hindu succession act judgment

8/12/2019 Hindu succession act judgment

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IN THE HIGH COURT OF KARNATAKA ATBANGALORE

DATED THIS THE 16TH

DAY OF APRIL 2013

BEFORE:

THE HONBLE MR.JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL NO.534 OF 2003

CONNECTED WITH

REGULAR FIRST APPEAL No. 394 of 2003

REGULAR FIRST APPEAL No..669 of 2003

IN R.F.A.No.534 of 2003

BETWEEN:

1. Sri. Swamy,

Son of Late Chandregowda,

Major,

2. Smt. Puttamma,

Wife of Late Chandregowda,

Major,

Both are residents of

Palahalli Village,

Belagola Hobli,

Srirangapatna Taluk,

Mandya District. APPELLANTS

(By Shri. K.V. Narasimhan, Advocate )


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AND:

1. Smt. Thimmamma,Wife of Late Thimmegowda,

Major,

Resident of Palahalli Village,

Belagola Hobli,

Srirangapatna Taluk.

2. Smt. Parvathamma,

Wife of Naganna,

since dead by her

legal representatives are

a) Naganna,

Son of T. Mariyappa,

Aged about 57 years,

b) P.N. Yoganarasimha,

son of Sri. Naganna,


c) Sri. P.N. Yadhukumar,

Son of Sri. Naganna,


d) Smt. N. Jayalakshmi,

wife of Kempegowda,

aged about 31 years,

resident of No. 1963,

4th

Cross, K-Block,

Kuvempunagar,Mysore 23.

e) Smt. N. Vijayalakshmi,

Daughter of Sri. Naganna,


f) Smt. N. Ambika,

daughter of Sri. Naganna,


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respondent Nos. 2(a) to (c)

and (e) and (f) are

Residents of Palahalli Village,

Belgola Hobli,


Mandya District.

[cause title amended

as per the order dated 9.9.2009]

3. Sri. L. Prakasha,

Sonof P.N. Lakshmayya,

Major,


Belagola Hobli,


4. Sri. Shivanna,

Son of P.N. Lakshmayya,Major,


Belagola Hobli,


5. Sri. P.G. Somashekara,

Son of Gundappa,

Major,


Belagola Hobli,Srirangapatna Taluk.

6. Sri. Ningegowda,

Son of Devegowd,

Major,


Belagola Hobli,



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7. Sri. P.M.S. Gowda,

Son of Palahalli Marigowda,Major,

Drill Teacher,

Vahini High School,

Palahalli Village,

Belagola Hobli,

Srirangapatna Taluk. RESPONDENTS

(By Shri. T.N. Raghupathy, Advocate for Respondent Nos. 2

(a, c to f)

Shri. G.S. Bhat, Advocate for Caveator/Respondent No.1Respondent Nos. 3 to 7 and Respondent No.2(b) are served and

unrepresented)

*****

This Regular First Appeal is filed under section 96 of

Code of Civil Procedure, 1908, with a prayer to against the

judgment and decree dated 2.12.2002 passed in

O.S.No.73/1989 on the file of the Principal Civil Judge (Sr.Dn.)

and Judicial Magistrate First Class, Srirangapatna, decreeing

the suit for partition and separate possession.

IN R.F.A.No.394 of 2003

BETWEEN:

1. Smt. Parvathamma,


Wife of Sri. Naganna,

Since deceased by herLegal representatives are

a) Naganna,

Son of T. Mariyappa,


b) P.N. Yoganarasimha,

son of Sri. Naganna,


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c) P.N. Yadhukumar,Son of Sri. Naganna,


d) N. Jayalakshmi,

wife of Kempegowda,


resident of No. 1963,

4th

Cross, K-Block,

Kuvempunagar,

Mysore 23.

e) N. Vijayalakshmi,

Daughter of Naganna,


f) N. Ambika,

daughter of Naganna,


Appeallant Nos. 1(a) to (c)

and (e) and (f) are

Residents of Palahalli Village,

Belgola Hobli,


Mandya District.

[cause title amended

as per the order dated 16.02.2004] APPELLANTS

(By Shri. T.N. Raghupathy, Advocate)

AND:

1. Smt. Thimmamma,

Major,

Wife of Sri.Thimme Gowda,

Residing at Palahalli,


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Belagola Hobli,


Mysore District.

2. Sri. Swamy,

Major,


3. Smt. Puttamma,

Major,


4. Sri. L. Prakasha,Major,

Son of Sri. Lakshmayya,

5. Sri. Shivanna,

Major,

Son of Sri. Gundappa,

6. Sri. P.G. Somasekhara,

Major,Son of Sri. Gundappa,

7. Sri. Ninge Gowda,

Major,

Son of Sri. Deve Gowda,

8. Sri. P.M.S. Gowda,

Major,

Sonof Sri. Mavi Gowda,

Respondent Nos. 2 to 8 are

Residing at Palahalli,

Belagola Hobli,


Mysore District. RESPONDENTS

(By Shri. G.S. Bhat, Advocate for M/s. G.S. Bhat and

Associates for Respondent No.1


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Shri. K.V. Narasimhan, Advocate for Respondent No.2

Respondent Nos. 3 , 4, 6 to 8 are served

Notice to respondent No.5 is dispensed with)

This Regular First Appeal is filed under section 96 of

Code of Civil Procedure, 1908, with a prayer to against the

judgment and decree dated 2.12.2002 passed in

O.S.No.73/1989 on the file of the Civil Judge (Sr.Dn.) and

Judicial Magistrate First Class, Srirangapatna, decreeing the

suit for partition and separate possession.

IN R.F.A.No.669 of 2003

BETWEEN:

L. Prakasha,

Son of P.N. Lakshmayya,


Belagola Hobli,

Srirangapatna Taluk. APPELLANT

(Shri. L. Prakasha, party-in-person)

AND:

1. Thimmamma,

Wife of Late Thimme Gowda,



Belagola Hobli,


2. Swamy, Minor,

Son of Late Chandre Gowda,

By guardian natural mother

Respondent No.3 Puttamma.

3. Puttamma,

Wife of Late Chandre Gowda,



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4. Parvathamma,

Wife of Naganna,

5. Shivanna,

Son of P.N. Lakshmayya,

6. P.G. Somashekara,

Son of Gundappa,

7. Ningegowda,

Son of Devegowda,

Respondent nos. 3 to 7 are

Major,


Belagola Hobli,


8. P.M.S. Gowda,

Son of Palahalli Marigowda,Aged about 30 years,

Drill Teacher,

Vahini High School,

Palahalli, Belagola Hobli,

Srirangapatna Taluk. RESPONDENTS

(By Shri. G.S. Bhat, Advocate for M/s. G.S.Bhat and

Associates, for Caveator/Respondent NO.1

Shri. K.V. Narasimhan, Advocate for Respondent No.2

Respondent Nos. 3, 5, 6 are servedRespondent no.4 abated)

*****

This Regular First Appeal is filed under section 96 read

with Order XLI Rule 1 of Civil Procedure, 1908, with a prayer

to against the judgment and decree dated 2.12.2002 passed in

O.S.No.73/1989 on the file of the Civil Judge (Sr.Dn.) and


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Judicial Magistrate First Class, Srirangapatna, decreeing the

suit for partition and separate possession.

