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IN THE HIGH COURT OF KARNATAKA AT


BANGALORE

DATED THIS THE 16
TH
DAY OF APRIL 2013

BEFORE:

THE HONBLE MR.JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL NO.534 OF 2003

CONNECTED WITH

REGULAR FIRST APPEAL No. 394 of 2003

REGULAR FIRST APPEAL No..669 of 2003


IN R.F.A.No.534 of 2003

BETWEEN:

1. Sri. Swamy,
Son of Late Chandregowda,
Major,

2. Smt. Puttamma,
Wife of Late Chandregowda,
Major,

Both are residents of
Palahalli Village,
Belagola Hobli,
Srirangapatna Taluk,
Mandya District. APPELLANTS

(By Shri. K.V. Narasimhan, Advocate )



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AND:

1. Smt. Thimmamma,
Wife of Late Thimmegowda,
Major,
Resident of Palahalli Village,
Belagola Hobli,
Srirangapatna Taluk.

2. Smt. Parvathamma,
Wife of Naganna,
since dead by her
legal representatives are

a) Naganna,
Son of T. Mariyappa,
Aged about 57 years,

b) P.N. Yoganarasimha,
son of Sri. Naganna,
Aged about 32 years,

c) Sri. P.N. Yadhukumar,
Son of Sri. Naganna,
Aged about 28 years,

d) Smt. N. Jayalakshmi,
wife of Kempegowda,
aged about 31 years,
resident of No. 1963,
4
th
Cross, K-Block,
Kuvempunagar,
Mysore 23.

e) Smt. N. Vijayalakshmi,
Daughter of Sri. Naganna,
Aged about 26 years,

f) Smt. N. Ambika,
daughter of Sri. Naganna,


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aged about 24 years,


respondent Nos. 2(a) to (c)
and (e) and (f) are
Residents of Palahalli Village,
Belgola Hobli,
Srirangapatna Taluk,
Mandya District.

[cause title amended
as per the order dated 9.9.2009]

3. Sri. L. Prakasha,
Sonof P.N. Lakshmayya,
Major,
Resident of Palahalli Village,
Belagola Hobli,
Srirangapatna Taluk.

4. Sri. Shivanna,
Son of P.N. Lakshmayya,
Major,
Resident of Palahalli Village,
Belagola Hobli,
Srirangapatna Taluk.

5. Sri. P.G. Somashekara,
Son of Gundappa,
Major,
Resident of Palahalli Village,
Belagola Hobli,
Srirangapatna Taluk.

6. Sri. Ningegowda,
Son of Devegowd,
Major,
Resident of Palahalli Village,
Belagola Hobli,
Srirangapatna Taluk.


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7. Sri. P.M.S. Gowda,
Son of Palahalli Marigowda,
Major,
Drill Teacher,
Vahini High School,
Palahalli Village,
Belagola Hobli,
Srirangapatna Taluk. RESPONDENTS

(By Shri. T.N. Raghupathy, Advocate for Respondent Nos. 2
(a, c to f)
Shri. G.S. Bhat, Advocate for Caveator/Respondent No.1
Respondent Nos. 3 to 7 and Respondent No.2(b) are served and
unrepresented)
*****
This Regular First Appeal is filed under section 96 of
Code of Civil Procedure, 1908, with a prayer to against the
judgment and decree dated 2.12.2002 passed in
O.S.No.73/1989 on the file of the Principal Civil Judge (Sr.Dn.)
and Judicial Magistrate First Class, Srirangapatna, decreeing
the suit for partition and separate possession.


IN R.F.A.No.394 of 2003

BETWEEN:

1. Smt. Parvathamma,
Aged about 53 years,
Wife of Sri. Naganna,
Since deceased by her
Legal representatives are

a) Naganna,
Son of T. Mariyappa,
Aged about 55 years,

b) P.N. Yoganarasimha,
son of Sri. Naganna,


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Aged about 30 years,

c) P.N. Yadhukumar,
Son of Sri. Naganna,
Aged about 26 years,

d) N. Jayalakshmi,
wife of Kempegowda,
aged about 29 years,
resident of No. 1963,
4
th
Cross, K-Block,
Kuvempunagar,
Mysore 23.

e) N. Vijayalakshmi,
Daughter of Naganna,
Aged about 24 years,

f) N. Ambika,
daughter of Naganna,
aged about 22 years,

Appeallant Nos. 1(a) to (c)
and (e) and (f) are
Residents of Palahalli Village,
Belgola Hobli,
Srirangapatna Taluk,
Mandya District.

[cause title amended
as per the order dated 16.02.2004] APPELLANTS

(By Shri. T.N. Raghupathy, Advocate)

AND:

1. Smt. Thimmamma,
Major,
Wife of Sri.Thimme Gowda,
Residing at Palahalli,


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Belagola Hobli,
Srirangapatna Taluk,
Mysore District.

2. Sri. Swamy,
Major,
Son of Late Chandregowda,

3. Smt. Puttamma,
Major,
Son of Late Chandregowda,

4. Sri. L. Prakasha,
Major,
Son of Sri. Lakshmayya,

5. Sri. Shivanna,
Major,
Son of Sri. Gundappa,

6. Sri. P.G. Somasekhara,
Major,
Son of Sri. Gundappa,

7. Sri. Ninge Gowda,
Major,
Son of Sri. Deve Gowda,

8. Sri. P.M.S. Gowda,
Major,
Sonof Sri. Mavi Gowda,

Respondent Nos. 2 to 8 are
Residing at Palahalli,
Belagola Hobli,
Srirangapatna Taluk,
Mysore District. RESPONDENTS

(By Shri. G.S. Bhat, Advocate for M/s. G.S. Bhat and
Associates for Respondent No.1


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Shri. K.V. Narasimhan, Advocate for Respondent No.2
Respondent Nos. 3 , 4, 6 to 8 are served
Notice to respondent No.5 is dispensed with)

This Regular First Appeal is filed under section 96 of
Code of Civil Procedure, 1908, with a prayer to against the
judgment and decree dated 2.12.2002 passed in
O.S.No.73/1989 on the file of the Civil Judge (Sr.Dn.) and
Judicial Magistrate First Class, Srirangapatna, decreeing the
suit for partition and separate possession.

IN R.F.A.No.669 of 2003

BETWEEN:

L. Prakasha,
Son of P.N. Lakshmayya,
Resident of Palahalli Village,
Belagola Hobli,
Srirangapatna Taluk. APPELLANT

(Shri. L. Prakasha, party-in-person)

AND:

1. Thimmamma,
Wife of Late Thimme Gowda,
Aged about 60 years,
Resident of Palahalli Village,
Belagola Hobli,
Srirangapatna Taluk.

2. Swamy, Minor,
Son of Late Chandre Gowda,
By guardian natural mother
Respondent No.3 Puttamma.

3. Puttamma,
Wife of Late Chandre Gowda,
Aged about 45 years,


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4. Parvathamma,
Wife of Naganna,


5. Shivanna,
Son of P.N. Lakshmayya,

6. P.G. Somashekara,
Son of Gundappa,

7. Ningegowda,
Son of Devegowda,

Respondent nos. 3 to 7 are
Major,
Resident of Palahalli Village,
Belagola Hobli,
Srirangapatna Taluk.

