Vineeta Sharma v. Rakesh Sharma & Ors.

The present appeal has therefore been preferred by the Plaintiff, Smt. Vineeta Sharma impugning this judgment of the Trial court.

10. The counsel for the Plaintiff has argued that the Trial Court was wrong in holding that the Plaintiff is not entitled to a share in the suit property in view of the amendments in the HSA. Counsel for the Plaintiff relies upon the fact that Section 23 of the HSA does not deprive the Plaintiff of her rights. Part of the property was always tenanted and hence it was not a “dwelling house” as contemplated under Section 23 of the HSA. He specifically relies on the cross-examination of one the brothers - Mr. Rakesh Sharma-DW[1] who deposed that the property was let out to various tenants over the years.

11. Counsel for the Defendants on the other hand submits that the property constitutes a `dwelling house‟. Canara Bank vacated the property on 22nd August, 2001 and on the said date, when the eviction suit was filed the family was occupying the entire property. It was further submitted that the repealing of Section 23 of the HSA came into effect only on 9th September 2005 and a daughter was not to be treated as a coparcener prior 20th December, 2004. The Defendant relies on Phulavati (Supra).

12. The counsel for the Plaintiff relied on the definition of the word “where” from Oxford dictionary. He came to submit that the position as was prevalent on the date when the father died cannot govern the parties. Since it was a self-acquired property, the Plaintiff is entitled to a share in the same. Judgement was reserved in this matter on 1st February 2018.

13. After judgement was reserved in the matter, the attention of this Court was drawn to the judgment of Supreme Court in Danamma @ Suman Surpur v. Amar [Civil Appeal Nos. 188-189/2018] (hereinafter „Danamma‟) which was pronounced on 1st February 2018 itself. The matter was accordingly, listed for directions and counsels were permitted to make further submissions in this regard. Counsel for the Appellant submitted that the Danamma (supra) judgment being subsequent to Phulavati (supra), it would bind this Court and the Appellant is entitled to be treated as a coparcener. Counsel for the Respondent submitted that the house may have been rented out in the past but was now a dwelling house and Danamma (supra) does not apply and Phulavati (supra) would continue to apply.

14. This Court has considered submissions of the rival parties and the pleadings and evidence on record. It is the admitted position that the suit property was the self-acquired property of Sh. Dev Dutt Sharma. However, the same was assessed as being part of the Dev Dutt Sharma (HUF). There are Income Tax and Wealth Tax returns filed in the name of Sh. Dev Dutt Sharma (karta) as a Hindu Undivided Family (hereinafter „HUF‟), The Income Tax assessment orders as also the returns filed therein reflect the intention of Sh. Dev Dutt Sharma to treat the suit property as HUF property. One such assessment order for the 1972-73 expressly records as under: “The return was filed on 15.3.1976 declaring an income of Rs.7,320/- from property in the status of HUF. Section 148 and 143(2) notices were served and complied with. Sh. S.K. Bakshi, Advocate attended. Filed letter dated 31.3.1976 along with the enclosure to prove the status and cost of the construction of the property at A-53, N.D.S.E. Part-II, South Extension, New Delhi. The HUF came into existence under the assessees declaration made on 23.5.66. An affidavit in original have been filed. The plot was purchased in the year 1955-56 for 4,353.75 and the construction was started in April, 1964 and was completed in April, 1966, the total cost of construction amounted to Rs.62,115/which has been met from loan and advances and savings from agricultural income from ancestral property. Total cost of construction is supported by a certificate from government approved valuer and evidence to prove the source of income have been filed. The property remained let out………”

15. Thus, during the lifetime of Sh. Dev Dutt Sharma, the suit property was part of the HUF and has to be treated as such. The rent receipts have been issued by Sh. Dev Dutt Sharma to the tenants in the suit property but the same could be deemed to be in his capacity as karta of the HUF. The suit for eviction against the Bank of Baroda was filed by Sh. Dev Dutt Sharma in his individual capacity but since he was the karta of the HUF and he treated it as such in all his tax returns, the intention was clear. Further, the plea in the written statement itself is quite clear and is to the following effect: “It is worth while to mention that since the property is an HUF property, therefore the plaintiff has no right to share the property. It is correct that the youngest son Dr. Shailender Sharma expired on 1.7.2001 and he was un-married. It is specifically denied that his share has fallen to the shares of the parties to the suit. It is specifically denied that the parties to the suit has 1/4th share each in the suit property. It is worth while to mention here that the share of Dr. Shailender Sharma had fallen to the shares of replying respondents only as the property was an HUF property. It is worth while to mention here that the suit property was assessed by the Income Tax Deptt. On the basis of HUF and the same was assessed by the Wealth Tax Authority.”

