The Trail Court also denied them the benefit of 2005 amendment, which conferred equal coparcenary status to daughters as sons.  The High Court upheld the decree of the Trial Court. The Supreme Court held that the Courts below erred in holding that daughters were not entitled to partition because they were born before 1956. It was held that according to Section 6 of the Act ,when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act(which includes a daughter), his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession.  Therefore, the interest of the deceased coparcener would devolve by intestate succession on his heirs, which included his daughters. The Court also held that the daughters were entitled to the benefit of 2005 amendment as well, and on that basis also they were entitled to shares.  It was settled in Prakash v. Phulavati (2016) 2 SCC 36 rights under the amendment area available to daughters living on the date of amendment, irrespective of when they were born.  In the instant case, the bench comprising Justice A.K Sikri and Justice Ashok Bhushan explained it further, and stated that the amendment declared that a daughter ‘shall by birth’  became coparcener in her own right in the same manner as son. Hence, the daughter will get coparcenary right by virtue of the amendment, ‘since birth’. It was observed as follows :- Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. Also, the fact that the partition suit was filed in 2002 was held to be inconsequential. The Court stated that so far as partition suits are concerned, the partition becomes final only on the passing of a final decree. The decree was passed in 2007. Here, the rights of the daughters got crystallised in 2005, and hence the Trial Court ought to have taken into account that aspect while passing decree in 2007. The Court also observed that 2005 amendment was brought in on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.- the Bench observed. Hence, it was held that shares will devolve on the daughters as well. Read the Judgment Here

All HUF Assets Should Be Taken As Joint Property Unless Proven Otherwise: SC

All HUF Assets Should Be Taken As Joint Property Unless Proven Otherwise: SC [Read Judgment] Sep 15th 2017, 04:32, by Sukriti The Supreme Court recently reiterated the principle that all assets in a Hindu Undivided Family would be presumed to be joint property belonging to all its members and that the burden to prove otherwise is on the family member asserting such claim. “It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property,” the Bench comprising Justice R.K. Agrawal and Justice Abhay Manohar Sapre observed. The Court was hearing an Appeal challenging an order passed by the Karnataka High Court in a family dispute pertaining to ownership and partition of agricultural lands. The Apex Court upheld the High Court’s order which had declared the property as joint property of the family. The Court opined that the Appellants had failed to prove that the property was self acquired and observed, “In order to prove that the suit properties described in Schedule ‘B’ and ‘C’ were their self-acquired properties, the plaintiffs could have adduced the best evidence in the form of a sale-deed showing their names as purchasers of the said properties and also could have adduced evidence of payment of sale consideration made by them to the vendee. It was, however, not done. Not only that, the plaintiffs also failed to adduce any other kind of documentary evidence to prove their self-acquisition of the Schedule ‘B’ and ‘C’ properties nor they were able to prove the source of its acquisition.” It, therefore, upheld the judgments passed by the lower Courts and observed, “In our considered opinion, it was, therefore, obligatory upon the plaintiffs to have proved that despite existence of jointness in the family, properties described in Schedule ‘B’ and ‘C’ was not part of ancestral properties but were their self-acquired properties. As held above, the plaintiffs failed to prove this material fact for want of any evidence. We have, therefore, no hesitation in upholding the concurrent findings of the two Courts, which in our opinion, are based on proper appreciation of oral evidence.” Read the Judgment Here

Certificate Of Purchase Can’t Be Conclusive Proof Of Title In Case Of Joint Family Property: Bombay HC

Certificate Of Purchase Can’t Be Conclusive Proof Of Title In Case Of Joint Family Property: Bombay HC [Read Judgment]

Jun 21st 2018, 15:33, by Sukriti

Nitish Kashyap

The Bombay High Court has held that certificate of purchase cannot be conclusive proof of title vis-à-vis joint tenants of a land.

