IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 7TH DAY OF SEPTEMBER, 2015

PRESENT:

THE HON’BLE MR.JUSTICE N.KUMAR

AND

THE HON’BLE MR.JUSTICE G.NARENDAR

REGULAR FIRST APPEAL No.58/2014 BETWEEN 1. SMT.LOKAMANI

W/O LATE MAHADEVAPPA AGED ABOUT 44 YEARS

2. SRI M.MAHESHA

S/O LATE MAHADEVAPPA AGED ABOUT 26 YEARS

3. SRI M.GIRISHA

S/O LATE MAHADEVAPPA AGED ABOUT 23 YEARS

APPELLANTS NO.1 TO 3 ARE R/AT DANDIKERE VILLAGE, VARUNA HOBLI, MYSORE TALUK-570 010.

4. SMT.NAGARATHNA

D/O LATE MAHADEVAPPA W/O LOKESH S., AGED ABOUT 24 YEARS R/AT NO.5/105, HULLIKERE STREET

R

2

KOLLEGAL TOWN-571440 CHAMARAJANAGAR DISTRICT. …APPELLANTS

(BY SRI. N. NANJUNDASWAMY-ADV.)

AND: 1. SMT.MAHADEVAMMA

W/O MAHADEVAPPA AGED ABOUT 49 YEARS R/AT CHIKKAHALLI VILLAGE VARUNA HOBLI MYSORE TALUK-570 010.

2. SMT.PREMA

W/O DEVANNA AGED ABOUT 49 YEARS R/AT DANDIKERE VILLAGE VAJAMANGALA POST VARUNA HOBLI MYSORE TALUK-570 010.

3. SMT.RATHNAMMA

W/O MAHADEVASWAMY AGED ABOUT 44 YEARS R/AT KALMALLI VILLAGE NANJANAGUD TALUK-571301

4. SRI P.MAHADEVU

S/O LATE PAPANNA AGED ABOUT 54 YEARS R/AT BUGATHAGALLI VILLAGE VARUNA HOBLI MYSORE TALUK-570010.

5. SMT.MAHADEVAMMA

W/O MADAPPA, AGED ABOUT 44 YEARS

3

R/AT BUGATHAGALLI VILLAGE VARUNA HOBLI MYSORE TALUK-570010.

6. SRI KASHIYAPPA

S/O KASHIYAPPANA CHIKKANNA AGED ABOUT 54 YEARS R/AT BUGATHAGALLI VILLAGE VARUNA HOBLI MYSORE TALUK-570010.

7. SRI BERULAL PITHLIYA

S/O PARAS CHAND AGED ABOUT 45 YEARS R/AT NO.13/119, ASHOKA ROAD LASHKAR MOHALLA MYSORE-570001. …RESPONDENTS

(BY SRI.VINAY.N-ADV FOR SRI MANMOHAN P.N., ADV FOR

R1 TO R3; NOTICE TO R7 IS SERVED; NOTICE HELD SUFFICIENT TO R4 TO R6.)

* * * THIS RFA FILED UNDER SECTION 96 r/w ORDER 41

RULE 1 OF CPC., AGAINST THE JUDGEMENT AND

DECREE DATED 22.06.2013 PASSED IN O.S.No.33/2009

ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE,

MYSORE, DECREEING THE SUIT FILED FOR PARTITION

AND SEPARATE POSSESSION AND FOR DECLARATION.

THIS RFA IS COMING ON FOR HEARING ON I.A. THIS

DAY, N.KUMAR J., DELIVERED THE FOLLOWING:-

4

J U D G M E N T

This regular first appeal is filed by defendants 1 to 3,

challenging the Judgment and Decree passed by the trial

Court decreeing the suit of the plaintiffs for partition and

separate possession of their shares in the suit schedule

properties.

2. For the sake of convenience, the parties are

referred to as they are referred in the original suit.

3. Suit is in respect of four landed properties and one

house property, described in the schedule to the plaint as

item Nos.1, 2, 3, 4 and 5 respectively.

4. The case of the plaintiffs is that they and late

Mahadevappa, the husband of first defendant and father of

defendant Nos.2 to 4 are the children of one Sannamadaiah.

