LEELA SCOTTISH LACE LIMITED vs SMT. VINODA
- Court
- Karnataka High Court
®
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 29 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CIVIL REVISION PETITION NO. 386 OF 2019 (IO)
BETWEEN:
1. LEELA SCOTTISH LACE LIMITED
A REGISTERED COMPANY
HAVING ITS REGISTERED OFFICE AT
LEELA BAUG
SRI M.V ROAD
MUMBAI-400 059
REPRESENTED BY ITS
FINANCIAL CONTROLLER
MR.SUBRAT SINHA
2. LEELAVENTURES LIMITED
REGISTERED UNDER
THE COMPANIES ACT
HAVING ITS REGISTERED
OFFICE AT THE LEELA SAHAR
MUMBAI-400 059
REPRESENTED BY ITS
FINANCIAL CONTROLLER
MR. SUBRAT SINHA
…PETITIONERS
(BY SRI.DHYAN CHINNAPPA, SENIOR COUNSEL FOR
SRI.SHIRISH KRISHNA, ADVOCATE AND
SRI.JOSEPH ANTHONY, ADVOCATE)
AND:
1. SMT. VINODA
W/O NANDEESH REDDY
D/O MOPI REDDY
Digitally
signed by
SUVARNA T
Location:
HIGH COURT
OF
KARNATAKA
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AGED ABOUT 57 YEARS
R/A KALLAPALYA, JIGANI HOBLI
ANEKAL TALUK
BENGALURU RURAL-560 105
2. SMT. LAKSHMAMMA
W/O SRIRAMA REDDY
D/O MOPI REDDY
AGED ABOUT 55 YEARS
R/A NO.145, MUNNESHWARA LAYOUT
(OPP.GOVERNMENT SCHOOL)
KODIHALLI
BANGALORE-562 112
3. SRI. BAIYA REDDY
S/O MOPI REDDY
AGED ABOUT 52 YEARS
R/A KOMMEPALLI VILLAGE
AGRAM POST, HOSUR TALUK
KRISHNAGIRI DISTRICT
TAMIL NADU-635 109
4. SRI MOHAN REDDY
S/O MOPI REDDY
AGED ABOUT 49 YEARS
R/A KOMMEPALLI VILLAGE
AGRAM POST, HOSUR TALUK
KRISHNAGIRI DISTRICT
TAMILNADU-635 109
5. SRI SURESH REDDY
S/O MOPI REDDY
AGED ABOUT 45 YEARS
R/A KOMMEPALLI VILLAGE
AGRAM POST, HOSUR TALUK
KRISHNAGIRI DISTRICT
TAMILNADU-635 109
6. SRI RAMA REDDY @ RAMANNA REDDY
S/O LATE MUNIYAPPA
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AGED ABOUT 83 YEARS
R/A KODIHALLI VILLAGE
AIRPORT ROAD
BANGALORE-560 008
7. SMT NARAYANAMMA
D/O LATE MUNIYAPPA
W/O MADA REDDY
AGED ABOUT 59 YEARS
R/A KODIHALLI VILLAGE
AIRPORT ROAD
BANGALORE-560 008
8. SRI PAPANNA REDDY
D/O LATE MUNIYAPPA
AGED ABOUT 75 YEARS
R/A KODIHALLI VILLAGE
AIRPORT ROAD
BANGALORE-560 008
…RESPONDENTS
(BY SRI.H.SUNILKUMAR, ADVOCATE FOR R2 TO R5
NOTICE TO R6 AND R7 ARE HELD SUFFICIENT
V/O/D:03/07/2026
R1 IS DEAD HAVING NO LR’S V/O/D: 03/07/2026)
THIS CRP FILED U/S.115 OF CPC 1908 AGAINST THE
ORDER DATED 01.06.2019 PASSED ON IA NO V IN
OS.NO.6992/2012 ON THE FILE OF THE LXXV ADDL. CITY
CIVIL AND SESSION JUDGE, BENGALURU DISMISSING THE IA
NO V FILED U/O 7 RULE 11(a) AND (d) OF CPC FOR REJECTION
OF PLAINT.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
16.09.2026, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
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CAV ORDER
The present Civil Revision Petition is filed aggrieved by
the order dated 01.06.2019 passed on I.A.No.V in
O.S.No.6992/2012 by the LXXV Additional City Civil and
Sessions Judge, Bengaluru.
2. The respondents Nos. 1 to 5 herein, who are the
plaintiffs, filed O.S. No. 6992/2012 seeking partition and
separate possession of the suit schedule A and B properties,
and further sought a declaration that the sale deeds by which
the properties were sold are not binding on the plaintiffs. In the
said suit, the petitioners herein, who are defendant Nos. 4 and
5, filed I.A. No. V under Order VII Rule 11 of the CPC seeking
rejection of the plaint. It is the specific case of the defendants
that one Muniyappa, the father of defendant Nos.1 to 3, died in
the year 1954; his wife/widow died in the year 2002; and the
mother of the plaintiffs died in June 2005. Hence, the plaintiffs
cannot maintain a suit for partition. The trial court, by the
impugned order, dismissed the application filed by the
petitioner seeking rejection of the plaint.
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3. While rejecting the application, the trial Court has
observed that on perusal of the written statement of the
defendants, they have admitted that the suit property is an
ancestral property and it devolved on Muniyappa from his
paternal uncle Nanjareddy who had no issues. The counsel for
defendant Nos.4 and 5 vehemently argued that the present suit
is barred by limitation as per the pleadings in the plaint. In this
regard, the counsel pointed out that Muniyappa died in 1954
when the succession opened and thereafter, Muniyamma died
on 22.09.2002 and the mother of the plaintiffs died in June
2005 and the present suit is filed in the year 2012 and
therefore, it is clearly barred by limitation. The trial Court
observed that as per the plaint, they have pleaded that there is
no partition and suit property remained joint family property
and they came to know about the efforts by defendant Nos.1 to
3 to sell the suit schedule property in the year 2012 and
immediately they got issued a legal notice on 16.04.2012 and
in spite of the said legal notice defendant Nos.4 and 5 had
executed the registered Sale Deed dated 03.05.2012. In the
present case, the plaintiffs have challenged the Sale Deeds
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dated 10.04.2001, 06.09.2001, Release Deed dated
15.11.2007 and the Sale Deed dated 03.05.2012. The plaintiffs
have clearly pleaded that they have come to know about the
previous Sale Deeds in 2012 and they are claiming share
through female legal heir and that the same is to be
considered. It is a well settled principle of law that the issue
relating to limitation is a mixed question of fact and law. As the
plaintiffs have clearly pleaded about the date of knowledge of
the previous sale deeds, evidence is required for giving finding
in respect of limitation. Therefore, at this stage, it is not
possible to hold that the present suit is barred by limitation.
