THEREFORE THE SUIT FILED BY THE MINOR DAUGHER P2 Ri FOR PARTITION IN THE SEPARATE INDIVIDUAL PROPERTIES CLAIMING HALF SHARE IN THE SO CALLED ANCESTRAL & JOINT FAMILY PROPERTIES OF HER FATHER D1S OBVIOUSLY IS NOT MAINTAINABLE!
She can not claim any right by birth even under THE HINDU SUCCESSION AMENDMENT TAMIL NADU ACT of 1990 wef 25-03-1989 TO SECTION 29 of the HAS OF 1956.
The heading is: EQUAL RIGHT TO DAUGHTER IN COPARCENARY PROPERTY !
Thus it posthulates two facts- there is joint family and that it had coparcenary property. Thus there should have been two male members when the Amending Act came into force on 25-03-1989. P2 Ri was born on 16-07-1997 and there was neither a joint family nor coparcenary property. P2 Ri was not born to a father coparcener after all. D1 S was not a coparcener then or even today !
Again , the Central amendment to Section 6 of HAS by Act 39 of 2005 wef 09-09-2005. too would not help the P2 Ri inasmuch as the Act amending Act reads:
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 coparcerner;
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 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 share 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 pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased 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-grandfather 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 or 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 of pious obligation in the same manner and to the same extent 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 the decree of a Court." ;
Here we notice that here must be Hindu Joint family and the daughter must be of a coparcener to invoke this amended S.6 and be a beneficiary the amendment.
In view of the separated and individual status the father D1 S even from the date 30-09-1970, the daughter P2 Ri does not qualify to avail the amended S.6 and she will fail ( in the appeal to be laid in the High Court by D1 S father) in respect of her claim of partition and of her half share in the alleged “ joint family “ property of her father D1S for the alleged virtue of it being “ancestral”!
Law that would favour the appellant father / D1 S are:
SUPREME COURT OF INDIA:
M. Yogendra and others v. N.Leelamma and Others (2009) 15 SCC 184 –
“It is now well-settled in view of several decisions of this Court that the property in the hands of sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him” -
“It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act.”
2011 (11) SCALE 467
“14. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.’
We notice that the stress is on the daughter of a coparcener and in the coparcenary property oinly which would not help the daughter P2 Ri in view of the fact that her after D1S , after his partition on 30-09-1907 had ceased to be a coparcener and he continues to be so so even up to this minute!
BUT , dear thiru. Ashish Chakravarty, my concern and focus is what about the vendess right to the specific portions obtained by them from the D1S even while the injunction was in force. No doubt that they having purchased specific shares the D1 S father out of his separate property as such, hey will not be hurt by S.52 of TP Act. But is the sale void for having been done by father D1 S in naked violation the Court?
The vendees have already filed an appeal suit ( first appeal) in the High Court against the finding the trial court the sale were void.etc..etc.!
Some excerpts from the reasoning of the trial judge from his judgment under issue : “ whether the sale in favour of the defendants 2, 3 affects the right of the plaintiffs?”
“Here the plaintiffs contend that the sale of the suit properties by the first defendant on 23-10-2007 and 30-10-2007 under Ex.B11 and Ex.B 12 respectively are void and since they have purchased the properties when an order of injunction has been in force in respect of the suit properties”.
“in cross examination DW3 ( D3 vendee ) clearly admit that he knew the order on injunction obtained by the plaintiffs in respect of the suit properties prohibiting D1 S and others not to alienate the property 1o days before the purchase, would go to show that the defendants 2 and 3 have purchased the suit properties with the knowledge of the order of injunction and that the suit pending in respect of the suit properties. At this juncture it is relevant to go through the provisions of Section 52 of the Transfer of Property Act.” ( S.52 quoted in full)
“Hence it is clear that the sale by defendant No.1 to defendants are void and the sales do not bind the plaintiffs”. He rleis on 2001 ( 1) CTC 19 . AIR 2007 SC 1332. After referring the portions of the judgments he concludes: “ So it is clear that the purchasers of the property when a suit is pending will not incur any right in the property”
The trial judge then seeks to fortify his reasoning : “Further DW1 ( D1 S) admitted in his evidence that the suit properties are his ancestral properties. The same is revealed through Ex.A2 partition deed between the first defendant and his father dated 30-09-1970. and further DW3 ( one of the two vendees) admitted in his evidence that he knew how the suit properties belonged to D1 S would all go to show that defendants by knowing fully well regarding the ancestral nature of the properties have purchased the suit properties. When the properties are ancestral and the first plaintiff and first defendant who are wife and husband having half share in the suit properties as per Hindu Law.
In the above circumstances I hold that the sale of by first defendant to second defendant and third defendant are not binding on the plaintiffs. When the 2nd and third defendant have no right over the suit properties by virtue of Section 52 of the Transfer of Property Act there is no question of claiming of cancellation of Ex.B.11 and Ex.B.13 which are not binding the plaintiffs”.
THEREFORE, while i am clear that S.52 analysis as such will not help the planitffs to disentitle the vendeess altogether, can there be a legal consequence of vendees losing thier title for violating injunction? I am aware that what they purchased was from out of the separate property! P.Padmanaabhan. advocate. 03rd Feb 2012 at 22:08 hrs IST