9911796707
TMI Blog2023 (12) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... a secondary position in society. Consequently, the once egalitarian society became a breeding ground for chauvinism and discrimination in the form of Sati, Child Marriage, Sexual Harassment, Domestic Violence, Dowry Harassment and such like disparages. Legislature has time and again, brought forth reforms to overcome this bigotry and free women from the shackles of such specious fetters devised by mankind thereby enabling her to achieve her full potential and march shoulder to shoulder with men. 2. Despite robust legislations, real change has been slow due to the pervasive ambivalence and deeply ingrained stereotypes. This is where Courts assume significance for facilitation of implementation of the laws resulting in actualisation for the stakeholders. This has been true, especially in the laws conferring rights to women. It is known that though the right of women to own property came to be recognized under the Hindu Succession Act, 1956, the grim reality is that women were compelled, by their circumstances and family members, to forgo their rights in property. The tenacious role of Courts in upholding such rights of women has propelled them to agitate their long overdue entitleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Shri D.R. Gupta from Mr. J.C. Roberts. Copy of the Sale Deed dated 15.07.1943 is filed on record. (b) Moveable Properties -- (i) Shares of Motor and General Finance Ltd., (ii) Deposits with Motor and General Finance Ltd., (iii) Bank of Account in Bank of India, Asaf Ali Road, (iv) Bank Account in Vijaya Bank, Ansari Road. 8. Admittedly, "D.R. Gupta & Sons HUF" is assessed to Income Tax and has been filing Returns for the HUF property and the PAN Number allotted to the HUF was AAA HD 4230 M. All the assets belonging to the HUF, barring the immovable property, were disposed of in the 1980s. 9. Over a period of time all the sons of late Shri D.R. Gupta expired. Shri R.N. Gupta was the last Karta of "D.R. Gupta & Sons HUF", who expired on 14.02.2006. The question thus, arose as to who would acquire the status of the Karta of the HUF after his demise. The respondent No.1 as well as other members of the "D.R. Gupta & Sons HUF", exchanged various e-mails regarding respondent No. 1, Sujata daughter of Late Shri K.M. Gupta becoming the Karta of the HUF, who in view of the law as amended in the Hindu Succession (Amendment) Act, 2006, claimed to be the next Karta of the "D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration, is maintainable in its present form? (OPP) 3. Whether there exists any coparcenary property or HUF at all?(OPP) 4. Whether the plaintiff is a member of D.R. Gupta and Sons HUF? And if so, to what effect? (OPP) 5. Whether the interest of the plaintiff separated upon the demise of her father Sh. K.M. Gupta in 1984? (OPD) 6. Assuming existence of a D.R. Gupta and Sons HUF, whether the plaintiff can be considered to be an integral part of the HUF, particularly after her marriage in 1977, and whether the plaintiff has ever participated in the affairs of the HUF as a coparcener, and its effect? (OPP) 7. Assuming existence of D.R. Gupta and Sons HUF, whether the plaintiff is a coparcener of and legally entitled to be the Karta?(OPP) 8. What is the effect of the amendment in the Hindu Succession Act, in 2005 and has it made any changes in the concept of Joint Family or its properties in the law of coparcenary? (OPP) 9. Relief." 16. The respondent No.1/Sujata Sharma deposed as PW1 in support of her claim. She also examined PW2/Ritu Grover, PW3/Mr. N.V. Satyanarayan, Defence Estate Officer and PW4/Shri Sanjay Saxena, Book Binder, Department of Delhi Archives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided under the Mitakshara School of Hindu Law. It is reiterated that the law in regard to Kartaship has remained unchanged by the Amendment and the settled position remains that only the eldest Hindu male can become a Karta. 21. Thus, notwithstanding the 2005 Amendment to the Act, 1956, a daughter cannot become the Karta of the HUF of her father's family though she may only be recognised as the manager of a Joint Hindu Family. 22. It is further stated that Section 6 of the Act, 1956 (as amended in 2005) only recognises the right of daughters to have an interest in the coparcenary and the same cannot be equated with her right to become a Karta. Barring this right to be recognised as a coparcener, no other change has been brought with respect to HUF which is still governed by the Mitakshara School of Hindu Law. As per this School of Law, a Joint Hindu Family is one that traces its descendants through a common male ancestor and includes wives and unmarried daughters as their members. 