8. P.M.S. Gowda,
Son of Palahalli Marigowda,
Aged about 30 years,
Drill Teacher,
Vahini High School,
Palahalli, Belagola Hobli,
Srirangapatna Taluk. RESPONDENTS

(By Shri. G.S. Bhat, Advocate for M/s. G.S.Bhat and
Associates, for Caveator/Respondent NO.1
Shri. K.V. Narasimhan, Advocate for Respondent No.2
Respondent Nos. 3, 5, 6 are served
Respondent no.4 abated)

*****
This Regular First Appeal is filed under section 96 read
with Order XLI Rule 1 of Civil Procedure, 1908, with a prayer
to against the judgment and decree dated 2.12.2002 passed in
O.S.No.73/1989 on the file of the Civil Judge (Sr.Dn.) and


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Judicial Magistrate First Class, Srirangapatna, decreeing the
suit for partition and separate possession.

These Regular First Appeals, having been heard and
reserved on 18.03.2013 and coming on for Pronouncement of
Orders this day, the Court delivered the following:-


JUDGMENT

These appeals are heard and disposed of by this common
judgment, as all the appeals arise out of the same judgment.

2. The parties are referred to by their rank before the trial
court for the sake of convenience.

3. The first respondent in the appeal in RFA 534/2003
was the plaintiff before the trial court. The suit was one for
partition and separate possession of the one-third share claimed
by the plaintiff , in the suit schedule properties. The trial court
decreed the suit and has granted a two-sixth share the
defendants have filed the above appeals.










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The following is the genealogical tree of the family :-


Golangana Dasappa


Huchegowda




Shivamma Puttaboramma
(1
st
wife of Huchegowda) (2
nd
wife of Huchegowda)



Thimamma Chandregowda Parvathi
(Plaintiff) (Def.No.3)

Puttamma W/o Chandregowda
(Defendant No.2)


Swamy (Defendant No.1)



4. The appeal in RFA 534/2003 is filed by the defendant
nos.1 and 2. Defendant no.1, Swamy, is the grandson of
Hutchegowda and the son of Chandre gowda. Defendant no. 2,
Puttamma, is the widow of Chandre gowda.
5. The appeal in RFA 394/2003 is filed by defendant no.
3, Parvathamma, the daughter of late Huchegowda.



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6. The appeal in RFA 669/2003 is filed by defendant no.
4, L. Prakash, who is the purchaser of land bearing Survey no.
447/2 , measuring 61 acres, one of the items of the suit schedule
properties.

The case of the plaintiff was that, Golangana Dasappa
had a son, Hutchegowda, who had two wives, namely,
Shivamma and Puttaboramma. The plaintiff, Thimmamma,
was the only daughter of Shivamma. Puttaboramma, the
second wife of Hutchegowda had two children, Chandregowda
& Parvathamma. Defendants 1 and 2, Swamy and Puttamma
are the son and widow, respectively, of deceased
Chandregowda, who had pre-deceased his father,
Hutchegowda. Parvathamma is defendant no. 3. The plaintiff
claimed that all the suit properties are the ancestral properties of
Hutchegowda. After his death, the plaintiff claimed that she
was entitled to one-third share in the suit properties. It was
contended that the third defendant had sold some of the
properties without the consent of the plaintiff or the other
members of the family.


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The first defendant admitted the relationship of the
parties and supported the case of the plaintiff. It was also
contended by the said defendant that apart from the suit
schedule properties, deceased Hutchegowda had held one more
item of land measuring 6 acres and sought that the same be
directed to be included in the suit schedule. It was however,
denied that the plaintiff was in enjoyment of the suit properties,
jointly, with the first defendant. It was claimed that while
Hutchegowda had a half share in the suit properties,
Chandregowda was entitled to the remaining extent. After the
death of Hutchegowda, the plaintiff- Thimmamma, defendants
1, 2 and 3 were entitled to an equal share in respect of the
properties fallen to the share of Hutchegowda. On that basis
the first defendant claimed partition and separate possession of
his two-third share in the suit properties. As also the item of
land not included in the plaint.

Defendant no. 2 contended that she had filed a suit in OS
No.44/1988, for partition and separate possession of a three-
fourth share in the ancestral properties, as the next friend of her
son, the first defendant. This was warranted as the third


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defendant was laying claim to the entire suit properties on the
basis of a will said to have been executed by Huchegowda, in
favour of defendant no.3, dated 22-12-1986, bequeathing all
the properties to her. That suit had however, ended in a
compromise, with the third defendant giving up her claim under
the will. But, it is contended that, the third defendant had even
then managed to wrangle a major share of the suit properties in
terms of the said compromise. It is asserted that this was
possible as the third defendant carried much influence with
Hutchegowda during his life time and after his death, her
husband exerted authority over the family and appropriated the
income from the properties and alienated several properties,
even though there was no legal necessity for such alienation. It
was hence contended that any such alienations did not bind the
other sharers.
The third defendant contended that the plaintiff was
married to one Thimmegowda and that she was married to one
Naganna. They lived in the same village, but separately and did
not constitute a joint family. It was denied that the properties
were ancestral properties of Hutchegowda. It was also asserted


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that the sale of several items of land in favour of defendants 4
to 7 were made during the life time of Hutchegowda , and could
not be questioned as being illegal. This was to the knowledge
of the plaintiff. As Hutchegowda had the power of alienation,
there was no illegal transaction. It was pointed out that
Hutchegowda was the only son to his father and was the sole
surviving co-parcener and the properties in his hands could be
construed as his separate properties and hence he could dispose
of the same by will or otherwise. It was claimed that under his
last will and testament, Hutchegowda had recorded that the
third defendant on the one hand, and the first and second
defendant on the other, were living separately, in the same
village. Hence there was no joint family status existing
between the parties.
The fourth defendant contended that he had purchased
one of the items of the suit property on 20-2-1988, from one
John, whose vendor had been in possession before the
transaction. It is asserted that the plaintiff had not objected to
the transaction in his favour at the relevant point of time.



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The fifth and eighth defendant who are also said to be
purchasers of items of the suit properties, prior to the suit, have
taken similar contentions as the fourth defendant.

7. The court below had framed the following issues on
the basis of the above pleadings:-

1. Whether the plaintiff proves that the suit
properties are the ancestral joint family
properties of herself and D1 to 3?

2. Whether the defendant No.3 proves that
her father Hutchegowda had made
disposition of properties through a will
dated 22.12.1986, as they were himself
acquired properties?

3. Whether the defendant No.3 proves that
sales made by her cannot be questioned by
plaintiff for the reasons stated in para-10 of
her written statement?

4. Whether the suit is bad for mis-joinder
of parties?



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5. Whether the suit is bad for non-joinder
of necessary parties and properties?

6. Whether the plaintiff is entitled to relief
of partition and separate possession of
1/3
rd
share in the suit properties?

7. Whether the 1
st
defendant is entitled to
partition and separate possession of 2/3
rd

share in suit properties?

