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2015 (12) TMI 1646
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....versity Road, Delhi-110007 and some movable properties and shares such as (i) Shares of Motor and General Finance Ltd.; (ii) Deposits with Motor and General Finance Ltd.; (iii) Bank of Account in Bank of India, Asaf Ali Road; and (iv) Bank Account in Vijaya Bank, Ansari Road. 3. To determine the lis in this case, the following issues were framed vide order dated 15.09.2008: 1. Whether the suit has been valued properly and proper court fee has been paid thereon? (OPP) 2. Whether the suit for declaration, is maintainable in its present form? (OPP) 3. Whether there exists any coparcenary property or HUF at all?(OPP) 4. Whether the plaintiff is a member of D.R. Gupta and Sons HUF? And if so, to what effect? (OPP) 5. Whether the interest of the plaintiff separated upon the demise of her father Sh. K.M. Gupta in 1984? (OPD) 6. Assuming existence of a D.R. Gupta and Sons HUF, whether the plaintiff can be considered to be an integral part of the HUF, particularly after her marriage in 1977, and whether the plaintiff has ever participated in the affairs of the HUF as a coparcener, and its effect? (OPP) 7. Assuming existence o....
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....y testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased 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 of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased 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. Explanation. -For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deem....
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....annot, therefore, deal with the joint family property as Manager so long as the Karta is available except where the Karta relinquishes his right expressly or by necessary implication or in the absence of the Manager in exceptional and extra-ordinary circumstances such as distress or calamity effecting the whole family and for supporting the family or in the absence of the father whose whereabouts were not known or who was away in remote place due to compelling circumstances and that is return within the reasonable time was unlikely or not anticipated." Ms. Mala Goel further relies upon the case of Ram Belas Singh vs. Uttamraj Singh and Ors. AIR 2008 Patna 8, which held as under. This judgment deals with Section 6B of the Act: "9. The suit out of which this civil revision has arisen had been filed in the year 2006 much after coming into force of the Hindu Succession (Amendment) Act, 2005 (Act XXXIX of 2005) which substituted Section 6 of the Act and provided that in a joint Hindu family governed by Mitakshara law the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and will have the same rights in the coparc....
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....office. In his deposition on 18.07.2013, PW-3, one Mr. N.V. Satyanarayan, Defence Estate Officer, Delhi Circle, has admitted that the mutation of Bungalow No. 4, University Road, Delhi had been done in the name of Shri R.N. Gupta (Karta); that it is borne out from the summoned record, i.e., a copy of the letter dated 01.06.85, addressed to Mrs. Shanta K. Mohan, w/o Late Sh. Kishan Mohan, 18, Anand Lok, New Delhi regarding mutation in the name of successor of Late Sh. Kishan Mohan, Karta (JHUF) in respect of 4, University Road, Delhi and letter dated 5.8.2003 from his office addressed to Sh. R.N. Gupta (Karta) & others, 4, University Road, Delhi on the subject "Mutation of Bungalow No.4, University Road, Delhi in the name of Legal Heirs." In this letter, it was contended that Mr. R.N. Gupta was the sole surviving son of Mr. D.R. Gupta and that he was thus the Karta of the said JHUF. 8. It is not in dispute between the parties that the plaintiff is the eldest surviving member of the HUF. Accordingly, she seeks a decree in terms of the relief sought in the suit. 9. The learned counsel for the plaintiff relies upon the case of Raghunath Rai Bareja and Another vs. Punjab Nation....
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.... Universtiy Road, Delhi. (b) Share of Motor and General Finance Ltd. (4308 shares) (c) Bank account of Hindu Undivided family D.R. Gupta & Sons (HUF) with Bank of India, Asaf Ali Road, New Delhi. (d) Bank account with Vijiya Bank, Ansari Raod, New Delhi. (e) Deposit with the Motor & General Finance Ltd. of Rs. 6,400/- plus accumulated interest thereon. 2.3 The parties effected partition of Hindu Undivided family D.R. Gupta & Sons (HUF) and that the parties being the member of the said Hindu Undivided family were entitled to and were owners of the movable and immovable properties of the said Hindu Undivided family mentioned in para 2.2 above to the extent as under: a) Shri Krishan Mohan Gupta (The eldest son of late Shri D.R. Gupta, who died on 17th Feb. 1983) and is survived byhis wife Smt. Shanta K Mohan and Mrs. Sujata Sharma & Mrs. Radhika Seth, daughter, heirs to the party of the "First part". 1/5th share b) Shri Mahendra Nath Gupta (as karta of the "Second party") 1/5th share c) Mr. Ravinder Nath Gupta (Party of the "Third part") 1/5th share d) Mr. Bhupinder Nath Gupta (Party of the "Fourth ....