23. Further, the learned Single Judge has failed to consider that Section 4 of the Act, 1956 clearly stipulates that the Act, 1956 has an overriding effect only on customs that had been expressl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005 Amendment as it keeps the erstwhile legal position on Kartaship intact which is evident from the true nature of the amended and unamended Section 6 of the Act, 1956. 28. The Law Commission in its 174th Report dated 05.05.2000, while recommending that women should exercise all equal rights as a Coparcener, also stated that a woman cannot be a Karta. It was based on these recommendations that the Legislature amended Section 6 to the Act, 1956; had the intent of this Amendment been to recognise the right of a woman to become a Karta, the Amendment would have expressly stated so. Thus, the impugned Judgement dated 22.12.2015 is premised on incorrect appreciation of change in law brought by the Amendment Act, 2005 to the Act, 1956. 29. It is further argued that a Karta takes decisions on behalf of the family which has a binding effect on them. He has the right to represent the family in litigations, arbitrations and settlements by way of compromise and it is thus, imperative for the Karta to be an integral member of the family. The role of a Karta is multifaceted and not limited to a managerial role. Along with being a financial head of the family, he is also their religious, soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aritable Trust created by Late Shri D.R. Gupta by undervaluing the said property. It is evident that respondent No. 1's objective in filing the Suit was to gain control over the property and sell the same in order to unjustly enrich herself. 34. The appellant has further submitted that the demise of Shri R.N. Gupta after 2005 Amendment to Section 6 of the Act, 1956 resulted in a deemed partition of the HUF and thus, respondent No. 1 cannot claim to be a Coparcener. 35. The appellant in his Written Submissions has further stated that the father of respondent No.1 passed away on 18.02.1984. The 2005 Amendment, being prospective in nature, would apply to respondent No. 1 only if her father was surviving when the Amendment came into force. The share of the deceased Coparcener to which his legal heirs are entitled gets crystallised upon his death as held in State Bank of India vs. Ghamandi Ram, AIR 1969 1330. Thus, none of the daughters, other than Ms. Meera Sawhney and Ms. Gargi Gupta would be entitled to be the Coparceners. Reliance was placed on Prakash and Ors vs. Phulvati (2016) 2 SCC 36 and Danamma @ Suman Supur and Anr vs. Amar and Ors, 2018 SCC OnLine SC 63 in support of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tamboli vs. Gujarat Revenue Tribunal and Ors. AIR 1991 SC 1538. Considering that only a Coparcener can become a Karta of an HUF as held in Commissioner of Income Tax vs. Seth Govind Ram Sugar Mills, AIR 1966 SC 24, a woman can become a Karta if she is the eldest Coparcener. 39. In response to the appellant's assertions of discharging his responsibilities in the nature of Karta since long, it is averred that respondent No. 1 has been dealing with the Defence Estate Officer from 2006 regarding the HUF property and had also filed Objections to the notification of the Delhi Development Authority, paid House Tax, got a Pan Card issued and the bank account revived. 40. The respondent Nos. 9 and 10, in their Written Submissions, contended that in view of the decision in Prakash vs. Phulvati (supra), respondent No. 1 is not a Coparcener as her father had expired on 17.02.1983 i.e., prior to the commencement of the Hindu Succession (Amendment) Act, 2005. Thus respondent No. 9 is the eldest legally eligible Karta of "D.R. Gupta & Sons HUF" as her father Late Shri R.N. Gupta was alive on 09.09.2005 and was then acting as the Karta. Thus, the judgement of the learned Single Judge is per incu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision is rectroactive in its application as it confers right based on an antecedent event of birth. The only qualification for becoming a Karta of an HUF is that the concerned person must be a Coparcener. Reliance was placed on Tribhovan Das Haribhai Tamboli (supra) to describe the role of a person appointed as a Karta. 46. Ms. Aakanksha Kaul, learned Amicus Curiae, further submitted that earlier only a male could become the Coparcener of an HUF as the coparcenary rights were confined only to males. Thus, the sole ground for disentitling a daughter from becoming a Karta no longer survives. Therefore, if a daughter is the senior most Coparcener, then she must become the Karta. 