Case Note & Summary
The appellant, Smt. Usha N Swamy, filed a Regular First Appeal under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 13.04.2018 passed by the XXXV Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.703/2014, which dismissed her suit for partition. The appellant is the daughter of the first respondent, Sri M. Venkataswamy, and the second respondent, Smt. Jayamma. The third respondent, Shyla Venkata Swamy, is her sister. The suit sought partition of Schedule 'A' and 'B' properties by metes and bounds and allotment of an equal share to the plaintiff. The trial court dismissed the suit on the ground that the father, Sri M. Venkataswamy, died on 23.11.2020 during the pendency of the suit, and the suit abated. The appellant argued that the suit does not abate as the right to partition survives against the other defendants, and that she is entitled to a share under Section 6 of the Hindu Succession Act, 1956, as amended in 2005, which grants equal rights to daughters. The respondents contended that the suit abated and that the appellant has no right to the properties. The High Court analyzed the provisions of the Hindu Succession Act and the CPC. It held that the daughter is a coparcener by birth and is entitled to an equal share in the joint family property. The court further held that the suit does not abate upon the death of the father because the right to partition is a continuing right and the legal representatives are already on record. The court allowed the appeal, set aside the trial court's judgment, and remanded the matter for fresh consideration on merits, directing the trial court to proceed with the suit and decide it afresh in accordance with law.
Headnote
A) Hindu Succession Act - Coparcenary Rights - Daughter's Equal Share - Section 6, Hindu Succession Act, 1956 - The appellant, daughter of the deceased father, sought partition of joint family properties. The trial court dismissed the suit on the ground that the father had died during pendency and the suit abated. The High Court held that the daughter is a coparcener by birth under the amended Section 6 and is entitled to an equal share. The suit does not abate as the right to sue survives against the other defendants. (Paras 1-10) B) Civil Procedure Code - Abatement of Suit - Survival of Right - Order XXII Rule 1, CPC, 1908 - The trial court erred in holding that the suit abated upon the death of the father. The right to partition is a continuing right and does not abate merely because one of the parties dies. The legal representatives of the deceased are already on record. (Paras 5-8) C) Hindu Succession Act - Retrospective Effect of Amendment - Section 6, Hindu Succession Act, 1956 - The amendment of 2005 granting equal rights to daughters is retrospective and applies to pending suits. The daughter's share crystallizes on the date of filing of the suit. (Paras 9-10)
Issue of Consideration
Whether the appellant/plaintiff, as a daughter, is entitled to a share in the joint family properties of her father, and whether the suit for partition abates upon the death of the father during pendency of the suit.
Final Decision
Appeal allowed. Judgment and decree dated 13.04.2018 passed in O.S.No.703/2014 by XXXV Addl. City Civil and Sessions Judge, Bengaluru, is set aside. The matter is remanded to the trial court for fresh consideration on merits. The trial court is directed to proceed with the suit and decide it afresh in accordance with law, without being influenced by any observations made in this judgment.
Law Points
- Hindu Succession Act
- 1956
- Section 6
- coparcenary rights
- daughter's equal share
- partition
- joint family property
- amendment 2005
- retrospective effect
- abatement of suit
- substitution of legal representatives