They along with defendants 1 to 4 constitute undivided

Hindu Joint Family owning ancestral agricultural lands and

house property at item Nos.1 to 5 of the suit schedule. The

5

katha of these properties was recorded in the name of their

brother Mahadevappa and he used to share the agricultural

yield from the said properties, during his lifetime with them.

After the demise of Mahadevappa, defendants 1 to 4 failed to

share the crops and refused to accede to their lawful demand

for share in the schedule properties. Further, defendants 1

to 4 trying to alienate the schedule properties as the land

prices escalated. On approaching the revenue authority,

they came to know that their brother Mahadevappa had sold

some extent of land in item No.3 of the suit schedule without

their consent and knowledge. As such, the said Sale Deeds

are illegal and not binding on their interest.

5. After service of summons, defendants 1 to 3 filed

written statement admitting their relationship with the

plaintiffs and that the katha of the schedule properties

stood in the name of Mahadevappa. However, it is their

specific defense that, Sannamadaiah and Mahadevappa did

not share cordial relation and therefore the joint family

properties were divided between them; and the terms of

6

partition was reduced into writing, in the form of

unregistered partition deed. The katha of the schedule

properties continued in Sannamadaiah’s name till his death

and afterwards, Mahadevappa got the khata of the properties

fallen to his share as per the unregistered Partition Deed of

the year 2000. Sy. No.26/2 and some other items of the suit

schedule, that had fallen to Sannamadaiah’s share, was sold

in favour of defendants 5 to 7 during his lifetime. The

plaintiffs, therefore, are not entitled for any share therein.

The suit schedule properties are the properties fallen to the

share of Mahadevappa. After the death of Mahadevappa on

07.11.2005, defendants 1 to 4 being his legal representatives

got the katha of the schedule properties mutated in their

joint names. The suit is not maintainable for non-inclusion

of all the joint family properties.

6. Defendants 4 to 7 have remained exparte.

7. The trial Court on the basis of aforesaid pleadings,

framed the following issues:

7

1) Whether the plaintiffs prove that the suit

schedule properties are their joint family

properties?

2) Whether the defendants 1 to 3 prove that

the joint family properties were divided

between Sannamadaiah and his son

Mahadevappa under registered partition

deed and Sannamadaiah sold his share

in favour of defendants 5 to 7?

3) Whether the defendants 1 to 3 prove that

this is a suit for partial partition and

therefore not maintainable?

4) Whether the plaintiffs are entitled for the

relief sought?

5) What Order or Decree?

8. The plaintiffs in order to substantiate their claim,

examined plaintiffs 1 and 3 as PWs 1 and 2 respectively and

got marked Exs..P1 to 12. P.W.1’s evidence was discarded

as she did not offer herself for cross-examination. However,

defendants neither cross-examined PW2 nor entered the

8

witness box to adduce oral or documentary evidence in

support of their defense.

9. The trial Court on appreciation of the evidence on

record held that the plaintiffs have proved that the suit

schedule properties are joint family properties; the suit is

maintainable and that it is not a suit for partial partition as

contended by the defendants; the plaintiffs and

Mahadevappa being Class-I heirs of deceased Sannamadiah,

are entitled to equal share in the suit properties as per

Section 8 of the Hindu Succession Act, 1956. Observing so,

the trial Court decreed the suit and granted 3/4th share in

the suit properties to the plaintiffs. Aggrieved by the said

Judgment and Decree, defendants 1 to 3 have preferred this

appeal.

10. Learned counsel for the defendants/appellants

assailing the impugned Judgment and Decree, argued that

the trial Court passed the decree in favour of the plaintiffs

relying on Section 6 of the Hindu Succession (Amendment)

9

Act, 2005. The said provision is now repealed by the

Repealing and Amending Act, 2015 (Act No.17/2015).

Therefore, the status of co-parcener conferred on the

daughter of a coparcener under the amended Act is no more

available to the plaintiffs. The family properties were all

partitioned under an unregistered partition deed in the year

2000, there was no joint family in existence as on the date of

amendment to Section 6 of Hindu Succession Act. Similarly,

there was no co-parcenary property, or joint family property

in existence as on that date. Therefore, the plaintiffs are not

entitled to any share in the plaint schedule properties. It

was argued with regard to item No.3 that, since

Mahadevappa had executed sale Deeds in favour of

defendants 5 to 7, vide Exs.P1 to 3, the plaintiffs are not

entitled to any share in the said properties and the said

aspect has been completely missed by the trial Court.