These Regular First Appeals, having been heard and

reserved on 18.03.2013 and coming on for Pronouncement of

Orders this day, the Court delivered the following:-

JUDGMENT

These appeals are heard and disposed of by this common

judgment, as all the appeals arise out of the same judgment.

2. The parties are referred to by their rank before the trial

court for the sake of convenience.

3. The first respondent in the appeal in RFA 534/2003

was the plaintiff before the trial court. The suit was one for

partition and separate possession of the one-third share claimed

by the plaintiff , in the suit schedule properties. The trial court

decreed the suit and has granted a two-sixth share the

defendants have filed the above appeals.


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The following is the genealogical tree of the family :-

Golangana Dasappa

Huchegowda

Shivamma Puttaboramma

(1

st

wife of Huchegowda) (2

nd

wife of Huchegowda)

Thimamma Chandregowda Parvathi

(Plaintiff) (Def.No.3)

Puttamma W/o Chandregowda

(Defendant No.2)

Swamy (Defendant No.1)

4. The appeal in RFA 534/2003 is filed by the defendant

nos.1 and 2. Defendant no.1, Swamy, is the grandson of

Hutchegowda and the son of Chandre gowda. Defendant no. 2,

Puttamma, is the widow of Chandre gowda.

5. The appeal in RFA 394/2003 is filed by defendant no.

3, Parvathamma, the daughter of late Huchegowda.


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6. The appeal in RFA 669/2003 is filed by defendant no.

4, L. Prakash, who is the purchaser of land bearing Survey no.

447/2 , measuring 61 acres, one of the items of the suit schedule

properties.

The case of the plaintiff was that, Golangana Dasappa

had a son, Hutchegowda, who had two wives, namely,

Shivamma and Puttaboramma. The plaintiff, Thimmamma,

was the only daughter of Shivamma. Puttaboramma, the

second wife of Hutchegowda had two children, Chandregowda

& Parvathamma. Defendants 1 and 2, Swamy and Puttamma

are the son and widow, respectively, of deceased

Chandregowda, who had pre-deceased his father,

Hutchegowda. Parvathamma is defendant no. 3. The plaintiff

claimed that all the suit properties are the ancestral properties of

Hutchegowda. After his death, the plaintiff claimed that she

was entitled to one-third share in the suit properties. It was

contended that the third defendant had sold some of the

properties without the consent of the plaintiff or the other

members of the family.


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The first defendant admitted the relationship of the

parties and supported the case of the plaintiff. It was also

contended by the said defendant that apart from the suit

schedule properties, deceased Hutchegowda had held one more

item of land measuring 6 acres and sought that the same be

directed to be included in the suit schedule. It was however,

denied that the plaintiff was in enjoyment of the suit properties,

jointly, with the first defendant. It was claimed that while

Hutchegowda had a half share in the suit properties,

Chandregowda was entitled to the remaining extent. After the

death of Hutchegowda, the plaintiff- Thimmamma, defendants

1, 2 and 3 were entitled to an equal share in respect of the

properties fallen to the share of Hutchegowda. On that basis

the first defendant claimed partition and separate possession of

his two-third share in the suit properties. As also the item of

land not included in the plaint.

Defendant no. 2 contended that she had filed a suit in OS

No.44/1988, for partition and separate possession of a three-

fourth share in the ancestral properties, as the next friend of her

son, the first defendant. This was warranted as the third


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defendant was laying claim to the entire suit properties on the

basis of a will said to have been executed by Huchegowda, in

favour of defendant no.3, dated 22-12-1986, bequeathing all

the properties to her. That suit had however, ended in a

compromise, with the third defendant giving up her claim under

the will. But, it is contended that, the third defendant had even

then managed to wrangle a major share of the suit properties in

terms of the said compromise. It is asserted that this was

possible as the third defendant carried much influence with

Hutchegowda during his life time and after his death, her

husband exerted authority over the family and appropriated the

income from the properties and alienated several properties,

even though there was no legal necessity for such alienation. It

was hence contended that any such alienations did not bind the

other sharers.

The third defendant contended that the plaintiff was

married to one Thimmegowda and that she was married to one

Naganna. They lived in the same village, but separately and did

not constitute a joint family. It was denied that the properties

were ancestral properties of Hutchegowda. It was also asserted


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that the sale of several items of land in favour of defendants 4

to 7 were made during the life time of Hutchegowda , and could

not be questioned as being illegal. This was to the knowledge

of the plaintiff. As Hutchegowda had the power of alienation,

there was no illegal transaction. It was pointed out that

Hutchegowda was the only son to his father and was the sole

surviving co-parcener and the properties in his hands could be

construed as his separate properties and hence he could dispose

of the same by will or otherwise. It was claimed that under his

last will and testament, Hutchegowda had recorded that the

third defendant on the one hand, and the first and second

defendant on the other, were living separately, in the same

village. Hence there was no joint family status existing

between the parties.

The fourth defendant contended that he had purchased

one of the items of the suit property on 20-2-1988, from one

John, whose vendor had been in possession before the

transaction. It is asserted that the plaintiff had not objected to

the transaction in his favour at the relevant point of time.


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The fifth and eighth defendant who are also said to be

purchasers of items of the suit properties, prior to the suit, have

taken similar contentions as the fourth defendant.

7. The court below had framed the following issues on

the basis of the above pleadings:-

1. Whether the plaintiff proves that the suit

properties are the ancestral joint family

properties of herself and D1 to 3?

2. Whether the defendant No.3 proves that

her father Hutchegowda had made

disposition of properties through a willdated 22.12.1986, as they were himself

acquired properties?

3. Whether the defendant No.3 proves that

sales made by her cannot be questioned by

plaintiff for the reasons stated in para-10 of

her written statement?

4. Whether the suit is bad for mis-joinder

of parties?


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5. Whether the suit is bad for non-joinder

of necessary parties and properties?

6. Whether the plaintiff is entitled to relief

of partition and separate possession of

1/3rd

share in the suit properties?

7. Whether the 1stdefendant is entitled to

partition and separate possession of 2/3rd

share in suit properties?

8. Whether the plaintiff is entitled to

mesne profits?

9. To what reliefs parties are entitled?

ADDITIONAL ISSUES

1. Whether the 3rd

defendant proves

that the sale to defendants 4 to 7 are not by

defendant Nos. 1 to 3, but deceased

Hutchegowda during his life time for his

necessity and he had absolute power to effect

the sales as averred in the amended written

statement?


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permitted to amend their pleadings and the above issues were

framed.

The court below has held Issues nos.1 to 5, 8 and

additional issue no. 1 in the negative and issue no. 6 and 7 and

additional issue nos. 2 and 3 in the affirmative. It is this which

is under challenge in these appeals.