8. Whether the plaintiff is entitled to
mesne profits?

9. To what reliefs parties are entitled?

ADDITIONAL ISSUES

1. Whether the 3
rd
defendant proves
that the sale to defendants 4 to 7 are not by
defendant Nos. 1 to 3, but deceased
Hutchegowda during his life time for his
necessity and he had absolute power to effect
the sales as averred in the amended written
statement?



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2. Whether the plaintiff proves that
the sales effected by the defendants 1 to 3 in
favour of defendant No.8 and some other third
parties are not binding on the shares of
plaintiff as averred in para-4(b) of the plaint?

3. Whether the plaintiff proves that
the suit schedule properties are in joint
possession of plaintiff and defendants 1 to 3?
4. Whether the plaintiff is entitled
for the relief claimed in the suit?

The suit was partly decreed as per judgment and decree
dated 29.2.1996, holding that the plaintiff was entitled to one-
sixth share and the defendant no. 1 was entitled to two-third
share, while the third defendant was held entitled to one-sixth
share, in all the suit properties, except those sold to defendants
4 to 8. Against the above judgment and decree, both the
plaintiff and the defendants had preferred appeals to this court
in RFA 490/1996, RFA 489/1996 and RFA 518/1996. This
court, by its judgment dated 16-2-2002 , remitted the matter for
a fresh consideration. The plaintiff and the defendants had been


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permitted to amend their pleadings and the above issues were
framed.

The court below has held Issues nos.1 to 5, 8 and
additional issue no. 1 in the negative and issue no. 6 and 7 and
additional issue nos. 2 and 3 in the affirmative. It is this which
is under challenge in these appeals.

8. The learned counsel for the appellants, Shri
K.V.Narasimhan contends as follows:-
That Chandregowda died in the year 1975. He
predeceased his father Hutchegowda, who died on 7.2.1987.
The court below has erroneously concluded that Hutchegowda
was the sole surviving co-parcener seeming to apply the rule of
inheritance in terms of Section 8 of the Hindu Succession Act,
1956 (Hereinafter referred to as the 1956 Act, for brevity)
and has pronounced that the plaintiff - defendants 1, 2 and 3
were the heirs of Hutchegowda and has allotted them shares
accordingly. However, it was overlooked that Chandregowda
died in the year 1975, leaving behind him Swamy, his son, the
first defendant. Therefore, by the deeming fiction of notional


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partition, the half share of Chandregowda in the suit properties
would devolve upon Swamy, his son and Puttamma, his
widow, respectively, and Hutchegowda would retain the other
half. On the death of Hutchegowda, the half share belonging to
Hutchegowda by notional partition, would have to be divided
into three equal shares, to be distributed between the plaintiff,
defendants 1 and 2 and defendant 3, respectively. The fallacy
committed by the court below in overlooking this obvious
circumstance, has resulted in a miscarriage of justice, leading to
the impugned judgement. The conclusion by the court below
that Hutchegowda would become the sole co-parcener after
the demise of Chandregowda is, therefore, a cardinal error
committed by the trial court. The learned Counsel relies on the
following authorities to substantiate his contentions:-

(a) Sheela Devi and others vs. Lal Chand, (2006)8 SCC 581,
(b) Dharma Shamrao Agalawe vs. Pandurang Miragu Agalawe
and others, AIR 1988 SC 845.

The learned counsel would further contend that Section
6 of the 1956 Act, as amended by Act 39 of 2005, would not be


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applicable to the case on hand, for the reason that even if the
amendment of the year 2005 is applied with retrospective effect
from the date the Act came into force, it is evident that the
legislature had no intention of conferring the rights on the
female relative of a co-parcener, including a daughter, prior to
the commencement of the Act. It is for the first time that by the
amendment, such rights are conferred. Therefore, it would not
be possible to extend the benefit of Section 6 to daughters born
before the 1956 Act came into force and it would be necessary
to keep in view the circumstance whether the female relative,
including the daughters of a co-parcener, were born before
17.6.1956 or after 17.6.1956. It is only those born after the
said date, who would be conferred with the rights contemplated
under the amended Act 35/2005. For this proposition,
sustenance is sought to be drawn from Pushpalatha N.V. vs.
V.Padma, ILR 2010 KAR.1484 and if the above proposition is
applied to the present case on hand, the learned counsel would
contend that the plaintiff was 60 years old as on the date of
filing of the suit, that is on 3.4.1989. Defendant no.3 is said to
have been 53 years old as on the date of filing of the appeal in


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RFA 394/2003. Therefore, she must have been born in the year
1950 and hence the amended Act would not be applicable to
neither the plaintiff nor defendant no.3.

It is further contended that in the instant case,
succession opened on 7.2.1987 with the demise of
Hutchegowda and therefore, Act 13/2005 was not in operation
as on the date of opening of the succession and places reliance
on the following :-
(a) Anar Devi and others vs. Parmeshwari Devi and others,
AIR 2006 SC 3332,
(b) M.Prithviraj and others vs. Leelamma, 2008 (4) KCCR
2333, and
(c) Ms.Vaishali Satish Ganorkar vs. Satish Keshorao Ganorkar,
AIR 2012 Bombay 101.

The learned Counsel would thus contend that neither the
plaintiff nor defendant no.3 are entitled to claim their share in
the suit properties as co-parceners as they were born even
before the 1959 Act came into force and succession had opened
before the amended Act came into force.


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9. Shri G.S.Bhat, learned Counsel appearing for the
plaintiff, on the other hand, contends that there is no dispute as
to the relationship of the parties and the fact that there was no
partition prior to the suit as also the fact that all the properties
are ancestral and family properties. The propositus Dasappa
died after 1956. The argument canvassed on behalf of
defendants 1 and 2 that in the notional partition, the property
should be first divided between the father and son and the son
would take the half share and in the remaining half, all the
members, both male and female, would be entitled to a share
and therefore, Thimmamma, the plaintiff would be entitled to
one-sixth share, is an incorrect proposition. The learned
Counsel draws attention to Sections 4 and 6 of the 1956 Act as
amended and would contend that the proposition that the date
of birth of the daughters being prior to 1956 and that the
provisions of the 1956 Act were not applicable would be a mis-
interpretation of Section 4 of the 1956 Act. To attract Section
4 of the 1956 Act, two conditions are to be satisfied, namely,
that there must be a partition in the family between the sons and


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father prior to 1956 or the father should have died before
1956. Otherwise, it is the general rule in regard to succession
as contemplated under Section 8 of the 1956 Act, which
would become applicable and places reliance on the following
authorities and seeks to justify the judgment of the court
below:

1. Bondar Singh and others Vs. Nihal Singh and others,
(2003) 4 SCC 161,
2. Rajgopal (dead) by L.Rs., Vs. Kishan Gopal and
another, AIR 2003 SC 4319,
3. Smt. Phulavati Vs. Prakash and others, AIR 2011
Karnataka 78,
4. Beg Raj Singh Vs. State of U.P. and others, (2003) 1
SCC 726,
5. Ganduri Koteshwaramma and another Vs. Chakiri
Yanadi and another, (2011) 9 SCC 788,
6. Miss. R. Kantha Vs. Union of India represented by its
Cabinet Secretary, Ministry of Law, Justice and Company
Affairs and another, ILR 2009 KAR 3699.