4. The trial Court further observed that in the present
case according to the plaintiffs, Muniyappa died in the year
1954 and their mother got married in the year 1960. Therefore,
in the year 1954 when Muniyappa died, the mother of the
plaintiffs was unmarried. Therefore, it is just and necessary to
consider whether she acquired any right to share in this
ancestral property where the plaintiffs can maintain the present
suit. In order to give finding on these issues, evidence is
required. No doubt the law is settled regarding the right of
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women in the ancestral property, but whether the plaintiffs are
entitled for share in the suit property is not a pure question of
law, which can be answered based on the decisions of the High
Court and the Hon’ble Supreme Court. Hence, for giving a
finding in this regard, a full-fledged trial is necessary.
Therefore, the plaint averments discloses the cause of action
for seeking partition. Hence, the contention of defendant Nos.4
to 5 that the plaint averment does not disclose the cause of
action is not sustainable. Aggrieved thereby, the defendant
Nos.4 and 5 are before this Court.
5. Learned Senior counsel representing the learned
counsel for the petitioner had relied on the judgment of the
Apex Court in Vineeta Sharma Vs. Rakesh Sharma and
1
others , paragraph Nos.79 and 80 which reads thus:
“79. In Prakash v. Phulavati [Prakash v. Phulavati,
(2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] , father
died in the year 1988, daughters filed a suit for
partition in 1992, same was dismissed in 2007,
entitlement was given to the daughters to a share
on a notional partition under the proviso to Section
6 in the share of the coparcener father. However,
the High Court [Phulavati v. Prakash, 2010 SCC
OnLine Kar 5310 : (2011) 2 AIR Kant R 121]
applied the amended provisions of Section 6 to the
pending proceedings and treated daughters
1
2020 9 SCC 1
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equally with sons. As such, the matter travelled to
this Court. It was held that the proviso is not
retrospective. The requirement of partition being
registered can have no application to statutory
notional partition, on the opening of succession as
per the unamended proviso to Section 6, having
regard to the nature of such partition, which is by
operation of law. It was opined: (SCC pp. 48-49 &
52, paras 17-18, 23, 27.2 & 27.3)
“17. The text of the amendment itself clearly
provides that the right conferred on a “daughter of
a coparcener” is “on and from the commencement
of the Hindu Succession (Amendment) Act, 2005”.
Section 6(3) talks of death after the amendment
for its applicability. In view of plain language of
the statute, there is no scope for a different
interpretation than the one suggested by the text
of the amendment. An amendment of a substantive
provision is always prospective unless either
expressly or by necessary intendment it is
retrospective [Shyam Sunder v. Ram Kumar,
(2001) 8 SCC 24, paras 22 to 27] . In the present
case, there is neither any express provision for
giving retrospective effect to the amended
provision nor necessary intendment to that effect.
Requirement of partition being registered can have
no application to statutory notional partition on
opening of succession as per unamended
provision, having regard to nature of such partition
which is by operation of law. The intent and effect
of the amendment will be considered a little later.
On this finding, the view [Phulavati v. Prakash,
2010 SCC OnLine Kar 5310 : (2011) 2 AIR Kant R
121] of the High Court cannot be sustained.
18. The contention of the respondents
that the amendment should be read as
retrospective being a piece of social legislation
cannot be accepted. Even a social legislation
cannot be given retrospective effect unless so
provided for or so intended by the legislature. In
the present case, the legislature has
expressly made the amendment applicable on and
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from its commencement and only if death of the
coparcener in question is after the amendment.
Thus, no other interpretation is possible in view of
the express language of the statute. The proviso
keeping dispositions or alienations or partitions
prior to 20-12-2004 unaffected can also not lead to
the inference that the daughter could be a
coparcener prior to the commencement of the Act.
The proviso only means that the transactions not
covered thereby will not affect the extent of
coparcenary property which may be available
when the main provision is applicable. Similarly,
Explanation has to be read harmoniously with the
substantive provision of Section 6(5) by being
limited to a transaction of partition effected after
20-12-2004. Notional partition, by its very nature,
is not covered either under the proviso or under
sub-section (5) or under the Explanation.
*
23. Accordingly, we hold that the rights under the
amendment are applicable to living daughters of
living coparceners as on 9-9-2005 irrespective of
when such daughters are born. Disposition or
alienation including partitions which may have
taken place before 20-12-2004 as per law
applicable prior to the said date will remain
unaffected. Any transaction of partition effected
thereafter will be governed by the Explanation.
*
27.2. In Gurupad Khandappa Magdum v. Hirabai
Khandappa Magdum [Gurupad Khandappa Magdum
v. Hirabai Khandappa Magdum, (1978) 3 SCC 383]
, Shyama Devi v. Manju Shukla [Shyama Devi v.
Manju Shukla, (1994) 6 SCC 342] and Anar Devi v.
Parmeshwari Devi [Anar Devi v. Parmeshwari Devi,
(2006) 8 SCC 656] cases this Court interpreted
Explanation I (p. 60, para 50) to Section 6 (prior to
the 2005 Amendment) of the Hindu Succession
Act. It was held that the deeming provision
referring to partition of the property immediately
before the death of the coparcener was to be given
due and full effect in view of settled
principle of interpretation of a provision
incorporating a deeming fiction. In Shyama
Devi [Shyama Devi v. Manju Shukla, (1994)
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6 SCC 342] and Anar Devi [Anar Devi v.
Parmeshwari Devi, (2006) 8 SCC 656] cases, same
view was followed.
27.3. In Vaishali Satish Ganorkar v. Satish
Keshaorao Ganorkar [Vaishali Satish Ganorkar v.
Satish Keshaorao Ganorkar, 2012 SCC OnLine Bom
116 : AIR 2012 Bom 101] , the Bombay High Court
held that the amendment will not apply unless the
daughter is born after the 2005 Amendment, but
on this aspect a different view has been taken in
the later larger Bench judgment in Badrinarayan
Shankar Bhandari v. Omprakash Shankar Bhandari
[Badrinarayan Shankar Bhandari v. Omprakash
Shankar Bhandari, 2014 SCC OnLine Bom 908 : AIR
2014 Bom 151] . We are unable to find any reason
to hold that birth of the daughter after the
amendment was a necessary condition for its
applicability. All that is required is that daughter
should be alive and her father should also be alive
on the date of the amendment.”