Justice Anuja Prabhudessai held that in case of a joint family property, the certificate of purchase issued in the name of karta or an elder of the family is actually for or on behalf of the joint family.

Case Background

The court was hearing an appeal against judgment of a Joint District Judge, Thane, dated January 24, 1990, wherein compensation for sale of a land in Thane was directed to be divided equally between descendants of co-tenants Vithu and Gajanan.

The government acquired the said piece of land measuring 1 acre 26 gunthas and 8 annas in 1973 for Rs. 57,000 approximately.

Changa Agaskar was the original tenant of the said land and after his death, his two sons, Vithu and Gajanan, used to cultivate the land together as a joint family property.

Vithu claimed that he had purchased the said land in the proceedings under Section 32(G) of the Bombay Tenancy & Agricultural land Act. He further claimed that upon paying the purchase price, the certificate of purchase under Section 32 M of the Act was issued in his favour on July 20, 1966. The original claimant, therefore, claimed that being the exclusive owner, he was entitled to receive the entire compensation amount.

However, descendants of Gajanan claimed that the land was never partitioned and that even after the death of Changa and Gajanan, they continued to cultivate the land as a joint family property. The respondents denied that Vithu was the sole tenant/purchaser of the property. They have stated that Vithu had paid the purchase price of the acquired land out of the sale proceeds of the joint family land. The respondents, therefore, claimed that being the co-tenants of the property, they were entitled to 50 percent of the compensation.

Judgment

After examining the Bombay Tenancy and Agricultural Land Act, the court noted that it is clear that an undivided Hindu family can be a tenant within the meaning of Section 2(18) of the Act. Thereafter, the court looked at the land survey records, mutation entries and said:

“It is thus clear that the original claimant Vithu was not a tenant of the said land in his personal or individual capacity but had only inherited the tenancy rights upon the death of Changa. The original claimant Vithu had therefore failed to prove that he was the sole tenant of the said property. The claimant had also not adduced evidence to prove that the subject property was partitioned during the lifetime of Vithu and Gajanan or that they were cultivating the property or their respective shares separately. The reference court was therefore perfectly justified in holding that the acquired land was a joint family property.”

The land records revealed that the original claimant Vithu had subsequently got his name entered in the survey records, by bracketing the name of Gajanan. He had also purchased the property under Section 32G and a certificate of purchase was issued in his name. It is to be noted that no notice was given to the respondents before deleting/bracketing the name of Gajanan from the survey records, the court said.

Thus, the court rejected the appeal against judgment of the District Judge in Thane and said:

“Under such circumstances, the certificate of purchase issued in the name of Vithu, would be for and on behalf of the joint family. The said certificate would at the most be conclusive proof of purchase against the owner of the land. The tenancy rights of the joint tenants cannot be negated solely on the ground that the certificate of purchase was issued in favour of Karta of a joint family or any elderly person of a joint family. Hence, the certificate of purchase cannot be the conclusive proof of title, vis-a-vis the joint tenants.”

Read the Judgment Here

If Appeal is filed against Mode of Partition, it amounts to Automatic Stay

If appeal is filed against mode of partition, it amounts to automatic stay of proceedings, execution of instrument of partition is only a stage towards execution of order of partition - Possession even if delivered to parties before partition is made effective will not extinguish status as a co-sharer

Posted: 28 May 2016 08:15 PM PDT

PUNJAB AND HARYANA HIGH COURT

Before :- Hemant Gupta, J.

RSA No. 3615 of 1987. D/d. 24.1.2005

Lal Chand (Dead) through LRs. - AppellantsVersusGanga Ram (Dead) through LRs. - Respondents

For the Appellant :- Mr. A.S. Tewatia, Advocate.
For the Respondent :- Mr. Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate.