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10. Shri T.N.Raghupathy, appearing for defendant no.3,
the appellant in RFA 394/2003, would contend that the said
defendant no.3 had contested the suit. However, it was held
that she was entitled to one-sixth share in the suit properties
while excluding the properties sold to defendants 4 to 8. The
primary contention of defendant no.3 in resisting the suit of the
plaintiff was to the effect that Hutchegowda had executed a
will dated 22.12.1986 in favour of the said defendant and
therefore, the suit for partition was not maintainable. The court
below had held that the execution of the will had been
established, but concluded that it was impracticable to give
effect to the will and that finding had been challenged in an
appeal in RFA 518/1996. The plaintiff in turn had also filed an
appeal in RFA 486/1996 and the first defendant had also
challenged the same in RFA 490/1996. All the appeals were
allowed and the matter was remitted for a fresh consideration.
On such remand, the said defendant no.3 had examined her
husband Naganna as a witness and had produced additional
documents apart from examining one Chandrashekar as DW.8
and the trial court having held that the plaintiff and the third


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defendant were entitled to one-third share each and defendants
1 and 2 were entitled to one-sixth share each, is erroneous for
the reason that the trial court having held that the properties in
question were the self acquired properties of Hutchegowda as
he was the sole surviving co-parcener, has committed an error
in holding that the will executed by Hutchegowda was not a
genuine will. The reasons assigned for such a finding cannot
be sustained. This is further confounded by the fact that while
concluding the court below having apparently held that the
execution of the will had been proved nevertheless goes on to
hold that even though the will might have been executed, it was
not a genuine will, which is a contradictory finding on the face
of it. The observation of the court below that the appellant
ought to have examined herself as a witness is again not with
reference to any legal requirement. The doubt expressed of the
execution of the will was on account of the presence of a
beneficiary, when in fact, such beneficiary has neither had any
role in the execution of the will or the attestation thereof.
Therefore, examining herself as a witness would not have
advanced the case that Hutchegowda was in a sound state of


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mind at the time of execution of the will. The negation of the
evidence tendered by defendant no.3 through her husband as a
power of attorney holder is unjust and is not in accordance
with law. There was no impediment in having examined her
husband on her behalf. The statement made by the scribe of the
will was that he did not know who were present at the time that
the will was written down when at the same time, the scribe has
stated that he wrote to the dictates of Hutchegowda has been
unfairly rejected. What was expected of a scribe was only an
affirmation that he wrote to the dictates of the testator. Further,
the negation of the evidence of DWs 3 and 4, when they had
declared that they were present at the time of the execution of
the will and had signed in the presence of each other after the
execution of the will by Hutchegowda, was ample compliance
of the requirement under section 63 of the 1956 Act and the
same being negated, was again not tenable. The court below
having found that defendant no.3 had executed a sale deed on
the date of the execution of the will, would not again have the
effect of negating the validity of the will and hence the findings
given by the Civil Judge smacks of perversity.


27

The trial court has also doubted the execution of the will
on the ground that Hutchegowda was 80 years old when it was
said to have been executed and he having died two months
thereafter has found the execution of the will to be suspicious.
It is pointed out that only a person in the evening of his life
would contemplate the execution of a will and there was
nothing unnatural about that circumstance. The learned
counsel would also point out that the trial court has suspected
the will on the footing that the disposition was not equal as
between the children of the testator. It was indeed the privilege
of the testator to bequeath the properties to one or the other
heirs and the intention expressed in the will was to be looked
into as to why the testator chose to bequeath the properties
only in favour of defendant no.3. Therefore, the finding of
the trial court as to the execution of the will by Hutchegowda
in a sound state of mind as being doubtful, is based only on
conjectures and surmises and therefore is not tenable.

It is also contended that the finding as to the sale deeds
executed in favour of defendants 4 to 8 not binding on the


28
other members of the family is erroneous, as the same were
executed even during the life time of Hutchegowda and
therefore, cannot be questioned at this point of time.

The learned Counsel for defendant no.4 has sought to
contend that defendant no.4 was a bona fide purchaser for
value and even if the sale was held to be not binding on the
other defendants, the share of the vendor ought to have been
culled out in order to save the sale transaction to that extent as
the law does contemplate such a course of action. The court
below not having chosen to do so, has not rendered the
judgment in accordance with law and therefore to that extent, it
ought to be set aside. The learned Counsel has also raised
other contentions which may not be relevant.

11. In the light of the above contentions, the questions
that would arise for consideration before this court are,

(a) Whether on the principle of notional partition, the
trial court ought to have held that the half share of
Chandregowda in the suit properties devolved upon Swamy


29
and Puttamma, his son and widow, respectively, as legal
representatives and the other half share was held by
Hutchegowda?

(b) Whether after the death of Hutchegowda, his half
share, by notional partition, was to be divided into three equal
shares as between the plaintiff, defendants 1 and 2 and
defendant no.3?
(c) Whether the plaintiff and defendant no.3 could
claim their share in the suit properties as co-parceners by birth?
(d) Whether the third defendant could claim under the
will said to have been executed by Hutchegowda bequeathing
the suit properties in her favour?
(e) Whether the alienations in favour of defendants 4 to
7 are binding on the plaintiff and defendants 1 and 2?

It is noticed that in the impugned judgment, the court
below has proceeded on the basis that Golangana Dasappa, the
propositus having died, had left behind Hutchegowda as the
sole surviving co-parcener and that Chandregowda, son of
Hutchegowda was born much subsequent to the death of


30
Golangana Dasappa. Therefore, on the death of Dasappa,
Hutchegowda, as the sole surviving co-parcener, takes the suit
properties entirely and it would be his separate properties. The
court below has relied upon a decision in Kumbalagunte
Gowramma vs. Kumbalagunte Dodda Veeranna, ILR 2000
Kar.3695 and had referred to a paragraph from Mullas Hindu
Law, 15
th
edition, at page-345, item -257 and also to the
decisions in Commissioner of Wealth Tax, Kanpur vs. Chander
Sen, AIR 1980 SC 1753 and Yudhishter vs. Ashok Kumar, AIR
1987 SC 558. The reasoning of the court below is to the
effect that Hutchappa died on 7.2.1987, after coming into force
of the Hindu Succession Act, 1956 and in view of Section 8 of
the 1956 Act, Hutchegowda was the sole surviving coparcener
on the death of Golangana Dasappa and the property devolved
according to the Schedule to the 1956 Act and as a class-1 heir
and not as a Hindu Undivided family property, but as his self
acquired property, as Chandregowda was not born at that time
and has further concluded that insofar as the claim of the third
defendant that Hutchegowda, by his will dated 22.12.1986,
had bequeathed the entire property to her is concerned, has


31
negated the same, on the ground that there were suspicious
circumstances and further that the first defendant Swamy had
filed a suit through his guardian, against the third defendant in
O.S.No.44/1988 before the Civil Judge and JMFC,
Srirangapatna, questioning the genuineness of the will and the
said suit having been compromised, the third defendant had
given up her claim under the will by virtue of the compromise
and could not again rely upon the same. Insofar as the
allegations in favour of defendants 4 to 8 are concerned, the
court has found as a fact that the alienations were made by the
third defendant when she had no right in the properties and
therefore, the same were not binding on the parties to the suit
and has held that the plaintiff was entitled to two-sixth share;
defendants 1 and 2 were entitled to one-sixth share and the
third defendant was entitled to two-sixth share in all the suit
properties, including the properties sold to defendants 4 to 8.