47. Further, a daughter does not cease to be a Coparcener in view of her marriage as the Amendment does not distinguish between a married and an unmarried daughter. The Amendment to Section 6 of the Act, 1956 clearly states that a daughter becomes a Coparcener in the same manner as a son. When a son does not cease to be a Coparcener upon marriage, the same benefit should be extended to a daughter as well. In fact, it can no longer be said that a daughter ceases to be a member of her father's family upon m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest in the coparcenary property has been made under Section 6 of Act, 1956 and it does not extend to Kartaship. Therefore, the learned Single Judge ought not to have exceeded the intent and purpose of the Act, 1956 and amended Section 6 of the Act, 1956 to conclude that a recognition of a woman as a Coparcener included the right of being a Karta. 54. To determine the contention raised by the appellant, it becomes pertinent to refer to the concept of Joint Hindu Family and HUF under the traditional Hindu Law. 55. A Joint Hindu Family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters. They are bound together by the fundamental principle of Sapindaship or family relationship, which is the essential feature of the institution. The cord that knits the members of the family is not property but the relationship of one another as explained in the Commissioner of Income Tax vs. Luxminarayan (1935) 59 Bom 618. 56. In Raghavachariar's Hindu Law, 5th Edition at Page 838, the concept "coparcenary" was defined which is as under: - "Co-parcenary is a narrower over body than a joint family and consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p" has been similarly explained which is as under: - "19. Manager (Karta): - (a) Who is/Who can be. The Hindu joint family is governed by the principle of subordination. Its affairs are managed by one person, called the Karta or the manager." 61. It was explained by Bombay High Court in Gansavant Balsavant vs. Narayan Dhond Savant, (1883) ILR 7 Bom 467 that a Hindu family may be regarded as a corporation whose interests are necessarily centred in the manager, the presumption being that the manager is acting for the family unless the contrary is shown. Unless the Karta or manager relinquishes his right or there are exceptional, extraordinary or compelling circumstances, juniors in the family cannot exercise this right. Even if the Karta is a lunatic, the juniors cannot alienate the property without obtaining a Court's order under the Lunacy Act, 1912. 62. In Tribhuvandas Haribhai Tamboli (supra), the Apex Court observed that the managership of the joint family property goes to a person by birth and is regulated by seniority. He is a "primus inter pares". It was further observed that the father is ordinarily the manager of the family consisting of himself, his descendants and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coparcener shall,― (a) by birth become a coparcener in her own right the same manner as the son; (b) have the same rights in the coparcenery property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenery 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." 68. In the case of Raichurmatham Prabhakar vs. Rawatmal Dugar (2004) 4 SCC 766, the Apex Court observed that the heading or title of a provision plays a limited role in the construction of statutes. In the event of a dispute between the plain language of the provision and the meaning of the heading or title, the interpretation that is clearly and obviously visible from the language of the provision thereunder, shall prevail. 69. Thus, the title of Section 6 of the Act, 1956 cannot form the basis for restricting the expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear, wide and unambiguous. While acknowledging that the Objective for the legislation is illustrated in the Preamble, it was explained that the remedy in the enacting part of a statute may extend beyond the cure of the evil as stated in the Preamble. 74. Nothing prevents the Legislature from providing coparcenary rights to a daughter on the same footing as a son in a manner that is beyond the wordings of the Preamble of the Act, 1956. Rather there is not even a scintilla of ambiguity in the words of Section 6 of the Act, 1956 as they clearly state that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and any reference to a Hindu Mitakshara Coparcener shall be deemed to include a reference to a daughter of a coparcener. The explicit language of Section 6 of the Amendment Act, 2005 makes it abundantly clear that though the reference in the Preamble may be to inheritance, but conferring "same" rights would include all other rights that a coparcener has, which includes a right to be a Karta. Statement of Objects and Reasons of Act (39 of 2005): - 75. Further, the Statement of Objects and Reasons of Act (39 of 2005) apropos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defines the meaning of coparcenary as understood under the traditional Hindu Law, which is no longer limited to devolution of interest in the coparcenary property alone but encompasses all other incidents of a Coparcener, including the right to be a Karta. To say that a woman can be a coparcener but not a Karta, would be giving an interpretation which would not only be anomalous but also against the stated Object of introduction of Amendment. 