8. The learned counsel for the appellants, Shri

K.V.Narasimhan contends as follows:-

That Chandregowda died in the year 1975. He

predeceased his father Hutchegowda, who died on 7.2.1987.

The court below has erroneously concluded that Hutchegowda

was the sole surviving co-parcener seeming to apply the rule of

inheritance in terms of Section 8 of the Hindu Succession Act,

1956 (Hereinafter referred to as the 1956 Act, for brevity)

and has pronounced that the plaintiff - defendants 1, 2 and 3

were the heirs of Hutchegowda and has allotted them shares

accordingly. However, it was overlooked that Chandregowda

died in the year 1975, leaving behind him Swamy, his son, the

first defendant. Therefore, by the deeming fiction of notional


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partition, the half share of Chandregowda in the suit properties

would devolve upon Swamy, his son and Puttamma, his

widow, respectively, and Hutchegowda would retain the other

half. On the death of Hutchegowda, the half share belonging to

Hutchegowda by notional partition, would have to be divided

into three equal shares, to be distributed between the plaintiff,

defendants 1 and 2 and defendant 3, respectively. The fallacy

committed by the court below in overlooking this obvious

circumstance, has resulted in a miscarriage of justice, leading to

the impugned judgement. The conclusion by the court below

that Hutchegowda would become the sole co-parcener after

the demise of Chandregowda is, therefore, a cardinal error

committed by the trial court. The learned Counsel relies on the

following authorities to substantiate his contentions:-

(a) Sheela Devi and others vs. Lal Chand, (2006)8 SCC 581,

(b) Dharma Shamrao Agalawe vs. Pandurang Miragu Agalawe

and others, AIR 1988 SC 845.

The learned counsel would further contend that Section

6 of the 1956 Act, as amended by Act 39 of 2005, would not be


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applicable to the case on hand, for the reason that even if the

amendment of the year 2005 is applied with retrospective effect

from the date the Act came into force, it is evident that the

legislature had no intention of conferring the rights on the

female relative of a co-parcener, including a daughter, prior to

the commencement of the Act. It is for the first time that by the

amendment, such rights are conferred. Therefore, it would not

be possible to extend the benefit of Section 6 to daughters born

before the 1956 Act came into force and it would be necessary

to keep in view the circumstance whether the female relative,

including the daughters of a co-parcener, were born before

17.6.1956 or after 17.6.1956. It is only those born after the

said date, who would be conferred with the rights contemplated

under the amended Act 35/2005. For this proposition,

sustenance is sought to be drawn from Pushpalatha N.V. vs.

V.Padma, ILR 2010 KAR.1484 and if the above proposition is

applied to the present case on hand, the learned counsel would

contend that the plaintiff was 60 years old as on the date of

filing of the suit, that is on 3.4.1989. Defendant no.3 is said to

have been 53 years old as on the date of filing of the appeal in


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RFA 394/2003. Therefore, she must have been born in the year

1950 and hence the amended Act would not be applicable to

neither the plaintiff nor defendant no.3.

It is further contended that in the instant case,

succession opened on 7.2.1987 with the demise of

Hutchegowda and therefore, Act 13/2005 was not in operation

as on the date of opening of the succession and places reliance

on the following :-

(a) Anar Devi and others vs. Parmeshwari Devi and others,

AIR 2006 SC 3332,

(b) M.Prithviraj and others vs. Leelamma, 2008 (4) KCCR

2333, and

(c) Ms.Vaishali Satish Ganorkar vs. Satish Keshorao Ganorkar,

AIR 2012 Bombay 101.

The learned Counsel would thus contend that neither the

plaintiff nor defendant no.3 are entitled to claim their share in

the suit properties as co-parceners as they were born even

before the 1959 Act came into force and succession had opened

before the amended Act came into force.


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9. Shri G.S.Bhat, learned Counsel appearing for the

plaintiff, on the other hand, contends that there is no dispute as

to the relationship of the parties and the fact that there was no

partition prior to the suit as also the fact that all the properties

are ancestral and family properties. The propositus Dasappa

died after 1956. The argument canvassed on behalf of

defendants 1 and 2 that in the notional partition, the property

should be first divided between the father and son and the son

would take the half share and in the remaining half, all the

members, both male and female, would be entitled to a share

and therefore, Thimmamma, the plaintiff would be entitled to

one-sixth share, is an incorrect proposition. The learned

Counsel draws attention to Sections 4 and 6 of the 1956 Act as

amended and would contend that the proposition that the date

of birth of the daughters being prior to 1956 and that the

provisions of the 1956 Act were not applicable would be a mis-

interpretation of Section 4 of the 1956 Act. To attract Section

4 of the 1956 Act, two conditions are to be satisfied, namely,

that there must be a partition in the family between the sons and


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father prior to 1956 or the father should have died before

1956. Otherwise, it is the general rule in regard to succession

as contemplated under Section 8 of the 1956 Act, which

would become applicable and places reliance on the following

authorities and seeks to justify the judgment of the court

below:

1. Bondar Singh and others Vs. Nihal Singh and others,

(2003) 4 SCC 161,

2. Rajgopal (dead) by L.Rs., Vs. Kishan Gopal and

another, AIR 2003 SC 4319,

3. Smt. Phulavati Vs. Prakash and others, AIR 2011

Karnataka 78,

4. Beg Raj Singh Vs. State of U.P. and others, (2003) 1

SCC 726,

5. Ganduri Koteshwaramma and another Vs. Chakiri

Yanadi and another, (2011) 9 SCC 788,

6. Miss. R. Kantha Vs. Union of India represented by its

Cabinet Secretary, Ministry of Law, Justice and Company

Affairs and another, ILR 2009 KAR 3699.


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10. Shri T.N.Raghupathy, appearing for defendant no.3,

the appellant in RFA 394/2003, would contend that the said

defendant no.3 had contested the suit. However, it was held

that she was entitled to one-sixth share in the suit properties

while excluding the properties sold to defendants 4 to 8. The

primary contention of defendant no.3 in resisting the suit of the

plaintiff was to the effect that Hutchegowda had executed a

will dated 22.12.1986 in favour of the said defendant and

therefore, the suit for partition was not maintainable. The court

below had held that the execution of the will had been

established, but concluded that it was impracticable to give

effect to the will and that finding had been challenged in an

appeal in RFA 518/1996. The plaintiff in turn had also filed an

appeal in RFA 486/1996 and the first defendant had also

challenged the same in RFA 490/1996. All the appeals were

allowed and the matter was remitted for a fresh consideration.

