On 1st February 2018 supreme court gave judgement in line with my article there was hot arguments by one advocate who criticised me. He is proved wrong today. The Hon'ble Supreme court allotted share to a daughter whose father had died in the year 2001
In sheeladevi case, it didn't abolish coparcenary, highlighted the changes in coparcenary, because of section 6 and 8 of hindu sucession act 1956. It explicitly said any act or statute regulating sucession is always prospective, setting as binding precedent. In Eramma vs verupanna already Apex court dealt any act or statute regulating sucession is always prospective, in which coparcener died prior to 1956, the principles of HSA 1956 not applicable.
According to Guruppad, once notional partition occurs, there ends the coparcenary and the same principle followed in uttamsingh case, giving full effect to guruppad.
Coparcenary is never abolished, coparcenary is retained both in hsa act 1956, as well as in 2005 amendment and state amendment, what should be understood is changes bought in coparcenery after introduction of section 6 and 8 of hindu sucession act. Prior to 1956 , coparcenary should pass through four generations undivided to categorize as coparcenary, That principle has given a go by with introduction of section 6 and 8 of HSA act 1956.After 1956,there are only two things to be considered whether it is coparcenary or seperate property, if property devolves by inheritance i.e intestate sucession, then it is seperate property of son's with grandson not having any share until the son dies or son takes it in independent capacity, if property is partitioned between father and son's during lifetime of father, then the son getting property is seperate regarding father and brothers, but forms joint HUF with son's, grandson's and great grandsons. After 2005, daughter has become coparcener similar as son.Thing is if notional partition occurs by proviso to section 6, coparcenary ends, and they enjoy property as tenants in common, not as joint tenants as laid in Guruppad.
Ganduri case is reported in SCr 2011 vol 11 page 968
much needed ...
Ganduri Case is reported in 2011 vol 11 page 968 and head note is as under
Hindu Succession Act, 1956 – s. 6 (as amended by Hindu Succession (Amendment) Act, 2005):
Devolution of interest in coparcenary property – Rights and liabilities of the daughter – Held: Daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son – This is effective from September 9, 2005 – Right accrued to a daughter in the property is absolute, except where disposition or alienation including any partition/testamentary disposition of property has taken place before December 20, 2004, as provided in the proviso to sub-section (1) of s. 6.
Partition of coparcenary property – Suit for partition by one of the son – Preliminary decree dated 19.03.1999, amended on 27.09.2003 – Before passing of the final decree,
s. 6 was amended in 2005 whereby daughter was allotted the same share as was allotted to a son – Application by daughters seeking preliminary decree in their favour for
partition of schedule property, allotting them one share each, allowed by the trial court – Said order set aside by High Court On appeal, held: Section 6 (as amended) is not applicable to partition effected before 20.12.2004 – On facts, in the suit for partition only the shares were determined by preliminary decree dated 19.03.1999 which was amended on 27.09.2003 – Commissioner had submitted the report as regards the
division of the property and final decree for partition was yet to be passed Or. XX r. 18 C.P.C. creates no impediment for more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree – Once a preliminary decree has been passed, it is capable of modification even if no appeal has been preferred from such preliminary decree – Thus, order passed by the High Court is set aside and that of the trial court is restored –Code of Civil Procedure, 1908 – Or. XX r. 18.
Supreme Courts Reports is the official publication of the reportable decisions of the Supreme Court of India. It is being published weekly since the inception of the Supreme Court of India in 1950. It is published under the authority of the Supreme Court of India by the Controller of Publications, Government of India, Delhi. It is heard that Judges who deliver the judgement approve the head note wherein ratio is set.
Coparcenary is alive as held in Gurupad case or abolished as held in Sheeladevi and other judgements of S.B.Sinha and Uttam Singh case?.
State of maharastra vs narayana rao never rejected the theory of vesting right, infact it supported it, by accepting the precedent laid down in guruppad, what it also says is, u cannot separate HUF applying notional partition, unless they intend to seperate.
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