16. This plea is further supported in the evidence filed by DW-1. In cross examination also, DW-1 has stated as under: “ My father declared Dev Dutt Sharma HUF in the year 1973-1974. I am not aware about my father‟s contribution towards the creation of HUF, styled and named Dev Dutt Sharma HUF. ………….. I am not aware whether there is any account in the name of my father or in the name of Dev Dutt Sharma HUF. I am not aware of any such account that I have opened in the name of the HUF either with my father or otherwise. With certainty I say I was not a party to the opening of any HUF account with my father. …………… It is correct that during the proceedings of the said suit No.417/01 and even after the substitution of the LRs of our father and even till the disposal of the suit upon compromise being recorded on 22.08.2001, we have not claimed that the property in question is an HUF property in the name Dev Datta Sharma HUF. ………… We did not take any steps to locate the Will upon being informed by late B.D. Sharma of its existence. It is also true that no intimation prior to 13.11.2001 was intimated to our sister namely Mrs. Vineeta Sharma about the existence of the Will after being informed by late Shri B.D. Sharma. I do not know whether my father had executed a Will or not. I got to know about the creation of HUF namely Dev Datta Sharma HUF in or around 1973-74. HUF was created by my father through an affidavit submitted to the Income Tax Authorities and Wealth Tax Authorities. I do not know what was the investment and contribution made by my father towards creation of HUF. Volunteered My father had put property in question into the HUF. No affidavit or consent was taken from me in respect of creation of the HUF. Since I was not in Delhi at the time I am not aware whether any such consent or affidavit was taken from other brothers in respect of creation of such HUF. After the demise of my father I have been substituted as karta in HUF. No steps have been taken by me to revive HUF after the demise of my father for or in relation to the HUF. We have been contesting this case as HUF. It is correct that after the demise of my father no returns whatsoever were filed with the income tax authorities by or in the name of the HUF showing me as KARTA of HUF. Since there was no income tax payable from the HUF, no return was filed in the Income Tax Department. ………………… My father had received the rent as Karta of HUF. It is correct that Shri D.D. Sharma has not written anything on the receipts which may suggest that such receipts were issued by or on behalf of D.D. Sharma HUF. However, Shri D.D. Sharma had shown the said amount received from me in the income tax records of the HUF.”

17. From the above pleadings, documents and oral evidence it is clear that Sh.Dev Dutt Sharma always intended to and did always treat the suit property as part of HUF. Though in the municipal records, relied upon by the Plaintiff, the property was assessed to House Tax in the name of Sh. Dev Dutt Sharma, a perusal of the I.T. Returns shows that the valuation as per municipal records has been mentioned in the Returns of the HUF under which the suit property is assessed. Thus, the suit property was treated as HUF property by Sh. Dev Dutt Sharma and has to be treated as such.

18. The next that question arises is as to the share of the Plaintiff in the suit property and her entitlement under Sections 6 read with Section 23 of the HSA. In Phulavati (supra), the Supreme Court held:

18. The contention of the respondents that the amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement an only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20-12-2004. Notional partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation. ……………

23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.”

19. In Phulavati (supra), the Supreme Court considered Ganduri Koteshwaramma & Anr v. Chakiri Yanadi &Anr., 2011 9 SCC 788 (hereinafter, „Ganduri‟), S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC 647 and the various judgments on this issue and held that the amendment to Section 6 of the HSA would be prospective. In the case of Danamma (supra) recently the Supreme Court has observed as under: “24) Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b).

25) Reference to the decision of this Court, in the case of State Bank of India v. Ghamandi Ram[7] in essential to understand the incidents of coparceneryship as was always inherited in a Hindu Mitakshara coparcenary: “According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Ch. I. 1- 27). The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties is common; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors.”

26) Hence, it is clear that the right to partition has not been abrogated. AIR 1969 SC 1330. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.

27) In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year

2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr. held that the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.”

20. While Phulavati (supra) held that the amendment to Section 6 of the HSA applies prospectively, in Danamma (supra), the Supreme Court held that the daughter of a coparcener shall be a coparcener by birth. On facts, in Phulavati (supra), the Supreme Court held that since the death of the father in the said case had taken place on 18th February, 1988, the daughter could not have claimed to be a coparcener on the date of commencement of Hindu Succession (Amendment) Act, 2005. Immediately upon the death, the notional partition had taken place and such a right could not have been taken away by a subsequent amendment. However, in the case of Danamma (supra), the Supreme Court held that the share of the father who died in 2001 would also devolve upon his two daughters who would be entitled to 1/5th share in the property.