On such remand, the said defendant no.3 had examined her

husband Naganna as a witness and had produced additional

documents apart from examining one Chandrashekar as DW.8

and the trial court having held that the plaintiff and the third


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defendant were entitled to one-third share each and defendants

1 and 2 were entitled to one-sixth share each, is erroneous for

the reason that the trial court having held that the properties in

question were the self acquired properties of Hutchegowda as

he was the sole surviving co-parcener, has committed an error

in holding that the will executed by Hutchegowda was not a

genuine will. The reasons assigned for such a finding cannot

be sustained. This is further confounded by the fact that while

concluding the court below having apparently held that the

execution of the will had been proved nevertheless goes on to

hold that even though the will might have been executed, it was

not a genuine will, which is a contradictory finding on the face

of it. The observation of the court below that the appellant

ought to have examined herself as a witness is again not with

reference to any legal requirement. The doubt expressed of the

execution of the will was on account of the presence of a

beneficiary, when in fact, such beneficiary has neither had any

role in the execution of the will or the attestation thereof.

Therefore, examining herself as a witness would not have

advanced the case that Hutchegowda was in a sound state of


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mind at the time of execution of the will. The negation of the

evidence tendered by defendant no.3 through her husband as a

power of attorney holder is unjust and is not in accordance

with law. There was no impediment in having examined her

husband on her behalf. The statement made by the scribe of the

will was that he did not know who were present at the time that

the will was written down when at the same time, the scribe has

stated that he wrote to the dictates of Hutchegowda has been

unfairly rejected. What was expected of a scribe was only an

affirmation that he wrote to the dictates of the testator. Further,

the negation of the evidence of DWs 3 and 4, when they had

declared that they were present at the time of the execution of

the will and had signed in the presence of each other after the

execution of the will by Hutchegowda, was ample compliance

of the requirement under section 63 of the 1956 Act and the

same being negated, was again not tenable. The court below

having found that defendant no.3 had executed a sale deed on

the date of the execution of the will, would not again have the

effect of negating the validity of the will and hence the findings

given by the Civil Judge smacks of perversity.


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The trial court has also doubted the execution of the will

on the ground that Hutchegowda was 80 years old when it was

said to have been executed and he having died two months

thereafter has found the execution of the will to be suspicious.

It is pointed out that only a person in the evening of his life

would contemplate the execution of a will and there was

nothing unnatural about that circumstance. The learned

counsel would also point out that the trial court has suspected

the will on the footing that the disposition was not equal as

between the children of the testator. It was indeed the privilege

of the testator to bequeath the properties to one or the other

heirs and the intention expressed in the will was to be looked

into as to why the testator chose to bequeath the properties

only in favour of defendant no.3. Therefore, the finding of

the trial court as to the execution of the will by Hutchegowda

in a sound state of mind as being doubtful, is based only on

conjectures and surmises and therefore is not tenable.

It is also contended that the finding as to the sale deeds

executed in favour of defendants 4 to 8 not binding on the


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other members of the family is erroneous, as the same were

executed even during the life time of Hutchegowda and

therefore, cannot be questioned at this point of time.

The learned Counsel for defendant no.4 has sought to

contend that defendant no.4 was a bona fide purchaser for

value and even if the sale was held to be not binding on the

other defendants, the share of the vendor ought to have been

culled out in order to save the sale transaction to that extent as

the law does contemplate such a course of action. The court

below not having chosen to do so, has not rendered the

judgment in accordance with law and therefore to that extent, it

ought to be set aside. The learned Counsel has also raised

other contentions which may not be relevant.

11. In the light of the above contentions, the questions

that would arise for consideration before this court are,

(a) Whether on the principle of notional partition, the

trial court ought to have held that the half share of

Chandregowda in the suit properties devolved upon Swamy


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and Puttamma, his son and widow, respectively, as legal

representatives and the other half share was held by

Hutchegowda?

(b) Whether after the death of Hutchegowda, his half

share, by notional partition, was to be divided into three equal

shares as between the plaintiff, defendants 1 and 2 and

defendant no.3?

(c) Whether the plaintiff and defendant no.3 could

claim their share in the suit properties as co-parceners by birth?

(d) Whether the third defendant could claim under the

will said to have been executed by Hutchegowda bequeathing

the suit properties in her favour?

(e) Whether the alienations in favour of defendants 4 to

7 are binding on the plaintiff and defendants 1 and 2?

It is noticed that in the impugned judgment, the court

below has proceeded on the basis that Golangana Dasappa, the

propositus having died, had left behind Hutchegowda as the

sole surviving co-parcener and that Chandregowda, son of

Hutchegowda was born much subsequent to the death of


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Golangana Dasappa. Therefore, on the death of Dasappa,

Hutchegowda, as the sole surviving co-parcener, takes the suit

properties entirely and it would be his separate properties. The

court below has relied upon a decision in Kumbalagunte

Gowramma vs. Kumbalagunte Dodda Veeranna, ILR 2000

Kar.3695and had referred to a paragraph from Mullas Hindu

Law, 15th edition, at page-345, item -257 and also to the

decisions in Commissioner of Wealth Tax, Kanpur vs. Chander

Sen, AIR 1980 SC 1753 andYudhishter vs. Ashok Kumar, AIR

1987 SC 558. The reasoning of the court below is to the

effect that Hutchappa died on 7.2.1987, after coming into force

of the Hindu Succession Act, 1956 and in view of Section 8 of

the 1956 Act, Hutchegowda was the sole surviving coparcener

on the death of Golangana Dasappa and the property devolved

according to the Schedule to the 1956 Act and as a class-1 heir

and not as a Hindu Undivided family property, but as his self

acquired property, as Chandregowda was not born at that time

and has further concluded that insofar as the claim of the third

defendant that Hutchegowda, by his will dated 22.12.1986,

had bequeathed the entire property to her is concerned, has


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negated the same, on the ground that there were suspicious

circumstances and further that the first defendant Swamy had

filed a suit through his guardian, against the third defendant in

O.S.No.44/1988 before the Civil Judge and JMFC,

Srirangapatna, questioning the genuineness of the will and the

said suit having been compromised, the third defendant had

given up her claim under the will by virtue of the compromise

and could not again rely upon the same. Insofar as the

allegations in favour of defendants 4 to 8 are concerned, the

court has found as a fact that the alienations were made by the

third defendant when she had no right in the properties and

therefore, the same were not binding on the parties to the suit

and has held that the plaintiff was entitled to two-sixth share;

defendants 1 and 2 were entitled to one-sixth share and the

third defendant was entitled to two-sixth share in all the suit

properties, including the properties sold to defendants 4 to 8.

