Case Note & Summary
The case involves a second appeal before the Bombay High Court challenging the judgments of the trial court and the first appellate court in a partition suit. The original plaintiff, Tarabai, filed a suit seeking partition, separate possession, and mesne profits in respect of agricultural land bearing Gat Nos. 460 and 463 in Village Pimpalgaon, Taluka Daund, District Pune. The suit property was originally owned by Dagadu Chambhar, who died on 14 April 1943, before the Hindu Succession Act, 1956 came into force. Dagadu had four children: Tarabai (plaintiff), Sevantabai (defendant no.3), Bhagwant (defendant no.1), and Shankar (defendant no.2). The trial court decreed the suit on 22 March 2007, granting Tarabai a 1/12th share. The first appellate court, by judgment dated 4 April 2013, dismissed the appeal filed by defendant no.1 Bhagwant but modified the share of the plaintiff to 1/4th in view of the amended Section 6 of the Hindu Succession Act, 1956 as amended by the Hindu Succession (Amendment) Act, 2005. The appellants, being the legal heirs of Bhagwant, challenged both judgments. The substantial questions of law framed included whether the lower appellate court erred in modifying the decree without cross-objection, whether the courts below erroneously applied the Hindu Succession Act, whether daughters were coparceners on the death of the father, and whether only male members were legal heirs under old Hindu law. An additional substantial question was framed: whether a daughter is entitled to claim the benefit of amended Section 6 even if her father died before the Hindu Succession Act, 1956 came into force. The court, after hearing arguments from the counsel for the appellants, the respondents, and the amicus curiae, held that the daughter is entitled to the benefit of the amended Section 6 even if her father died before the Act came into force, as the amendment is retrospective and confers coparcenary rights on daughters from birth. The court upheld the first appellate court's judgment granting the plaintiff a 1/4th share and dismissed the second appeal.
Headnote
A) Hindu Succession Act - Daughter's Coparcenary Right - Retrospective Application of Amended Section 6 - Hindu Succession Act, 1956, Section 6 as amended by Hindu Succession (Amendment) Act, 2005 - The court considered whether a daughter whose father died before the Hindu Succession Act, 1956 came into force is entitled to the benefit of the amended Section 6. The court held that the daughter is entitled to claim the benefit of the amended Section 6 even if her father died before the Act came into force, as the amendment is retrospective and confers coparcenary rights on daughters from birth. (Paras 2, 7, 10) B) Civil Procedure - Appellate Court's Power to Modify Decree - Absence of Cross-Objection - Code of Civil Procedure, 1908, Order 41 Rule 33 - The court examined whether the lower Appellate Court erred in modifying the trial court's decree and granting an additional share to the plaintiff in the absence of any cross-objection. The court held that the Appellate Court has power under Order 41 Rule 33 to modify the decree even without cross-objection to do complete justice. (Para 6(a)) C) Hindu Succession Act - Application of Amended Section 6 - Daughter's Share in Partition Suit - Hindu Succession Act, 1956, Section 6 as amended by Hindu Succession (Amendment) Act, 2005 - The court considered whether the courts below erroneously applied the Hindu Succession Act to grant the plaintiff's share in the suit for partition. The court held that the application of the amended Section 6 was correct and the daughter is entitled to a share as a coparcener. (Para 6(b)) D) Hindu Succession Act - Coparcenary Right - Death of Father Before 1956 Act - Hindu Succession Act, 1956, Section 6 - The court examined whether the courts below erred in not considering that daughters were not coparceners on the death of the father and only after the death of father, sons get right in father's property. The court held that the amended Section 6 gives daughters coparcenary rights from birth, irrespective of the father's death before the Act. (Para 6(c)) E) Hindu Succession Act - Legal Heirs - Male Members Only - Old Hindu Law - Hindu Succession Act, 1956, Section 6 - The court considered whether the courts below erred in not considering that the appellants were only male members in the family and so they are only legal heirs to the suit land as per the old Hindu Law. The court held that the old Hindu Law is superseded by the amended Section 6, which grants equal rights to daughters. (Para 6(d))
Issue of Consideration
Whether a daughter, whose father died before the Hindu Succession Act, 1956 came into force, is entitled to claim the benefit of Section 6 of the Hindu Succession Act, 1956 as amended by the Hindu Succession (Amendment) Act, 2005.
Final Decision
The second appeal is dismissed. The judgment and decree of the first appellate court granting 1/4th share to the plaintiff is upheld.
Law Points
- Hindu Succession Act
- 1956
- Section 6 as amended by Hindu Succession (Amendment) Act
- 2005
- retrospective application
- daughter's coparcenary right
- father's death before 1956 Act
- partition suit
- substantial question of law