80. A finding has been recorded in Prakash v.
Phulavati [Prakash v. Phulavati, (2016) 2 SCC 36:
(2016) 1 SCC (Civ) 549] that the rights under the
substituted Section 6 accrue to living daughters of
living coparceners as on 9-9-2005 irrespective of
when such daughters are born. We find that the
attention of this Court was not drawn to the aspect
as to how a coparcenary is created. It is not
necessary to form a coparcenary or to become a
coparcener that a predecessor coparcener should
be alive; relevant is birth within degrees of
coparcenary to which it extends. Survivorship is
the mode of succession, not that of the formation
of a coparcenary. Hence, we respectfully find
ourselves unable to agree with the concept of
“living coparcener”, as laid down in Prakash v.
Phulavati [Prakash v. Phulavati, (2016) 2 SCC 36:
(2016) 1 SCC (Civ) 549]. In our opinion, the
daughters should be living on 9-9-2005. In
substituted Section 6, the expression “daughter of
a living coparcener” has not been used. Right is
given under Section 6(1)(a) to the daughter by
birth. Declaration of right based on the past event
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was made on 9-9-2005 and as provided in Section
6(1)(b), daughters by their birth, have the same
rights in the coparcenary, and they are subject to
the same liabilities as provided in Section 6(1)(c).
Any reference to the coparcener shall include a
reference to the daughter of a coparcener. The
provisions of Section 6(1) leave no room to
entertain the proposition that coparcener should
be living on 9-9-2005 through whom the daughter
is claiming. We are unable to be in unison with the
effect of deemed partition for the reasons
mentioned in the latter part.”
6. Relying on the above judgment, it is submitted that
the Hon'ble Apex Court has categorically observed in paragraph
No.80 that the daughter should be living as on 09.09.2005. In
substituted Section 6, the expression daughter of a living co-
parcener is not being used, right is given under Section 6(1)(a)
to the daughters by birth, provided in Section 6(1)(b)
daughters by their birth have the same rights in the
coparcenary and they are subjected to the same liabilities as
provided in Section 6(1)(c). The trial Court observed that the
provisions of Section 6(1)(c) leaves no room to entertain the
proposition that the co-parcener should be living on
09.09.2005, through whom the daughter is claiming. Relying
on this, it is submitted that in the light of the judgment passed
by the Hon'ble Apex Court in Vineetha Sharma's case
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referred supra, this case is squarely covered and the plaint has
to be rejected.
7. Learned counsel appearing for the respondent/plaintiffs
has relied on the judgment of a Co-ordinate Bench of this Court
in Channabasappa S/o. Shivappa Hosamani Vs.
2
Smt.Parvatevva alias Kasturevva , in paragraph Nos.8, 9,
10, 11 and 12 and conclusion (a) to (e) which reads thus:
“8. In view of the law laid down by the Apex Court
in the case of Vineeta Sharma what emerges is that
in view of amendment to Section 6 of the Act,
daughter would step into the coparcenary as that of
a son by taking birth before or after the Act.
9. As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose
daughter is conferred with the rights is alive or not.
Therefore, what emerges from the above said
principle is that Hindu Succession (Amendment)
Act, 2005, has virtually damaged the concept of
Mitakshara coparcenary because daughter is treated
like a son and she is entitled for a share on par in a
coparcenary by birth. If the daughters by birth
become a coparcener in her own independent right,
in addition, the Act makes the heirs of pre-deceased
sons and daughters more equal, by including as
ClassI heirs, two generations of children of pre-
deceased daughters, as was already in the case of
sons. The main significant change making all
daughters coparceners in joint family properties is
also of great importance for women both
economically and symbolically.
10. The Apex Court judgment in the case of
Velamuri Venkata Sivaprasad (Dead) by LRs. .vs.
2
WP.No.105363/2023 dated 18.12.2023
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Kothuri Venkateswarlu (Dead) by LRs.5 held that
Hindu Succession Act is a socio-economic
legislation. Therefore, it should be interpreted with
widest possible connotation. The Apex Court in the
above cited judgment also pointed out that in the
case of interpretation of statute, specially relating
to 5 AIR 2000 SC 434 womenfolk, due weight
should be given to the Constitutional requirement of
equality and status.
11. In the light of law laid down by the larger Bench
in the case of Vineeta Sharma and in view of
interpretation of amended Section 6 in the above
cited judgment, what emerges is that Sub-Section
(1) of Section 6 envisages existence of joint Hindu
family when the amendment came into force. If the
joint family and the ancestral properties are intact,
the right of a daughter subsists, whether she is
alive or not as on the date of 2005 amendment.
Since daughter by fiction is granted the status of
coparcener by birth, her right in the ancestral
property being antecedent, the Class-I heirs of pre-
deceased daughter are to be treated equal and at
par with the other family members. Therefore, the
right of legal heirs of deceased daughter in the
coparcenary properties, subject to existence of
Hindu undivided family and in absence of disruption
of the Joint family properties, is not taken away.
The only exception being disposition or alienation or
partition of properties which has taken place before
20.12.2004. The Apex Court in the above cited
judgment has clearly held that the provisions are
retroactive and they confer benefits based on the
antecedent events and the Mitakshara Coparcenary
shall be deemed to include a reference to a
daughter as a coparcener. If Section 6(1)(a) makes
a daughter by birth a coparcener in her own right
and in same manner as the son, the legal heirs of
deceased daughters cannot be denied the benefit of
2005 amendment. If the rights of legal heirs of
predeceased son are not affected, the conferral of
coparcenary right on a daughter by birth cannot be
taken away on the premise that the daughter was
not alive on 9.9.2005. Any denial would lead to
discrimination among the legal heirs of predeceased
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son and predeceased daughter and would defeat the
very noble object of enactment and codifying the
law relating to intestate succession.
12. The application filed by the petitioner in final
decree proceedings under Section 152 of CPC is
clearly hit by the bar under Section 97 of CPC.
Section 97 of CPC clearly provides that where any
party is aggrieved by a preliminary decree passed
after the commencement of the Code does not
appeal from such decree, he shall be precluded from
disputing its correctness in final decree
proceedings. Modification of preliminary decree is
permissible only on the ground of changed or
supervening circumstances or change in law. Even
on this count, the application filed under Section
152 of CPC seeking modification is not at all
maintainable. Petitioner having failed to question
the preliminary decree 18 cannot seek amendment
by having recourse to Section 152 of CPC.
XXX
b. The Apex Court in the case of Vineeta Sharma has
clearly opined that daughter has to be treated as a
coparcener at par and right is by birth. Therefore,
what can be inferred from the dictum laid down by
the Apex Court in the judgment cited supra is that
even if daughter is not alive when 2005 amendment
to Hindu Succession Act was passed, her legal heirs
cannot be deprived the benefit of 2005 amendment.