From the established facts, it is clear that Chandregowda

died in the year 1975. He pre-deceased his father

Hutchegowda, who died on 7.2.1987. But the court has

overlooked the fact that Chandregowda, who died in the year


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1975, was survived by his son Swamy, the first defendant. The

court below has not taken that important circumstance into

account. On the principle of notional partition, on the death of

Chandregowda, the suit properties to the extent of half share

devolved upon Swamy and Puttamma, the widow of

Chandregowda and after the death of Hutchegowda, the half

share, to which he was entitled by a notional partition, would

be divided into three equal shares as between the plaintiff,

defendant nos. 1 and 2 and defendant no.3. The finding of the

court below that Hutchegowda became the sole coparcener on

the demise of Chandregowda is an incorrect finding. So long as

the property remains in the hands of a single person, the same

would be treated as a separate property and he would be entitled

to dispose of the coparcenery property, as if the same were his

separate property. But if a son was subsequently born to him

or adopted by him, the alienation thereafter, whether it is by

way of sale, mortgage or gift, will stand, for the son cannot

object to the alienations so made by his father before he was

born or begotten. But once a son is born, it becomes

coparcenery property and the son would acquire an interest


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therein. This is the proposition as laid down in C.Krishna

Prasad vs. CIT, (1975)1 SCC 160, and followed in Sheela

Devi and others vs. Lal Chand, (2006)8 SCC 581. Section 8

which provides for the general rules of succession in the case of

males lays down that a property of a male Hindu dying

intestate shall devolve according to the provisions of Chapter-

II, firstly upon heirs being the relatives specified in Class-I of

the Schedule. Therefore, on the death of the propositus

Dasappa, though Hutchegowda was the sole surviving co-

parcener, Chandregowda having been born subsequently, left

behind Swamy. Therefore, Hutchegowda as the son of Dasappa

and Swamy, as the son of a pre-deceased son and Puttamma,

the widow of Chandre Gowda are class-I heirs. Consequently,

the property on the death of Chandregowda, by a notional

partition, devolved on Swamy and Puttamma as the legal

representatives of Chandregowda to the extent of half share as

against the half share of Hutchegowda. In the light of the

above, Hutchegowda could not have disposed of the suit

properties to the entire extent under a will. It is also to be

mentioned that the authorities relied upon by the trial court do


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not state the law differently. The court below has

misconstrued the same.

Nextly, without reference to the will said to have been

left behind by Hutchegowda, which is dealt with hereinafter,

the question as to the manner of succession to the half share, to

which Hutchegowda was entitled, would by virtue of the

general rules of succession under the 1956 Act, by notional

partition, have to be divided into three equal shares, to be

distributed between the plaintiff, defendants 1 and 2 and

defendant 3.

The judgment of the trial court was rendered prior to the

amendment of Section 6 of the 1956 Act. The amended Section

was substituted by Act no.39 of 2005 with effect from

9.9.2005. A division bench judgment of this court in

Pushpalatha N.V. vs. V.Padma, ILR 2010 Kar.1484 has

addressed the question of the status of a daughter of a

coparcener born prior to 17.6.1956 and the effect of the

amended Act on such a female heir and has held thus:-

56. Therefore, it follows that the Act

when it was enacted, the legislature had no


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intention of conferring rights which are

conferred for the first time on a female relative

of a Co-parcener including a daughter prior to

the commencement of the Act. Therefore, while

enacting this substituted provision of Section 6

also it cannot be made retrospective in the

sense applicable to the daughters born before

the Act came into force. In the Act before

amendment the daughter of a Co-parcener was

not conferred the status of a Co-parcener. Such

a status is conferred only by the Amendment act

in 2005. After conferring such status, right to

Co-parcenary property is given from the date of

her birth. Therefore, it should necessarily

follow such a date of birth should be after the

Act came into force, i.e., 17.6.1956. There wasno intention either under the unamended Act or

the Act after amendment to confer any such

right on a daughter of a Co-parcener who was

born prior to 17.6.1956. Therefore, in this

context also the opening words of the amending

section assumes importance. The status of a

Co-parcener is conferred on a daughter of a

Co-parcenar on and from the commencement of

the Amendment Act, 2005. The right to

property is conferred from the date of birth.

But, both these rights are conferred under the

Act and, therefore, it necessarily follows the

daughter of a Co-parcenar who is born after


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the Act came into force alone will be entitled to

a right in the Co-parcenary property and not a

daughter who was born prior to 17.6.1956.

57. Thus, by virtue of the substituted

provision what the Parliament intends to do is

first to declare that, on and from the

commencement of this Amendment Act in a

Joint Hindu family governed by the Mitakshara

law, the daughter of a Co-parcener shall by

birth become a Co-parcener in her own right in

the same manner as the son and have the same

rights in the Co-parcenary property as she

would have had if she had been a son.

Therefore, the Mitakshara law in respect of Co-

parcenary property and Co-parcenaryconsisting of only male members came to an

end. By such a declaration the Parliament

declared that from the date of the amendment

shastric and customary law of Co-parcenary

governed by Mitakshara school is no more

applicable and it cease to exist. Thus, by virtue

of the aforesaid provision, a right is conferred

on a daughter of a Co-parcener for the first

time. The said right is conferred by birth.

Therefore, though such a right was declared in

the year 2005, the declaration that the said

right as a Co-parcener enures to her benefit by

birth makes the said provision retro active.


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Though on the date of the birth she did not have

such right because of the law governing on that

day by amendment the law, such a right is

conferred on her from the date of the Act of

1956. A historical blunder depriving an equal

right in spite of the constitutional mandate is

now remedied and the lawful right to which the

daughter was entitled by virtue of the

constitution is restored to her from the date of

her birth. This, the Parliament has done by

using the express words that a daughter of a

Co-parcener shall by birth become a Co-

parcener in her own right in the same manner

as the son and have the same rights in the Co-

parcenary property as she would have had if

she had been a son.

However, a division bench of the Bombay High Court,

while dealing with the right that would accrue under Section 6

of the 1956, Act after its amendment has held thus:-

9. The Section is required to be dissected

for interpretation. The sub-title of the section

relates to devolution of interest in co-parcenary

property. The interest devolves upon succession.

Such devolution may be upon intestate or

testamentary succession. The entitlement of a


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daughter of a coparcener is, therefore, upon

devolution and not without any such cause since

devolution is only upon succession. The

succession would open on a given day. It would,

therefore, open only upon the death of the

coparcener. Until that time the coparcener, to

constitute the coparcenary of which he is a

coparcener, must be a member in HUF consisting

of other coparceners. In the present case

admittedly aside from the appellants there has

been no other coparcener of respondent No.1.

10. It would have to be seen when the appellants

would be coparceners being the daughter of a coparcener.

The section gives the right to a daughter of a coparcener

on and from the commencement of the Act. The

amended provision under Section 6 of the HAS came into

effect from 9 September, 2005. On and from that date the

daughter of a coparcener would become a coparcener in

her own right just as a son would be by virtue of her birth

and she would have the same rights and liabilities as that

of a son. The devolution of her interest should, therefore,

be on and from 9 September, 2005.

11. No interest can devolve in a coparcenary

property except on the death of the coparcener. In

this case there has been no devolution of interest by

any succession, testamentary or intestate, because

no coparcerner (assuming that respondent No.1


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was a coparcener with another in his HUF) has

been deceased. The share in the coparcenary,

therefore, cannot devolve upon anyone. The

succession, therefore, has not yet, opened. The suit

is, therefore, premature. The appellants, as the

daughters of the coparcener, are not statutorily

given any right as coparceners ipso facto before

devolution of any interest.

