-1- IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 15 TH DAY OF NOVEMBER 2016 BEFORE THE HON BLE MRS. JUSTICE B.V.

Transcription

1 -1- R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 15 TH DAY OF NOVEMBER 2016 BEFORE THE HON BLE MRS. JUSTICE B.V.NAGARATHNA IN R.S.A. No.7528/2010 BETWEEN: R.S.A.No.7528/2010 (PAR) C/W R.S.A. No.7460/2010 (PAR) BALAVANT RAO S/O VASUDEV RAO DESHPANDE, AGE: 90 YEARS, OCC: AGRICULTURE, R/O TAKALI, TQ: INDI, DIST: BIJAPUR. APPELLANT (BY SRI. VEERANAGOUDA, ADVOCATE) AND: 1. SMT. GEETA W/O PRAVEEN DESHAPANDE, AGE: 34 YEARS, OCC: SDC LAND DEVELOPMENT OFFICE CO-OP SECTION R/O BHIMARAYANGUDI, TQ: SHAHAPUR, DIST: BIJAPUR. 2. PRAJWAL S/O PRAVEEN DESHAPANDE, AGE: 23 YEARS, R/O BHIMARAYANGUDI, TQ: SHAHAPUR, DIST: GULBARGA.

2 -2-3. PRAKHAYAT S/O PRAVEEN DESHAPANDE, AGE: 14 YEARS, MINOR REPRESENTED BY NATURAL MOTHER, SMT. GEETA W/O PRAVEEN DESHAPANDE, I.E. RESPONDENT NO SURESH S/O BALAWANTRAO DESHAPANDE, AGE: 46 YEARS, OCC: AGRICULTURE, R/O TAKALI, TQ: INDI, DIST: GULBARGA, 5. SRIKANT S/O BALAWANTRAO DESHAPANDE, AGE: 48 YEARS, OCC: SERVICE, R/O H.NO.217/1800, VALLABHANAGAR, PIMPRI, PUNE VIDYASAGAR S/O BALAWANTRAO DESHAPANDE, AGE: 41 YEARS, OCC: SERVICE, R/O PLOT NO.22, FLAT NO.4 II FLOOR, OPP: ROPLAS INDI, KAMAGAR NAGAR, PIMPRI, PUNE SMT. PREMALATA W/O PADMAKAR DESHPANDE, AGE: MAJOR, OCC: HOUSEHOLD, R/O JADAR BABALAD. 8. SMT. ARUNA W/O ASHOK JAHAGIRDHAR, AGE: MAJOR, OCC: HOUSEHOLD, R/O TAMABA, TQ: INDI, DIST: BIJAPUR.

3 -3-9. SMT. VAISHALI W/O ANIL KULKARNI, AGE: MAJOR, OCC: HOUSEHOLD, R/O TAMABA, TQ: INDI, DIST: BIJAPUR. 10. SMT. SANDYA W/O RAGHAVENDRA DESHMUKH, AGE: MAJOR, OCC: HOUSEHOLD, R/O TAMABA, TQ: INDI, DIST: BIJAPUR RESPONDENTS (BY SRI. D.P. AMBEKAR, ADVOCATE FOR R-1 TO R-3; SRI. VINAYAK APTE, ADVOCATE FOR R-4 & R-5; R-6 SERVED BUT UNREPRESENTED SRI. ASHOK S. KINAGI, ADVOCATE FOR R-7 TO R-10) ***** THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED PASSED IN R.A. NO.39/2006 ON THE FILE OF THE PRL. DIST. JUDGE AT BIJAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED PASSED IN O.S. NO.88/1997 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN.) AT BIJAPUR. IN R.S.A. No.7460/2010 BETWEEN: 1. SMT. PREMALATA W/O PADMAKAR DESHPANDE, AGE: MAJOR, OCC: HOUSEHOLD, R/O JADAR BABALAD.

4 -4-2. SMT. ARUNA W/O ASHOK JAHAGIRDHAR, AGE: MAJOR, OCC: HOUSEHOLD, R/O TAMBA, TQ: INDI, DIST: BIJAPUR. 3. SMT. VAISHALLI W/O ANIL KULKARNI, AGE: MAJOR, OCC: HOUSEHOLD, R/O DATTA CHOWK, SONI MAHADEV TEMPLE, H-NO.355, SOUTH KASABA SOLAPUR. 4. SMT. SANDYA W/O RAGHAVENDRA DESHUKH, AGE: MAJOR, OCC: HOUSEHOLD, R/O TAMBA, TQ: INDI, DIST: BIJPAPUR. APPELLANTS (BY SRI. ASHOK S. KINAGI, ADVOCATE) AND: 1. SMT. GEETA W/O PRAVEEN DESHAPANDE, AGE: 34 YEARS, OCC: SDC LAND DEVELOPMENT OFFICE, CO-OP. SECTION, R/O BHIMARAYANGUDI, TQ: SHAHAPUR, DIST: BIJAPUR. 2. PRAJWAL S/O PRAVEEN DESHAPANDE, AGE: 23 YEARS, R/O BHIMARAYANGUDI, TQ: SHAHAPUR DIST: GULBARGA. 3. PRAKHAYAT S/O PRAVEEN DESHAPANDE, AGE: 14 YEARS, MINOR, REPRESENTED BY NATURAL MOTHER, SMT. GEETA W/O PRAVEEN DESHAPANDE,