The Apex Court unequivocally stated that a
daughter should be treated as a coparcener with
equal rights by birth. As the right is by birth and not
by dint of inheritance, it is irrelevant that a
coparcener whose daughter is conferred with birth
rights is alive or not. Therefore, even if a daughter
passed away before the 2005 amendment to the
Hindu Succession Act, her legal heirs cannot be
denied the benefits of the amendment. The court
affirmed that the daughter's right, being inherent
from birth, is comparable to that of a son,
irrespective of the timing in relation to the
enactment of the act. If a daughter who died before
2005 has surviving legal heirs, they could
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potentially enjoy the equal rights conferred by the
amendment on ancestral properties.
Conclusions:
a. The reference made in the Vineeta Sharma’s case
(supra) by the Supreme Court of India stemmed
from conflicting views and interpretations regarding
the rights of daughters in ancestral property under
Section 6 of the Hindu Succession Act, 1956. There
were varying judgments and opinions on whether
the amendments made to the Act in 2005 applied
retrospectively or only prospectively. The Court
sought to address these conflicting views and
provide a clear and consistent legal interpretation
to ensure uniformity in matters of inheritance for
daughters. The Supreme Court's reference in the
Vineeta Sharma’s case aimed to resolve these
disparities and establish a definitive interpretation
to bring clarity to the legal landscape concerning
daughters' inheritance rights.
b. The Apex Court in the case of Vineeta Sharma has
clearly opined that daughter has to be treated as a
coparcener at par and right is by birth. Therefore,
what can be inferred from the dictum laid down by
the Apex Court in the judgment cited supra is that
even if daughter is not alive when 2005 amendment
to Hindu Succession Act was passed, her legal heirs
cannot be deprived the benefit of 2005 amendment.
The Apex Court unequivocally stated that a
daughter should be treated as a coparcener with
equal rights by birth. As the right is by birth and not
by dint of inheritance, it is irrelevant that a
coparcener whose daughter is conferred with birth
rights is alive or not. Therefore, even if a daughter
passed away before the 2005 amendment to the
Hindu Succession Act, her legal heirs cannot be
denied the benefits of the amendment. The court
affirmed that the daughter's right, being inherent
from birth, is 20 comparable to that of a son,
irrespective of the timing in relation to the
enactment of the act. If a daughter who died before
2005 has surviving legal heirs, they could
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potentially enjoy the equal rights conferred by the
amendment on ancestral properties.
c. Denying equal rights to legal heirs in this context
may not only be considered discriminatory but could
also be subject to legal challenges. It goes against
the constitutional principles of equality and non-
discrimination enshrined in the Indian Constitution.
Courts, when interpreting and applying the law,
often strive to uphold these fundamental principles
and may intervene to ensure that the rights of
individuals, irrespective of gender, are protected
and upheld. By refusing the benefits granted to
similarly situated heirs of sons, it undermines the
fundamental principle of equality before the law.
d. To elaborate further, the judgment in the case of
Vineeta Sharma effectively removes the temporal
restriction associated with the 2005 amendment to
the Hindu Succession Act. It recognizes the rights of
daughters and their legal heirs in ancestral
property, regardless of whether the daughter
predeceased the father before or after the
amendment. This retrospective application ensures
that the principles of equality and non-
discrimination are upheld, providing daughters and
their descendants with a fair share in the ancestral
property. It aligns with the evolving legal landscape
in India, progressively addressing historical gender
biases in property rights within Hindu families. The
denial of benefits to the legal heirs of a predeceased
daughter under the 2005 amendment could be seen
as perpetuating historical gender-based biases.
e. The judgment in the case of Vineeta Sharma has
retrospective applicability. It extends the benefit of
the 2005 amendment to daughters, even if the
daughter had predeceased the father before the
amendment came into effect. This means that the
legal heirs of a predeceased daughter are entitled to
a share in the ancestral property, just like they
would have been if the daughter were alive at the
time of the 2005 amendment. The ruling
emphasizes gender equality and ensures that
daughters and their heirs receive their rightful
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share in ancestral property, irrespective of when
the daughter passed away. The judgment
essentially corrects this historical imbalance by
granting daughters and their legal heirs the same
rights as sons in ancestral property, regardless of
when the daughter passed away. It emphasizes the
constitutional principle of equality, ensuring that
women are not deprived of their rightful share
merely due to the timing of legal amendments.”
8. Relying on the above judgment, it is submitted that
the death of the daughter is immaterial. Learned counsel has
also relied on the judgment of the Orissa High Court in case of
Yagnaseni Patel vs. the General Manager, Mahanadi
3
Coalfields Ltd and others . He relied on paragraph Nos.10,
11 and 12 which reads thus:
“10. Therefore, taking into account the aforesaid
provision in Prakash and Mangammal (supra), the
finding of the apex Court that daughters are not
entitled to get the benefit of equal share being co-
sharers in the ancestral property, no more remains res
integra in view of the Larger Bench judgment of the
apex Court in the case of Vineeta Sharma v. Rakesh
Sharma and others, 2020 (II) OLR (SC) 569 : (2020) 9
SCC 1 wherein Subsection (1) of Section-6 of the
Hindu Succession (Amendment) Act, 2005 was under
consideration and consequentially a question was
framed “does the Hindu Succession (Amendment) Act,
2005, which gave equal right to daughters in ancestral
property, have a retrospective effect”. The apex Court,
in answering the same in affirmative, held that
daughter shall remain as coparcener (one who shares
equally with others in inheritance of an undivided joint
family property) throughout life, regardless of the
3
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question as to whether her father was alive when the
law was amended in 2005 or not, stressing that the
law has a retrospective effect. The apex Court further
held that the purpose behind the amendment in 2005
is to give equal rights of inheritance. Therefore, a
woman will have an equal share in undivided family
property. Sons and daughters of a coparcener become
coparceners by virtue of birth. A female heir or male
relative of such female heir have same rights and
liabilities. Thereby, analyzing the amended Section 6
of the Hindu Succession Act, 1956, it was held that
since the right is given by birth, it is an antecedent
event and the provisions concerning the rights
operate on and from the date of commencement of the
Amendment Act, 2005. As a consequence thereof, the
judgments in Prakash and others v. Phulabati and
others, 2015 (II) CLR (SC) 1146 : (2016) 2 SCC 36,
Mangammal @ Thulasi and another v. T.B. Raju and
others, Civil Appeal No. 1933 of 2009 decided on
19.04.2018, reported at (2018) 15 SCC 662 and
Danamma @ Suman Surpur and another v. Amar and
others, 2018 (I) OLR (SC) 494 : (2018) 3 SCC 343,
have been overruled.