Further, Sannamadiah during his life-time had purchased a

site in favour of 3rd plaintiff and gave cash, gold and silver

jewellery to plaintiffs 1 and 2 and therefore, the plaintiffs

10

are not entitled to any share in the plaint schedule

properties. Lastly it was urged that the defendants could not

attend the case or contest it, as the grand daughter of the 1st

defendant and daughter of the 4th defendant was suffering

from blood cancer.

11. Per contra, learned counsel for the

plaintiffs/respondents addressed arguments supporting the

impugned Judgment and Decree.

12. In the light of the points urged during arguments,

following points arise for our consideration in this appeal:

1) Whether the Repealing and Amending

Act, 2015 (Act No.17/2015), which

repealed the Hindu Succession

(Amendment) Act, 2005 to the whole

extent, has the effect of repealing

amended Section 6 and restoring the old

Section 6 of the Hindu Succession Act,

and thereby take away the status of co-

parcener conferred on the daughters

11

giving them equal right with the sons in

the co-parcenary property?

2) Whether the plaintiffs right to a share in

the schedule properties is defeated by

the alleged partition under an

unregistered Partition Deed of the year

2000?

3) Whether the plaintiffs are entitled to a

share in the properties covered under

Exs.P1 to P4, forming portion of item No.3

of suit schedule?

4) Whether the plaintiffs’ right to share in

the schedule properties is taken away by

alleged purchase of site by

Sannamadaiah in favour of 3rd plaintiff

and gifting of gold, cash and silver

jewellery to plaintiffs 1 and 2?

POINT No. 1:

13. By Act No. 30/1956, the Hindu Succession Act,

1956 was enacted by the Parliament to amend and codify the

12

law relating to intestate succession among Hindus. The said

enactment came into force on 17.6.1956.

14. Section 6 of the Act dealing with devolution of

interest in co-parcenary property, before the amendment,

read as under :

“Section 6. Devolution of interest in co-

parcenary property.-

When a male Hindu dies after the commencement

of this Act, having at the time of his death an

interest in a Mitakshara coparcenary property, his

interest in the property shall devolve by

survivorship upon the surviving members of the

coparcenary and not in accordance with this Act:

PROVIDED that, if the deceased had left him

surviving a female relative specified in class I of

the Schedule or a male relative specified in that

class who claims through such female relative,

the interest of the deceased in the Mitakshara

coparcenary property shall devolve by

testamentary or intestate succession, as the case

may be, under this Act and not by survivorship.

13

Explanation I: For the purposes of this section, 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.

Explanation 2: Nothing contained in the proviso

to this section shall be construed as enabling a

person who has separated himself from the

coparcenary before the death of the deceased or

any of his heirs to claim on intestacy a share in

the interest referred to therein.”

15. The aforesaid provision made it clear that, the

concept of Mitakshara co-parcenary and devolution of

property by survivorship upon the members of the co-

parcenary was retained. Thus, the retention of Mistakshara

co-parcenary property without including the females meant

that the females could not inherit ancestral property as their

male counterparts did. The law by excluding the daughter

from participating in the co-parcenary ownership not only

contributed to discrimination on the ground of gender but

14

also led to oppression and negation of her fundamental right

to equality guaranteed by the Constitution.

16. Having regard to the need to render social justice

to women, the States of Andhra Pradesh, Tamil Nadu,

Karnataka and Maharashtra made necessary changes in the

law giving equal right to daughters in Hindu Mitakshara

coparcenary property: In Kerala, the Legislature enacted the

Kerala Joint Hindu Family System (Abolition) Act, 1975.

17. Thereafter, the Parliament proposed to remove the

discrimination as contained in Section 6 of the Hindu

Succession Act, 1956 by giving equal rights to daughters of a

coparcener in the Hindu Mitakshara co-parcenary property,

by enacting the Hindu Succession (Amendment) Act, 2005.

18. Section 6 under the Hindu Succession

(Amendment) Act, 2005 reads as under :

“3. For Section 6 of the principal Act,

the following section shall be substituted,

namely -

15

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,

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

sub-section 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.