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....d possession of their share in the said property. In case on demarcation if anyh one(sic) or two or all out of the 2nd, 3rd and 4th parties move out of their present constructed portion that they are occupying, then the affected party/parties would be paid relocation expenses as described earlier in Clause 4 of the agreement. In such event, the parties 2, 3 & 4 will be aloowed a minimum, period of six months to vacate the respective premises." 10. The plaintiff is the daughter of Kishan Mohan Gupta, who is one of the acknowledged coparceners of the said HUF and was thus a party. She had signed the settlement as a member of the family and her signatures would have to be read as one of the parties. Her signatures would testify that she has a share in the property otherwise her signature would not be necessary. 11. Ms. Goel, the learned counsel, further submits that the share of a Karta is restricted by restraints placed upon the Karta inasmuch as no rights can be created nor can the property be appropriated to the detriment and exclusion of any of the co-parceners. 12. In the circumstances, issue Nos.2, 3, 4 and 7 are answered in the affirmative in favour of the plaintiff. ....
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.... which, in the context of Section 6 of the Hindu Succession Act, held that rights in the co- parcenary property among male and female members of a joint Hindu family are equal on and from 9.9.2005. He submits that the legislature has now conferred a substantive right in favour of the daughters; that by Section 6, the daughter of the co-parcenar shall have same rights and liabilities in the co-parcenary property as she would if she had been a son; thus, on and from 9.9.2005, the daughter is entitled to a share in the HUF property and is a co-parcenar as if she had been a son. The Supreme Court relied upon its own judgment in S.Sai Reddy v. S. Narayana Reddy and Ors. (1991) 3 SCC 647 which held that the Hindu Succession Act was a beneficial legislation and had been placed on the statute book with the objective of benefitting a woman"s vulnerable position in society. Hence, the statute was to be given a literal effect. It is, however, required to be noted that the Court was then considering Section 29(a) of the Act and not Section 6. 14. The learned counsel for the defendant further submits that it is necessary to take into consideration Section 29(a) of Hindu Succession (Andhra Pr....
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.... judgment only recognizes the right of the eldest male member to be the Karta; that the amendment in 2005 only recognized the rights of a female member to equal those of male members but it did not extend to granting them any right in the management of HUF property; that the Hindu Succession Act,1956 only deals with succession to the intestate properties of a Hindu and does not purport to address the issue of the management of the estate. 17. The learned counsel for the defendant Nos.1 to 4 further refers to paras 8 & 9 of the written statement regarding the powers and functions of a Karta which are of wide amplitude. Finally, he submits that the limitation apropos customs under Section 4 is not comprehensive. He submits that Section 6 defines the rights only with respect to the inheritance of property and not its management; therefore, the undefined rights will have to be gleaned from customs as well as from the interpretation of ancient texts regarding Hindu religion. He submits that insofar as the right of management has not been specifically conferred on a female Hindu, the customary practice would have to be examined. In support of his contention, the learned counsel relies....
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....roposed to remove the discrimination as contained in section 6 of the Hindu Succession act, 1956 by giving equal rights to daughters in the Hindu Mitakashara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section." 21. He also submits that there is a positive constitutional protection in favour of the women under Articles 14, 15 and 16 as well as in the Directive Principles for the State Policy. The effect of deletion of sub-Section 2 Section 4 of the unamended Act has been enunciated in a judgment of this court in Nirmala & Ors. v. Government of NCT of Delhi & Ors., ILR(2010)Supp.(1) Delhi413 para 13 of which reads as under: 13. The relevant sections of the HSA are reproduced hereunder: Old Section 6 before substitution by the Amendment Act: 6. Devolution of interest of coparcenary property.- When a male Hindu dies after the commencement of ....
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....t, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased 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 of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased 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. Explanation.- For the p....
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.... (c) thirdly, if there is no heir of any of two classes, then upon the agnates of the deceased; and (d) lastly , if there is no agnate, then upon the cognates of the deceased. 9. Order of succession among heirs in the Schedule. -Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession. Ms. Mala Goel, the learned counsel for plaintiff refers to the same locus classicus by Mulla on principles of Hindu laws which states as under: "By virtue of the new provision, a daughter of a coparcener in a joint Hindu family governed by the Mitakshara law now becomes a coparcener in her own right and thus enjoys rights equal to those hitherto enjoyed by a son of a coparcener. The implications of this fundamental change are wide. Since a daughter now stands on an equal footing with a son of a coparcener, she is now invested with all the rights, including the right to seek partition of the coparcenary property. Whe....
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....le members were not treated as coparceners though they may be members of the joint family." 17. Viswanatha Sastri J. said : "The managership of a joint Hindu family is a creature of law and in certain circumstances, could be created by an agreement among the coparceners of the joint family. Coparcenership is a necessary qualification for managership of a joint Hindu family." 18. Thereafter, the learned judge proceeded to state : It will be revolutionary of all accepted principles of Hindu law to suppose that the senior most female member of a joint Hindu family, even though she has adult sons who are entitled as coparceners to the absolute ownership of the property, could be the manager of the family... She would be guardian of her minor sons till the eldest of them attains majority but she would not be the manager of the joint family for she is not a coparcener. 19. The view expressed by the Madras high Court in accordance with well settled principles of Hindu law., while that expressed by the Nagpur High Court is in direct conflict with them. We are clearly of the opinion that the Madras view is correct." 27. What emerges from the a....