11. In the above view of the matter, this Court is of
the considered view that the Claims Commission has
committed error apparent on the face of the record by
passing the order impugned denying benefit to the
daughter relying upon Prakash and Mangammal
(supra). But fact remains, the Claims Commission
passed the order impugned on 04.01.2020, by which
time the judgment of the Larger Bench in the case of
Vineeta Sharma (supra) had not seen the light of the
day, which was decided on 11th August, 2020. Since
the judgment, basing upon which the Larger Bench
has passed the order impugned, has no effect at this
point of time, in view of the fact that the Amendment
Act, 2005 has already come into force and, as such,
the interpretation thereof has to be given effect to. As
such, the daughter has a right to get the property of
her father from the date the Amendment Act came
into force, i.e., in 2005.
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12. At this stage, it is profitable to quote
paragraphs 60, 68 and 69 of the judgment of the
Larger Bench of the apex Court in the case of
Vineeta Sharma v. Rakesh Sharma and others,
2020 (II) OLR (SC) 569 : (2020) 9 SCC 1:-
“60. Section 6(2) provides when the female
Hindu shall hold the property to which she
becomes entitled under section 6(1), she will be
bound to follow rigors of coparcenary ownership,
and can dispose of the property by testamentary
mode. 68. It is by birth that interest in the
property is acquired. Devolution on the death of a
coparcener before 1956 used to be only by
survivorship. After 1956, women could also
inherit in exigencies, mentioned in the proviso to
unamended section 6. Now by legal fiction,
daughters are treated as coparceners. No one is
made a coparcener by devolution of interest. It is
by virtue of birth or by way of adoption obviously
within the permissible degrees; a person is to be
treated as coparcener and not otherwise. 69. The
argument raised that if the father or any other
coparcener died before the Amendment Act,
2005, the interest of the father or other
coparcener would have already merged in the
surviving coparcenary, and there was no
coparcener alive from whom the daughter would
succeed. We are unable to accept the submission
because it is not by the death of the father or
other coparcener that rights accrue. It is by the
factum of birth. It is only when a female of Class
I heir is left, or in case of her death, male relative
is left, the share of the deceased coparcener is
fixed to be distributed by a deemed partition, in
the event of an actual partition, as and when it
takes place as per the proviso to unamended
section 6. The share of the surviving coparcener
may undergo change till the actual partition is
made. The proviso to section 6 does not come in
the way of formation of a coparcenary, and who
can be a coparcener. The proviso to section 6 as
originally stood, contained an exception to the
survivorship right. The right conferred under
substituted section 6(1) is not by survivorship
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but by birth. The death of every coparcener is
inevitable. How the property passes on death is
not relevant for interpreting the provisions of
section 6(1). Significant is how right of a
coparcener is acquired under Mitakshara
coparcenary. It cannot be inferred that the
daughter is conferred with the right only on the
death of a living coparcener, by declaration
contained in section 6, she has been made a
coparcener. The precise declaration made in
section 6 (1) has to be taken to its logical end;
otherwise, it would amount to a denial of the very
right to a daughter expressly conferred by the
legislature. Survivorship as a mode of succession
of property of a Mitakshara coparcener, has been
abrogated with effect from 9.9.2005 by section
6(3).”
9. Learned counsel also relied on the judgment of the
Delhi High Court in case of Vivek Premkumar Gupta and
4
another Vs. Prabhath Kumar Swaroop , on paragraph No.
28 which reads thus:
“28. The fact that there was an amendment to
the Hindu Succession Act in 20026 whereby the
status of women was elevated to that of a
coparcener and the failure of the mother of the
Plaintiffs not the seek partition on that ground
cannot deprive the Plaintiffs from claiming
partition. The claim of the Plaintiffs is
maintainable on two grounds, (a) as LRs of their
mother, who is entitled to her share in her
father's property, i.e., maternal grandfather of
the Plaintiffs, (b) in terms of the amendment to
the Hindu Succession Act elevating the status of
women to that of a coparcener.”
4
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10. Learned counsel for respondent relied on the
judgment of a Co-ordinate Bench of this Court in in case of
Smt. M Rathnamma, Dead by her LRs Vs. M Suresha,
5
Dead by his LRs and Ors. , para no. 18 and 19 which reads
thus:
“18. Therefore, the coparcener’s right and title is
recognized by her birth as there is no obstructed
inheritance. Soon after the birth of the daughter,
she enters into zone of coparcener right as that
of son either before or after the Hindu Succession
Act, 1956. If the daughter is born before
17.06.1956 and is denied the coparcener right
and is not given an equal share as that of son
that would make discrimination as is opposed to
equality as per Article 14 of the Constitution of
India. Therefore, a daughter irrespective of
whether she born either before or after
17.06.1956 is entitled to be recognized as
coparcener and to claim an equal share in the
coparcenary property in accordance with
provisions of the Hindu Succession Act, 1956 as
amended. Therefore, in this regard, the
observation of the Trial Court is not correct and
thus, it is liable to be set aside. Hence, the
plaintiff is entitled to equal share as that of
defendant No.1 so far as item Nos.2, 3 and 4 of
the suit schedule properties but the plaintiff is
not entitled to share in item No.1 of the suit
schedule property as it is proved the said
property is self acquired property of defendant
No.1. Hence, I answer to point No.1 in the
negative and point Nos.2 and 3 in the affirmative.
19. Before parting with the judgment, this Court
places on record its deep appreciation for the
wellresearched and valuable assistance rendered
5
RFA No. 346 of 2021 dated 17.06.2026
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by its Research Assistant, namely Smt. Pushpa R.,
and her valuable research helped the Court to
take a correct conclusion. Accordingly, the Court
places its appreciation on Research Assistant,
namely Smt. Pushpa R., on record.”
11. He relied on the judgment of the High Court of
6
Madras in case of Murugammal vs. Andi and others ,
, para No. 16 which reads thus:
“16. As stated supra, there is no registered
partition deed and no actual partition took place
between the parties before December 20, 2004.
Hence, as per the dictum laid down by the
Hon'ble Supreme Court in the Vineeta Sharma Vs.
Rakesh Sharma, reported in (2020) 9 SCC 1, the
father need not be alive as on September 09,
2005 (Date of commencement of Act 39 of 2005)
to enable the daughter to claim equal rights by
birth. Hence, the Plaintiff, being the daughter of
G.Venkatesa Naicker, is entitled to an equal share
as that of his son – second defendant. Therefore,
the Plaintiff is entitled to 1/5 share under Section
6 of the Hindu Succession Act, 1956. After the
demise of G.Venkatesa Naicker, his 1/5 share
shall devolve upon his legal heirs under Section 8
of the Hindu Succession Act, 1956. Thus, the
Plaintiff will be entitled to 1/5 + 1/25 = 6/25
share. To that extent, the decree and judgment of
the First Appellate Court and the Trial Court
require modification.”
