TaxTMI 
TaxTMI 
2014 (1) TMI 365
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....visits her paternal home, she stayed there in the suit premises. She states that on 21.07.2001, it was orally decided with the defendants No. 1 and 2 that the suit premises will be divided by metes and bounds and that in case, it could not be divided, she would be given the entire Barasati floor with roof rights as towards her one-fourth share. She alleges that the defendants No. 1 and 2 had been avoiding to give her due share and thus, she got issued a notice dated 17.10.2001, calling upon them to partition the suit premises, and which notice was replied by them on 13.11.2001, alleging that the suit premises was HUF property and the father had executed a Will in their favour; but the said Will was not traceable now. The plaintiff avers that the suit premises were never treated as HUF property and no Will was ever executed by their father. She has valued the suit premises at Rs. 40 lakhs and states that as she is in possession thereof, the court fee of Rs. 19.50 only was payable for the relief of partition. 3. The defendants No. 1 and 2 contested the suit. They filed separate written statements on identical lines. Their case is that the plaintiff being the married daughter, had on....
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....ets and used to reside whenever she visited. On the other hand, it was the categoric assertion of the defendants No. 1 and 2 that she was never in possession of any portion of the suit premises, particularly, a room on the ground floor, which has been in the possession of defendant No. 2 and wherein, their mother was residing. Both the defendants have stated and maintained that the plaintiff whenever visited her mother, used to return to her matrimonial house and never stayed therein. They denied the plaintiff to be in possession of the suit premises, constructive or otherwise. Except this bald assertion of the plaintiff, there is no cogent evidence led by her to substantiate her plea in this regard. That being so, the court fees that is filed is apparently deficient. As per Section 7 of the Court Fees Act, the plaintiff is required to pay the court fees on one-fourth share claimed by her. Thus, the plaintiff was required to pay the court fees at Rs. 10 lakhs being one-fourth of the value of the suit premises. The issue is decided accordingly. Issue No. 2 8. As per the plaintiff, the suit premises is self-acquired property of their father, whereas as per defendants No. 1 and 2, t....
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....oint family property unless it is shown that the joint Hindu family is already possessed of a nucleus or ancestral stock or ancestral property. There is no reason to limit the cases of blending to only those families owning coparcenary property. Throwing the self-acquired property in the common stock or hotchpotch is a well-recognized incidence of the joint Hindu families". 11. The plaintiff deposed that her father acquired the suit premises from his own earnings, savings and loans and had constructed the same in March, 1966, when all the defendants were studying and could not have contributed to the construction expenses. She stated that even at the time of substitution of LRs in the eviction case, filed by their father against Bank of Baroda, there was no mention of the suit premises being HUF. She stated that the Sale Deed dated 23.02.1995 would evidence the suit premises having been purchased by their father in his own name. She also relied upon the property tax notice issued by MCD in the name of her father and not in the name of HUF. On the other hand, the defendants stated that their father had abandoned his individual rights in the suit premises by making a declaration on ....
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....lied upon by the learned counsel for the defendants, wherein, it was held as under: "The separate property of a Hindu ceases to be separate property and acquires the characteristics of a joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as a separate property. The act by which the coparcener throws his separate property in the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition, he renounces his individual right in that property and treats it as a property of the family. No sooner than he declares his intention to treat his self-acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara school of Hindu law". 15. From the rival submissions, the question for consideration would be as to whether in the given facts and circumstances, the suit premises which was initially the self-acquired of the plaintiff's fat....
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....also the plaintiff's bald assertion that on 21.07.2001, the defendants No. 1 and 2 had agreed to partition the suit premises and give one-fourth share therein to her and in the event of a partition being not possible, to give her entire barsati floor with the roof rights. This was categorically denied by the defendants. The onus of this issue was upon the plaintiff, which she has not been able to discharge satisfactorily. Thus, the issue is decided against the plaintiff and in favour of the defendants. Issue No. 4 18. Learned counsel for the defendants has submitted that succession opened on the death of the plaintiff's father on 11.12.1999, which was prior to the amendment of the Act in 2005, and the rights of the defendants had already crystallized on the death of their father and the amended provision could not undo the same retrospectively. 19. The law with regard to the share of the daughter in the property of her father is no longer res-integra. The Apex Court in the case of Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., 2011 9 SCC 788 had the occasion to deal with the Hindu Succession (Amendment) Act, 2005. The Apex Court in Para 11 and 12 held as under:- "11. Th....
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....Ganduri Koteshwaramma (supra) was relied upon by this court in Rakhi Gupta v. Zahoor Ahmad & Ors., CS (OS) 1147/2012, decided on 29.11.2012 (MANU/DE/6313/2012) wherein it was observed as under: "8. From the above judgment it is quite clear that this right accrues to the daughter born in Mitakshara family only "on and from" the commencement of the amendment Act i.e. 9 September 2005. The basis of the right is, therefore, the commencement of the amended Act. This is the natural ingredient of a coparcenary interest that a coparcenary 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, by the amendment has also been conferred on the daughter of the Joint Hindu Family. The words „on‟ and „from‟ show and suggest that, on a date prior to the Act coming into force the daughter would not be included as a coparcener. Consequently, all daughters born to the coparceners in the Joint Hindu Family would from the date of amendment of Section 6 become a coparcener, with same rights and liabilities at par with the sons. The....
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....ne single different fact can make a difference to the ratio of a case. Para 9 of the said judgment reads as under:- 9. Courts should not place reliance on decisions without discussion as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways, Board. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases." 10. The aforesaid observations in Padma Sundara Rao's (supra) case clearly hold that judgments of Courts should not be read like a statute, and ratio of a case has necessarily to be understood only with reference to the facts of that particular case. Padma Sundara Rao's (supra) case has been followed in other judgments of the Supreme Court including Krishna Mochi & Ors. v. State of Bihar, 2002 (6) SCC 81 and Charan Singh & Ors. v. State of UP, 2004 (4) SCC 205". 23. Although this s....