TMI Blog2018 (5) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... he word “the daughter of a coparcener”. Here, the implication of such wordings mean both the coparcener as well as daughter should be alive to reap the benefits of this provision at the time of commencement of the Amendment of 1989 - the appellants were not the coparceners in the Hindu Joint Family Property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance. At the most, they could claim maintenance and marriage expenses if situation warranted. Division of property - Held that: - the appellants are not entitled to any share in coparcenary property since they were not the coparceners in view of 1989 amendment. However, on the death of their father and mother, appellants would get their property through succession in their respective shares. Appeal allowed in part. - CIVIL APPEAL NO. 1933 OF 2009 - - - Dated:- 19-4-2018 - R. K. Agrawal And Abhay Manohar Sapre, JJ. JUDGMENT R.K.Agrawal, J. 1) This appeal is preferred against the impugned judgment and order dated 18.09.2006 passed by the High Court of Judicature at Madras in S.A. No. 780 of 2006 whereby learned single Judge of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve given our solicitous consideration to the submissions of learned counsel appearing for both the parties and perused the relevant material on record. Point(s) for consideration:- 4) The short question that arises before this Court is whether in the light of present peculiar facts and circumstances of the case, any intervention of this Court is required with the impugned decision of the High Court? Rival contentions:- 5) At the outset, learned counsel for the appellants submitted that the High Court failed to appreciate that no limitation has been prescribed for filing a suit for partition by one or more co-sharers, hence, a suit for partition cannot be dismissed as being barred by time. Further, it was submitted that dismissal of a suit for partition by holding that the appellants herein have not filed the suit within 12 years from the date of dispossession cannot be sustained in the eyes of law specially when there is no proof to prove dispossession and the respondents have failed to plead and prove ouster. Hence, the impugned judgment of the High Court is liable to be set aside at the threshold. 6) Per contra, learned counsel for Respondent No. 1 herein sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in such a Joint Family the coparcener property shall so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share allotable to the pre-deceased child of pre-deceased son or pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter, as the case may be: (iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition: (iv) nothing in this Chapter shall apply to a daughter married before the date of the commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born (emphasis supplied by us) It is pertinent to note here that recently, this Court in Danamma @ Suman Surpur Anr. Vs. Amar Ors, 2018 (1) Scale 657 dealt, inter-alia, with the dispute of daughter s right in the ancestral property. In the above case, father of the daughter died in 2001, yet court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash Ors. (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 in pursuance of two sale deeds dated 03.04.1996 and 24.08.1998 respectively shall not be disturbed anymore. In lieu of the same, the appellants shall be entitled to their legitimate share, if any, which belonged to them in such properties and which had been sold through sale deeds from Respondent No. 1 by way of money or some other property of the same amount. The price of the properties shall be calculated according to the rate prevailing at the date of sale deeds respectively along with interest @ 9 per cent per annum from the date of sale deeds till the payment of money or transfer of property. Here, legitimate share means share which appellants have got through the division of property as mentioned above in paragraph Nos. 12 and 13. 15) To sum up the case, the appellants are not entitled to any share in coparcenary property since they were not the coparceners in view of 1989 amendment. However, on the death of their father and mother, appellants would get their property through succession in the above manner. 16) In view of above discussion, we, hereby, partially allow the appeal in the above terms leaving the parties to bear their own cost. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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