12. In response to that learned Senior counsel has also
relied on another judgment of the Madras High Court in case of
6
S.A.No.897/2002
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7
M Iyyanar and Others Vs. Kalvikarasi and others ,
paragraph No.25 which reads thus:
“25. Submissions were made mainly on the
interpretation of the judgment of the Supreme
Court in Vineeta Sharma v. Rakesh Sharma
reported in (2020) 9 SCC 1, which answered the
reference arising out of the conflicting verdicts
rendered by two Division Benches of the Supreme
Court, one in Prakash v. Phulavathi [(2016) 2 SCC
36 : (2016) 1 SCC (Civ) 549] and another in
Danamma @ Suman Surpur v. Amar [(2018) 3
SCC 343 : (2018) 2 SCC (Civ) 385]. In Prakash v.
Phulavathi (supra), the Supreme Court has held
that the rights under the Act 39 of 2005 are
applicable to living daughters of living
coparceners as on 9-9-2005, irrespective of when
such daughters are born; disposition or alienation
including partitions which may have taken place
before 20-12-2004 as per the law applicable prior
to the said date will remain unaffected and any
transaction of partition effected thereafter will be
governed by the Explanation. Whereas, in
Danamma's case (supra), the Supreme Court has
held that the amended provisions of Section 6
confer full rights upon the daughter coparcener;
any coparcener, including a daughter, can claim a
partition in the coparcenary property; therefore,
though the father coparcener is not alive as on
the date of commencement of the Amendment
Act, the daughter is entitled to coparcenary
rights.”
13. A memo is filed on behalf of the petitioner
distinguishing the authorities produced by the counsel for the
respondents. In respect to Yagnaseni Patel 's case referred
supra, It is stated that the petitioner, therein being the
7
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daughter of the late Kulamani Patel, claimed an equal share in
the property, relying on the provisions of Section 6 of the Hindu
Succession Amendment Act, 2005. Since the daughter was
alive as on 09.09.2005, that judgment will not apply to the
facts of the case. Then coming to Vivek Premkumar Gupta 's
case referred supra of the Delhi High Court, it is stated that the
plaintiffs are the children of one Mira Gupta, who passed away
on 29.04.2019. Therefore, it is clear that, in that case, the
daughter passed away after 09.09.2005, and the judgment
cannot be applied. Then with regard to M. Rathnamma' s case
referred supra, it is submitted that in the case plaintiff being
the daughter of one Sri.Mariswamchar has filed the suit seeking
partition. Therefore, it is clear that in this case also plaintiff
being the daughter has also filed the suit for partition who is
clearly alive after 09.09.2005. Then with regard to
Murugammal ’s case referred supra, it is stated that the
plaintiff being the daughter of one Venkatesa Naickar has filed
the suit seeking partition. Therefore, it is clear that plaintiff
being the daughter has filed the suit, who is clearly alive after
09.09.2005 and this judgment is also not applicable to the facts
of the case. In Channabasappa 's case referred supra, it is
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submitted that the paragraph No.80 of Vineeta Sharma 's case
referred supra has been relied upon by the Court. In paragraph
No.80, the Hon’ble Supreme Court did not agree with the
8
decision in Prakash Vs. Phulavati only in respect of the
concept of living coparcener alone, whereas in the very next
sentence the Hon’ble Supreme Court in fact has also held that
in their opinion, the daughter should be living on 09.09.2005.
In paragraph No.78 of Vineeta Sharma 's case referred supra
also, it was argued before the Supreme Court that if the
daughter is given the right to be a coparcener by birth and
deemed to become a coparcener at any point in the past, in the
normal working of law, uncertainty would be caused. To
address the arguments, the Hon’ble Supreme Court has clearly
held that there is no uncertainty caused when the daughter is
treated like a son and given the right by birth to be exercised
from a particular date i.e., 09.09.2005. It is further held that it
does not resurrect the past, but recognize and anticipate even
for conferring the rights prospectively. Therefore, the said
findings makes it clear that though the confirmation was given
8
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retroactively, the enforcement of the right is given
prospectively.
14. It is submitted that the Madras High Court in M.
Iyyanar ’s case referred supra at para No.34 had clearly held
that. It is an undisputed fact that the mother of the plaintiff
died on 24.06.2005 which is prior to 09.09.2005 i.e., prior to
the Hindu Succession Amendment Act, 2005. This fact is not in
dispute and also the relationship of the parties is not in dispute.
Therefore, the judgments relied upon in the instant case are
not applicable in as much as the Apex Court in Vineeta
Sharma 's case referred supra has clearly opined and clarified
that the daughter should be alive as on 09.09.2005 to accept
any right under the Hindu Succession Amendment Act, 2005.
Additionally, the suit is filed by the children of Gouramma
during 2012 and not Gouramma, who died on 24.06.2005 i.e.,
prior to the amendment of the Hindu Succession Act. Therefore,
clearly the suit is not maintainable and deserves to be rejected
in limine.
15. Having heard the learned Senior Counsel representing
the learned counsel for the petitioner and the learned counsel
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for the respondents, perused the entire material on record. The
Civil Revision Petition is directed against the order passed by
the learned trial court dismissing the application filed under
Order VII Rule 11 of the CPC, 1908, seeking rejection of the
plaint in a suit for partition. In the light of the submissions
made on behalf of both the parties, the issue that falls for
consideration before this court is:
“Whether the children and grandchildren of a
daughter who died before the commencement
of the Hindu Succession Amendment Act,
2005, can claim coparcenary rights under the
amended Section 6 of the Hindu Succession
Act, 1956?”
The controversy requires consideration of the position of
law before the judgment of the Supreme Court in Vineeta
Sharma ’s case referred supra. Under the traditional Mitakshara
law, daughters were not co-parceners by birth in the same
manner as sons. The Hindu Succession Amendment Act 2005
brought about a significant change by conferring equal
coparcenary status on daughters. The amendment was
intended to remove the discrimination that had existed in the
law governing joint family property. However, the amendment
gave rise to conflicting interpretations concerning its application
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to daughters whose fathers had died before 09.09.2005. In the
case of Prakash ’s case referred supra, the Hon'ble Supreme
Court held that the amended provision applies to living
daughters of living coparceners as on the date of
commencement of the amendment.
16. Subsequently, in Danamma alias Suman Surpur
9
and Anr. Vs. Amar and Ors. , the Hon’ble Supreme Court
recognised the rights of daughters notwithstanding that their
father had died before the amendment. The difference between
these two cases created uncertainty concerning the
requirement that the father should be alive as on 09.09.2005.