12. Meaning of the word devolve in

Oxford English Dictionary is:

(i) transfer power to a lower level,

(ii) pass to a deputy or to a successor,

It originates from the Latin word devolver -

meaning roll down.

The Concise Oxford English Dictionary

shows the meaning of the word devolve to be

thrown, fall, descend upon, fall by succession.

The meaning of the devolve in the Chambers

Dictionary (20th

Edition) is shown as to roll down,

to hand down, to deliver over, to fall or Passover in

succession.

13. Consequently, until a coparcener dies

and his succession opens and a succession takes

place, there is no devolution of interest and hence

no daughter of such coparcener to whom an

interest in the coparcenary property would devolve

would be entitled to be a coparcener or to have the


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rights or the liabilities in the coparcenary property

along with the son of such coparcener.

14. It may be mentioned, therefore, that ipso

facto upon the passing of the Amendment Act all

the daughters of a coparcener in a coparcenary or

a joint HUF do not become coparceners. The

daughters who are born after such dates would

certainly be coparceners by virtue of birth, but for

a daughter who was born prior to the coming into

force of the amendment Act she would be a

coparcener only upon a devolution of interest in

coparcenary property taking place.

15. It is contended on behalf of the

appellants that Section 6 of the amendment Act is

retrospective in operation and hence all daughters

of all coparceners would have the interest devolved

upon them even if they were born prior to the

amendment Act and even if the succession opened

earlier than the amendment Act. We may mention

that this is not a case of succession at all. It is

contended on behalf of the appellants that any

daughter born even prior to the amendment Act

would be a coparcener as to have an equal,

undivided interest in the coparcenery properties.

16. This contention is made wholly

disregarding the sub-title of the section. The

subtitle of a section is required to be considered in


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the interpretation of the section and hence the

devolution of the interest is condition precedent for

any claim in coparcenary interest.

17. Even dehors the subtitle the section is

required to be interpreted to see whether a

daughter of a coparcener would have an interest in

the coparcenery property by virtue of her birth in

her own right prior to the amendment Act having

been brought into effect. It may be mentioned that

prior to the amendment Act (aside from the State

Amendment Act of 1995 which amended Section 29

of the HSA) indeed the daughter was not a

coparcener; she had no interest in a coparcenery

property. She had, therefore, no interest by virtue

of her birth in such property. This she got only "on

and from" the commencement of the amendment

Act i.e, on and from 9 September 2005. The basis of

the right is, therefore, the commencement of the

amendment Act. The daughter acquiring an interest

as a coparcener under the Section was given the

interest which is denoted by the future participle

"shall". What the section lays down is that the

daughter of a coparcener shall by birth become a

coparcener. It involves no past participle. It

involves only the future tense. Consequently, by the

legislative amendment contained in the amended

Section 6 the daughter shall be a coparcener as

much as a son in a coparcenery property. This


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right as a coparcener would be by birth. This is the

natural ingredient of a coparcenery interest since a

coparcenery interest is acquired by virtue of birth

and from the moment of birth. This acquisition (not

devolution) which until the amendment Act was the

right and entitlement only of a son in a

coparcenary property, was by the amendment

conferred also on the daughter by birth. The future

tense denoted by the word "shall" shows that the

daughters born on and from 9 September, 2005

would get that right, entitlement and benefit,

together with the liabilities. It may be mentioned

that if all the daughters born prior to the

amendment were to become coparceners by birth

the word "shall" would be absent and the section

would show the past tense denoted by the words"was" or "had been". The future participle makes

the prospectivity of the section clear.

18. Similarly in sub clause (a) of the

amended Section 6 the word "become" shows what

was contemplated to be in the future on and after

the date the amendment came into force. It is from

that date that the daughter would "become" a

coparcener, which she was not until then. If she

was to be taken to be the coparcener since even

prior to the coming into force of the Act the word

"become" in sub clause A of Section 6 would have

been instead "was".


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19. Reading the operative part of the section

alongside the sub clause (a) shows that the

daughter "shall become" a coparcener by virtue of

her birth in a coparcenery property. This future

tense is consistent with the operative words "on

and from". Hence on and from 9 September 2005 a

daughter shall become a coparcener in a

coparcenery property by birth. The words "was" or

"had been" etc., would be inconsistent with the

words "on and from".

20. The words "on and from" are indeed

unique. They show the date from which the

amendment would come into effect. The footnote of

the section itself shows w.e.f. 9 September 2005

hence on and w.e.f 9 September 2005 a daughter

shall become a coparcener in coparcenery

property by virtue of her birth. That would be

acquisition of interest in a coparcenery property

though not devolution.

21. Similarly in the latter part of the section

after sub clause (c) the reference to a Hindu

Mitakshara coparcener which would be deemed to

include the daughter is also in the future tense

denoted by the words "shall be". Had the section

being retrospective and was to be effective for all

daughters born prior to the date the amendment

was effected or prior to the succession having


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opened, the reference to the daughter as a

copercener in a Hindu Mitakshara family would be

shown to have been deemed "always have

included" a reference to the daughter of a

coparcener.

22. The section further contains a proviso.

The proviso is to prevent mischief of application of

the section to non-applicable cases, precisely the

kind of mischief that is made in the suit of the

appellants themselves. The section has a limited

effect. That is because for as many as about 50

years after the HSA came into force in 1956

various Hindu families having coparcenery

property could have made various dispositions and

alienations which had to be saved. Under the

proviso any disposition including a testamentary

disposition and any alienation including a partition

made prior to 20 December 2004 (presumably

when the Act was tabled in Parliament and which

was only about 9 months prior to the coming into

force of the amendment Act) were saved from the

effect of the section. Hence for such disposition and

alienation made prior to 20 December 2004 the

daughter of the copercener would not be entitled to

claim her interest in the coparcenery property.

23. In this case the alienation was made by

the respondent No.1, the father of the appellants, in


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2008 by creation of the equitable mortgage in

favour of the respondent No.2. Hence, if otherwise

the appellants would be covered by Section 6 the

alienation by the equitable mortgage created by

respondent No.1 would not come in their way.

24. The express words in the section clearly

indicate the intention of the legislature to make

daughters coparceners in coparcenery property on

and from the date the amendment Act came into

force. The Act also clearly shows that from that

date they shall become coparceners with the same

rights and liabilities and the reference to the

Mitakshara would also be reference including the

daughter from then on. The express provisions in

the Act are, therefore, inconsistent with any

retrospectivity.

25. It is settled law that unless the Statute

makes a provision retrospective expressly or by

necessary intent it cannot be interpreted to be

retrospective. It is also settled law that vested

rights cannot be unsettled by imputing

retrospectivity upon a legislation by judicial

interpretation or construction. Making the section

retrospective would wholly denude the words "on

and from" in the section; they would be rendered

otiose. These words are unique and clear. They


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express the intent of the legislature which is not far

to seek.