79. We also find support to this conclusion from Mulla on Hindu Law, 20th Edition-Volume II at Pages 234-235 which succinctly expresses the most logical interpretation of the Amendment Act, 2005 as under: "The Hindu Succession Act has been amended by the Hindu Succession (Amendment) Act 2005. As a result of the amendment daughters have been conferred equal status as that of the sons in a Mitakshara coparcenary. It appears that with the inclusion of daughters of a coparcener with equal rights as those of sons, the ascension of a daughter as Karta or Manager can no longer be ruled out. This would have a lover be dependent on various factors, such as the presence of other meals in the family, and the seniority of the daughter qua such male cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental question of the necessary competency of the woman to perform the religious and familial obligations of a Karta in the backdrop of Mitakshara Law. Spiritual efficacy of a female Coparcener: - 84. Their Lordships of the Judicial Committee of the Privy Council in Surendranath v. Musammat Heeramonee,12 M. I. A. 81 observed that in the Hindu Law there is so close a connection between their religion and the succession to property that the preferable right to perform the shradha is commonly viewed as governing also the preferable right to succession of property as a general rule. 85. In the case of Katama Natchivar vs. Raja of Sivaganga, 9 M.I. A., 610, the Judicial Committee of the Privy Council enunciated that there are two leading rules of Inheritance that are founded on the religious duty and superior efficacy of oblations and sacrifice and that of survivorship, in the Hindu Law. When the latter rule cannot apply, the former must be resorted to. 86. There are two systems of inheritance according to Hindu Law: (1) The Mitakshara system, and (2) The Dayabhaga system. The Dayabhaga system prevails in Bengal, while the Mitakshara system prevails in other parts of India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity for conferring spiritual benefit." 90. From the above discussion, we may conclude that the spiritual efficiency is an indispensable requirement under the Dayabhaga Law; however, the same cannot be presumed under Mitakshara law. It is amply clear from the above that the spiritual duties performed by a Karta of an HUF governed by Mitakshara law was only coincidental to the fact that only male descendants were entitled to become coparceners in the past. Thus, with the amendment in law conferring daughters with coparcenary rights, spiritual efficiency or the ability to perform certain rituals cannot become a prerequisite qualification for becoming a Karta of an HUF governed by Mitakshara law. 91. Spiritual efficiency comes under consideration only when the question of preference arises. In the present case, the question of preference is obviated by the overt seniority by age of respondent No.1 in comparison to the appellant. Non-Participation in the Affairs of the Family after Marriage: - 92. The appellant also claims that respondent No.1 has not been involved in the management of the HUF properties post her marriage in 1969. It was Manu Gupta/appellant who took charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtas, it being a legal entitlement of the eldest member of an HUF, but the duty of management can be performed by another Coparcener in given circumstances. This relegation of managerial responsibility does take away the legal title of a Karta, unless it is renounced by the person legally entitled to be a Karta. 97. This court thus, concludes that being a Karta is conferment of legal status which includes right to manage the HUF properties and even if the appellant represented himself as Karta in official correspondence on behalf of HUF to manage the property, it does not take away the legal right of the eldest member of the Coparcener of the family, even if she is a woman, to stake a claim to be a Karta. Societal stereotypes - Social acceptance: - 98. The appellant has come up with myriad hypotheses justifying why it would be incorrect for a woman to become a Karta from the societal standpoint. 