On 1st February 2018 supreme court gave judgement in line with my understanding or law and article there was hot arguments by one advocate who criticised me. Now he is proved wrong. The Hon'ble Supreme court allotted equal share to a daughter whose father had died in the year 2001.
May i know your opinion on Uttam Vs Saubhag Singh judgment, which held if entire property is divided as per sec-8 of the H.S.A. act after death of a coparcenar where there is no necessity to opt for notional partition i.e. no female members referred in class-1 heirs are alive, total ancestral property losses its coparcenary charecter and there will be only tennets in common and no joint tennets.
You have observed that ganduri case is per incuriam since it did not discuss the sheeladevi and other cases. In sheeladevi case there was no case of daughters seeking share as per amendment. The court observation not connected to the decision is not ratio and not required to be discussed by the later bench. You agree that the coparcenary is not abolished but how you say that the judgement Sheeladevi is correct as it says son born before 1956 is coparcener and born after 1956 is not coparcener. The judgement is to be just neglected as it has not laid down binding precedent as it is against Gurupadppa Khandappa full bench case. The Division bench cannot overrule the full bench case.
Yes You are right. I have Discussed fully in my another article Analysis of judgements on Hindu succession Act 1956 right from 1956 to 2016 i.e. Before 2005 amendment and after amendment.
coparcenary was never ever abolished by any amendment, either of state or centre. With H.S.Act 2005 a daughter of a coparcenar became a coparcenar as of son by her birth.
Co-equal bench cannot overrule earlier co-equal bench. More over In Prakash case it is observed. "THE view which we have taken above is consistent with and not in conflict with any of the earlier decisions." In Ganduri case A daughter whose father died before 2005 is allotted equal sahre, is directly contracry to the view taken by prakash case, so prakash case is decided in ignorance of ratio of Ganduri case. In Ganduri case, A filed suit against his father, two sisters, preliminary decree is drawn in 1999. Father died in 1993. When 2005 amendment passed FDP pending. Daughter moved for modification of decree. Trial court allowed and modified preliminary decree allotting equal share to daughter as son. High court set aside the order, apex court restored trial court order holding that daughter whose father died before 2005 amendment is entitled for equal share as son this is ratio. So Prakash case is not laying down binding precedent.
Once judgement lays down ratio, the same cannot be overruled. You are considering Sheeladevi case anardevi there was no issue of application of amendment act. Whatever the judge discusses is not ratio what the judge applies is ratio. Within two days I am publishing article ratio please go through. Chander Sen case dealt with separate father share not coparcenery share which is applied to section 6 in Sheeladevi more over Sheeladevi procceds on the premise of coparcenary abolished after 1956. It is not so go through parliament consultative committee notes. If coparcenary is abolished whey amendment to HS Act by Ap, TN, Karnataka and maharashtra and now by center only for those who are born before 1956. Do any court held that son born before 1956 is coparcener and son born after 1956 is not coparcener as held in Sheeladevi case, So sheeladevi case is not laying down binding precedent. So no need to refer to it and rightly not referred to it. Such cases are there example Uttam singh case 2016.
Rightly said madhuSudan reddy. Some how this person is preoccupied with Ganduri case. I have replied him in detail in another article written recently.
Inheritance is never in abeyance. Property will devolve immediately when succession opens as per the Laws then in force. In Prakash Vs Phulvati case Ganduri koteswaramma Vs Chakiri Yanadi case was considered and it was held that the ratio decendi in Ganduri's case is that there can be more than one preliminary decree according to changed circumstances and changed laws even where there is no appeal preferred against such decree. Binding Precedents of Sheela devi Vs Lal chand and Anar devi Vs Parameshwari devi were not referred in Ganduri's case. Thus Ganduri's case is itself "per incuriam" and not Prakash's case. This view was upheld by a division bench of Andhra Pradesh high court in B. Chandrakala Vs A. Anuradha.
Will can be executed regarding his property. In case of ancestral property his undivided share can bequeathed.
Exm: A a Hindu has got share in ancestral property in partition between himself and his father. In this property his sons and daughters have got birth right. A has got undivided share in it. A can beqeath/will his undivided share only
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