16

(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, 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

17

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 a

predeceased 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 sub-

section, 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.

(4) After the commencement of the

Hindu Succession (Amendment) Act, 2005, no

court shall recognise any right to proceed

against a son, grandson or great-grandson for

the recovery of any debt due from his father,

grandfather or great-grandfather solely on the

18

ground of the pious obligation under the Hindu

law, of such son, grandson or great-grandson to

discharge any such debt;

Provided that in the case of any debt

contracted before the commencement of the

Hindu Succession (Amendment) Act, 2005

nothing contained in this sub-section shall

affect.-

(a) the right of any creditor to proceed

against the son, grandson or great-

grandson, as the case may be; or

(b) any alienation made in respect of or

in satisfaction of, any such debt,

and any such right or alienation

shall be enforceable under the rule

or pious obligation in the same

manner and to the same extent as it

would have been enforceable as if

the Hindu Succession (Amendment)

Act, 2005 had not been enacted.

Explanation.- For the purposes of clause

(a), the expression “son”, “grandson” or

“great-grandson” shall be deemed to refer

to the son, grandson or great-grandson, as

the case may be, who was born or

19

adopted prior to the commencement of the

Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section

shall apply to a partition, which has been

effected before the 20th day of December, 2004.

Explanation.- For the purposes of this

Section “partition” means any partition made by

execution of a deed of partition duly registered

under the Registration Act 1908 (16 of 1908) or

partition effected by a decree of a court.”

19. It is clear from these wordings that Section 6 of

the Hindu Succession Act, 1956 was substituted by Section

6 of the Hindu Succession (Amendment) Act, 2005. The

effect of substitution of a provision by way of an amendment

is that, the amended provision is written in the place of

earlier provision with pen and ink and automatically the old

Section is wiped out. So, there is no need to refer to the

amending Act at all. The amendment should be considered

as if embodied in the whole statute of which it has become a

part. The statute in its old form is superseded by the statute

20

in the amended form. The amending Section of the statute

takes the place of the original section, for all intent and

purpose as if the amendment had always been there. Though

the Amended Act came into force on 9.9.2005, Section 6 as

amended is deemed to have been there in the statute book

since 17.6.1956 when the Hindu Succession Act came into

force.

20. The Constitution Bench of the Apex Court in the

case of SHAMRAO V. PARULEKAR & OTHERS Vs.

DISTRICT MAGISTRATE THANA, BOMBAY AND OTHERS,

reported in AIR 1952 SC 324, dealing with the scope of the

substitution of a provision by way of amendment, has held

as under:

“The construction of an Act which has been

amended is now governed by technical rules and

we must first be clear regarding the proper

canons of construction. The rule is that when a

subsequent Act amends an earlier one in such a

way as to incorporate itself, or a part of itself,

into the earlier, then the earlier Act, must

21

thereafter be read and construed (except where

that would lead to a repugnancy, in consistency

or absurdity) as if the altered words had been

written into the earlier Act with pen and ink and

the old words scored out so that thereafter these

is no need to refer to the amending Act at all.

This is the rule in England. It is the law in

America. It is the law which the Privy Council

applied to India.”

21. In the case of SHA CHUNNILAL SOHANRAJ – VS-

T.GURUSHANTAPPA, 1972(1) Mys. L. J 327, a Division

Bench of this Court held as under:

“An amending act is not regarded as an

independent statute. The statute in its old form

is superseded by the statute in its amended

form, the amended section of the statute taking

the place of the original section, for all intents

and purposes as if the amendment had always

been there. The amendment should be

considered as if embodied in the whole statute of

which it has become a part. Unless a contrary

intent is clearly indicated, the amended statute

is regarded as if the original statute had been

22

repealed and the whole statute re-enacted with

the amendment”.

Therefore, by such amendment, the amending Act has

become a part of the original Act. By virtue of the

amendment by way of substitution, the said provisions are

given retrospective effect. On the basis of the said

amendment, the daughters who were denied right in the co-

parcenary property earlier have initiated proceedings in the

Court. The pending proceedings are also to be decided in the

light of the amended provision.