5 -5- I.e. RESPONDENT NO BALAVANT RAO S/O VASUDEV RAO DESHPANDE, AGE: 80 YEARS, OCC: AGRICULTURE, R/O TAKALI, TQ: INDI, DIST: BIJAPUR. 5. SURESH S/O BALAWANTRAO DESHAPANDE, AGE: 42 YEARS, OCC: AGRICULTURE, R/O TAKALI, TQ: INDI, DIST: BIJAPUR. 6. SRIKANT S/O BALAWANTRAO DESHAPANDE, AGE: 42 YEARS, OCC: SERVICE, R/O H.NO.217/1800, VALLABHANAGAR, PIMPRI, PUNE VIDYASAGAR S/O BALAWANTRAO DESHAPANDE, AGE: 41 YEARS, OCC: SERVICE, R/O PLOT NO.22, FLAT NO.4 II FLOOR, OPP: ROPLAS INDI, KAMAGAR NAGAR, PIMPRI, PUNE- 12. RESPONDENTS (BY SRI. D.P. AMBEKAR, ADVOCATE FOR R.1 TO R.3 R.2 AND R.4 ARE SERVED BUT UNPREPRESENTED SRI. VINAYAK APTE, ADVOCATE FOR R.5) ***** THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED PASSED IN R.A. NO.39/2006 ON THE FILE OF THE PRL. DIST.

6 -6- JUDGE AT BIJAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED PASSED IN O.S. NO.88/1997 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN.) AT BIJAPUR. THESE APPEALS COMING ON FOR ADMISSION THIS DAY, COURT DELIVERED THE FOLLOWING: JUDGEMENT R.S.A.No.7528/2010 is filed by defendant No.1 in O.S.No.88/1997, while R.S.A.No.7460/2010 is filed by the daughters of defendant No.1 who are arrayed as legal representatives of defendant No.2, wife of defendant No.1 in the said suit. As these appeals arise out of judgment and decree passed in R.A.No.39/2006, dated 13/09/2010 by the Prl. District Judge at Bijapur by which, the judgment and decree of the I Addl. Civil Judge (Sr.Dn.), Bijapur, in O.S.No.88/1997, dated 01/06/2006 has been confirmed, they have been clubbed and heard together for admission.

7 -7-2. For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court. 3. The plaintiffs are the widow and children of Praveen Deshpande, who died in the year Defendant Nos.1 and 2 are his parents, while defendant Nos.3 to 5 are his brothers. The plaintiffs filed the suit seeking the relief of partition and separate possession of their one-sixth share in the suit properties. According to them, the original propositus of the family was Vasudev Rao Deshpande, who died leaving behind his widow and two children, one of whom is defendant No.1 in the suit. Defendant No.2 is the wife of defendant No.1, who died during the pendency of the suit. Her legal heirs were brought on record as defendant No.2(a) to 2(d) apart from plaintiffs, defendant Nos.1 and 3 to 5, who are already on record. The suit properties are lands bearing

8 -8- Sy.No.122/A measuring 12 acres 18 guntas; Sy.No.122/B measuring 13 acres 1 gunta; Sy.No.124/A measuring 12 acres; Sy.No.124/2 measuring 13 acres 35 guntas and Sy.No.133 measuring 9 acres 9 guntas and a house situated at Takali Village which, according to the plaintiffs are ancestral properties of plaintiffs and defendants. 4. According to the plaintiffs, the original propositus Vasudev Rao Deshpande died on 24/04/1951 and after his death, the name of defendant No.1 was entered in respect of the lands bearing Sy.Nos.24/1, 25, 106/2 and 114/3 of Takali Village in Indi Taluk as the karta of the joint Hindu Family as per M.E.No.434. One of the brothers of defendant No.1 Krishnaji, was given in adoption to Sukharam Deshpande during his minority. In the year 1958, there was a partition between defendant No.1 and his other brother, Ramarao, under which, lands

9 -9- bearing Sy.Nos.106/2 and 114/3 were allotted to his share as per M.E.No.643 dated 22/07/1958. Out of the income from these lands, the other lands namely Sy.Nos.111/1 and 111/2 of Takali Village were purchased in the name of defendant No.2 for Rs.5,000/- under a registered sale deed dated 25/07/1958. On 12/02/1960, defendant No.1 purchased land bearing Sy.No.106/1 from Shankar and Krishnaji, son of Pandurang Deshpande out of the joint family funds. That in consolidation proceedings land Sy.Nos.106/1 and 106/2 were renumbered as Block number or Bl.Nos.122/A and 122/B. Land bearing Sy.No.114/3 was renumbered Bl.No.133 and land bearing Sy.No.111 was renumbered as Bl.No.124. That defendant No.2 effected partition in land Bl.No.124 by dividing the same into two strips: 12 acres was allotted to defendant No.4 and 13 acres 35 guntas was allotted to the defendant No.5 in the

