Equivalent citations: AIR 2008 Ori 133, 106 (2008) CLT 98
Bench: S Panda
Pravat Chandra Pattnaik And Ors. vs Sarat Chandra Pattnaik And Anr. on 12/3/2008
JUDGMENT
Sanju Panda, J.
1. This First Appeal is directed against the Judgment and decree dated 11.5.2001 and 3.7.2001 respectively passed by the Learned Civil Judge (Senior Division), Baripada in Title Suit No. 189 of 1994.
2. The facts of the case are as follows:
Respondent No. 1 as Plaintiff filed the suit for partition of the properties as per Schedules-B to E of the plaint and for a decree for future rent in respect of rent of the rent of the building situated ever the suit land as described in Schedules-B & E of the plaint. The case of the Plaintiff was that Plaintiff and defendant No. 1 are brothers, defendant Nos. 4 and 5 are their sisters, defendant Nos. 2 and 3 are the sons of defendant No. 1. Krushna, the father of the Plaintiff and defendant Nos. 1, 4 and 5 died in the year 1991 while living jointly with his sons. There has been no partition of the suit properties by metes and bounds. The Plaintiff retired from his service as Senior Deputy Superintendent of Police in the year 1990. The wife of the Plaintiff got some landed properties at Kaptipada from her father and the Plaintiff constructed a house over the said land from out of his income. Defendant No. 1 was getting Rs. 1,000/- towards rent from the tenants of the joint family house. Those houses are joint family property and the Plaintiff is entitled to Rs. 416/- on account of rent from defendants in future and defendant Nos. 1 to 3 are in possession of the suit property on behalf of the Plaintiff and defendant Nos. 4 and 5. As defendant No. 1 avoided the request of the Plaintiff for amicable partition of the suit properties, the Plaintiff filed the suit. Defendant Nos. 1 and 2 in their joint written statement pleaded that Plaintiff had no cause of action and suit was barred by limitation. They also pleaded mis-joinder and non-joinder of parties. It was further pleaded that the Plaintiff constructed a house at Kaptipada by taking substantial financial help from the joint family properties. Further, in the year 1977 the Plaintiff relinquished his share in the joint family properties by making a declaration to that effect in presence of the father and other family members. After the said declaration, defendant No. 1 renovated the old house by investing huge amount and also added some new construction to the old building. The house has not been let out to anybody. Hence, the Plaintiff was not entitled to get anything from the said house. Defendant Nos. 3 and 4 in their separate written statement supported the plea advanced by defendant Nos. 1 and 2. Defendant No. 5 was set ex-parte.
3. Both the parties adduced oral as well as documentary evidence in support of their pleadings. On the pleadings, the Learned Civil Judge framed as may as eight issues which are as follows:
1. Has the Plaintiff got any cause of action?
2. Is the suit as laid is maintainable?
3. Is the suit bad for waiver, acquiescence and estoppel?
4. Is the suit barred by law of limitation?
5. Is the suit bad for non-joinder and mis-joinder of the parties?
6. To what relief or reliefs, if any, the Plaintiff is entitled in law and equity ?
7. Whether the suit properties are liable for partition?
8. Whether the Plaintiff has relinquished his interest over the suit properties?
After analyzing the materials and evidence available on record, the Court below has given the following findings on the above issues
1. There was no prior partition and thus the suit property was liable to be partitioned,
2. The defendants failed to prove that the Plaintiff has waived or acquired his right over any portion of the suit property, and
3. There was no evidence regarding induction of any tenant in the suit house at Baripada by the defendants and payment of any rent by them.
Therefore, the Plaintiff was not entitled to a decree for future rent and he was entitled to the relief of partition of the suit house.
4. On the above findings, the Court below decreed the suit preliminarily in part on contest against defendant Nos. 1 to 4 and exparte against defendant No. 5 with costs. It further directed that Schedules-B to E properties are liable for partition and the Plaintiff was entitled to 5/12th share, defendant Nos. 1 to 3 are entitled to 5/12th share jointly, and defendant Nos. 4 and 5 each is entitled to 1/12th share and parties were directed to make partition of the lands amicably within a period of one month, failing which either party may apply for appointment of Civil Court Commissioner to carve out his/her share.
