Property dispute
Querist :
Anonymous
(Querist) 13 April 2011
This query is : Resolved
Hello All,
I have a question, X had 4 issues 2 daughters and 2 sons . X died in 1973 writing a will that his son A and B gets equal share n the property. The will was registered however, the son's did not took possession or changed on the property on their name till 2006.After the Hindu succession 2005 now the daughters also asking for equal share.Please let me know whether they are eligible for it?
adv. rajeev ( rajoo )
(Expert) 14 April 2011
If it was X's self acquired property then daughters wont get any share. If it is not an ancestral one then they are liable to claim the share because date of birth of the daughers are immaterial date of death of the father is material.
Advocate Bhartesh goyal
(Expert) 14 April 2011
Yes ,adv rajeev is absolutely right if the property of X was self acquired and he bequeathed the same through registered will then daughters of X have no right/share in the property.daughters have only right when the property of X was ancestral.
R.Ramachandran
(Expert) 14 April 2011
A completely agree with the views of the experts.
V.Mahadevan
(Expert) 14 April 2011
The intent of the testator is amply made clear from the WILL made though registered later. The daughters cannot succeed.
Querist :
Anonymous
(Querist) 14 April 2011
Thanks for all your reply. I just had gone through supreme court judgement. I am posting this as it will be useful for all.
Rajeev, If you say daughters born before 1956 are eligible each and every house will have one case.. Please throw some light if you have gone through any of the other judgement.
In Commissioner of Income Tax v. Indian Bank Limited MANU/SC/0145/1964 : AIR 1965 SC 1473, the Supreme Court reiterated:
From the below judgement it is clear that daughters born before HSA 1956 will not be eligible for share if the coparcenor is died . Only daughters who born after 1956 and their father alive after 2005 can claim for equal rights.
45. In Commissioner of Income Tax v. Indian Bank Limited MANU/SC/0145/1964 : AIR 1965 SC 1473, the Supreme Court reiterated:
In our opinion, in construing the Act, we must adhere closely to the language of the Act. If there is ambiguity in the terms of a provision, recourse must naturally be had to well established principles of construction, but it is not permissible first to create an artificial ambiguity and then try to resolve the ambiguity by resort to some general principles
15.3. The principles are so succinctly stated in American Jurisprudence (2nd Edition, Vol. 73, page 434, PT.366), quoted with approval in S.R. Bommai v. Union of India AIR 1994 SC 1980.
While it has been held that it is duty of the courts to interpret as statute as they find it without reference to whether its provisions are expedient or inexpedient. It has also been recognised that where a statute is ambiguous and subject to more than one interpretation, the expediency of one construction or the other is properly considered. Indeed, where the arguments are nicely balanced, expediency may trip the scales in favour of a particular construction. It is not the function of a court in the interpretation of statutes, to vindicate the wisdom of the law. The mere fact that the statute leads to unwise results is not sufficient to justify the Court in rejecting the plain meaning of unambiguous words or in giving to a statute a meaning of which its language is not susceptible, or in restricting the scope of a statute. By the same token an omission or failure to prove for contingencies, which it may seem wise to have provided for specifically, does not justify any judicial addition to the language of the statute. To the contrary, it is the duty of the Courts to interpret a statute as they find it without reference to whether its provisions are wise or unwise, necessary or unnecessary, appropriate or inappropriate, or well or illconceived.
15.4. Rule of interpretation are meant to ascertain the true intent and purpose of the enactment and set right any anomaly, inconsistency or ambiguity, while giving effect to it The several rules of interpretation when juxtapositioned may give an impression that they are inconsistent with each other. Further, the same provision, when interpreted with reference to different Rules of interpretation may lead to different results. This is because the Rules of interpretation are meant to set right different types of defects. It is not possible to apply all rules of interpretation together, to a provision of law. An appropriate rule of interpretation should he chosen as a tool depending upon the nature of the defect in drafting which has to be set right. The Rules of interpretation are to be applied in interpreting the statutes, only if there is ambiguity, inconsistency, absurdity or redundancy. Where the words are clear the unambiguous, there is little need to open the tool kit of Interpretation.