10 -10- year The ancestral lands and the aforesaid lands, which are standing in the name of defendant Nos.1 and 2 and their sons are purchased out of the joint family funds. According to the plaintiffs, on the death of the husband of plaintiff No.1, the plaintiffs have succeeded to his estate. That the relationship between plaintiffs and defendants are strained. Plaintiffs came to know that defendant Nos.1 and 2 to 5 effected partition under Partition Deed dated 09/12/1996 without the knowledge of the plaintiffs. M.E.No.1914 was effected and the name of the parties to the partition have been entered and that barren lands have been given to the minor plaintiff Nos.2 and 3 showing defendant No.5 as their guardian when their natural mother plaintiff No.1 is alive, without allotting any share to plaintiff No.1. Therefore, plaintiffs filed the suit seeking inter alia a decree of partition and separate possession of the suit

11 -11- properties. Plaintiffs have sought their one-sixth share in the suit properties. 5. In response to the suit summons, defendant No.1 appeared through counsel and filed his written statement denying the allegations made in the plaint. He admitted the contents of paragraph Nos.2 to 5 in the plaint. He however, denied that the plaintiffs and defendants had agricultural income or that the suit properties are fertile lands. He denied that Sy.No.101 of Takali Village was purchased in the name of defendant No.1 out of joint family funds. Defendant No.1 further averred that BL.Nos.124/1 and 124/2, Old Sy.Nos.111/1 and 111/2 were purchased in the name of defendant No.2 with her own funds. That deceased Sripati, father of defendant No.2 died on 06/11/1990 leaving behind him his two daughters and two sons and defendant No.2 is one of the daughters. He served as

12 -12- Station Master and after his retirement, he used to stay with defendant No.2 and out of his pensionary benefits, he distributed certain amounts to his sons and daughters. That he had no immovable properties. That out of the said amount, defendant No.1 purchased certain properties. Therefore, those properties are not joint family properties of plaintiffs and defendants. They are her self-acquired properties. Later defendant No.2 relinquished her properties in favour of defendant Nos.4 and 5 as per M.E.No.1255 and accordingly, their names are entered in the said land. 6. That originally, Block No.122/A was cultivated by defendant No.1 as a tenant. The landlord sold the said land to defendant No.1 on 16/02/1960. That defendant No.1 puchased the same by selling gold ornaments of defendant No.2 at Chadachan. Therefore, the said property is the self-

13 -13- acquired property of defendant No.1. On 09/12/1996, there was a partition effected between plaintiff Nos.2 and 3 and defendant Nos.1, 3 to 5, wherein 2 acres of land have been allotted to the share of plaintiff Nos.2 and 3 showing defendant No.5 as minor guardian for which plaintiff No.1 has also agreed, as she was staying at Raichur. Accordingly, M.E.No.1914 was effected. Therefore, plaintiff cannot seek partition in respect of suit properties once again. The share of the plaintiffs in the suit schedule properties is admitted. The deceased Praveen Deshpande, husband of plaintiff No.1 had purchased site bearing No /5 at Panchamukhi Colony, Raichur, with the help of defendant No.1, who had paid part consideration amount. Plaintiff No.1 has also received service benefit of Rs.1,80,000/- from the Government pertaining to her husband in which defendants are also entitled to a share. That the suit filed by the

14 -14- plaintiff is false. Therefore, defendant No.1 sought dismissal of the suit. 7. The other defendants including defendant No.2 did not file any written statement. 8. On the basis of the rival pleadings, the trial court framed the following issues and additional issue for its consideration: 1. Whether the defendants prove that the suit lands bearing Bl.Nos.124/1 and 124/2 (old Sy.Nos.111/1 and 111/2 respectively) of Takali Village are the self-acquired properties of defendant No.2? 2. Whether the defendants further prove that the land bearing Bl.No.122/A (Old Sy.No.106/1) situated at Takali Village is the self-acquired property of defendant No.1? 3. Whether the defendants prove that the land Sy.No.122/B and 133 (old

15 -15- Sy.Nos.106/2 and 114 respectively) are the only ancestral properties of the plaintiffs and defendants and the partition took place between the plaintiffs and defendants on 09/12/1996 in respect of the said properties under a registered partition deed? 4. Whether the suit is bad for non-joinder of necessary parties? 5. Whether plaintiffs prove that they are entitled to partition and separate possession of their 1/6 th share in the suit schedule properties? 6. What order or decree? Additional Issue: 1. Whether the defendants prove the partition dated 09/12/1996 is binding on the plaintiffs? In order to substantiate their case, plaintiff No.1 examined herself as PW.1 and she produced eighty seven documents, which are marked as Exs.P-1 to P-