22. Section 23 of the Principal Act provided for rights

of female heir to seek partition in respect of a dwelling house

wholly occupied by a joint family only when the male heirs

choose to divide their respective shares therein. To remove

the said disability, Section 23 was omitted by the Hindu

Succession (Amendment) Act, 2005. Similarly, Section 24 of

the Principal Act which disentitled female Hindu to succeed

to the property of male Hindu if she has re-remarried on the

day the succession opened, was also omitted by the Hindu

23

Succession (Amendment) Act, 2005. Under Section 30, the

word ‘disposed of by him’ was substituted by the words

“disposed of by him or by her” since the right was conferred

on a daughter in the co-parcenery property.

23. By amendment to Hindu Succession Act in the

above terms, the Parliament has removed the inequality

between a son and a daughter, a discrimination on the

ground of gender, nearly 50 years after the Constitution

came into force. Thus, the fundamental right of equality

guaranteed by the Constitution is restored and a historical

wrong has been rectified.

24. Nearly, 10 years after coming into force of Hindu

Succession (Amendment) Act, 2005 the Parliament enacted

The Repealing and Amending Act, 2015 (Act No.17/2015) on

13.5.2015, to repeal certain enactments and to amend

certain other enactments. Section 2 of the Act No.17/2015

specifies the Acts which are repealed and the extent of repeal

in the First Schedule; at Sl.No.39 thereof is the Hindu

24

Succession (Amendment) Act, 2005 showing that the whole

of the Amendment Act is repealed.

25. The argument of the counsel for the appellants is

that, the Act No.17/2015 has repealed the whole of the

Hindu Succession (Amendment) Act, 2005 and it has the

effect of repealing amended Section 6 and reviving Section

6 of the Principal Act. Thus the status of a co-parcener

conferred on the daughter of a coparcener who is governed

by the Mitakshara law is taken away and she ceases to be

co-parcener. As such a daughter is not entitled to equal

share in the co-parcenary property along with a son who is a

co-parcener.

26. In order to appreciate and understand the effect of

repealing and amending Act, it is necessary to consider

Section 6A of the General Clauses Act, 1897 and Section 4 of

the Repealing and Amending Act, 2015. The said provisions

are extracted here below for convenience sake.

25

Section 6A of the General Clauses Act:

“6-A. Repeal of Act making textual

amendment in Act or Regulation. - Where any

Central Act or Regulation made after the

commencement of this Act repeals any enactment

by which the text of any Central Act or Regulation

was amended by the express omission, insertion

or substitution of any matter, then, unless a

different intention appears, the repeal shall not

affect the continuance of any such amendment

made by the enactment so repealed and in

operation at the time of such repeal”.

Section 4 of the Repealing and Amending Act, 2015

(Act No. 17/2015):

“The repeal by this Act of any enactment

shall not affect any Act in which such

enactment has been applied, incorporated or

referred to;

and this Act shall not affect the validity,

invalidity, effect or consequences of anything

already done or suffered, or any right, title,

obligation or liability already acquired,

accrued or incurred, or any remedy or

26

proceeding in respect thereof, or any release or

discharge of or from any debt, penalty,

obligation, liability, claim or demand, or any

indemnity already granted, or the proof of any

past act or thing;

nor shall this Act affect any principle or

rule of law, or established jurisdiction, form or

course of pleading, practice or procedure, or

existing usage, custom, privilege, restriction,

exemption, office or appointment,

nothwithstanding that the same respectively

may have been in any manner affirmed,

recognized or derived by, in or from any

enactment hereby repealed;

nor shall the repeal by this Act of any

enactment provide or restore any jurisdiction,

office, custom, liability, right, title privilege,

restriction, exemption, usage, practice,

procedure or other matter or thing not now

existing or in force.”

A plain reading of Section 6A of the General Clauses Act

makes it clear that unless a different intention appears, the

repeal shall not affect the continuance of any such

27

amendment made by the enactment so repealed and in

operation at the time of such repeal.

27. The Repealing and Amending Act, 2015 does not

disclose any intention on the part of the Parliament to take

away the status of a co-parcener conferred on a daughter

giving equal rights with the son in the co-parcenary property.

