Daughter Born Before Partition Of Ancestral Property Prior To Amendment Of S.6 Of Hindu Succession Act Cannot Claim Right In Father's Share: Karnataka HC

The Karnataka High Court has said that daughter who was already born at the time of a partition that took place before 20th December 2004 (Amendment to Section 6 of the Hindu Succession Act), between the father and his sons, cannot be elevated to the status of the daughter born after the partition and cannot claim the share in the property allotted to the father or challenge the alienation made by the father, after 2005 amendment.A single judge, Justice Anant Ramanathe Hegde held thus while dismissing the appeal filed by Prafulla M Bhat and others. The appellants had challenged the trial court order which had dismissed their suit for partition and seeking equal rights in the ancestral property held by their deceased father Mahadev. Challenge was also raised to the gift deed executed by Mahadev in favour of his second wife. The court said, “The Parliament intended to save the partitions made before 20.12.2004. Said protection given to the partition effected before 20th December 2004 is to all the properties covered by the said partition, registered/Partition decree/ and certain categories of oral partition. It would disentitle the daughter, who was alive at the time of partition among coparceners that took place before 20th December 2004, to make a claim for partition in the property allotted to the share of the father claiming the status on par with the daughter born to a coparcener after the partition.” Case Details: Mahadev's first wife died in 1992. Defendant No.1 (Saraswati Shastri) claimed to be his second wife and their marriage is said to have taken place in 1999. However, the plaintiffs' (daughters) dispute the marriage and contend that she was only a domestic help. Further, they pleaded that the suit properties were ancestral in the hands of Mahadev. On 10.01.1994, a registered partition took place between Mahadev and his two sons. In the said partition, Mahadev was allotted certain properties. Two sons namely defendants No.2 and 3 were also allotted separate properties. It was argued that Section 6 of the Act is held to be retroactive, thus the plaintiffs/daughters should be deemed to have been the coparceners from 1956 or the date of their birth. The partition of 1994 is invalid as the plaintiffs are not allotted shares in the said partition.Alternatively, it was urged that though the property allotted to Mahadev had acquired the characteristic of separate property, after the partition dated 10.01.1994, by operation of amended Section 6 of the Act the said separate property, in the hands of the father would be the coparcenary property as the daughters are coparceners.Further they claimed that the gift deed is the outcome of fraud and forgery. Mahadev was unwell and incapable of executing the gift deed. The respondents submitted that all the properties covered under the partition, which took place before 20th December 2004 are immune from the application of Section 6 (1) of the Act of 1956, because of proviso to Section 6(1), and sub-section (5) of Section 6 of the Act of 1956.Findings: The bench noted that Section 6 of the Act of 1956 as amended by Act of 39/2005 conferred the status of a coparcener to the daughter of a coparcener. Thus, a daughter of a coparcener is entitled to claim an equal share in the coparcenary property on par with a son. However, it said, “Proviso to Section 6 (1), and also sub-section (5) of Section 6 of Act of 1956 saves the earlier partition.” It noted that sub-section (5) of Section 6 of the Act, makes the entire Section 6 inapplicable in a situation contemplated in it, namely a registered partition or a partition granted by a decree of a Court, prior to 20th December 2004. The bench said “Thus, sub-section (5) of Section 6 of the Act of 1956 comes in the way of the daughters, who were born and alive when the coparceners effected the partition, to claim a share in the property allotted to the share of the father, or to challenge the alienation made by the father, after 2005 amendment, by taking shelter under substituted Section 6 of the Act of 1956, on par with the daughters born after the partition.” It emphasised that “Since, the Act of 1956 intended to save the partition/alienation/testamentary disposition, which have taken place before 20th December, 2004, which in turn aimed at not disturbing such valid transactions.” The court thus said, “Daughters alive when the partition took place before 20th December 2004, between the father and the son, cannot claim the status of a daughter born after the partition to claim the birth right in the property allotted to the share of the father.” Upholding the gift deed executed by Mahadev in favour of the respondent the court said, “The fact situation that two sons of Mahadev separated in 1994 and five daughters were married and living in their respective husband's house and Mahadev was looked after by 1st defendant, who claims to be his second wife, suggests that Mahadev intended to gift the properties in favour of 1st...

Daughter Born Before Partition Of Ancestral Property Prior To Amendment Of S.6 Of Hindu Succession Act Cannot Claim Right In Father's Share: Karnataka HC

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