16 Defendant No.1 examined himself as DW.1 and he produced twenty six documents, which are marked as Exs.D-1 to D-26. On the basis of the said evidence, the trial court answered issue Nos.1 to 4 and additional issue No.1 in the negative and issue No.5 in the affirmative and decreed the suit by granting one-sixth share in the suit properties to plaintiff Nos.1 to 3 jointly. 9. Being aggrieved by the judgment and decree of the trial court dated 01/06/2006, defendant No.1 only filed R.A.No.39/2006. The legal representatives of defendant No.2 as well as other defendants did not prefer any regular appeal before the first appellate court. The first appellate court, on hearing the learned counsel for the parties, framed the following points for its consideration:

17 Whether Block Nos.124/1 and 124/2 are the self-acquired properties of defendant No.2? 2. Whether Block No.122/A is the selfacquired property of defendant No.1? 3. Whether the registered partition deed dated 09/12/1996 is binding on the plaintiffs? 4. Whether the suit is bad for non-joinder of necessary parties? 5. Whether the suit is bad for non-joinder of site bearing No /5 at Panchamukhi Colony, Raichur? 6. Whether the trial court was justified in decreeing the suit of the plaintiffs? 7. Whether the impugned judgment and decree passed by the trial court calls for interference from this court? 8. What order?

18 -18- The first appellate court answered point Nos.1 to 5 and 7 in the negative and point No.6 in the affirmative and consequently, dismissed the appeal, by confirming the judgment and decree of the trial court. Being aggrieved by the judgment and decree of the first appellate court, defendant No.1 and the daughters of defendant No.1 being the legal representatives of defendant No.1 only, have preferred these second appeals. 10. I have heard learned counsel for the appellants, learned counsel for caveator-respondent Nos.1 to 3, learned counsel for respondent Nos.4 and 5 as well as learned counsel for respondent Nos.7 to 10 in R.S.A.No.7528/2010. I have also heard learned counsel for the appellants, caveator respondent No.1 and respondent No.5 in R.S.A.No.7460/2010. The other respondents are served and unrepresented. Notice to respondent Nos.6 and 7 in

19 -19- R.S.A.No.7460/2010 is awaited and they have not assailed the judgments of the courts below. I have perused the material on record. 11. Learned counsel for the appellants submitted that the courts below were not justified in granting one-sixth share in the suit schedule properties to the plaintiffs. They contended that the father i.e., defendant No.1 and their daughters were alive as on 09/09/2005 when the amendment to Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act ) has been enforced. In view of the latest judgment of the Hon ble Supreme Court, in the case of Prakash vs. Phulavati [(2016)2 SCC 36] (Prakash vs. Phulavati) and more particularly paragraph No.23 of the said judgment, if on the date of amendment dated 09/09/2005, the father and the daughters were alive, then the daughters have to be treated as coparceners

20 -20- and their share in the joint family properties would be equal to that of the sons. Learned counsel for the appellants contended that the courts below therefore, had to apply the amendment made to Section 6 and consequently, the daughters who are the appellants herein in R.S.A.No.7460/2010 would get a share equal to that of their brothers, who are the sons of defendant Nos.1 and 2. As a result, the suit schedule properties would have to be divided into ten shares as the parties are covered under the Bombay School of Mithakshara Law and hence, a share would have to be allotted to defendant No.2, the wife of defendant No.1, which is equal to that of the sons and daughters. Therefore, learned counsel contended that daughters right, title and interest in the suit properties would have to be enforced and protected having regard to the latest dictum of the Hon ble Supreme Court.

21 Learned counsel further submitted that item Nos.3 and 4 of suit schedule properties are the self-acquired properties of defendant No.2. Therefore, those properties are not available for partition between the members of the joint family. The courts below could not have treated those properties to be joint family properties. It is contended that the courts below have failed to note that Block No.124/1, measuring 12 acres and Block No.124/2, measuring 13 acres 35 guntas being the absolute properties of defendant No.2 could not have been partitioned between the members of the joint family. They contended that the suit properties were purchased by defendant No.2 out of her own earnings and therefore, the courts below were not right in holding that the suit properties are the joint family properties and thereby dividing the said properties. It is further contended that item No.1 of the suit schedule properties was

22 -22- purchased in the name of defendant No.1 and the said property is his self-acquired property. Learned counsel contended that substantial questions of law would arise in these appeals and therefore, the appeals may be admitted for a detailed hearing. 13. Per contra, learned counsel for the respondents, supporting the judgment and decree of the court below contended that the appellants are not right in contending that in the instant case, the daughters have a share equal to that of the sons. It is contended that the plaintiffs are the legal heirs of deceased Praveen, one of the sons of defendant Nos.1 and 2, who died in the year 1991 and that succession to the suit schedule properties opened in the year 1991 and in view of the judgment of the Hon ble Supreme Court in he case of Gurupad vs. Hirabai [AIR 1978 SC 1239] (Gurupad vs. Hirabai), the plaintiffs are entitled to one-sixth share jointly in all