It was in this background that the matter came to be
considered by larger bench of the Supreme Court in case of
Vineeta Sharma referred supra. In Vineeta Sharma ’s case
referred supra, the Hon’ble Supreme Court held that a daughter
becomes a coparcener by birth in the same manner as a son.
The Court rejected the requirement that the father must be
alive as on 09.09.2005, holding that the daughter's
coparcenary status is founded on birth and does not depend on
the continued survival of her father. However, while dispensing
9
(2018) 3 SCC 343
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with the requirement concerning the father's survival, the
Supreme Court expressly observed in paragraph Nos.75, 79,
and 80 that the distinction drawn by the Supreme Court is
significant. The above-mentioned paragraphs read as follows:
“75. The decision in Bireswar Mookerji v. Ardha
Chunder Roy Chowdhry [Bireswar Mookerji v.
Ardha Chunder Roy Chowdhry, 1892 SCC OnLine
PC 3 : (1891-92) 19 IA 101] , was relied upon to
contend that adoption is only of a male and not a
female as held in Amarendra Mansingh v. Sanatan
Singh [Amarendra Mansingh v. Sanatan Singh,
1933 SCC OnLine PC 29 : (1932-33) 60 IA 242 :
AIR 1933 PC 155] , a male becomes a coparcener
by birth or adoption. There is no dispute with the
custom, which was prevalent earlier that there
could be the adoption of a male child and not that
of females. There is no dispute with the
proposition that a coparcenary right accrued to
males under the prevalent law by birth or
adoption. In the same manner, right is accrued by
birth to the daughter under the provisions of
Section 6. The legislature in Section 6 used the
term that a daughter becomes coparcener by
birth. The claim based on birth is distinguishable
and is different from modes of succession.
79. In Prakash v. Phulavati [Prakash v. Phulavati,
(2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] , father
died in the year 1988, daughters filed a suit for
partition in 1992, same was dismissed in 2007,
entitlement was given to the daughters to a share
on a notional partition under the proviso to Section
6 in the share of the coparcener father. However,
the High Court [Phulavati v. Prakash, 2010 SCC
OnLine Kar 5310 : (2011) 2 AIR Kant R 121]
applied the amended provisions of Section 6 to the
pending proceedings and treated daughters
equally with sons. As such, the matter travelled to
this Court. It was held that the proviso is not
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retrospective. The requirement of partition being
registered can have no application to statutory
notional partition, on the opening of succession as
per the unamended proviso to Section 6, having
regard to the nature of such partition, which is by
operation of law. It was opined: (SCC pp. 48-49 &
52, paras 17-18, 23, 27.2 & 27.3)
“17. The text of the amendment itself clearly
provides that the right conferred on a “daughter of
a coparcener” is “on and from the commencement
of the Hindu Succession (Amendment) Act, 2005”.
Section 6(3) talks of death after the amendment
for its applicability. In view of plain language of
the statute, there is no scope for a different
interpretation than the one suggested by the text
of the amendment. An amendment of a
substantive provision is always prospective unless
either expressly or by necessary intendment it is
retrospective [Shyam Sunder v. Ram Kumar,
(2001) 8 SCC 24, paras 22 to 27] . In the present
case, there is neither any express provision for
giving retrospective effect to the amended
provision nor necessary intendment to that effect.
Requirement of partition being registered can have
no application to statutory notional partition on
opening of succession as per unamended
provision, having regard to nature of such
partition which is by operation of law. The intent
and effect of the amendment will be considered a
little later. On this finding, the view [Phulavati v.
Prakash, 2010 SCC OnLine Kar 5310 : (2011) 2 AIR
Kant R 121] of the High Court cannot be sustained.
18. The contention of the respondents that the
amendment should be read as retrospective being
a piece of social legislation cannot be accepted.
Even a social legislation cannot be given
retrospective effect unless so provided for or so
intended by the legislature. In the present case,
the legislature has expressly made the amendment
applicable on and from its commencement and
only if death of the coparcener in question is after
the amendment. Thus, no other interpretation is
possible in view of the express language of the
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statute. The proviso keeping dispositions or
alienations or partitions prior to 20-12-2004
unaffected can also not lead to the inference that
the daughter could be a coparcener prior to the
commencement of the Act. The proviso only means
that the transactions not covered thereby will not
affect the extent of coparcenary property which
may be available when the main provision is
applicable. Similarly, Explanation has to be read
harmoniously with the substantive provision of
Section 6(5) by being limited to a transaction of
partition effected after 20-12-2004. Notional
partition, by its very nature, is not covered either
under the proviso or under sub-section (5) or
under the Explanation.
*
23. Accordingly, we hold that the rights under the
amendment are applicable to living daughters of
living coparceners as on 9-9-2005 irrespective of
when such daughters are born. Disposition or
alienation including partitions which may have
taken place before 20-12-2004 as per law
applicable prior to the said date will remain
unaffected. Any transaction of partition effected
thereafter will be governed by the Explanation.
*
27.2. In Gurupad Khandappa Magdum v. Hirabai
Khandappa Magdum [Gurupad Khandappa
Magdum v. Hirabai Khandappa Magdum, (1978) 3
SCC 383] , Shyama Devi v. Manju Shukla [Shyama
Devi v. Manju Shukla, (1994) 6 SCC 342] and Anar
Devi v. Parmeshwari Devi [Anar Devi v.
Parmeshwari Devi, (2006) 8 SCC 656] cases this
Court interpreted Explanation I (p. 60, para 50) to
Section 6 (prior to the 2005 Amendment) of the
Hindu Succession Act. It was held that the
deeming provision referring to partition of the
property immediately before the death of the
coparcener was to be given due and full effect in
view of settled principle of interpretation of a
provision incorporating a deeming fiction. In
Shyama Devi [Shyama Devi v. Manju Shukla,
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(1994) 6 SCC 342] and Anar Devi [Anar Devi v.
Parmeshwari Devi, (2006) 8 SCC 656] cases, same
view was followed.
27.3. In Vaishali Satish Ganorkar v. Satish
Keshaorao Ganorkar [Vaishali Satish Ganorkar v.
Satish Keshaorao Ganorkar, 2012 SCC OnLine Bom
116 : AIR 2012 Bom 101] , the Bombay High Court
held that the amendment will not apply unless the
daughter is born after the 2005 Amendment, but
on this aspect a different view has been taken in
the later larger Bench judgment in Badrinarayan
Shankar Bhandari v. Omprakash Shankar Bhandari
[Badrinarayan Shankar Bhandari v. Omprakash
Shankar Bhandari, 2014 SCC OnLine Bom 908 :
AIR 2014 Bom 151] . We are unable to find any
reason to hold that birth of the daughter after the
amendment was a necessary condition for its
applicability. All that is required is that daughter
should be alive and her father should also be alive
on the date of the amendment.”
