B.K. Nayak, J.@mdashThis appeal has been filed by the plaintiff challenging the judgment and part decree respectively dated 27.04.2004 and 12.05.2004 passed by the learned Civil Judge (Senior Division), Bhanjanagar in Title Suit No. 9 of 2001. The plaintiff-appellant filed the suit for partition of the suit properties and allotment of her legitimate share therein. Her case is that part of the suit properties stands recorded in the name of her mother, Sita Pradhan, which were her streedhan properties and the rest are the ancestral properties of her father, Prahalad. Prahalad and Sita had three daughters, namely, Chandrakala, Ahalya and Pramila (plaintiff) and had no male issue. Chandrakala is dead and defendant Nos. 3 and 2 respectively are her husband and daughter. Ahalya-defendant No. 4 died during the pendency of the suit leaving behind defendant Nos. 4 (a) to 4(e), defendant No. 7 and defendant No. 1 as her sons and daughters. Defendant Nos. 5, 6, 8 and 9 are purchasers of some of the suit properties. It is averred by the plaintiff that during 1971, Prahalada executed an adoption deed in favour of defendant No. 1 without the consent of his wife, Sita Pradhan. No adoption ceremony as required under Hindu Law was performed. Sita died in the year 1983 and Prahalad died in the year 1992. It is specifically alleged that defendant No. 1 is not the adopted son of Prahalad Pradhan and Sita Pradhan, but he has sold away some lands out of the suit properties to defendant Nos. 5, 6 and 9 without the consent of the plaintiff and other LRs of Prahalad and Sita and, therefore, those sale deeds are void and not binding on the plaintiffs and other LRs of Prahalad. Defendant No. 7 has also managed to record her name in respect of some part of the suit properties behind the back of the plaintiff. The plaintiff, therefore, sought for the relief of partition and allotment of legitimate share therein.
2. Defendant Nos. 2 and 3 filed a joint written statement supporting the case of the plaintiff and denying the adoption of defendant No. 1 by Prahalad stating further that they had no objection for partition of the suit properties and allotment of 1/3rd share to them jointly.
3. Defendant Nos. 1 and 5 to 7 filed a joint statement stating that defendant No. 1 was the adopted son of Prahalad Pradhan and Sita Pradhan. He is the natural son of Ahalya Pradhan, who was the second daughter of Prahalada Pradhan and Sit Pradhan. The adoption took place on the Sripanchamee day of the year 1965 in presence of friends and relation when defendant No. 1 was only four years old. Giving and taking ceremony as well as other functions and feast were performed on the date of the adoption. Since the date of his adoption, defendant No. 1 has been treated as the son of Prahalad and Sita and is recognized as such by the plaintiff and all others. Defendant No. 1 was given education by his adoptive parents and that Prahalad has been described as the father of defendant No. 1 in the records of educational Institutions. Subsequently, in the year 1971 Prahalad executed a registered deed acknowledging previous adoption of defendant No. 1 and all his daughters including the plaintiff have signed on the said deed. Prahalad during his lifetime was managing the entire suit properties with the assistance of defendant No. 1 and has gifted some of his properties to his three daughters through registered gift deeds and the daughters entered into possession of the gifted properties and therefore, they are not entitled to further share out of the suit properties. Defendant No. 1 is the absolute owner of the suit properties after the death of Sita and Prahalad and is in exclusive possession over the same. Sita Pradhan had no Streedhan Properties, but some properties were purchased in her name by Prahalad, out of the income derived from the properties of Prahalad, which was ancestral in nature and, therefore, the property recorded in the name of Sita Pradhan is to be treated as ancestral property of Prahalad which devolved on defendant No. 1 alone. Prahalad and Sita had donated some lands to defendant No. 7 with the knowledge of the plaintiff and her sisters and the said land now stands recorded in the name of defendant No. 7, who is the owner in possession thereof. Defendant No. 1 being the owner of the properties, had alienated some part of it and the purchasers are in possession over the same.
Though defendant No. 4 did not file any written statement, but after her death defendant Nos. 4(a) to 4(e) adopted the written statement filed by defendant Nos. 1, 8 and 9.
4. On the pleadings of the parties, the trial court framed nine issues, out of which Issue Nos. 4 and 5 relate to adoption of defendant No. 1 by Prahalad and Sita and the validity of the registered deed of acknowledgement of adoption. On consideration of the evidence, the trial court recorded the finding that defendant No. 1 is the adopted son of Prahalad and Sita and that the deed of acknowledgment of adoption is a valid deed. The trial court also came to hold that Prahalad and defendant No. 1 were the coparceners of the ancestral properties and all the three daughters of Prahalad were already married and had been gifted away some of the ancestral properties. After the death of Prahalad and Sita, defendant No. 1 became the sole surviving coparcener. It was also found that during their lifetime Prahalad and Sita gifted some lands to defendant No. 7, which has been recorded in her name and that the sale of part of the suit properties made by defendant No. 1 in favour of defendant Nos. 5 to 9 are valid. Ultimately, the trial court held that the lands recorded in the name of Sita Pradhan being her Streedhan Property shall be divided in equal shares amongst the branches of her three daughters and defendant No. 1. So far as the suit ancestral properties are concerned, it was held that defendant No. 1 was entitled to ten annas share by virtue of notional partition between Prahalad and defendant No. 1 on the death of Prahalad and the plaintiff and branches of two other deceased daughters of Prahalad are entitled to two annas share each. It was also directed that the properties already received by the plaintiff and her sisters from Prahalad through registered gift deeds shall be adjusted towards their respective shares and the portion of the suit properties sold by defendant No. 1 to defendant Nos. 5 to 9 shall be adjusted towards the share of defendant No. 1.