23 -23- the suit schedule properties. That further placed reliance on the latest decision of the Hon ble Supreme Court in Prakash vs. Phulavati to contend that the amendment made to Section 6 is prospective in nature. Therefore, if Praveen had died subsequent to the amendment made to Section 6 probably, the dictum in Prakash vs. Phulavati would apply. But since Praveen, one of coparceners died in the year 1991, the joint family properties would have to be divided in terms of the notional partition as envisaged prior to the said amendment. 14. Learned counsel for respondent Nos.1 to 3 i.e., plaintiffs further contended that the daughters did not file a regular appeal as against the judgment of the trial court and therefore, they have accepted the said judgment and hence, they cannot file the second appeal by assailing the judgment and decree of the first appellate court, which has only confirmed the

24 -24- judgment and decree of the trial court. Also, apart from defendant No.1, other defendants have not assailed the findings. 15. Learned counsel for respondent/plaintiffs further submitted that both the courts below have held concurrently that the suit schedule properties are the joint family properties of the family. That once the first appellate court has confirmed the judgment of the trial court with regard to the nature of the properties, there cannot be a second appeal filed on the said question, which is a question of fact. Learned counsel for the respondent/plaintiffs contended that there is no substantial question of law, which would arise in these appeals and therefore, the appeals may be dismissed in limine. 16. Learned counsel for respondent No.6 in R.S.A.Nos.7528/2010 and 7460/2010 fairly contended

25 -25- that these defendants did not prefer any appeal as against the judgment and decree of the trial court and have further not preferred any second appeal before this court. He submitted that this court may pass appropriate orders in the matter. 17. Learned counsel for the appellants in R.S.A.No.7460/2010 submits that as these appeals arise out of a suit for partition and separate possession, it was not necessary for the daughters to have independently filed an appeal, assailing the judgment and decree of the trial court as their father had filed an appeal assailing the judgment and decree passed on 01/06/ Having heard the learned counsel for the appellants and learned counsel for the respondents as well as on perusal of the material on record, at the

26 -26- outset, it is noted that there is no dispute with regard to relationship between the parties. 19. Defendant No.1/Balvantrao was the son of one Vasudev Rao. His two brothers were Krishnaji and Rama Rao. Krishnaji was given in adoption to one Sukharam Deshpande. Subsequent to the demise of Vasudev Rao, there was a partition between defendant No.1/Balvant Rao and Rama Rao. The dispute is with regard to the division of the properties pursuant to the demise of one of the sons of Balvant Rao, namely, Praveen. He died on 29/08/1991. Balvant Rao and Sulochanabai/defendant No.2 have four sons namely, Suresh, Srikant, Vidyasagar and Praveen and four daughters namely, Premalata, Shobhalata, Sulakshana and Surekha. On the demise of Praveen, one of the coparceners, in the year 1991, his widow and two sons sought for partition and separate possession of the suit schedule properties.

27 -27- According to the respondent/plaintiffs, the suit schedule properties are the joint family properties and they have sought one-sixth share in the said properties. According to plaintiffs, when Praveen died in the year 1991, succession opened and, having regard to the principle of notional partition and division of properties based on the Bombay School of Mithakshara Law, Praveen was entitled to one-sixth share in the suit properties to which they have succeeded. The trial court while considering the said aspect of the matter has granted one-sixth share together in the suit properties to the respondent/plaintiffs. The first appellate court has confirmed that aspect of the matter. As far as the suit schedule properties are concerned, the trial court as well as the first appellate court have concurrently held that the said properties are joint ancestral and/or joint family properties. Therefore, all the suit properties

28 -28- have been taken into consideration for the purpose of division of the same between the parties. In response to the averments made in the plaint, it is only defendant No.1 who filed the written statement. The other defendants, particularly defendant No.2, did not file any written statement. 20. The contentions of the learned counsel for the appellants are two fold: one is with regard to the nature of the suit schedule properties. It is contended that item No.1 bearing Block No.122/A, measuring 12 acres 18 guntas is the self-acquired property of defendant No.1. It is further contended that item Nos.3 and 4 are the absolute properties of defendant No.2. On this aspect of the matter, the trial court raised issue Nos.1 and 2 and held that these properties are not the self-acquired properties of defendant No.1 or defendant No.2 respectively. The findings given by the trial court on the aforesaid

29 -29- aspect of the matter have been confirmed by the first appellate court in regular appeal. The question as to whether the suit properties are the self-acquired properties or joint family properties is a question of fact. That both the courts below have concurrently held that all the suit schedule properties are joint family properties and the first appellate court has confirmed the finding of the trial court on this aspect of the matter. In the second appeal, there can be no substantial question of law raised with regard to finding of fact given by the first appellate court on the nature of the properties as such. Even otherwise, the finding of facts by the first appellate court is final and that cannot be raised in the second appeal in the absence of there being any reason for holding that the said finding is perverse. In this case, it is noted that defendant No.2 did not counter the statement of plaintiffs by filing any independent written statement,

