Case Note & Summary
The second appeal arose from a suit for partition and separate possession concerning agricultural land. The respondent/plaintiff was the sister of deceased Raghunath, whose widow and children were the appellants/defendants. The plaintiff claimed a share in the ancestral property of her father Maruti, who died on 04.05.1981 leaving behind three class-I legal heirs: his widow Thakubai, the plaintiff daughter, and son Raghunath. The defendants resisted the suit contending that the plaintiff had orally relinquished her share in the family properties in 1988 and therefore was not entitled to partition. The trial court decreed the suit on 06.04.2016, granting the plaintiff a one-fourth share and the defendants three-fourths. The defendants filed a first appeal, which was dismissed on 06.01.2024 by the District Judge-I Parbhani, but the appellate court modified the decree by enhancing the plaintiff's share to one-half, although the plaintiff had not filed an appeal or cross-objection. In the second appeal, the appellants raised four principal arguments: first, the plaintiff had relinquished her share in 1988; second, the suit was barred by limitation because the relinquishment amounted to exclusion; third, there was an inter se partition among defendants making the suit not maintainable; and fourth, the first appellate court erred in enhancing the share without cross-objection and also failed to frame a point for determination on limitation. The High Court, per Rohit W. Joshi, J., analyzed the effect of the Hindu Succession (Amendment) Act, 2005. It held that a daughter was conferred co-parcener status from her birth but only with effect from 09.09.2005. Therefore, in 1988 the plaintiff was not a co-parcener and could not relinquish a right that had not yet vested. The alleged oral relinquishment was thus inconsequential. Further, the court examined the nature of the property inherited by class-I female heirs. Under the proviso to Section 6 read with Section 8 and Section 19 of the Hindu Succession Act, 1956, the property devolved as separate property and not as coparcenary property. The court relied on the Supreme Court decisions in Commissioner of Wealth Tax, Kanpur v. Chander Sen, Yudhishter v. Ashok Kumar, and Makhan Singh v. Kulwant Singh to conclude that such inherited property was not joint Hindu family property. Consequently, any relinquishment of separate property must be by a registered document, not orally. The court distinguished the cases of Ramdas Chimna and Shailesh Harilal Poonatar, which dealt with joint Hindu family property, and followed Gangaram Sakharam Dhuri v. Gangubai Raghunath Ayare, which held that registration is compulsory for relinquishment of self-acquired or separate property inherited by intestate succession. On limitation, the court held that the plaintiff's right to claim a share as co-parcener arose only on 09.09.2005; the suit filed on 25.10.2013 was within twelve years under Article 110 or Article 65 of the Limitation Act, 1963. The court noted that the written statement did not contain any pleading of exclusion or adverse possession. Accordingly, the High Court rejected all contentions of the appellants and dismissed the second appeal, affirming the plaintiff's entitlement to partition and separate possession.
Headnote
A) Hindu Law - Coparcenary Rights of Daughter - Hindu Succession (Amendment) Act, 2005, Section 6 - Right conferred from birth but only from 09.09.2005; alleged 1988 relinquishment before vesting is legally ineffective - The daughter was not a coparcener in 1988 and could not relinquish a right not then vested; the amendment conferred coparcenary status with effect from date of birth but only upon commencement of the 2005 Act - Held that the alleged oral relinquishment of 1988 was inconsequential and did not bar the suit for partition (Paras 6, 12). B) Hindu Law - Succession and Nature of Property - Hindu Succession Act, 1956, proviso to Section 6, Sections 8 and 19 - Property inherited by class-I female heirs devolves as separate property, not coparcenary property - Father died in 1981 leaving widow and daughter, so his share in undivided family devolved by succession under proviso to Section 6 and Section 8; under Section 19 heirs hold as tenants in common, making property separate - Held that property inherited by the plaintiff was separate property; oral relinquishment could not affect rights in such property and required a registered instrument (Paras 8-9, 11). C) Limitation - Partition Suit - Limitation Act, 1963, Articles 110 and 65 - 12-year period from exclusion or adverse possession; suit filed 25.10.2013 within limitation after right accrued on 09.09.2005 - Appellant's reliance on relinquishment for limitation failed as right to claim share arose only from 09.09.2005 and written statement lacked pleading of exclusion - Held suit not barred by limitation (Para 12).
Issue of Consideration
Whether the daughter's alleged oral relinquishment of her share in 1988 before the Hindu Succession (Amendment) Act, 2005, barred her subsequent suit for partition; whether the property inherited by class-I female heirs under proviso to Section 6 read with Sections 8 and 19 of Hindu Succession Act, 1956 was separate property requiring registered relinquishment; whether the suit was barred by limitation; whether the first appellate court erred in enhancing the plaintiff's share without cross-objection.
Final Decision
The High Court rejected the appellants' contentions on oral relinquishment, separate property, and limitation, thereby upholding the plaintiff's entitlement to partition and separate possession. The second appeal was dismissed.
Law Points
- Hindu Succession (Amendment) Act
- 2005 confers coparcenary right on daughter from birth but only from 09.09.2005
- a right not vested cannot be relinquished
- property inherited under proviso to Section 6 read with Sections 8 and 19 of Hindu Succession Act
- 1956 is separate property
- oral relinquishment of separate property requires registered document
- oral relinquishment permissible only for joint Hindu family property
- suit for partition not barred by limitation under Articles 110 and 65 of Limitation Act
- 1963