JUDGMENT

Hemant Gupta, J. - The plaintiff pre-emptor is in second appeal aggrieved against the judgment and decree passed by the first Appellate Court whereby his suit for possession by way of pre-emption of the land measuring 16 kanals 11 marlas being a co-sharer and thus have a preferential right to pre-empt the sale was dismissed in appeal by the first Appellate Court.
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High-Court

If appeal is filed against mode of partition, it amounts to automatic stay of proceedings, execution of instrument of partition is only a stage towards execution of order of partition - Possession even if delivered to parties before partition is made effective will not extinguish status as a co-sharer

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 Meter defects - Testing of the meter should be done in the presence of the consumer or his representative - A notice should be given to the consumer or his representative about the date, time and place of testing of meter

PUNJAB AND HARYANA HIGH COURT

Before :- Hemant Gupta, J.

RSA No. 3615 of 1987. D/d. 24.1.2005

Lal Chand (Dead) through LRs. - AppellantsVersusGanga Ram (Dead) through LRs. - Respondents

For the Appellant :- Mr. A.S. Tewatia, Advocate.
For the Respondent :- Mr. Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate.

JUDGMENT

Hemant Gupta, J. - The plaintiff pre-emptor is in second appeal aggrieved against the judgment and decree passed by the first Appellate Court whereby his suit for possession by way of pre-emption of the land measuring 16 kanals 11 marlas being a co-sharer and thus have a preferential right to pre-empt the sale was dismissed in appeal by the first Appellate Court.
2. The only question which has been raised before the Courts below is whether the plaintiff was a co-sharer on the date of decree passed by the learned Trial Court. According to the defendant-vendee, the land was partitioned and thus the plaintiff ceased to be co-sharer on the date of the decree of the trial Court, whereas as per the plaintiff the land was not partitioned as no instrument of partition has been drawn so far.
3. The learned trial Court found that the instrument of partition has not been drawn which is not a formality. Reliance was placed upon a single Bench judgment of Himachal Pradesh High Court reported as Shri Khem Dutt v. Palika, 1984 R.R.R. 535 : 1982 PLJ 391, to hold that the instrument of partition has not been prepared so far and consequently the partition proceedings have not been finalised and thus the plaintiff continues to be a co-sharer and that he has a superior right of pre-emption. However, the learned first Appellate Court accepted the appeal filed by the defendant-vendee on the ground that the instrument of partition has been prepared and delivered to the parties on 16.2.1987. The possession was delivered as per the copy of report Roznamcha Vakiyati dated 3.4.1987 and thus the right of pre-emption of a co-sharer stands forfeited.
4. The learned counsel for the appellant has vehemently argued that there is nothing on record that the instrument of partition was prepared in February, 1987. It is also argued that even if it is prepared in February, 1987 it will not defeat the right of the plaintiff as he continues to be co-sharer on all the three material dates i.e. on the date of sale, on the date of filing of suit and on the date of decree passed by the trial Court. Therefore, any loss of character as a co-sharer after passing of the decree by the learned Trial Court will not defeat the right of pre-emption.
5. In view of above arguments of the appellant the following substantial question of law arises for consideration in this appeal :

Whether the suit of the plaintiff pre-emptor can be dismissed in an appeal on the basis or instrument of partition prepared after the decree passed by the trial Court ?

6. The respondent vendee sought partition of the suit land which was allowed by the Assistant Collector II Grade, Ballabgarh on 21.10.1986 wherein it was ordered that the revenue record in pursuance of the above partition be effected after Kharif, 1986 and that the instrument of partition be prepared after limitation for filing of appeal expires. Ex. P.7 is the memorandum of appeal against the said order passed by the Assistant Collector II Grade and Ex. P.8 is the order dated 24.11.1986 wherein the order passed by the Assistant Collector was stayed. The decree was passed by the learned trial Court on 17.1.1987. There is nothing on record to show that the appeal was decided before the decree was passed by the trial Court or that the instrument of partition was prepared before the said date with the effective date of partition prior to the decree passed by the trial Court.
7. The procedure for partition is contained in Chapter 9 of the Punjab Land Revenue Act, 1887. Section 121 of the said Act contemplates preparation of an instrument of partition after the partition is completed. The date on which the partition is to take effect is also to be recorded therein. Once instrument of partition is prepared, any owner or tenant to whom any land or portion of a tenancy as the case may be is allotted in proceedings for partition, shall be entitled to possession thereof as against other parties to the proceedings. Sections 121 and 122 of the Land Revenue Act reads as under :

"121. INSTRUMENT OF PARTITION - When a partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect to be recorded therein.

