[Section 6(5) HSA] Plea Of Oral Partition Can Be Accepted Only In Exceptional Cases If It Is Supported By Public Documents: SC [Read Judgment]

The Supreme Court has observed that a plea of partition for the purpose of Section 6(5) of the Hindu Succession Act based on oral evidence alone cannot be accepted. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted, the Court held. The bench comprising of Justices Arun Mishra, S. Abdul Nazeer and MR Shah also observed that he Statutory Fiction of Partition contained in the original Section 6 of the Act did not bring about the actual partition or disruption of coparcenary.Section 6 Of Hindu Succession Act Sub-Section (5) of Section 6 provides that nothing contained in Section 6 shall apply to a partition, which has been effected before the 20th day of December, 2004. Similar proviso to Section 6(1) provides 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. The Explanation appended to the Section 6 further clarifies that for the purposes of Section 6, 'partition' means effected by any registered partition deed or effected by a decree of a court.Injustice To Daughters In Hindu Shastric Law Done Away With: SC Explains The Impact Of Hindu Succession (Amendment) Act 2005 [Read Judgment]Plea of Oral Partition To Be Accepted Only In Exceptional Cases When Public Documents Conclusively Proves ItOne of the contention raised was that the Explanation to the Section safeguards all genuine transactions of the past, including oral partition effected by the parties.Solicitor General, supporting this contention, also submitted before the Court that the requirement of a registered partition deed may be interpreted as the only directory and not mandatory in nature considering its purposes. Senior Advocate and Amicus Curiae R. Venkataramani submitted before the Court that there could be any number of instances where parties would have entered into family settlements or division of properties on the basis of respective shares or entitlement to succeed on a partition. According to him, the Parliament did not intend to upset all such cases, complete transactions, and open them for a new order of succession. Senior Advocate VVS Rao, who also assisted the court as Amicus Curiae, submitted that the explanation should not be understood as invalidating all the documents or oral partition in respect of the coparcenary property. "In case genuineness of such document is questioned, it has to be proved to the satisfaction of the Court. The saving of transactions would safeguard the genuine past transaction and prevent unrest in the family system.", he said.Addressing these arguments, the bench observed: Special definition of partition has been carved out in the explanation.The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition.However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards.The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good...

[Section 6(5) HSA] Plea Of Oral Partition Can Be Accepted Only In Exceptional Cases If It Is Supported By Public Documents: SC [Read Judgment]

Ashok Kini

"We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs."

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