99. Traditionally, the eldest male commanded the respect and obedience of the family due to the power proffered upon them. The only hindrance to a female Karta commanding the same respect today is the reluctance of a family to accept the social and cultural change. Many a times, a chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rceners continue to enjoy the same entitlements and interests which they otherwise have; their rights as coparcener do not get impinged in any manner. If there arises any scepticism about the skills, efficiency, sincerity or ability of female Coparceners to act as the Karta or being influenced by her in-laws, the other Coparceners have adequate remedies to seek for a partition or impeach any wrongful alienation of property made by the Karta. 103. Moreover, contention that the husband of a female Karta would have an indirect control over the activities of the HUF of her father's family is only a parochial mindset which even the legislature had diligently attempted to oust through Section 14 of the Act, 1956 to accord women with the long overdue right to be the absolute owner of her property. If a woman is proscribed from becoming a Karta in view of this reasoning as cited by the appellant, it will only render the legislative endeavour to give rights in immovable properties to women through Section 14 of the Act,1956 as a mere mirage. Ergo, a woman who has absolute ownership in a property cannot be denied a right to manage it on the warped reasoning that she may get influenced by he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquired by way of birth, the same is unobstructive in nature as long as the birth is within the degrees of coparcenary. It is thus, irrelevant that a coparcener whose daughter is conferred with the rights is alive or not as the right to be a Coparcener is independent of the existence of the father, making respondent No.1 the eldest surviving Coparcener. 109. Thus, the right of the daughter of a Coparcener to enjoy the status of a Coparcener from the commencement of the Hindu Succession (Amendment) Act, 2005 cannot hinge upon the life span of her father. Such a distinction can certainly not sustain the test of intelligible differentia that was sought to be addressed through the Amendment. 110. The same contention was initially raised by the appellant as well, however, it was withdrawn by conceding to the coparcenary right of a woman in light of the holding in Vineeta Sharma (supra). 111. We thus, agree with the observations of learned Single Judge that merely because father of respondent No.1 had died before the introduction of the Amendment Act, 2005 her right to be a Karta is not lost. ISSUE NO. 3: - "Whether there exists any coparcenary property or HUF at all? OPP" ISS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (father of the respondent No. 1), in regard to the mutation of the suit property. The said letter is reproduced as under: - " No: 3/220-F/III/180 DEFENCE ESTATES OFFICE, DELHI CIRCLE, DELHI CANTONMENT DATED 01, Jun, 1985. To Mrs. Shanta K. Mohan W/O Late Shri Krishan Mohan 18, Anand Lok, NEW DELHI. SUBJECT : MITIGATION IN THE NAME OF SUCCESSOR OF LATE Shri Krishan Mohan (Karta) (HUF). In r/o No. 4, University Road, Delhi. Reference your affidavit dated 13.8.1984 received in this office on 24thAugust, 1984 under your letter dated 16/21.8.1984. 2. It is to inform you that necessary entries an requested under your letter cited above have been effected in the record of this office as successors of Late Shri Krishan Mohan. (i) ShrimatiShanta K. Mohan (ii) Smt. SuzataSharma (iii) Smt. Radhika Seth 3. This is for your information and record. Sd/- DEFENCE ESTATES OFFICER, DELHI CIRCLE. (A.P. SINGH)" 118. It is evident from the bare perusal of the aforesaid Letter that Smt. Shanta K. Mohan, Smt. Sujata Sharma and Smt. Radhika Seth, the legal heirs of Late Krishan Mohan Gupta in terms of their Affidavit dated 13.08.1984, were added as the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinued to remain in the HUF. The Notice of Partial Partition as required under Section 171 of the Income Tax Act, 1961 was also agreed to be sent. 122. Another significant fact which was stated and which essentially has not been disputed by all the parties, except Smt. Meera Sawhney and Smt. Gargi Gupta (respondent Nos. 9 and 10 who are the two legal heirs of Late Shri B.N. Gupta), is a Family Settlement of 01.04.1999 Ex.PW1/5 which admittedly has the signatures of four sons of the deceased Shri D.R. Gupta (Shri M.N. Gupta, Shri R.N. Gupta, Shri B.N. Gupta, Shri J.N. Gupta) and of respondent No. 1/Sujata Sharma, her sister Smt. Radhika Seth and their mother, Smt. Shanta K. Mohan being the legal heirs of late Shri Krishan Mohan (son of Shri D.R. Gupta) who had died on 18.02.1984. 