122. DELIVERY OF POSSESSION OF PROPERTY ALLOTTED ON PARTITION. - An owner or tenant to whom any land or portion of a tenancy, as the case may be, is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives and a Revenue Officer shall, on application made to him for the purpose by any owner or tenant at any time within three years from the date recorded in the instrument of partition the last foregoing section give effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property."

8. It is not only an order of partition which is necessary to be passed but also the instrument of partition is required to be prepared. In the present case, there is nothing on record to show as to on which date, the appeal was decided or the instrument of partition was prepared. Even if the statement in the judgment and decree passed by the first Appellate Court is to be treated as correct, the instrument of partition was prepared after the decree was passed by the learned Trial Court. The question whether the instrument of partition is required to be prepared came up of consideration before a Division Bench of Lahore High Court in a judgment reported as Hadayat Khan v. Shahamand, AIR 1924 Lahore 155, wherein it has been held that even if the sharers took possession of the plots allotted to them before Kharif 1905, their possession up to that date was merely the possession as that of co- sharers.
9. It was held to the following effect while dealing with Section 121 of the Punjab Land Revenue Act :

"The present, however, is not such a case. There were no doubt proceedings taken with a view to effect partition long before Kharif 1905, but those proceedings culminated and found their ultimate result and expression in the instrument of partition, and that instrument provided that the land should remain joint up to Kharif 1905, and become severally only in that harvest. From this it follows that even if the sharers took possession of the plots allotted to them before Kharif 1905, their possession up to that date was merely the possession of co-sharers in separate possession of portions of the joint estate."

10. Said view has held the field and applied by the Revenue Courts within the State of Punjab. It is so apparent from an order passed by the Financial Commissioner Punjab in Kartar Singh v. Kapur Singh, 1971 P.L.J. 677. The said view has also been taken by Himachal Pradesh High Court in a judgment reported as Shri Khem Dutt v. Palika and another, 1984 R.R.R. 535 : 1982 P.L.J. 391 although dealing with Sections 133 and 134 of the Himachal Pradesh Land Revenue Act which corresponds to the provisions of Section 121 of the Punjab Land Revenue Act. Still further in Lala Ram v. Financial Commissioner, Haryana, 1992(1) RRR 231 (P&H) : AIR 1992 Punjab and Haryana 62, it has been held that the execution of instrument of partition is only a stage towards the execution of order of partition and is not appealable. It is formal order which is necessary to be prepared to recognise the fact of partition. A party to partition proceedings cannot raise the objection in drawing the instrument of partition. If the memorandum of appeal is filed against the mode of partition it amounts to an automatic stay of proceedings pending disposal of appeal.
11. A perusal of Section 122 of the Act shows that the right to take possession arises only on the basis of instrument of partition. Thus the preparation of instrument of partition is not a mere formality but is a necessary document to make a partition legally effective. The date from which the partition is to take effect is required to be indicated in the instrument of partition and possession even if delivered to the parties before the partition is made effective will not extinguish the status as a co-sharer.
12. Thus, the plaintiff was a co-sharer on the date of decree passed by the trial Court and thus has a right to pre-empt the sale. Consequently, the judgment and decree passed by the first Appellate Court is set aside and that of the Trial Court is restored while allowing appeal of the plaintiff. The plaintiff is granted two months time to deposit the money in terms of the decree passed by the trial Court.

Appeal allowed.