26. The rights of a coparcener vest in

him/her upon an interest devolving upon such

coparcener. This interest would devolve by

succession, intestate or testamentary. Upon the

death of a coparcener his interest in a coparcenery

property would devolve upon other coparceners.

This devolution under the unamended Section 6 of

the HSA was by survivorship in case of only male

heirs and by succession, if there were female heirs

also. After the amended Section 6 this devolution of

interest would be upon the son and the daughter

alike.

27. A reading of Section as a whole would,

therefore, show that either the devolution of legal

rights would accrue by opening of a succession on

or after 9 September 2005 in case of daughters

born before 9 September 2005 or by birth itself in

case of daughters born after 9 September 2005

upon them.

28. The prospectivity of the Act is clear. It is

not made expressly retrospective by the legislature.

Further it has specified not to effect transactions

prior to the specified date in the proviso. Even the

intention of the legislature in keeping in tact the

rights vested upon any disposition or alienation is


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clear and hence further supports the mischief that

the amendment Act sought to remedy and the

mischief that it sought to prevent. The mischief that

was remedied was the discrimination between the

daughter and a son in a legislation that was

enacted 6 years after the coming into force of the

Constitution of India which granted equal rights to

all persons irrespective of their sex. The

discrimination prevailed for 50 years despite the

constitutional mandate of equality. The mischief

that it sought to prevent was precisely a kind of

mischief that the appellants have sought to create.

Though alienation prior to the specified date,

which was also 9 months prior to the coming into

force of the Act, have been excepted, all daughters

born well prior to the coming into force of theamendment Act (and in this case the date of birth of

the appellant is neither known nor shown), would

seek to be included to undo transactions of other

members of the coparcenary either before any

succession opened and only mere virtue of their

birth. The mischief would be precisely that. It

would set at naught the rights vested in a son or in

any other coparcener when the unamended Act was

not in force. It would seek to undo transactions

entered into by those coparceners with third

parties, such as respondent No.2 Bank in this case.

It would not be known to respondent No.2 at the

time the equitable mortgage was created that any


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part of the mortgaged property would be let off

consequent upon a subsequent claim by the

daughters of the mortgagors who were not known

to the Bank or shown to be coparceners.

29. The aspect of the retrospectivity has

been considered by the Supreme Court as well as

other Courts. In the case of Sugalabai Vs.

Gundappa A. Maradi & Ors. ILR 2007 KAR 4790 :

(2007 (6) AIR Kar R 506) the words "on and from"

came to be considered and interpreted in

paragraph 24. It was observed that it meant

"immediately and after". Hence immediately and

after the commencement of the Act the daughter of

a coparcener became by birth a coparcener in her

own right as the son.

The observation in that judgment that there

was nothing in the Act which showed that only

those born on and after the commencement of the

Act would become coparceners would run counter

to the aforesaid dissection of the section by the

words "shall become".

30. The judgment in the case of Pravat

Chandra Pattnaik & Ors. v. Sarat Chandra

Pattnaik & Anr. AIR 2008 Orissa 133 showed that

Section 6 of the amendment Act created a new right

and the provisions were not expressly made

retrospective by the legislature. The Act is clearly


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without any ambiguity and, therefore, the words

could not be interpreted. They do not bear more

than one meaning and the act was, therefore, held

to be prospective creating a substantive right for a

daughter and hence it was held that the daughter

got rights of the coparcener from the date when the

amended Act came into force.

Despite the contention that only the

daughters who are born after 2005 would be

treated as coparceners was not accepted, it was

clarified that the daughter would have a right to be

coparcener from 9 September 2005 whenever she

was born and she could claim partition of the

property which was not partitioned earlier. This

aspect also loses sight of the subtitle of the Section

which deals with only "devolution" of interest in

case of such daughter born before 9 September

2005.

These judgments, therefore, do not commend

to us.

31. The Hindu Succession Act is an Act 1956to amend and codify the law relating to the

intestate succession of Hindus. It brought about

changes in the law of succession amongst the

Hindus and give rights which were until then

unknown in relation to the women's property. The

Act of 1956, however, did not interfere with the


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members of Hindu Mitakshara coparcenery. It was

that provision that the amendment Act of 2005

sought to further codify. It applied to all Hindus

belonging to any coparcenery and laid down

special provisions for the daughters of a

coparcener upon devolution of interest under

Section 6 of the Act removing the discrimination on

the ground of gender against such daughters and to

render social justice to women.

32. Relating to devolution of interest, the

opening of a succession came to be considered as

the focal point by the Supreme Court in the case of

Sheela Devi & Ors. v. Lal Chand & Anr. (2006) 8

SCC 581 followed thereafter in the case of G.

Sekar v. Geetha & Ors. (2009) 6 SCC 99: (AIR

2009 SC 2649). It was held that the date of the

opening of the succession was the relevant date

and if succession opened prior to the amendment

Act of 2005 the provisions of the amendment Act

would have no application because rights under the

succession would vest upon the successors from the

date the succession opened. Paragraph 49 of the

judgment in the case of G. Sekar v. Geetha & Ors.

(2009) 6 SCC 99: (AIR 2009 SC 2649) extracts

paragraph 21 of the judgment in the case of Sheela

Devi (supra) and observes that the amendment Act

had no application to the succession which opened


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prior to the coming into force of the Act despite the

word "negative" therein.

33. In the case of Champabai W/o.

Darshrathsingh Pardeshi & Ors. v. Shamabai @

Shamkuwarbai Gajrajsingh Pardeshi & Anr. 2010

(3) ALL MR 262 this Court similarly considered

the year when the succession opened and observed

that the division of shares was made before when

the amendment Act was not in force. In that case

the shares devolved upon two sons by application

of Section 6 r.w. Section 8 of the unamended HSA

of 1956. Consequently, in the case of Miss. R.

Kantha, d/o Doddarmaiah Reddy v. Union of India

& Anr. AIR 2010 Karnataka 27 also that the

provisions of the Act was held to be brought in

force when the right of succession opened and not

before. It was observed that the father of the

petitioner in that case was alive and hence her

right to succession as a coparcener had not

opened. These are the judgments which must be

accepted for the foundation they have laid.

34. We have been shown the judgment of the

Division Bench of the Karnataka High Court in the

case of Pushpalatha N.V. v. V. Padma AIR 2010

Karnataka 124 which has held that the section is

retrospective and that all the daughters no matter

when they were born and no matter when the


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succession opened were entitled to equal share

along with the sons of the coparcener. The Court

considered the law before the amendment, the

mischief and the difficulty that the law did not

provide for and the remedy therefor. In paragraph

15 of the judgment, the Court held that the

construction "which would suppress the mischief

and advance the remedy" and "which would

suppress subtle inventions and evasions for

continuance of the mischief" were to be upheld so

that they would "add force and life to cure the

remedy, according to true intent of the makers of

the Act".

35. In paragraph 44 of the judgment the

Court considered the settled rules of interpretation

of the Statutes embedded in various judgments of

the Supreme Court thus:

(a) statutory provisions of substantive rights

are ordinarily prospective.