46. Keeping in mind these principles, the substituted Section 6 is to be interpreted. Section 6 reads as under:
Section 6. Devolution of interest in coparcenary property.- (1) On and from the commencement of the Hindu Succession (Amendment) Act 2005, in a Joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be under this Act and not by survivorship, and. the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a son;
(b) the shore of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter; and
(c) the share of the predeceased child of a pre-deceased son or a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a. partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grand-father solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt;
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 nothing contained in this sub-section shall affect-
(a) the right of any creditor to proceed against the son, grandson of great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule or pious obligation in the same manner and to the same excent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.- For the purposes of Clause (a), the expression "son", "grandson" or "great- grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation.- For the purposes of this Section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 (16 of 1908) or partition effected by a decree of a court.
47. The heading of the Section, "devolution of interest in coparcenary property" is retained. There is no change. The word "coparcenary" and "Joint Hindu Family" was used in all schools of Hindu Law, though the rights of coparcenars and members of the Joint family differed. The un-amended Section 6 dealt with interest of a male Hindu in a Mitakshara coparcenary property, as a female Hindu was not recognized as a coparcener at all The parliament intended to change the existing law and create and confer such right on a daughter of a coparcener also. Therefore, they chose to make a declaration signaling the change in the Jaw, as it existed till then and heralding a new era. The intention behind the amendment is to confer such coparcenary right on the daughter of a coparcener, which was hitherto not recognized both under the Shastric Hindu Law and the Act. The discrimination sought to be removed was not existing in all Schools of Hindu Law. It was existing only in Mitakshara School. Therefore, amended section makes it clear that the declaration made is confined only to "a Joint Family governed by the Mitakshara law". The equality to be restored was between son and daughter only and not between male and female Hindu. Therefore, the Parliament consciously used the phrase "the daughter of a coparcener" is the person on whom they are conferring the right and not on any other female relative, who may be a member of Joint Hindu Family. This intention can be gathered from the fact that in the unamended Section, the proviso conferred rights on a "female relative" and not only on a "daughter of a coparcener".
48. Then the next question, is What is the right that is created and conferred?
Two rights are conferred.
(a) The daughter of a coparcener by birth become a coparcener in her own right in the same manner as the son. Equality in Status:
(b) The daughter of a coparcener would have the same rights in the coparcenary property, as she would have had, if she had been a son. Equal rights in coparcenary property.
49. Thus, Gender discrimination between the son and daughter is removed, and bringing the law in conformity with the Article 14 and 15 of the Constitution which are fundamental rights.
50. The parliament took care to see that the daughter who is conferred rights in the coparcenary property on par with the son, is also saddled with the liabilities in respect of the said coparcenary property as that of a son, making it clear that the right in property conferred on her is not free from all encumbrances on the said property. The rights and liabilities are to be shared equally by the son and daughter, thus giving effect to the equality clause in letter and spirit.
51. With the change in the law, the legal concept of coparcenary underwent a radical change. The coparcenary hitherto the monopoly of male lineal descendants, and consisting of only male member of a Joint Hindu Family now has to accommodate a daughter, a female also. Therefore, a declaration is made to the effect that any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. The exclusive club of males "a Hindu Mitakshara coparcenary" is now thrown open to the daughters also.
52. This declaration and conferment of right in coparcenary property, a salient and distinguishing feature of a coparcenary property in Mitakshara, is the right by birth. Once daughter is conferred the right of a coparcener, it follows that, she would get a right by birth in the coparcenary property. When the amending act came into force in 2005, naturally the question and a doubt would arise, as to when the daughter would get that right. The parliament realised this problem and did not want to leave any one in doubt about its intention. It is expressly stated in the section itself that this "right is by birth", leaving no scope for interpretation. This amendment is introduced by way of substitution. The result is, this amended provision is there in the statute on the day it came into force i.e., 17-6-1956. From that day till the amendment Act came into force on 9-9-2005, the daughter of the coparcener was not a coparcener and she became a coparcener only from 9-9-2005. Though her status was so declared on 9-9-2005, she has been given right in the coparcenery property from the date of her birth. It would result in absurdity. Therefore, what the parliament did was to use the phrase, "on and from the commencement of the Hindu Succession (Amendment) Act. 2005", as the opening words of the Section, thus removing the absurdity
Querist :
Anonymous
(Querist) 14 April 2011
Please go through point 52 which makes every one clear..