30 -30- neither did she cross-examine the plaintiffs. It is only defendant No.1 who filed the written statement and has examined himself. The finding of fact arrived at by the courts below on issue Nos.1 and 2 would clearly establish that the defendants have failed to establish that the suit item Nos.1, 3 and 4 are the self-acquired properties of defendant Nos.1 and 2 respectively. Issue No.1 pertains to the question as to whether suit lands bearing Bl.Nos.124/1 and 124/2 (old Sy.Nos.111/1 and 111/2 respectively) of Takali Village are the self-acquired properties of defendant No.2. While answering that issue, the trial court held in the negative. Similarly, issue No.2 pertains to the issue as to whether land bearing Bl.No.122/A (old Sy.No.106/1) situated at Takali Village is the selfacquired property of defendant No.1. That issue was also answered in the negative. On the aforesaid issues, the first appellate court raised point Nos.1 and

31 -31-2 respectively. While answering those points, the first appellate court concurred with the trial court and answered the said points in the negative. In the circumstances, the concurrent findings given on those aspects cannot be interfered with in the second appeal. Hence, no substantial question of law would arise with regard to the nature of the suit schedule properties. 21. The other and more crucial aspect of the matter is with regard to allotment of one-sixth share jointly to the respondent/plaintiffs. Appellant s counsel placed reliance on the decision of the Hon ble Supreme Court in Prakash vs. Phulavati and particularly, Paragraph No.23 of the said judgment to contend that since defendant No.1 - the father and the daughters who are the appellants herein are alive, the daughters are given a share equal to that of sons or their brothers.

32 Per contra, learned counsel for the respondent/plaintiffs submitted that the Hon ble Supreme Court in the said judgment has categorically held that the amendment made to Section 6 is prospective in nature. That the principle of notional partition would have to be applied in the instant case as Praveen died in the year Therefore, the position of law as it obtained on the date of his death would have to be taken into consideration. If that is so, then the judgment of the Hon ble Supreme Court in Gurupad vs. Hirabai would have to be applied, in which case, respondent/plaintiffs would be together entitled to one-sixth share apart from defendant Nos.1, 2 and defendant Nos.3 to 5 each, getting onesixth share in the suit schedule properties.

33 At this stage, it would be useful to recall the salient features of evolution of law of partition and succession under the Mitakshara School of Law. (a) Prior to the codification of the rules regarding succession, under the traditional law, a Hindu family was ordinarily joint not only in estate but also in food and worship. Coparcenery property was an incidence of joint family estate as distinguished from absolute or separate property of an individual coparcener. Coparcenery property devolved on the principle of survivorship as per the rules governing devolution of property by survivorship. The right of a male Hindu in coparcenery property was by birth. (b) Under the Hindu Law of Inheritance (Amendment) Act, 1929 certain female members of the joint family were included in the order of succession by way of intestate succession.

34 -34- Subsequently, under the Hindu Women s Rights to Property Act, 1937, significant changes were effected in law concerning partition. In the princely State of Mysore, 1933 Act was enacted. The said Act conferred on the widow, the widow of a predeceased son and the widow of a predeceased son of a predeceased son, a right of inheritance to the deceased s property even when the deceased left a male issue and such persons were even allowed to claim partition, though they would take only a limited estate in the property of the deceased. (c) The rule of devolution of property by a survivorship was further abridged by the enforcement of the Hindu Succession Act, Under Section 6 of the said Act, as it stood prior to 2005 amendment, if a male Hindu died after the commencement of the Act having an interest in a Mitakshara coparcenary property, his interest in the property was to devolve

35 -35- by survivorship upon the surviving members of the coparcenary. But if the deceased left behind surviving a female relative specified in Class-I of the Schedule I to the Act, or a male relative specified in that Class who claimed through such female relative, the interest of the deceased in the Mitakshara coparcenary property would devolve by testamentary or intestate succession under the Act and not by survivorship. Thus, the rule of survivorship would come into play (i) when the deceased left behind him surviving a female relative specified in Class I, or a male relative specified in Class I, who claimed through such female relative in Class I, or (ii) when the deceased had made a testamentary disposition of his undivided share in the coparcenary property. Under Section 30 of the said Act, a coparcenary could make a testamentary disposition of his undivided interest in joint family property. A share of the deceased

36 -36- coparcenary in Hindu Mitakshara coparcenary property was deemed to be the share in the property. That would be allotted to him if a partition of that property had taken place immediately before his death. Thus, a notional partition of coparcenary property before the death of a coparcenar was contemplated under the section and the property would devolve on the heirs by way of succession and not by survivorship. While applying the principles of notional partition in a given case, one had to take into consideration the status of a person, who had separated himself from the coparcenary before the death of the deceased or the claim of any heir of such a person as explained in Explanation 2. (d) Section 6 of the Act has now been amended by virtue of the Hindu Succession (Amendment) Act, 2005 under which, a daughter of a male Hindu governed by Mitakshara Law, leaving