From the established facts, it is clear that Chandregowda
died in the year 1975. He pre-deceased his father
Hutchegowda, who died on 7.2.1987. But the court has
overlooked the fact that Chandregowda, who died in the year


32
1975, was survived by his son Swamy, the first defendant. The
court below has not taken that important circumstance into
account. On the principle of notional partition, on the death of
Chandregowda, the suit properties to the extent of half share
devolved upon Swamy and Puttamma, the widow of
Chandregowda and after the death of Hutchegowda, the half
share, to which he was entitled by a notional partition, would
be divided into three equal shares as between the plaintiff,
defendant nos. 1 and 2 and defendant no.3. The finding of the
court below that Hutchegowda became the sole coparcener on
the demise of Chandregowda is an incorrect finding. So long as
the property remains in the hands of a single person, the same
would be treated as a separate property and he would be entitled
to dispose of the coparcenery property, as if the same were his
separate property. But if a son was subsequently born to him
or adopted by him, the alienation thereafter, whether it is by
way of sale, mortgage or gift, will stand, for the son cannot
object to the alienations so made by his father before he was
born or begotten. But once a son is born, it becomes
coparcenery property and the son would acquire an interest


33
therein. This is the proposition as laid down in C.Krishna
Prasad vs. CIT, (1975)1 SCC 160, and followed in Sheela
Devi and others vs. Lal Chand, (2006)8 SCC 581. Section 8
which provides for the general rules of succession in the case of
males lays down that a property of a male Hindu dying
intestate shall devolve according to the provisions of Chapter-
II, firstly upon heirs being the relatives specified in Class-I of
the Schedule. Therefore, on the death of the propositus
Dasappa, though Hutchegowda was the sole surviving co-
parcener, Chandregowda having been born subsequently, left
behind Swamy. Therefore, Hutchegowda as the son of Dasappa
and Swamy, as the son of a pre-deceased son and Puttamma,
the widow of Chandre Gowda are class-I heirs. Consequently,
the property on the death of Chandregowda, by a notional
partition, devolved on Swamy and Puttamma as the legal
representatives of Chandregowda to the extent of half share as
against the half share of Hutchegowda. In the light of the
above, Hutchegowda could not have disposed of the suit
properties to the entire extent under a will. It is also to be
mentioned that the authorities relied upon by the trial court do


34
not state the law differently. The court below has
misconstrued the same.
Nextly, without reference to the will said to have been
left behind by Hutchegowda, which is dealt with hereinafter,
the question as to the manner of succession to the half share, to
which Hutchegowda was entitled, would by virtue of the
general rules of succession under the 1956 Act, by notional
partition, have to be divided into three equal shares, to be
distributed between the plaintiff, defendants 1 and 2 and
defendant 3.

The judgment of the trial court was rendered prior to the
amendment of Section 6 of the 1956 Act. The amended Section
was substituted by Act no.39 of 2005 with effect from
9.9.2005. A division bench judgment of this court in
Pushpalatha N.V. vs. V.Padma, ILR 2010 Kar.1484 has
addressed the question of the status of a daughter of a
coparcener born prior to 17.6.1956 and the effect of the
amended Act on such a female heir and has held thus:-

56. Therefore, it follows that the Act
when it was enacted, the legislature had no


35
intention of conferring rights which are
conferred for the first time on a female relative
of a Co-parcener including a daughter prior to
the commencement of the Act. Therefore, while
enacting this substituted provision of Section 6
also it cannot be made retrospective in the
sense applicable to the daughters born before
the Act came into force. In the Act before
amendment the daughter of a Co-parcener was
not conferred the status of a Co-parcener. Such
a status is conferred only by the Amendment act
in 2005. After conferring such status, right to
Co-parcenary property is given from the date of
her birth. Therefore, it should necessarily
follow such a date of birth should be after the
Act came into force, i.e., 17.6.1956. There was
no intention either under the unamended Act or
the Act after amendment to confer any such
right on a daughter of a Co-parcener who was
born prior to 17.6.1956. Therefore, in this
context also the opening words of the amending
section assumes importance. The status of a
Co-parcener is conferred on a daughter of a
Co-parcenar on and from the commencement of
the Amendment Act, 2005. The right to
property is conferred from the date of birth.
But, both these rights are conferred under the
Act and, therefore, it necessarily follows the
daughter of a Co-parcenar who is born after


36
the Act came into force alone will be entitled to
a right in the Co-parcenary property and not a
daughter who was born prior to 17.6.1956.

57. Thus, by virtue of the substituted
provision what the Parliament intends to do is
first to declare that, on and from the
commencement of this Amendment Act in a
Joint Hindu family governed by the Mitakshara
law, the daughter of a Co-parcener shall by
birth become a Co-parcener in her own right in
the same manner as the son and have the same
rights in the Co-parcenary property as she
would have had if she had been a son.
Therefore, the Mitakshara law in respect of Co-
parcenary property and Co-parcenary
consisting of only male members came to an
end. By such a declaration the Parliament
declared that from the date of the amendment
shastric and customary law of Co-parcenary
governed by Mitakshara school is no more
applicable and it cease to exist. Thus, by virtue
of the aforesaid provision, a right is conferred
on a daughter of a Co-parcener for the first
time. The said right is conferred by birth.
Therefore, though such a right was declared in
the year 2005, the declaration that the said
right as a Co-parcener enures to her benefit by
birth makes the said provision retro active.


37
Though on the date of the birth she did not have
such right because of the law governing on that
day by amendment the law, such a right is
conferred on her from the date of the Act of
1956. A historical blunder depriving an equal
right in spite of the constitutional mandate is
now remedied and the lawful right to which the
daughter was entitled by virtue of the
constitution is restored to her from the date of
her birth. This, the Parliament has done by
using the express words that a daughter of a
Co-parcener shall by birth become a Co-
parcener in her own right in the same manner
as the son and have the same rights in the Co-
parcenary property as she would have had if
she had been a son.

However, a division bench of the Bombay High Court,
while dealing with the right that would accrue under Section 6
of the 1956, Act after its amendment has held thus:-

9. The Section is required to be dissected
for interpretation. The sub-title of the section
relates to devolution of interest in co-parcenary
property. The interest devolves upon succession.
Such devolution may be upon intestate or
testamentary succession. The entitlement of a


38
daughter of a coparcener is, therefore, upon
devolution and not without any such cause since
devolution is only upon succession. The
succession would open on a given day. It would,
therefore, open only upon the death of the
coparcener. Until that time the coparcener, to
constitute the coparcenary of which he is a
coparcener, must be a member in HUF consisting
of other coparceners. In the present case
admittedly aside from the appellants there has
been no other coparcener of respondent No.1.

10. It would have to be seen when the appellants
would be coparceners being the daughter of a coparcener.
The section gives the right to a daughter of a coparcener
on and from the commencement of the Act. The
amended provision under Section 6 of the HAS came into
effect from 9 September, 2005. On and from that date the
daughter of a coparcener would become a coparcener in
her own right just as a son would be by virtue of her birth
and she would have the same rights and liabilities as that
of a son. The devolution of her interest should, therefore,
be on and from 9 September, 2005.

