Partition – Only partition effected by way of registered deed prior to 20/12/2004 debars daughter from staking an equal share with son in co-parcenary property : Hindu Succession Act 1956, section 6.

The Suit was in respect of four landed properties and one house property. The case of the plaintiffs was that they along with defendants 1 to 4 constituted undivided Hindu Joint Family owning ancestral agricultural lands and house property.

The Trial Court held that the plaintiffs had proved that the suit properties were joint family properties; the suit was maintainable and that it was not a suit for partial partition as contended by the defendants; the plaintiffs and Mahadevappa being Class-I heirs of the deceased Sannamadiah, were entitled to equal share in the suit properties as per section 8 of the Hindu Succession Act, 1956 (the Succession Act).

On appeal, the Hon’ble Court observed that the Explanation to sub-section (5) of section 6 of the Succession Act categorically declares that nothing contained in section 6 applies to a partition, which has been effected before 20th day of December 2004. In other words, if a partition had taken place in the family before 20th December 2004, a daughter cannot claim share in the co-parcenary property by virtue of the amendment to the Succession Act.

Further Explanation to sub-section (5) explains the meaning of partition for the purpose of section 6 as below: “Explanation: For the purposes of section 6, “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a Court.”

Thus, oral partition, palu-patti, unregistered Partition Deed are excluded from the purview of the word “partition” used in section 6. It is only the partition effected by way of a registered Deed prior to 20th December 2004, which debars a daughter from staking an equal share with a son in a co-parcenary property.

The High Court held that in the case on hand, admittedly there was no registered Partition Deed between Sannamadaiah and Mahadevappa, evidencing the alleged partition that took place in the year 2000. Even if there was a partition, oral or by an unregistered Partition Deed of the year 2000 as contended by the defendants, it could not be treated as a partition for the purpose of Section 6 and the rights of the daughters to claim an equal share as coparceners along with Sannamadaih’s son Mahadevappa remained unaffected. The trial Court was fully justified in rejecting the contention of the defendants and holding that the plaintiffs were entitled to equal share with the son of Sannamadaiah in the suit properties, which were admittedly co-parcenary properties.

The court further observed that the Repealing and Amending Act, 2015 does not disclose any intention on part of Parliament to take away status of a co-percener conferred on a daughter giving equal rights with the son in co-parcenary property. Similarly, no such intention can be gathered with regard to restoration of sections 23 and 24 of Principal Act which were repealed by Hindu Succession (Amendment) Act, 2005. On the contrary, by virtue of Repealing and amending Act, 2015, the amendments made to the Succession Act in the year 2005, became part of the Act and the same is given retrospective effect from the day the Principal Act came into force in the year 1956, as if the said amended provision was in operation at that time. Thus, equal rights conferred on the daughter by the Amending Act have not been taken away by the Repealing Act. The main object of the Repealing and Amending Act is not to bring in any change in law, but to remove enactments which have become unnecessary.