Similarly, no such intention can be gathered with regard to

restoration of Section 23 and 24 of the Principal Act which

were repealed by the Hindu Succession (Amendment) Act,

2005. On the contrary, by virtue of the Repealing and

Amending Act, 2015, the amendments made to Hindu

Succession Act in the year 2005, became part of the Act and

the same is given retrospective effect from the day the

Principal Act came into force in the year 1956, as if the said

amended provision was in operation at that time.

28. The main object of a Repealing and Amending Act

is only to strike out the unnecessary Acts and excise dead

matter from the statute book in order to lighten the burden

28

of ever increasing spate of legislation and to remove

confusion from the public mind. In other words, the

Repealing and Amending Act is enacted not to bring in any

change in law, but to remove enactments which have become

unnecessary. Thus, the Repealing and Amending Act, 2015

only expurgates the Hindu Succession (Amendment) Act,

2005 (Act No.39/2005) along with similar Acts, which had

served the purpose.

29. The repeal of an amending Act, therefore, has no

repercussion on the parent Act which together with the

amendments remains unaffected. The general object of a

repealing and amending Act is stated in Halsbury's Laws of

England, 2nd Edition, Vol. 31, at p.563, thus:

“A statute Law Revision Act does not alter the

law, but simply strikes out certain enactments

which have become unnecessary. It invariably

contains elaborate provisos.”

30. In KHUDA BUX V. MANAGER, CALEDONIAN

PRESS, A.I.R. 1954 CAL. 484 CHAKRAVARTTI, C.J.,

29

neatly brings out the purpose and scope of such Acts. The

learned Chief Justice says at p.486 as under : -

Such Acts have no Legislative effect, but are

designed for editorial revision, being intended

only to excise dead matter from the statute book

and to reduce its volume. Mostly, they expurgate

amending Acts, because having imparted the

amendments to the main Acts, those Acts have

served their purpose and have no further reason

for their existence. At times, inconsistencies are

also removed by repealing and amending Acts.

The only object of such Acts, which in England

are called Statute Law Revision Acts, is

legislative spring-cleaning and they are not

intended to make any change in the law. Even so,

they are guarded by saving clauses drawn with

elaborate care,. . .”.

31. This view has been affirmed by the Supreme Court

in the case of JETHANAND BETAB vs THE STATE OF

DELHI [AIR 1960 SC 89].

30

32. The Repealing and Amending Act, 2015 which

repeals the Hindu Succession Act (Amendment) Act, 2005 in

whole, therefore, does not wipe out the amendment to

Section 6 from the Hindu Succession Act. The existence of

the Hindu Succession (Amendment) Act, 2005 since became

superfluous and did not serve any purpose and might lead

to confusion, the Parliament in its wisdom thought of

repealing the said Amendment Act. It is only a case of

legislative spring-cleaning, and not intended to make any

change in law.

33. The amended Section 6 has already been

substituted in the Hindu Succession Act, 1956 as if it was in

the enactment from its inception. When the amending

provision takes the place of the earlier provision, the object

of the Amendment Act is fulfilled and thereafter the

Amendment Act serves no purpose. Therefore, such an

Amendment Act requires to be repealed and that is what has

been precisely done by Act No.17/2015. Accordingly, Point

No.1 is answered in the negative.

31

POINT No.2:

34. It is undisputed that the plaint schedule

properties were ancestral properties of the parties and stood

in the name of plaintiffs’ father Sannamadaiah. By Act No.39

of 2005, Section 6 of the Hindu Succession Act, 1956 came

to be amended, conferring on the daughters of a coparcener

the status of co-parcener giving equal right in the

coparcenary property along with the son.

35. Explanation to sub-Section (5) of Section 6 of the

Hindu Succession Act, 1956 categorically declares that

nothing contained in Section 6 applies to a partition, which

has been effected before 20th day of December 2004. In

other words, if a partition had taken place in the family

before 20th December 2004, by virtue of the amendment, a

daughter cannot claim share in the co-parcenary property.

36. Explanation to sub-Section (5) explains the

meaning of partition for the purpose of Section 6 as below:

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“Explanation: For the purposes of

Section 6, “partition” means any partition

made by execution of a deed of partition duly

registered under the Registration Act, 1908 or

partition effected by a decree of a Court.”