5. Being aggrieved by the above, the defendant preferred this appeal. The Learned Counsel appearing for the Appellants submitted that after amendment of the Hindu Succession Act, 1956 by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), the shares allotted by the Learned Civil Judge are not in accordance with law because parties have not yet settled the partition in final decree proceeding. Thus partition has not been effected finally. The Learned Counsel appearing for the Respondents submitted that the aforesaid Amendment Act is prospective one. Hence, it is not applicable to the present case as the Court below has passed preliminary decree in the year 2001 prior to the date of amendment. According to him, as per Section 6 of the Hindu Succession Act as amended by Act 39 of 2005, the daughters, who have born only after 2005 are to be treated as coparceners and not otherwise.
The Learned Counsel for both parties have not raised any other points in this appeal.
6. On the above rival submissions of the parties, the Section 6 of the Hindu Succession Act as it stands after the amendment in 2005 is extracted hereunder for better appreciation:
6 - Devolution of interest in coparcenary property - (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this Sub-Section shall affect or invalidated any disposition or alienation including any partition or testamentary disposition of property which had been taken place before the 20th day of December, 2004.
(2) to (4) xxx xxx xxx
(5) Nothing contained in this Section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation - For the purposes of this Section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) of partition effected by a decree of a Court.
7. The above Section was amended with an intention to remove the discrimination as contained in Section 6 of Hindu Succession Act, 1956 by giving equal rights to the daughters in the Hindu Mitakshara Coparcenary property as the sons have. Section 6 of the new Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women. The legislature with their wisdom for the benefit of the women and to give them equal status in the society, amended the Hindu Succession Act by giving better right to the women to protect themselves against the torture and harassment, if any. The (Amendment) Act, 2005 was enacted to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights and liabilities to the daughters in the Hindu Mitakshara coparcenary property as the sons have. The said Act was come into force with effect from 9.9.2005 and the statutory provisions create new right. The provisions are not expressly made retrospectively by the legislature. Thus, the Act itself is very clear and there is no ambiguity in its provisions. The law is well settled that where the statutes meaning is clear and explicit, words cannot be interpolated. The words used in provisions are not bearing more than one meaning. The amended Act shall be read with the intention of the legislation to come to a reasonable conclusion. Thus, looking into the substance of the provisions and on conjoint reading of Sub-Sections (1) and (5) of Section 6 of the said Act are clear and one can come to a conclusion that the act is prospective. It creates substantive right in favour of the daughter. The daughter got a right of coparcener from the date when the amended Act was come into force i.e. 9.9.2005.
8. Hence, the submission of the Learned Counsel appearing for the Respondents that the daughters, who have born only after 2005, will be treated as coparceners is Not accepted. If the provision of the Act read with the intention of the legislation the irresistible conclusion is that Section 6 (as amended by Act 39 of 2005) rather gives a right to the daughter as coparcener, from the year 2005, whenever they may have born. They can claim for partition of the property which has not been partitioned earlier. But if the same was effected earlier i.e. prior to 20th December, 2004 the same should not be reopened. The daughters are entitled to a share each equal with the son as a coparcener.
9. Admittedly, this appeal is directed against the Judgment and decree passed by the Learned Civil Judge (Senior Division), Baripada in a suit for partition who has passed the preliminary decree. Since the appeal is a continuation of a suit, it cannot be said that said preliminary decree was made final and the preliminary decree can be vary if the appeal is allowed and this Come comes to a conclusion that partition was not effected finally. Thus, the amended Act is applicable to the present case. As per Order 20, Rule 18(2) of the Code of Civil Procedure by passing a preliminary decree only share of the parties are determined and the actual partition is effected as per the final decree.
10. Preliminary decree does not mean that partition was effected. It has only carved out the shares of the parties. Therefore, the Plaintiff and defendant Nos. 1, 4 and 5 are entitled to have equal shares in the property as partition was not effected by 20.12.2004. With the above modification, the appeal is allowed in part. There shall be no order as to costs.