37 -37- behind coparcenary property is considered to be a coparcener for the purpose of succession to his interest in the Mitakshara coparcenary property. In fact, the Section goes further to state that the daughter of a coparcener shall, by birth, become a coparcener in her own right in the same manner as the son; have the same rights in the coparcenary property as she would have had if she had been a son; and be subject to the same liabilities and disabilities in respect of the said coparcenary property as that of a son. A daughter, as a coparcener, can also dispose of her right, title and interest in the coparcenary property by way of a testamentary disposition. (e) Sub-section 3 of Section 6 pursuant to the amendment states that where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property

38 -38- of a joint Hindu family governed by Mitakshara Law shall devolve by testamentary or intestate succession, as the case may be, under the said Act and not by survivorship. The coparcenary property shall be deemed to have been divided as if a partition has taken place and the daughter is allotted the same share as is allotted to a son; the share of the predeceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or such pre-deceased daughter. Also, the share of the pre-deceased child of a pre-deceased son or a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

39 -39- (f) The Explanation states that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. This explanation is identical with Explanation-I of Section 6 prior to its amendment in the year Having regard to the rival contentions on this aspect of the matter and keeping in mind the amendment made to Section 6 of the Act, which has been interpreted by the Hon ble Supreme Court, it is noted that in Prakash vs. Phulavati a claim to a share equal to that of her brother was sought by his sister by placing reliance on the amendment made to Section 6 of the Act. The Hon ble Supreme Court, after comparing unamended Section 6 with amended

40 -40- Section 6 of the Act at paragraph Nos.17 to 23 has held as under: 17. The text of the amendment itself clearly provides that the right conferred on a daughter of a coparcener is on and from the commencement of Hindu Succession (Amendment) Act, Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be

41 -41- considered a little later. On this finding, the view of the High Court cannot be sustained. 18. 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 the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20 th December, 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

42 -42- provision of Section 6(5) by being limited to a transaction of partition effected after 20 th December, Notional partition, by its very nature, is not covered either under proviso or under sub-section 5 or under the Explanation. 19. Interpretation of a provision depends on the text and the context. Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given. In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given. 20. There have been number of occasions when a proviso or an explanation came up for interpretation. Depending on the text, context and the purpose, different rules of interpretation have been applied. 21. Normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of words of the section but if the language or

43 -43- purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult masters. Object of interpretation is to discover the intention of legislature. 22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20 th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. 23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9 th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20 th December, 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. (underlining by me)

44 -44- In the aforesaid decision, the Hon ble Supreme Court has held that amended Section 6 is prospective in nature and it does not have a retrospective effect. 25. At this stage, the principles to be borne in mind while interpreting an amendment to a piece of substantive law or legislation in the context of its having a prospective or retrospective operation could be referred to, in the background of two decisions of the Hon ble Supreme Court. a) In the case of Hitendra Vishnu Thakur vs. State of Maharashtra [(1994)4 SCC 602] (Hitendra Vishnu Thakur), the Hon ble Supreme Court in the context of substantive and procedural law has laid down the ambit and scope of an amending Act and its retrospective operation in the following terms: (i) A statute which affects substantive rights is presumed to be prospective in

45 -45- operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly-defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

46 -46- (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. b) Referring to the aforesaid decision in Shyam Sunder vs. Ramkumar [(2001)8 SCC 24] (Shyam Sunder), it has been held that when a repeal of an enactment is followed by a fresh legislation, such legislation does not affect the substantive rights of the parties on the date of the suit or adjudication of the suit, unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered, because the rights of the parties in an appeal are determined under the law in force on the date of the suit. However, according to Hon ble Supreme Court, the above position in law would be different in matters which

47 -47- relate to procedural law, but so far as substantive rights of parties are concerned, they remain unaffected by the amendment in the enactment. Thus, while there is a presumption against retrospective operation of a statute dealing with substantive rights; where an amendment affects procedure, it is presumed to be retrospective, unless the amending Act provides otherwise. In that case, the Hon ble Supreme Court was dealing with Panjab Pre-emption Act, 1913 as substituted by Haryana Act 10 of 1995, which is substantive law. It held that the amending Act being prospective in operation, did not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the appellate court was not required to take into consideration the substituted provision introduced by Section 15 of the amended Act.

48 -48- Thus, the Hon ble Supreme Court, in the aforesaid decisions has borne in mind the distinction between substantive law and procedural law in the context of the operation of an amending statute or provision. If a piece of substantive law is amended, then such a law would have prospective operation unless made retrospective, either expressly or by necessary intendment. The reason being that all vested rights prior to the amendment are protected and not divested pursuant to the amendment. Therefore, if the death of a coparcener has occurred prior to the 2005 amendment, the law as it stood then would apply in the matter of succession. 26. Further, in Prakash vs. Phulavati, reference has also been made to Gurupad vs. Hirabai referred to above, while dealing with the interpretation to be given to Explanation to Section 6 prior to the amendment made to the Act in the year It has been observed that the deeming provision with regard