5. In assailing the impugned judgment, the learned counsel for the plaintiff-appellant raises the following contentions :
"(i) that the finding of the trial court with regard to adoption of defendant No. 1-Prahalada is not correct in view of the evidence on record;
(ii) that assuming that the defendant No. 1 was the adopted son of Prahalada, in view of the amendment of Section 6 of the Hindu Succession Act in 2005, all the three daughters of Prahalad including the plaintiff became coparceners with defendant No. 1 and, therefore, the plaintiff is entitled to 1/4th share in the suit ancestral properties; and
(iii) that the gift in favour of the daughters by Prahalad having been found to be valid and being not brought to the suit hotchpotch, the same cannot be adjusted towards the share of the daughters in partition.
6. Learned counsel for defendant No. 1-respondent No. 1, on the other hand, submits that there is no infirmity in the finding of the trial court about the adoption of defendant No. 1 by Prahalad and that devolution of ancestral properties having taken place on the death of Prahalad in 1992 by operation of law, the amended provision of Section 6 of the Hindu Succession Act, 1956 shall have no application and, therefore, the allotment of two annas share by the trial court to the plaintiff is justified
7. With regard to the adoption of defendant No. 1 by Prahalad, it is seen that the evidence of DWs.2, 3, 4 and 5 is relevant. D.W.4 is a barber and D.W.5 is the cousin brother of Prahalad. Both have clearly stated that Prahalad had no male issue except three daughters including the plaintiff and so he adopted defendant No. 1, natural son of Ahalya, on the Sripanchamee day in the year 1965. The adoption ceremony took place in the house of Prahalad. The barber, priest and daughters of Prahalad and other relatives were present, and that during the ceremony, the natural parents of defendant No. 1 gave defendant No. 1 in adoption and Prahalad and Sita accepted him as their adopted son. Since the date of adoption, defendant No. 1 stayed in the house of Prahalad, who gave him education. Nothing substantial was brought out in the cross-examination of these witnesses to discredit their evidence. D.W.3 is the natural mother of defendant No. 1 and the second daughter of Prahalad. Her testimony is clear about giving defendant No. 1 in adoption to Prahalad. D.W.2 is defendant No. 1 himself. He has also clearly stated about his adoption by Prahalad. Evidence with regard to execution of the registered deed of acknowledgement of adoption of defendant No. 1 in the year 1971 is quite clear to the effect that Prahalad and all his three daughters signed on the deed. As against such evidence, the evidence of the plaintiff, who has been examined as P.W.1, is to the effect that without her knowledge Ahalya gave defendant No. 1 in adoption to Prahalad. It appears from her evidence that she was not present during the adoption ceremony. But at the same time, she did not raise any objection when she signed the deed of adoption. She states that she came to know about the adoption of defendant No. 1 by Prahalad only when she signed the adoption deed. It is also clear from her evidence that neither she nor anybody else questioned the adoption of defendant No. 1 during the lifetime of Prahalad and Sita. The evidence on record also clearly reveals that Prahalad had gifted away some properties to all his three daughters and that defendant No. 1 was staying in his house from the time of his adoption and has been looking after the properties after the death of Prahalad. Defendant No. 1 has also performed the funeral ceremony of his adoptive parents. It is thus clear from the evidence that the trial court has assessed the evidence properly and come to the right conclusion that defendant No. 1 is the adopted son of Prahalad.
8. With regard to the second contention of the learned counsel for the appellant that by virtue of amendment of Section 6 of the Hindu Succession Act, 1956 in 2005, the plaintiff is entitled to 1/4th share in the suit ancestral properties, it is necessary to see the provisions of the original Section 6 and the amendment thereof effected in 2005.
Section 6 of Hindu Succession Act, 1956 prior to its amendment runs as under:
"6. Devolution of interest in coparcenary property- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1- For the purposes of this section, 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.
Explanation 2- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
9. Section 6 of the Hindu Succession Act, 1956 was in entirety substituted by Section 3 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005). The amended provision came into force with effect from 09.09.2005. Sub-section (1) of amended Section 6, which is relevant for our purpose runs as under:
"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 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 invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th Day of December, 2004."