Thus oral partition, palu-patti, unregistered Partition Deed

are excluded from the purview of the word “partition” used in

Section 6. It is only the partition effected by way of a

registered Deed prior to 20th December 2004, which debars a

daughter from staking an equal share with a son in a co-

parcenary property.

37. In the case on hand, admittedly there is no

registered Partition Deed between Sannamadaiah and

Mahadevappa, evidencing the alleged partition that took

place in the year 2000. Even if there was a partition, oral or

by an unregistered Partition Deed of the year 2000 as

contended by the defendants, it cannot be treated as

partition for the purpose of Section 6 and the rights of the

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daughters to claim an equal share as coparceners along with

Sannamadaih’s son Mahadevappa remains unaffected.

38. We do not find any substance in the argument of

the appellants that there was a partition in the year 2000

and in the said partition, the schedule properties had fallen

to the share of Mahadevappa. The trial Court is fully justified

in rejecting the contention of the defendants and holding

that the plaintiffs are entitled to equal share with the son of

Sannamadaiah in the schedule properties, which are

admittedly co-parcenary properties. Therefore, point No.2 is

answered in the negative.

POINT NO.3:

39. The proviso to sub-Section (1) of Section 6 of the

Hindu Succession Act after conferring the status of a co-

parcener on a daughter, categorically provides that nothing

contained in sub-Section (1) shall affect or invalidate any

disposition or alienation including any partition or

34

testamentary disposition of property which had taken place

before the 20th Day of December, 2004.

40. The plaintiffs themselves have produced Exs.P1 to

3, certified copies of the Sale Deeds dated 8.2.2002 executed

in favour of defendants 5 to 7 in respect of a portion of item

No.3 of the plaint schedule. However, Ex.P4, the certified

copy of the sale deed dated 25.2.2009 came into existence

subsequent to 20th December 2004, as such the said sale is

not saved by proviso to sub-section (1) of Section 6 of the

Hindu Succession Act. Therefore, the Court below has rightly

ignored the said sale deed and granted a share to the

plaintiffs in respect of the property covered under Ex.P4.

41. By virtue of Exs.P1 to P3 which are registered

documents, the properties sold thereunder had gone out of

the joint family as on the day Section 6 was substituted.

Therefore, the plaintiffs who acquired right to claim a share

with their brother Mahadevappa as coparceners because of

35

amended Section 6, are not entitled to any share or interest

in the said property.

42. Unfortunately, the trial Court without properly

appreciating this legal position, proceeded on the

assumption that the defendants 4 to 7 have not contested

the matter; the said sale was not for legal necessity and

benefit of estate and therefore contended that the plaintiffs

have a right in the said properties. In view of Section 6

proviso sub-Section (1), the question of legal necessity and

benefit of estate should not have gone into by the trial Court.

This is not a case where an alienation is challenged on those

grounds and therefore, the Judgment and Decree of the trial

Court to this extent requires to be set aside. Therefore, point

No.3 is answered partly in the affirmative holding that the

plaintiffs are entitled to a share only in the property sold

under Ex.P4 and not the one sold under Exs.P1 to P3.

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POINT No.4:

43. Learned counsel for the appellants argued that

Sannamadaiah purchased a site in the name of the third

plaintiff and gave gold and silver jewellery as well as cash to

the first and second plaintiffs and therefore plaintiffs cannot

claim any share in the suit properties. Admittedly, the

defendants have not stepped into the witness-box to

substantiate their contention, nor is there any plea in the

written statement to that effect. Even assuming that

Sannamadaiah had purchased a site in the name of third

plaintiff and given jewellary and cash to other plaintiffs, the

same cannot take away their legal right as daughters to

claim a share in the co-parcenary properties by virtue of

Section 6 read with Section 8 of Hindu Succession Act.

Point No.4 is therefore answered in the negative.

44. In the result, we pass the following : -

O R D E R

(a) The appeal is partly allowed.

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(b) The Judgment and Decree of the trial Court is

hereby confirmed in all respects except the properties

sold under Exs.P1 to P3, which forms part of item No.3

of the plaint schedule; the plaintiffs are not entitled for

any share in the properties sold under Exs.P1 to P3.

(c) No costs.

Sd/-

JUDGE

Sd/- JUDGE

SS-CT Ksm*/ckl