Based on the precedent laid in Guruppad, with same reiterated in Shyama devi vs manju shukla, Anardevi vs Parameshwari devi and state of maharashtra vs Narayana rao, clearly and explicitly rules that once notional partition occurs, it is irreversible and shares become fixed and definite. If there is child in mother's womb, even it is taken into consideration once notional partition sets in.
Sorry, it's fixed and definite
It clearly tells in state of maharastra vs narayana, that shares become fixed and indefinite on death of coparcener, accepting the principle of notional partition set in Guruppad, at the same time, it says you cannot separate mother and son, or husband and wife, because of notional partition, unless they wish to separate themselves. Because HUF contains male members, their wives, mother and unmarried daughters, and you cannot ask them to go out because of notional partition. That's only principle set in, it clearly reiterates that shares become fixed and indefinite on notional partition, and enjoy shares accordingly in joint posessesion (with fixed shares of notional partition)
Uttam singh case facts son filed suit against father and his brothers, trial court decreed. Ist appellate court allowed appeal and dismissed suit holding that son cannot file suit during life titme of father. High court dismissed appeal apex court dismissed appeal. This means end of Mithakshara coparcenary. This judgement is not laying down binding precedent. You cannot rely on for any purpose.
State of maharashtra vs Narayana rao, operated on different principle, it is not the case of notional partition leads to irreversible partition, or shares become definite, it is case where wife or mother of a person cannot become separate members after notional partition. Judge explicitly said, you cannot separate wife and husband, if son dies prior to father i.e husband, taking notional partition into consideration. In that context it has been said. It has been clarified twice by apexcourt, it doesn't deal with joint family property or coparcenary property or sucession principle. It never said joint family property or coparcenary property continues with notional partition. This has been exclusively dealt in uttam singh vs saubhagya singh.
what is the meaning of "by birth" in the section 6 of amended act. Daughter is to be treated as coparcener by birth. If we go by the word by birth, it is birth after amendment which is against the object of the act. The Ratio is discernible from the application of principle. In Ganduri, Saireddy prema nanje gowda cases though dealt with modification decree coparcenary share is allotted giving them benefit of amendment. In Ganduri case decree is modified in the pending final decree proceedings allotting coparcenary share to daughter whose father died in 1993. Which means daughters are coparceners whose father died before 2005. So Ratio in Ganduri case daughter is to be allotted share irrespective of her fathers death before or after amendment. If your argument is accepted it means in pending fdp daughters can be allotted share equal to that of son and if suit is filed they cannot be allotted. Appeals are continuation of suits. Amendment applicable. Till final decree drawn preliminary decree is liable to be modified. We can term statutory birth, daughters become coparceners by virtue of amendment.
Death of coparcener opens succession but it cannot be irreversible. In case of birth of child to the deceased coparcener after his death (child in the womb), the shares are reworked. So till actual partition no one can predict their actual share. Even the share of class I heirs will also be effected under above situation. State of Maharashtra Vs Narayanrao full bench rejected the theory of vesting in the female class I heirs and allot them their share in the land reforms holding that they have not actually sought partition. So refused to allot them their share they were entitled after death of coparcener holding that among mithakshara families unity of ownership and possession among members of the joint family is basic principle.
In Sai reddy vs Narayana reddy, Prema vs Ninja Gowda, Ganduri Koteswaramma vs chairi yanidi, all have dealt primarily regarding modification of preliminary decree with subsequent change of law.
Coming to Sai reddy vs Narayana reddy, preliminary decree granted prior to AP HSA act 1985. Ap HSA act 1985 has given daughters by birth becomes coparceners as son with insertion of section 29A, section 29A is worded with subobstinate clause - not withstanding anything contained in section 6 of 1956 HSA, which implies section 6 is not applicable. The only rider was marriage prior to 1985 and partition. That means even sucession opened prior to 1985, daughter can avail benefit as a coparcener if unmarried prior to 1985, where legislature itself explicitly given retrospective effect by inserting a subobstinate clause into section 29A.
After preliminary decree was passed these new amendment came into existence with out implication of sucession or notional partition opened prior to 1985, unmarried daughters applied for modification of preliminary decree based on change of law. Same is the case of Prema vs Ninja Gowda.
After passage of central amendment act 2005, if preliminary decree is passed for married daughters (whose marriage took prior to 1985) without considering them as coparceners, if their father is alive on date of commencement of act with only preliminary decree passed, then they can avail benefits of 2005 amendment, with modification of preliminary decree, because marriage was not a bar for central amendment act. Inference is with change of law preliminary decree gets modified accordingly. This is basic principle set by Apex court in regarding modification of preliminary decree.
If unmarried daughters got coparcenary right by way of state amendments, same cannot be taken away by central amendment, because rights once vested cannot get divested.
In joint HUF having joint family property or coparcenary property, shares of coparceners are indefinite and all coparceners are having equal share, with no definite or fixed share of each coparcener, and all are in joint posession.It only becomes definite and fixed when there is partition. In classical hindu law partition can occur by different modes, by oral agreement, written agreement, severance by unilateral declaration by one of the coparcener, partition by conduct by one of coparcener, partition by institution of suit. Hindu sucession act 1956, no where mentions definition of partition. In absence of that, partition in classical hindu law prevails. Another important aspect of HSA 1956, devolution of interest in coparcenery property, occurs after death of coparcener, which means opening of sucession is considered to be irreversible partition , where indefinite shares has become definite and fixed according to ruling of Guruppad Khandappa, Shyama devi and Anardevi .They enjoy the property as tenants in common with definite and fixed shares, not as joint tenants until deface partition occurs.
If legislature has not expressly or by necessary implication given effect to statute from a date prior to its enactment, courts will not allow retrospective effect being given to a legislation so as to take away vested rights, statutes enacted for regulating sucession are always prospective and are not applicable to sucession which had already opened, as otherwise the effect will be to divest the estate from persons in whom it had vested prior to coming into force of new statue.
What should be understood is, once sucession opens, rights are crystallized and final, you cannot take it back unless legislation gives retrospective effect by clear expressed provision or necessary implication. When legislative intent is clear regarding prospectivity of statute, there should be no other interpretation than intent of legislaure.
Another thing to be understood is once sucession opens by notional partition, it has to be given full effect and it is irreversible and irrevocable. When notional partition or statutory partition comes with in purview of subsection 5 of amended section 6, i.e registered partition or final decree of court, benefits of amendment not applicable to daughter's whose father died prior to 2005.
If retrospectivity is upheld, then all daughters will be coparceners irrespective, whether they are alive or dead, on the date of commencement of act. Inference is if amended act is retrospective, living daughters whose father died before the act , cannot be given benefit.
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