IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

IA No. 2608/2006 (O. 7 Rule 11 CPC) in CS (OS) No. 213/2006

Reserved on: 02.05.2007

Date of Decision: 02.07.2007

Shri Brij Narain Aggarwal .......Plaintiff

Through : Mr. Sujoy Kumar, Advocate

versus

Sh. Anup Kumar Goyal & Ors. ......... Defendants

Through : Mr. Mahip Datta for D-1&2

JUSTICE SHIV NARAYAN DHINGRA

IA No. 2608/2006 (O. 7 Rule 11 CPC)

1. This suit has been filed by the plaintiff, husband of deceased Mrs.

Mithlesh Aggarwal, after coming into force of the Hindu Succession Act

(Amendment Act 2005) whereby section 6 of the Hindu Succession Act 1956 was

amended.

2. The defendant has filed an application under O. VII Rule 11 CPC submitting

that the suit was not maintainable and no right accrued upon the plaintiff after

amendment of the Act and the partition of the disputed property had already

taken place. The amended Act was not applicable. A prayer is made for

rejection of the suit.

3. In order to appreciate the contention of both the parties, the brief

narration of the relevant facts is necessary.

4. A civil suit bearing No. 1717/1984 was filed by defendant No.1 and 2 for

partition of the properties left behind by Mr. Pran Nath Goyal. In the suit,

wife of Mr. Pran Nath Goyal and other sons and daughters including the wife of

the plaintiff were the parties. During the pendency of the suit, on a joint

application filed by the parties, under section 21 of the Arbitration Act 1940,

the entire matter was referred to arbitrator for deciding the question of

division of property. The Arbitrator gave an award on 11.2.1989 and the award

was published on 11.12.1989. The award was made rule of the Court on 8.4.1991

and a decree was passed in suit No. 1717/1984 in terms of the award. In terms

of the award wife of the plaintiff Mrs. Mithlesh Aggarwal was granted 1/36th

share in the two immovable properties of the deceased. An appeal was preferred

against the decree being FAO No. 99/1991. The appeal was dismissed in default.

Thereafter, an Execution Petition No. 14/93 was preferred before this Court

which was subsequently transferred to the District Court. Mrs. Mithlesh

Aggarwal, through whom plaintiff claims right for partition of the property,

died on 25.11.1998. The plaintiff filed this suit, as earlier stated, after

passing of the amendment in Hindu Succession Act claiming that Mrs. Mithlesh

Aggarwal was entitled to 1/6th share in view of the amendment and this Court

should declare her to be entitled to 1/6th share.

5. The contention of the plaintiff is that since execution petition was

pending and the partition decree passed by the Court in 1991 has not been given

effect to by effecting partition by metes and bounds, the partition is not

complete as the decree has not been implemented. Plaintiff relied upon section

6 (5) of Hindu Succession Act as amended and stated that amended section shall

apply in this case since no partition has been effected before 20.12.2004.

6. On the other hand, the contention of the learned counsel for the

defendant is that since Mrs. Mithlesh Aggarwal died in the year 1998 and her

share had already been determined by a competent Court and a decree has been

passed which became final, no right survived in plaintiff to file a fresh suit

even after amendment of Hindu Succession Act.

7. In order to decide the maintainability of the suit, a careful perusal of

the amended Act of the Hindu Succession Act is needed. Section 6 reads 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.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-

section (1) shall be held by her with the incidents of coaprcenary ownership and

shall be regarded, notwithstanding anything contained in this Act or any other

law for the time being in force in, 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 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 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.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no

court shall recognize any right to proceed against a son, grandson or great-

grandson for the recovery of any debt due from his father, grandfather or great-

grandfather solely on the ground of the pious obligation under the Hindu law, of

such son, grandson or great-grandson to discharge any such debt;

Provided that in the case of any debt contracted before the commencement

of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-

section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-

grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and

any such right or alienation shall be enforceable under the rule of pious

obligation in the same manner and to the same extent as it would have been

enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been

enacted.

Explanation- For the purposes of clause (a), the expression “son”, “grandson”

or “great-grandson”, shall be deemed to refer to the son, grandson or great-

grandson, as the case may be, who was born or adopted prior to the commencement

of the Hindu Succession (Amendment) Act, 2005.

(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) or partition effected by a decree of a Court.

8. The very opening words of Section 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 coparcenery is to be determined if HUF is in

existance. 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. In the present case, the HUF of which Mr. Pran Nath Goyal was karta,

ceased to exist when partition suit was filed by defendants No. 1 and 2 in 1984.

It is settled law that once partition is demanded and a suit is filed by a

member of HUF, the severance in the status of coparcener takes place. In the

present case it was not only severance in the status of the coparceners but in

fact coparcenary came to an end since all coparceners agreed for partition of

the property and the matter was referred by joint application of the coparceners

and other legal heirs having right in the property for partition to an

arbitrator. The award of the arbitrator was made rule of the Court and was

decreed in April 1991. Thus, there was no coparcenary in existence, of which

Mrs. Mithlesh Aggarwal could have been a coparcener, at the time Hindu

Succession (Amendment) Act came into force. Same is the tenor of other

provisions of section 6. It is provided that if disposition or alienation has

been done by the HUF including any partition or testamentary disposition of

property before 20.12.2004, the sub section shall not invalidate the same. Sub

section 2 also envisages existence of a coparcenary/ HUF and by virtue of this

amendment Act, daughter becomes a coparcener in the property. Sub section 3

provides that if a Hindu dies after 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. Thus, again the basic condition of the application of the Act is

that coparcenery must be in existence on the day when amendment Act came into

force. Sub Section 5 provides that the amendment Act shall not be applicable

where partition has been affected before 20.12.2004. The cut off date of

20.12.2004 has been given by legislature only to ensure that those partitions

which were made in HUF in order to defeat the purpose of amendment Act should

not be considered as partitions. However, those partitions which have been

affected before 20.12.2004, when the bill was introduced in the parliament, are

to be recognized. Explanation to sub section 5 provides that partition means a

partition affected by a decree of court. Thus, it is clear that the whole sum

and substance of the amendment Act is that HUF must be in existence on the day

of commencement of the Act or at least on 20.12.2004 and no partition had taken

place before 20.12.2004. The explanation to sub section 5 which defines

partition is only to ensure that a false claim of partition may not be put

forward and partition shall be considered only where a deed of partition has

been duly registered prior to 20.12.2004 or a partition has been effected by a

decree of court. This explanation has been added to rule out the plea of oral

partition which is normally taken by the parties to evade the application of the

Act.

9. In the present case, the partition had taken place by a decree of court

in 1991 itself. Mrs. Mithlesh Aggarwal, died in 1998. Mere pendency of the

execution would not give right to the plaintiff, who is husband of Mrs.

Mithlesh Aggarwal, to revive an HUF which ceased to exists in 1984 itself. The

suit is not maintainable under the amended Hindu Succession Act as claimed by

the plaintiff and has been filed frivolously just to harass the defendants. The

suit is liable to the dismissed under Section 7 Rule 11 CPC and is hereby

dismissed with costs of Rs. 50,000/-.

Sd/-

SHIV NARAYAN DHINGRA,J.