80. A finding has been recorded in Prakash v.
Phulavati [Prakash v. Phulavati, (2016) 2 SCC 36 :
(2016) 1 SCC (Civ) 549] that the rights under the
substituted Section 6 accrue to living daughters of
living coparceners as on 9-9-2005 irrespective of
when such daughters are born. We find that the
attention of this Court was not drawn to the aspect
as to how a coparcenary is created. It is not
necessary to form a coparcenary or to become a
coparcener that a predecessor coparcener should
be alive; relevant is birth within degrees of
coparcenary to which it extends. Survivorship is
the mode of succession, not that of the formation
of a coparcenary. Hence, we respectfully find
ourselves unable to agree with the concept of
“living coparcener”, as laid down in Prakash v.
Phulavati [Prakash v. Phulavati, (2016) 2 SCC 36 :
(2016) 1 SCC (Civ) 549]. In substituted Section 6,
the expression “daughter of a living coparcener”
has not been used. Right is given under Section
6(1)(a) to the daughter by birth. Declaration of
right based on the past event was made on 9-9-
2005 and as provided in Section 6(1)(b),
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daughters by their birth, have the same rights in
the coparcenary, and they are subject to the same
liabilities as provided in Section 6(1)(c). Any
reference to the coparcener shall include a
reference to the daughter of a coparcener. The
provisions of Section 6(1) leave no room to
entertain the proposition that coparcener should
be living on 9-9-2005 through whom the daughter
is claiming. We are unable to be in unison with the
effect of deemed partition for the reasons
mentioned in the latter part.”
17. The requirement that the father should be alive was
specifically rejected. The Court did not similarly dispense with
the requirement that the daughter should be living on the date
of commencement of the amendment. The recognition of
coparcenary status by birth does not mean the amendment
operated retrospectively to vest a statutory right in a daughter
who had died before its commencement. Birth is the foundation
of the right, but the substituted Section 6 became operative as
on 09.09.2005. The fact that the right is traced to birth cannot
be understood as conferring a right under the amendment upon
a person who was no longer alive when the provision came into
force.
“In our opinion, the daughters should be living on 9-9-2005.”
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18. It recognizes that daughters born before or after the
amendment are entitled to coparcenary status by birth, with
the same rights and liabilities as sons. The Supreme Court
further held that daughters born before the amendment may
claim those rights with effect from 09.09.2005. Thus, the
requirement that the father be alive was removed. However,
the observation concerning the daughter's survival remains
significant. The two requirements cannot be treated as though
the Supreme Court had rejected both of them. In
Channabasappa ’s case referred supra, a co-ordinate bench of
this court, held that the legal heirs of daughters who died
before 09.09.2005, could claim equal share in subsisting
coparcenary property. The reasoning in Channabasappa ’s
case referred supra proceed upon the principle that the
daughter becomes a coparcener by birth, and that her
descendants should not be denied the benefit of the
amendment merely because she had died before its
commencement. The difficulty with this interpretation is that it
does not give effect to the Hon’ble Supreme Court's
observation in Vineeta Sharma ’s case referred supra.
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19. The Hon’ble Supreme Court, while holding that the
father need not be alive on 09.09.2005, specifically stated that
the daughter should be living on that day. The recognition of a
right by birth cannot be read independently of the
commencement or the statutory provision. The amended
Section 6 did not operate during the lifetime of a daughter who
died before 09.09.2005. Consequently, a coparcenary right
arising solely under the amendment could not have vested in
her before her death. The interpretation adopted in
Channabasappa ’s case referred supra, insofar as it recognizes
a right under amended Section 6 in favor of the descendants of
a daughter who died before 09.09.2005, is therefore
inconsistent with the express observation in paragraph No.80 of
Vineeta Sharma ’s case referred supra. Under Article 141 of
the Constitution of India, the law declared by the Hon’ble
Supreme Court is binding upon all Courts. Where an
interpretation adopted by this Court is inconsistent with the
declaration by the Supreme Court, the latter must prevail. The
interpretation in Channabasappa ’s case referred supra cannot
be applied to defeat the requirement concerning the daughter's
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survival expressly stated in Vineeta Sharma ’s case referred
supra.
20. Coming to the facts of the present case, the plaintiff'
s mother died on 24.06.2005. The Hindu Succession
Amendment Act, 2005, came into force on 09.09.2005. Thus,
she was not alive when the amendment or provision became
operative. The plaintiff is seeking partition through their
deceased mother. Their claim, insofar as it rests upon the
amendment to Section 6, necessarily depends upon the
existence of a coparcenary right in their mother that could
devolve upon them, because their mother died before the
commencement of the amendment, no coparcenary right under
the substituted Section 6 vested in her. Her children and
grandchildren cannot claim through her a right that she did not
acquire during her lifetime. The mere fact that the plaintiffs are
descendants of a daughter of the family does not, by itself,
confer upon them a right to partition under the amended
provision. Their entitlement must arise from a legally
recognized interest, and the statutory right relied upon vested
in their predecessor. The subsequent institution of a suit cannot
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create that right. Once the plaintiffs are found not entitled to
claim partition under the amendment to Section 6, it is
unnecessary to examine the sale transactions of 2001 and the
other sale transactions. The validity or binding nature of an
alienation becomes relevant only when the plaintiffs establish
an enforceable right in the property. In the absence of such a
right, consideration of the same would serve no purpose.
21. Order VII Rule 11 of the CPC requires the Court to
examine whether the plaint discloses a cause of action.
Whether the suit is barred by law, the Court must proceed upon
the averments contained in the plaint and cannot rely upon
disputed facts introduced through the defense. In the present
case, on the face of it on a bare perusal of the plaint. It is clear
that the plaintiffs have no legal right to claim partition when
their mother was not alive on the day the amendment came
into force. The trial court has failed to appreciate this fact. In
those circumstances, the impugned order needs to be set
aside. Hence, this Court is passing the following:
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ORDER
i. The order dated 01.06.2019 passed on I.A.No.V
in O.S.No.6992/2012 by the LXXV Additional City
Civil and Sessions Judge, Bengaluru, is set
aside .
ii. Consequently, I.A.No.V is allowed and the plaint
is rejected .
iii. Accordingly, the Civil Revision Petition is
allowed .
iv. All I.As. in this petition shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
MEG
List No.: 1 Sl No.: 1
*MR