11. No interest can devolve in a coparcenary
property except on the death of the coparcener. In
this case there has been no devolution of interest by
any succession, testamentary or intestate, because
no coparcerner (assuming that respondent No.1


39
was a coparcener with another in his HUF) has
been deceased. The share in the coparcenary,
therefore, cannot devolve upon anyone. The
succession, therefore, has not yet, opened. The suit
is, therefore, premature. The appellants, as the
daughters of the coparcener, are not statutorily
given any right as coparceners ipso facto before
devolution of any interest.
12. Meaning of the word devolve in
Oxford English Dictionary is:
(i) transfer power to a lower level,
(ii) pass to a deputy or to a successor,
It originates from the Latin word devolver -
meaning roll down.

The Concise Oxford English Dictionary
shows the meaning of the word devolve to be
thrown, fall, descend upon, fall by succession.
The meaning of the devolve in the Chambers
Dictionary (20
th
Edition) is shown as to roll down,
to hand down, to deliver over, to fall or Passover in
succession.

13. Consequently, until a coparcener dies
and his succession opens and a succession takes
place, there is no devolution of interest and hence
no daughter of such coparcener to whom an
interest in the coparcenary property would devolve
would be entitled to be a coparcener or to have the


40
rights or the liabilities in the coparcenary property
along with the son of such coparcener.
14. It may be mentioned, therefore, that ipso
facto upon the passing of the Amendment Act all
the daughters of a coparcener in a coparcenary or
a joint HUF do not become coparceners. The
daughters who are born after such dates would
certainly be coparceners by virtue of birth, but for
a daughter who was born prior to the coming into
force of the amendment Act she would be a
coparcener only upon a devolution of interest in
coparcenary property taking place.

15. It is contended on behalf of the
appellants that Section 6 of the amendment Act is
retrospective in operation and hence all daughters
of all coparceners would have the interest devolved
upon them even if they were born prior to the
amendment Act and even if the succession opened
earlier than the amendment Act. We may mention
that this is not a case of succession at all. It is
contended on behalf of the appellants that any
daughter born even prior to the amendment Act
would be a coparcener as to have an equal,
undivided interest in the coparcenery properties.

16. This contention is made wholly
disregarding the sub-title of the section. The
subtitle of a section is required to be considered in


41
the interpretation of the section and hence the
devolution of the interest is condition precedent for
any claim in coparcenary interest.
17. Even dehors the subtitle the section is
required to be interpreted to see whether a
daughter of a coparcener would have an interest in
the coparcenery property by virtue of her birth in
her own right prior to the amendment Act having
been brought into effect. It may be mentioned that
prior to the amendment Act (aside from the State
Amendment Act of 1995 which amended Section 29
of the HSA) indeed the daughter was not a
coparcener; she had no interest in a coparcenery
property. She had, therefore, no interest by virtue
of her birth in such property. This she got only "on
and from" the commencement of the amendment
Act i.e, on and from 9 September 2005. The basis of
the right is, therefore, the commencement of the
amendment Act. The daughter acquiring an interest
as a coparcener under the Section was given the
interest which is denoted by the future participle
"shall". What the section lays down is that the
daughter of a coparcener shall by birth become a
coparcener. It involves no past participle. It
involves only the future tense. Consequently, by the
legislative amendment contained in the amended
Section 6 the daughter shall be a coparcener as
much as a son in a coparcenery property. This


42
right as a coparcener would be by birth. This is the
natural ingredient of a coparcenery interest since a
coparcenery interest is acquired by virtue of birth
and from the moment of birth. This acquisition (not
devolution) which until the amendment Act was the
right and entitlement only of a son in a
coparcenary property, was by the amendment
conferred also on the daughter by birth. The future
tense denoted by the word "shall" shows that the
daughters born on and from 9 September, 2005
would get that right, entitlement and benefit,
together with the liabilities. It may be mentioned
that if all the daughters born prior to the
amendment were to become coparceners by birth
the word "shall" would be absent and the section
would show the past tense denoted by the words
"was" or "had been". The future participle makes
the prospectivity of the section clear.
18. Similarly in sub clause (a) of the
amended Section 6 the word "become" shows what
was contemplated to be in the future on and after
the date the amendment came into force. It is from
that date that the daughter would "become" a
coparcener, which she was not until then. If she
was to be taken to be the coparcener since even
prior to the coming into force of the Act the word
"become" in sub clause A of Section 6 would have
been instead "was".


43
19. Reading the operative part of the section
alongside the sub clause (a) shows that the
daughter "shall become" a coparcener by virtue of
her birth in a coparcenery property. This future
tense is consistent with the operative words "on
and from". Hence on and from 9 September 2005 a
daughter shall become a coparcener in a
coparcenery property by birth. The words "was" or
"had been" etc., would be inconsistent with the
words "on and from".
20. The words "on and from" are indeed
unique. They show the date from which the
amendment would come into effect. The footnote of
the section itself shows w.e.f. 9 September 2005
hence on and w.e.f 9 September 2005 a daughter
shall become a coparcener in coparcenery
property by virtue of her birth. That would be
acquisition of interest in a coparcenery property
though not devolution.
21. Similarly in the latter part of the section
after sub clause (c) the reference to a Hindu
Mitakshara coparcener which would be deemed to
include the daughter is also in the future tense
denoted by the words "shall be". Had the section
being retrospective and was to be effective for all
daughters born prior to the date the amendment
was effected or prior to the succession having


44
opened, the reference to the daughter as a
copercener in a Hindu Mitakshara family would be
shown to have been deemed "always have
included" a reference to the daughter of a
coparcener.
22. The section further contains a proviso.
The proviso is to prevent mischief of application of
the section to non-applicable cases, precisely the
kind of mischief that is made in the suit of the
appellants themselves. The section has a limited
effect. That is because for as many as about 50
years after the HSA came into force in 1956
various Hindu families having coparcenery
property could have made various dispositions and
alienations which had to be saved. Under the
proviso any disposition including a testamentary
disposition and any alienation including a partition
made prior to 20 December 2004 (presumably
when the Act was tabled in Parliament and which
was only about 9 months prior to the coming into
force of the amendment Act) were saved from the
effect of the section. Hence for such disposition and
alienation made prior to 20 December 2004 the
daughter of the copercener would not be entitled to
claim her interest in the coparcenery property.
23. In this case the alienation was made by
the respondent No.1, the father of the appellants, in


45
2008 by creation of the equitable mortgage in
favour of the respondent No.2. Hence, if otherwise
the appellants would be covered by Section 6 the
alienation by the equitable mortgage created by
respondent No.1 would not come in their way.
24. The express words in the section clearly
indicate the intention of the legislature to make
daughters coparceners in coparcenery property on
and from the date the amendment Act came into
force. The Act also clearly shows that from that
date they shall become coparceners with the same
rights and liabilities and the reference to the
Mitakshara would also be reference including the
daughter from then on. The express provisions in
the Act are, therefore, inconsistent with any
retrospectivity.
25. It is settled law that unless the Statute
makes a provision retrospective expressly or by
necessary intent it cannot be interpreted to be
retrospective. It is also settled law that vested
rights cannot be unsettled by imputing
retrospectivity upon a legislation by judicial
interpretation or construction. Making the section
retrospective would wholly denude the words "on
and from" in the section; they would be rendered
otiose. These words are unique and clear. They