21. Recently however, the Supreme Court, on 19th April 2018, in Mangammal @ Thulasi & Anr. v. T.B. Raju [Civil Appeal 1933/2009] (hereinafter, „Mangammal‟) has, while considering Phulavati (supra) and Danamma (supra), observed as under: “10) Moreover, under Section 29-A of the Act, legislature has used the word “the daughter of a coparcener”. Here, the implication of such wordings mean both the coparcener as well as daughter should be alive to reap the benefits of this provision at the time of commencement of the Amendment of 1989. The similar issue came up for the consideration before this Court in Prakash & Ors. vs. Phulavati & Ors., (2016) 2 SCC 36, this Court while dealing with the identical matter held at Para 23 as under:-

23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born……” (emphasis supplied by us) It is pertinent to note here that recently, this Court in Danamma @ Suman Surpur & Anr. Vs. Amar & Ors, 2018 (1) Scale 657 dealt, inter-alia, with the dispute of daughter’s right in the ancestral property. In the above case, father of the daughter died in 2001, yet court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash & Ors. (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property.

11) Hence, without touching any other aspect in the present case, we are of the view that the appellants were not the coparceners in the Hindu Joint Family Property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance. At the most, they could claim maintenance and marriage expenses if situation warranted.”

22. Insofar as the High Court is concerned, in the light of the latest decision in Mangammal (supra) of the Supreme Court, the decision in Phulavati (supra) is to be applied. Moreover, this Court has to examine the correctness of the trial court judgment in the facts of the present case. The Trial Court, followed the law prevalent on the date when it pronounced the judgment i.e. 24th November, 2016. It held that the amended section 6 ought to be considered as being prospective in nature. On the date when the suit was filed, Section 23 of the HSA was in force and the entire home was treated as a dwelling house. There was no tenant in the suit property. The Plaintiff was not a coparcener on the date when her father passed away. Admittedly, the Plaintiff was married during her father’s life time and she has neither deserted nor separated from her husband. Thus, she did not have right to seek partition when her father died as she was not a coparcener. Her rights would be governed by the un-amended Section 6 of the HSA. Thus, the Trial Court rightly applied the law as it prevailed on the date when the Trial Court decided the matter.

23. The Appellate Court is examining the correctness of the judgment of the Trial Court which has rightly applied the law as it stood on the date when it had passed the judgment/decree. The death of the father in this case took place prior to the amendment in the HSA had come into force. The Plaintiff is happily married and is living with her husband. The two brothers and the mother are living in the suit property which constitutes two floors and one barsati floor. It is the dwelling house of the entire family. Section 23 of the HSA would be applicable, as on the date of filing of the suit there was no tenant in the suit property.

24. Upon the death of Sh. Dev Dutt Sharma, under Section 6, notional partition of his share in the HUF property takes place. To the extent the property is notionally partitioned, the Appellant is entitled to her share as per Section 8 of the HSA. However, due to the operation of Section 23 which was applicable at the relevant time, she cannot seek partition until the brothers choose to divide their share. In G.Sekar Vs Geetha (2009) 6 SCC 99 the Supreme Court, while considering the effect of Section 23 of HSA observed: “17.......... Section 23 of the Act, however, carves out an exception in regard to obtaining a decree for possession inter alia in a case where dwelling house was possessed by a male heir. Apart therefrom, the right of a female heir in a property of her father, who has died intestate is equal to her brother.

18. Section 23 of the Act merely restricts the right to a certain extent. It, however, recognises the right of residence in respect of class of females who come within the purview of proviso thereof. Such a right of residence does not depend upon the date on which the suit has been instituted but can also be subsequently enforced by a female, if she comes within the purview of proviso appended, to Section 23 of the Act.......................

28. Thus, a right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of dwelling house is also permissible.”

25. In Narashimaha Murthy v. Susheelabai (1996) 3 SCC 644, the Supreme Court, while considering the dynamics between Section 8 and Section 23, as also the rights of a female heir to seek partition observed:

26. In the present case, the Plaintiff is not covered by the Proviso to Section 23 and is thus not entitled to a right of residence. The Plaintiff is not even praying for a right of residence. The Plaintiff admittedly has two brothers and her mother who are all living in the suit property. The same thus constitutes a `dwelling house'. The amendments of 2005 do not benefit the Plaintiff as the father of the Plaintiff passed away on 11th December,

1999. Thus, the only relief that the Plaintiff is thus entitled to is a decree of partition to the extent of 1/12th of the suit property i.e., 1/4th share in 1/3rd of the suit property which notionally fell into the share of her father at the time of his death. However, the said decree of partition would not be enforceable until the Defendants choose to divide their respective shares in the suit property.

27. However, the above referenced decisions of the Supreme Court in Phulavati (supra), Danamma (supra) and Mangammal (supra) raise important questions of law of general public importance as to the rights of female coparceners and their rights. Though the appeal is dismissed, the Plaintiff is issued certificate of fitness to appeal under Articles 133(1)(a) and 134A of the Constitution of India to the Supreme Court.

28. Appeal is disposed of in the above terms. Decree sheet be drawn accordingly.

PRATHIBA M. SINGH, J. JUDGE MAY 15, 2018/Rahul/dk