49 -49- to partition of property immediately after the death of coparcener by was of a notional partition is in order to give full and complete effect to a settled principle of interpretation concerning a provision incorporating a deeming fiction. In fact, in Gurupad vs. Hirabai, the question was with regard to widow s share in a coparcenary property and whether, she is entitled to a share at a notional partition to be made as if during her husband s lifetime and the share which she would get upon his death under the Bombay School of Mithakshara Hindu Law. In that case, Khandappa had died leaving behind him his widow, Hirabai, who was the plaintiff, two sons, Gurupad and Shivpad and three daughters. The question was, whether Hirabai had a share equivalent to that of Gurupad and Shivpad as envisaged under the Bombay School of Mithakshara Law. The Hon ble Supreme Court while considering that aspect of the matter held as under:

50 Before considering the implications of Explanation 1, it is necessary to remember that what Section 6 deals with is devolution of the interest which a male Hindu has in a Mitakshara coparcenary property at the time of his death. Since Explanation 1 is intended to be explanatory of the provisions contained in the section, what the Explanation provides has to be correlated to the subject matter which the section itself deals with. In the instant case the plaintiff's suit, based as it is on the provisions of Section 6, is essentially a claim to obtain a share in the interest which her husband had at the time of his death in the coparcenary property. Two things become necessary to determine for the purpose of giving relief to the plaintiff. One, her share in her husband's share and two, her husband's own share in the coparcenary property. The proviso to Section 6 contains the formula for fixing the share of the claimant while Explanation 1 contains a formula for deducing the share of the deceased. The plaintiff's share, by the application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the

51 -51- deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in Sections 8, 9 and 10 of the Hindu Succession Act. The deceased Khandappa died leaving behind him two sons, three daughters and a widow. The son, daughter and a widow are mentioned as heirs in class I of the Schedule and therefore, by reason of the provisions of Section 8(A) read with the 1st clause of Section 9, they take simultaneously and to the exclusion of other heirs. As between them the two sons, the three daughters and the widow will take equally, each having one share in the deceased's property under Section 10 read with Rules 1 and 2 of that section. Thus, whatever be the share of the deceased in the coparcenary property, since there are six sharers in that property each having an equal share, the plaintiff's share therein will be 1/6th. 9. The next step, equally important though not equally easy to work out, is to find out the share which the deceased had in the coparcenary property because after all, the plaintiff has a 1/6th interest in that share.

52 -52- Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu Mistakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. One must, therefore, imagine a state of affairs in which a little prior to Khandappa's death, a partition of the coparcenary property was effected between him and other members of the coparcenary. Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son. (see Mulla's Hindu Law, Fourteenth Edition, page 403, para 315). In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappa's wife, the plaintiff. Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself and, his sons.

53 Two things are thus clears : One, that in a partition of the coparcenary property Khandappa would have obtained a 1/4th share and two, that the share of the plaintiff in the 1/4th share is 1/6th, that is to say, 1/24th. So far there is no difficulty. The question which poses a somewhat difficult problem is whether the plaintiff's share in the coparcenary property is only 1/24th, or whether it is 1/4th plus 1/24th, that is to say, 7/24th. The learned trial Judge, relying upon the decision in Shiramabai which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter. The question is which of these two views is to be preferred. 11. We see no justification for limiting the plaintiff's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband's life time between him and his two sons. We think that in overlooking that 1/4th share, one unwittingly permits one's imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff's husband and his sons. Whether a partition had

54 -54- actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of Explanation 1. That Explanation compels the assumption of a fiction that in fact "a partition of the 'property had taken place", the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share. 12. The fiction created by Explanation 1 has to be given its due and full effect as the fiction created by Section 18-A(9)(b) of the Indian Income-tax Act, 1922, was given by this Court in Commissioner of Income-tax, Delhi v. S. Teja Singh, 1959 Supp (1) SCR 394: (AIR 1959 SC 352). It was held in that case that the fiction that the failure to send an estimate of tax on income under Section 18-A(3) is to be deemed to be a failure to send a return, necessarily involves the fiction that a notice had been issued to the assessee under Section 22 and that he had failed to comply with it. In an important aspect, the case before us is stronger in the matter of working out the fiction because in Teja Singh's case, a missing step had to be supplied which was not

55 -55- provided for by Section 18-A(9) (b), namely, the issuance of a notice under Section 22 and the failure to comply with that notice. Section 18-A(9)(b) stopped at creating the fiction that when a person fails to send an estimate of tax on his income under Section 18-A(3) he shall be deemed to have failed to furnish a return of his income. The section did not provide further that in the circumstances therein stated, a notice under Section 22 shall be deemed to have been issued and the notice shall be deemed not to have been complied with. These latter assumptions in regard to the issuance of the notice under Section 22 and its noncompliance bad to be, made for the purpose of giving due and full effect to the fiction created by Section 18-A(9) (b). In our case it is not necessary, for the purposes of working out the fiction, to assume and supply a missing link which is really what was meant by Lord Asquith in his famous passage in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109(132). He said: If you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the

56 -56- putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. 13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share, of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In