46
express the intent of the legislature which is not far
to seek.
26. The rights of a coparcener vest in
him/her upon an interest devolving upon such
coparcener. This interest would devolve by
succession, intestate or testamentary. Upon the
death of a coparcener his interest in a coparcenery
property would devolve upon other coparceners.
This devolution under the unamended Section 6 of
the HSA was by survivorship in case of only male
heirs and by succession, if there were female heirs
also. After the amended Section 6 this devolution of
interest would be upon the son and the daughter
alike.
27. A reading of Section as a whole would,
therefore, show that either the devolution of legal
rights would accrue by opening of a succession on
or after 9 September 2005 in case of daughters
born before 9 September 2005 or by birth itself in
case of daughters born after 9 September 2005
upon them.
28. The prospectivity of the Act is clear. It is
not made expressly retrospective by the legislature.
Further it has specified not to effect transactions
prior to the specified date in the proviso. Even the
intention of the legislature in keeping in tact the
rights vested upon any disposition or alienation is


47
clear and hence further supports the mischief that
the amendment Act sought to remedy and the
mischief that it sought to prevent. The mischief that
was remedied was the discrimination between the
daughter and a son in a legislation that was
enacted 6 years after the coming into force of the
Constitution of India which granted equal rights to
all persons irrespective of their sex. The
discrimination prevailed for 50 years despite the
constitutional mandate of equality. The mischief
that it sought to prevent was precisely a kind of
mischief that the appellants have sought to create.
Though alienation prior to the specified date,
which was also 9 months prior to the coming into
force of the Act, have been excepted, all daughters
born well prior to the coming into force of the
amendment Act (and in this case the date of birth of
the appellant is neither known nor shown), would
seek to be included to undo transactions of other
members of the coparcenary either before any
succession opened and only mere virtue of their
birth. The mischief would be precisely that. It
would set at naught the rights vested in a son or in
any other coparcener when the unamended Act was
not in force. It would seek to undo transactions
entered into by those coparceners with third
parties, such as respondent No.2 Bank in this case.
It would not be known to respondent No.2 at the
time the equitable mortgage was created that any


48
part of the mortgaged property would be let off
consequent upon a subsequent claim by the
daughters of the mortgagors who were not known
to the Bank or shown to be coparceners.
29. The aspect of the retrospectivity has
been considered by the Supreme Court as well as
other Courts. In the case of Sugalabai Vs.
Gundappa A. Maradi & Ors. ILR 2007 KAR 4790 :
(2007 (6) AIR Kar R 506) the words "on and from"
came to be considered and interpreted in
paragraph 24. It was observed that it meant
"immediately and after". Hence immediately and
after the commencement of the Act the daughter of
a coparcener became by birth a coparcener in her
own right as the son.
The observation in that judgment that there
was nothing in the Act which showed that only
those born on and after the commencement of the
Act would become coparceners would run counter
to the aforesaid dissection of the section by the
words "shall become".
30. The judgment in the case of Pravat
Chandra Pattnaik & Ors. v. Sarat Chandra
Pattnaik & Anr. AIR 2008 Orissa 133 showed that
Section 6 of the amendment Act created a new right
and the provisions were not expressly made
retrospective by the legislature. The Act is clearly


49
without any ambiguity and, therefore, the words
could not be interpreted. They do not bear more
than one meaning and the act was, therefore, held
to be prospective creating a substantive right for a
daughter and hence it was held that the daughter
got rights of the coparcener from the date when the
amended Act came into force.
Despite the contention that only the
daughters who are born after 2005 would be
treated as coparceners was not accepted, it was
clarified that the daughter would have a right to be
coparcener from 9 September 2005 whenever she
was born and she could claim partition of the
property which was not partitioned earlier. This
aspect also loses sight of the subtitle of the Section
which deals with only "devolution" of interest in
case of such daughter born before 9 September
2005.
These judgments, therefore, do not commend
to us.
31. The Hindu Succession Act is an Act 1956
to amend and codify the law relating to the
intestate succession of Hindus. It brought about
changes in the law of succession amongst the
Hindus and give rights which were until then
unknown in relation to the women's property. The
Act of 1956, however, did not interfere with the


50
members of Hindu Mitakshara coparcenery. It was
that provision that the amendment Act of 2005
sought to further codify. It applied to all Hindus
belonging to any coparcenery and laid down
special provisions for the daughters of a
coparcener upon devolution of interest under
Section 6 of the Act removing the discrimination on
the ground of gender against such daughters and to
render social justice to women.
32. Relating to devolution of interest, the
opening of a succession came to be considered as
the focal point by the Supreme Court in the case of
Sheela Devi & Ors. v. Lal Chand & Anr. (2006) 8
SCC 581 followed thereafter in the case of G.
Sekar v. Geetha & Ors. (2009) 6 SCC 99: (AIR
2009 SC 2649). It was held that the date of the
opening of the succession was the relevant date
and if succession opened prior to the amendment
Act of 2005 the provisions of the amendment Act
would have no application because rights under the
succession would vest upon the successors from the
date the succession opened. Paragraph 49 of the
judgment in the case of G. Sekar v. Geetha & Ors.
(2009) 6 SCC 99: (AIR 2009 SC 2649) extracts
paragraph 21 of the judgment in the case of Sheela
Devi (supra) and observes that the amendment Act
had no application to the succession which opened


51
prior to the coming into force of the Act despite the
word "negative" therein.
33. In the case of Champabai W/o.
Darshrathsingh Pardeshi & Ors. v. Shamabai @
Shamkuwarbai Gajrajsingh Pardeshi & Anr. 2010
(3) ALL MR 262 this Court similarly considered
the year when the succession opened and observed
that the division of shares was made before when
the amendment Act was not in force. In that case
the shares devolved upon two sons by application
of Section 6 r.w. Section 8 of the unamended HSA
of 1956. Consequently, in the case of Miss. R.
Kantha, d/o Doddarmaiah Reddy v. Union of India
& Anr. AIR 2010 Karnataka 27 also that the
provisions of the Act was held to be brought in
force when the right of succession opened and not
before. It was observed that the father of the
petitioner in that case was alive and hence her
right to succession as a coparcener had not
opened. These are the judgments which must be
accepted for the foundation they have laid.
34. We have been shown the judgment of the
Division Bench of the Karnataka High Court in the
case of Pushpalatha N.V. v. V. Padma AIR 2010
Karnataka 124 which has held that the section is
retrospective and that all the daughters no matter
when they were born and no matter when the


52
succession opened were entitled to equal share
along with the sons of the coparcener. The Court
considered the law before the amendment, the
mischief and the difficulty that the law did not
provide for and the remedy therefor. In paragraph
15 of the judgment, the Court held that the
construction "which would suppress the mischief
and advance the remedy" and "which would
suppress subtle inventions and evasions for
continuance of the mischief" were to be upheld so
that they would "add force and life to cure the
remedy, according to true intent of the makers of
the Act".
35. In paragraph 44 of the judgment the
Court considered the settled rules of interpretation
of the Statutes embedded in various judgments of
the Supreme Court thus:
(a) statutory provisions of substantive rights
are ordinarily prospective.
(b) retrospective operation must be given
only when it is made expressly or by necessary
implication.
(c) the intention of the legislature has to be
gathered from the plain words giving them a plain
grammatical meaning.