10. Prior to enactment of Hindu Succession Act, 1956, as per the old Hindu law the undivided interest of a coparcener in the Mitakshara joint family used to devolve on the surviving coparceners of the family. Therefore, depending on the birth or death of a coparcener in the family, the interest of other surviving coparceners used to be decreased or increased, as the case may be. Section 6 of 1956 Act recognized that very principle of survivorship only with an exception to the effect that the undivided interest of the coparcener in the joint family dying intestate shall not devolve by survivorship upon the surviving members of the coparcener only if the deceased left a female relative in class-1 of the schedule of the Act or a male relative specified in that class, who claims through such female relative. The interest of such deceased coparcener was his share as per a notional partition at the time of his death as per Explanation-1 appended to Section 6 of 1956 Act. Devolution of the undivided interest of deceased coparcener takes effect immediately on his death by operation of Section 6 and the same is never postponed.
11. By virtue of 2005 amendment, Section 6 of 1956 Act has been totally substituted. Sub-section (1) of the amended Section 6 now gives the daughter of a coparcener in a Mitakshara Joint Hindu family the status of a coparcener which she did not have prior to the amendment.
The Hon''ble apex Court in the case reported in
"30. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. The High Court might have committed a mistake in opining that the operation of Section 3 of the 2005 Act is retrospective in character, but, for the reasons aforementioned, it does not make any difference. What should have been held was that although it is not retrospective in nature, its application is prospective."
It is apparent from the opening words of Sub-section (1) of Section 6, as amended in 2005, that a daughter becomes a coparcener in the Mitakshara Joint Hindu family on and from the date of commencement of the amendment Act. Therefore, a pre-condition for the applicability of this new provision is that on the date of its commencement there must be a Mitakshara Joint Hindu family in existence. The proviso to amended sub-section (1) makes it clear that the right conferred on the daughter as a coparcener shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. This, in other words, means that where devolution of property of a deceased coparcener, has already taken place prior to the 20th day of December, 2004, such devolution would not be affected by conferment of status of coparcener on a daughter by virtue of the amendment. This view of mine gets support from a decision of the Madras High Court reported in
"13. A careful reading of Section 6(1) read with 6(3) of the Hindu Succession (Amendment) Act clearly indicates that a daughter can be considered as a coparcener only if her father was a coparcener at the time of coming into force of the amended provision. It is of course true that for the purpose of considering whether the father is a coparcener or not, the restricted meaning of the expression "partition" as given in the explanation is to be attributed.
14. In the present case, admittedly the father of the present petitioners had expired in 1975. Section 6 of the Act is prospective in the sense that a daughter is being treated as coparcener on and from the commencement of the Hindu Succession (Amendment) Act, 2005. If such provision is read along with Section 6(3), it becomes clear that if a Hindu dies after commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property shall devolve not by survivorship but by intestate succession as contemplated in the Act."
The Delhi High Court in the decision reported in
"8. The very opening words of S. 6(1) are "On and from..........in a Joint Hindu Family". Thus, sub-section (1) envisages existence of a Joint Hindu Family, when the amendment came into force and right of the daughter in the HUF coparcenary is to be determined if HUF is in existence. Thus, the very first condition of the application of this amended provision is that on the day when amended Act came into force, an HUF governed by Mitakshara law must be in existence. If Joint Hindu Family is in existence on that day, the daughter shall be a coparcener in the Joint Hindu Family like any other son and shall have same right in the coparcenary as that of a son and shall be subject to the same liabilities in respect of the said coparcenary property as a son would be. If no HUF is in existence on that day, when amendment came into force, the question of daughter being coparcener does not arise........"
12. In the case in hand, admittedly, Prahalad and defendant No. 1 constituted a Mitakshara Joint Hindu family on the date of adoption of defendant No. 1 in 1965. Undisputedly, Prahalad died in the year 1992 and his wife had pre-deceased him about ten years before and all the daughters of Prahalad including the petitioner had already gone on marriage prior to adoption of defendant No. 1. On the death of Prahalad, the petitioner became the sole surviving male member and Prahalad''s undivided interest in the suit coparcenary properties devolved by way of intestate succession on his legal heirs (his adopted son and three daughters) in accordance with un-amended provision of Section 6 of 1956 Act along with Explanation-1 thereof. On a notional partition taking place on the death of Prahalad in the year 1992 between him and defendant No. 1, each of them would have been entitled to half share in the suit joint family properties and the half share of Prahalad would devolve in equal share on defendant No. 1 and his three daughters as the daughters are Class-1 female heirs. Such devolution or disposition of property having already taken place by virtue of law existing prior to the amendment of Section 6 in 2005, such devolution creates a vested right in the legal heirs, which cannot be re-opened after coming into force of the 2005 amendment.
13. In the aforesaid view of the matter, the decree of the trial court granting ten annas share to defendant No. 1 and two annas share to each of the daughters of Prahalad or their branches including the plaintiff in the suit coparcenary properties is justified. Thus, the second contention of the learned counsel for the petitioner-appellant fails. So far as the direction of the trial court for adjustment of the properties transferred by way of gift by Prahalad in favour of his daughters towards their shares is concerned, the same cannot be sustained inasmuch as the gifted properties were not the subject matter of the suit and that the daughters have already derived title to such properties. Therefore, the direction of the trial court for adjustment of the properties gifted by Prahalad to his daughters towards their shares is set aside. The appeal is allowed only to this extent. No costs.