(b) retrospective operation must be given

only when it is made expressly or by necessaryimplication.

(c) the intention of the legislature has to be

gathered from the plain words giving them a plain

grammatical meaning.


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(d) if the legislation has two meanings, the

meaning which preserves the benefits should be

adopted.

(e) interpretation giving rise to absurdity or

inconsistency should be discarded.

(See Mahadfolal Kanodia v. Administrator General

of West Bengal AIR 1960 SC 936)

(a) It may be mentioned that Section 6

creates substantive rights in favour of a daughter

as a coparcener; it would, therefore, be ordinarily

prospective.

(b) there are no express words showing

retrospective operation in the Statute and in fact

the express words are "on and from" denoting

prospectivity.

(c) the plain normal grammatical meaning

of the words "shall become" and "shall be deemed"

shows the future tense and the total absence of any

past participle. The words must be given the

grammatical meaning as per the grammatical

tense.

(d) The section is incapable of two

meanings; it cannot mention that all the daughters

born before the amendment would be included and


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that only daughters born after the amendment

would be included.

Since two meanings are not contemplated, it

would rule out interpretations which are required

in legislations which are capable of two meanings.

(e) The absurdity of making all the

daughters born before or after the commencement

of the amendment Act included in the amendmentAct would not only be directly against and

diametrically different from the express provision

of making the section applicable to daughters who

shall be coparceners by birth only on and after the

amendment, but would make the applicability of the

Act so all-perversive that the entire populace who

are Hindus and have any HUF property of the

family would be encompassed setting at naught

various transactions entered in to by coparcerners

creating vested rights as in this case.

36. It may be mentioned that in the case of

Sadashiv Sakharam Patil & Ors. v. Chandrakant

Gopal Desale & Ors. in Appeal from Order No.265 of 2011 and other related appeals the single

Judge of this Court had to contend with a claim of

the heirs of the deceased daughter who claimed to

be a coparcener seeking to include even daughters

who have been deceased prior to the amendment!

Hence the interpretation of retrospectivity would


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promote the mischief of dishonest litigations by

claiming an interest in a coparcernery property

hitherto never claimed, as in this case, rather than

suppress the mischief of discrimination.

The observation in paragraph 52 of the

judgment in the case of Pushpalatha (AIR 2010

Kar 124) (supra) relates to when the daughter

would get the right under the amended Section 6 of

the Act shows that it was by birth "leaving no scope

for interpretation". The further observation in

paragraph 53 of the judgment is that such a right is

given to a daughter born after 1956.

If the Act was restrospective we do not see

how daughters born only after 1956 would be

entitled to claim interest in a coparcenery property

and not daughters before 1956 also. As observed in

that judgment when a provision is substituted for

an earlier provision by an amendment of the Act it

would apply from the date of the unamended Act.

That would be from 1956. Hence, if from 1956 the

daughter would get her interest by birth by the very

retrospectivity bestowed upon the section it would

apply equally to daughters born even prior to 1956.

This analogy is, however, academic since the

amending Statute is made to come into effect from

a specified date i.e., 9 September 2005 and we are


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fortified in our view by the proviso which seeks to

expressly curtail the mischief envisaged.

37. We may mention that in the extensive

reading of the judgment which exudes nobility, we

are in agreement with each of the observations

discussed therein, but for the retrospectivity in its

interpretation in view of our interpretation of the

Section as set out hereinabove.

Coming back to the case on hand, as the Court below

has proceeded to hold that the suit properties ought to be

treated as the self acquired properties in the hands of

Hutchegowda and therefore, would have to be divided

equally between the plaintiff and the defendants, has been

found to be an incorrect presumption. However, in the

course of the arguments before this court, as it was sought

to be contended that in view of the amended Section 6 of the

1956 Act, that the female heirs would yet be entitled to

claim as coparceners and that therefore, since the

amendment has been held to be retrospective in its effect,

they would still be entitled to share equally with the male

members, the question, whether the plaintiff and defendant


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no.3 could claim a share in the suit properties, as

coparceners by birth, is framed.

As seen above, the Bombay High Court has expressed a

view disagreeing with the view of the division bench of this

court as to the retrospectivity of Section 6. But however,

since this bench would be bound by the division bench

judgment of this court, and even if the same is applied, as

pointed out by the learned counsel Shri K.V.Narasimhan, even

according to the division bench of this court in Pushpalatha

N.V., supra, the benefit of the Section would not be available

to female heirs born before the 1956 Act came into force.

The question whether the plaintiff and defendant no.3 were

born before 1956, was never in issue before the court below

and even though there is no finding of fact in this regard, there

is sufficient material available on record, as produced by the

plaintiff and defendant no.3 themselves, that they were clearly

born before 1956. Therefore, their share in the suit properties

as coparceners by birth cannot be accepted.


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Insofar as the question whether the third defendant could

claim under a will said to have been executed by Hutchegowda

bequeathing the suit properties in her favour, is concerned, as it

is not in dispute that though the third defendant had set up a

will in an earlier suit in O.S.No.44/1988 and the same having

ended in a compromise, it is deemed that the third defendant

had given up her claim under the will and the same could not

be set up again in the present suit. Further, it is also held

hereinabove that Hutchegowda did not have a right over all

the suit properties and could not have disposed of the same by

will. Therefore, the third defendant is not entitled to claim

under the will said to have been executed by Hutchegowda.

Insofar as the alienations in favour of defendants 4 to 7

are concerned, the same cannot bind the plaintiff and

defendants 1 and 2. The findings of the court below are to the

effect that the sale deeds had been executed not by

Hutchegowda, but by defendant no.3, who did not have any

right in her, during the life time of Hutchegowda, to alienate

the properties and even if she was claiming under the will,

the alleged bequest had not taken effect as Hutchegowda was


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still alive, as found by the trial court, at the time of the

transactions. However, the alienations insofar as the extent of

share in the respective suit properties that would fall as a part

of the share of defendant no.3 would alone be saved insofar as

those purchasers are concerned. The extent and the identity of

the same by metes and bounds would have to be worked out in

due course.

Though the parties have referred to a large number of

decisions, the same are not discussed at length, in order that

this judgment is not burdened with discussion, which may not

be relevant to decide the questions framed for consideration.

Therefore, the appeal in RFA 534/2003 is allowed. The

appeals in RFA 394/2003 and RFA 669/2003 are dismissed.

Costs are made easy. The judgment of the court below stands

modified to hold that on the birth of Chandregowda, he

shared the suit properties equally with his father

Hutchegowda, by birth. On the death of Chandregowda, his

half share devolved on defendants 1 and 2 by notional

partition. And after the death of Hutchegowda, the half share


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notionally held by him is divided equally between the plaintiff,

defendants 1 and 2 together and defendant no.3.

The preliminary decree shall be drawn up accordingly.

Sd/-

JUDGE

nv*

hindu succession act judgment

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