53
(d) if the legislation has two meanings, the
meaning which preserves the benefits should be
adopted.
(e) interpretation giving rise to absurdity or
inconsistency should be discarded.
(See Mahadfolal Kanodia v. Administrator General
of West Bengal AIR 1960 SC 936)
(a) It may be mentioned that Section 6
creates substantive rights in favour of a daughter
as a coparcener; it would, therefore, be ordinarily
prospective.
(b) there are no express words showing
retrospective operation in the Statute and in fact
the express words are "on and from" denoting
prospectivity.
(c) the plain normal grammatical meaning
of the words "shall become" and "shall be deemed"
shows the future tense and the total absence of any
past participle. The words must be given the
grammatical meaning as per the grammatical
tense.
(d) The section is incapable of two
meanings; it cannot mention that all the daughters
born before the amendment would be included and


54
that only daughters born after the amendment
would be included.
Since two meanings are not contemplated, it
would rule out interpretations which are required
in legislations which are capable of two meanings.
(e) The absurdity of making all the
daughters born before or after the commencement
of the amendment Act included in the amendment
Act would not only be directly against and
diametrically different from the express provision
of making the section applicable to daughters who
shall be coparceners by birth only on and after the
amendment, but would make the applicability of the
Act so all-perversive that the entire populace who
are Hindus and have any HUF property of the
family would be encompassed setting at naught
various transactions entered in to by coparcerners
creating vested rights as in this case.
36. It may be mentioned that in the case of
Sadashiv Sakharam Patil & Ors. v. Chandrakant
Gopal Desale & Ors. in Appeal from Order No.
265 of 2011 and other related appeals the single
Judge of this Court had to contend with a claim of
the heirs of the deceased daughter who claimed to
be a coparcener seeking to include even daughters
who have been deceased prior to the amendment!
Hence the interpretation of retrospectivity would


55
promote the mischief of dishonest litigations by
claiming an interest in a coparcernery property
hitherto never claimed, as in this case, rather than
suppress the mischief of discrimination.
The observation in paragraph 52 of the
judgment in the case of Pushpalatha (AIR 2010
Kar 124) (supra) relates to when the daughter
would get the right under the amended Section 6 of
the Act shows that it was by birth "leaving no scope
for interpretation". The further observation in
paragraph 53 of the judgment is that such a right is
given to a daughter born after 1956.
If the Act was restrospective we do not see
how daughters born only after 1956 would be
entitled to claim interest in a coparcenery property
and not daughters before 1956 also. As observed in
that judgment when a provision is substituted for
an earlier provision by an amendment of the Act it
would apply from the date of the unamended Act.
That would be from 1956. Hence, if from 1956 the
daughter would get her interest by birth by the very
retrospectivity bestowed upon the section it would
apply equally to daughters born even prior to 1956.
This analogy is, however, academic since the
amending Statute is made to come into effect from
a specified date i.e., 9 September 2005 and we are


56
fortified in our view by the proviso which seeks to
expressly curtail the mischief envisaged.
37. We may mention that in the extensive
reading of the judgment which exudes nobility, we
are in agreement with each of the observations
discussed therein, but for the retrospectivity in its
interpretation in view of our interpretation of the
Section as set out hereinabove.

Coming back to the case on hand, as the Court below
has proceeded to hold that the suit properties ought to be
treated as the self acquired properties in the hands of
Hutchegowda and therefore, would have to be divided
equally between the plaintiff and the defendants, has been
found to be an incorrect presumption. However, in the
course of the arguments before this court, as it was sought
to be contended that in view of the amended Section 6 of the
1956 Act, that the female heirs would yet be entitled to
claim as coparceners and that therefore, since the
amendment has been held to be retrospective in its effect,
they would still be entitled to share equally with the male
members, the question, whether the plaintiff and defendant


57
no.3 could claim a share in the suit properties, as
coparceners by birth, is framed.
As seen above, the Bombay High Court has expressed a
view disagreeing with the view of the division bench of this
court as to the retrospectivity of Section 6. But however,
since this bench would be bound by the division bench
judgment of this court, and even if the same is applied, as
pointed out by the learned counsel Shri K.V.Narasimhan, even
according to the division bench of this court in Pushpalatha
N.V., supra, the benefit of the Section would not be available
to female heirs born before the 1956 Act came into force.
The question whether the plaintiff and defendant no.3 were
born before 1956, was never in issue before the court below
and even though there is no finding of fact in this regard, there
is sufficient material available on record, as produced by the
plaintiff and defendant no.3 themselves, that they were clearly
born before 1956. Therefore, their share in the suit properties
as coparceners by birth cannot be accepted.


58
Insofar as the question whether the third defendant could
claim under a will said to have been executed by Hutchegowda
bequeathing the suit properties in her favour, is concerned, as it
is not in dispute that though the third defendant had set up a
will in an earlier suit in O.S.No.44/1988 and the same having
ended in a compromise, it is deemed that the third defendant
had given up her claim under the will and the same could not
be set up again in the present suit. Further, it is also held
hereinabove that Hutchegowda did not have a right over all
the suit properties and could not have disposed of the same by
will. Therefore, the third defendant is not entitled to claim
under the will said to have been executed by Hutchegowda.
Insofar as the alienations in favour of defendants 4 to 7
are concerned, the same cannot bind the plaintiff and
defendants 1 and 2. The findings of the court below are to the
effect that the sale deeds had been executed not by
Hutchegowda, but by defendant no.3, who did not have any
right in her, during the life time of Hutchegowda, to alienate
the properties and even if she was claiming under the will,
the alleged bequest had not taken effect as Hutchegowda was


59
still alive, as found by the trial court, at the time of the
transactions. However, the alienations insofar as the extent of
share in the respective suit properties that would fall as a part
of the share of defendant no.3 would alone be saved insofar as
those purchasers are concerned. The extent and the identity of
the same by metes and bounds would have to be worked out in
due course.
Though the parties have referred to a large number of
decisions, the same are not discussed at length, in order that
this judgment is not burdened with discussion, which may not
be relevant to decide the questions framed for consideration.
Therefore, the appeal in RFA 534/2003 is allowed. The
appeals in RFA 394/2003 and RFA 669/2003 are dismissed.
Costs are made easy. The judgment of the court below stands
modified to hold that on the birth of Chandregowda, he
shared the suit properties equally with his father
Hutchegowda, by birth. On the death of Chandregowda, his
half share devolved on defendants 1 and 2 by notional
partition. And after the death of Hutchegowda, the half share


60
notionally held by him is divided equally between the plaintiff,
defendants 1 and 2 together and defendant no.3.
The preliminary decree shall be drawn up accordingly.

Sd/-
JUDGE

nv*