123. According to this Memorandum of Family Settlement, an oral partition had taken place between all the parties on 18.01.1999 and the same was recorded in the Memorandum of Settlement dated 01.04.1999. In the said Memorandum, it was clearly stipulated as under: - "2. The parties hereto confirm and declare that the oral family settlement dated 18.1.1999 was arrived at on the following terms. 2.1 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 University Road, Delhi, after the partition, if any, of the HUF, and recording of this family settlement, will continue to remain in the name of D.R. Gupta & Sons, HUF before the Revenue Authority/competent Authority." 124. As is already discussed in detail, all the family members have admitted this document of Memorandum of Settlement dated 01.04.1999 Ex. PW1/5. Pertinently, even respondent Nos. 9 and 10 have not disputed the execution of the document in this Suit, but only assail its validity. 125. It is the appellant's assertion that respondent No. 1 has taken contradictory stance with respect of the existence of the HUF. However, we find that respondent No.1, in her Written Statement in CS(OS) 142/2008 has merely averred that a partition of the HUF by determining the share of each branch took place prior to the Amendment Act of 2005 and thus, such a prior partition cannot be reopened. This statement is nothing but in conformity with the Hindu Succession (Amendment) Act, 2005 which came into effect on 09.09.2005. Section 6 (5) of the Amended Act, perspicuously explains that the provision will be inapplicable in cases where a partition had been effected before 20.12.2004. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Motor and General Finance Limited Company where the HUF holds some shares to change the name of the authorised signatory from that of Mr. R.N. Gupta to his name. 131. DW1/Manu Gupta also deposed that the House Tax for the suit property was paid upto 2007, but he was not aware thereafter. The system of paying the house tax was that all the five branches of the family used to share equal payment of house tax. 132. From these significant admissions of the appellant/DW1 coupled with the letters produced by PW3/ N.V. Satyanarayan, Defence Estate Officer in regard to the mutation of the property in the name of all the legal heirs of respective sons of Late Shri D.R. Gupta, the irresistible conclusion that can be drawn is that "D.R. Gupta & Sons HUF" came to an end on the demise of Shri D.R. Gupta and all his sons as five branches became equally entitled to their respective share and consequently, all were mutated as the owners of the suit property. Thus, no HUF was continued after 1977, but the senior most male member was representing himself for and on behalf of all the owners by reflecting himself as a Karta of "D.R. Gupta & Sons HUF", merely for the purpose of nomenclature and as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement." 135. The second aspect is the registration of the Memorandum of Settlement dated 01.04.1999 which recorded the Oral Settlement dated 18.01.1999. In Teg Bahadur Bhujil vs. Debi Singh Bhujil AIR 1966 SC 292, the Hon'ble Supreme Court observed that a family arrangement can also be arrived at orally and registration would not be required only if its terms may be recorded in writing as a memorandum of what has been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what has been agreed upon so that there is no hazy notion about it in future. 136. In Kalwa Devadattam vs. Union of India AIR 1994 SC 880, while endorsing that an oral partition was permissible, the Hon'ble Apex Court observed that the burden of proof remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided, can prejudice of the joint and undivided property, that he, that particular member, has a certain definite share. No individual of an undivided family could go to the place of the receipt of rent, and claim to take from the Collector or receiver of the rents, a certain definite share. The proceeds of undivided property must be brought, according to the theory of an undivided family, to the common chest or purse, and then dealt with according to the modes of enjoyment by the members of an undivided family. But when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject- matter so agreed to be dealt with; and in the estate, each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided. xxxx xxxx xxxx xxxx Then, if there b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as undivided, shall be deemed for the purpose of the Income Tax Act to continue to be a Hindu Undivided Family, except where and insofar as a finding of partition has been recorded in respect of it under Section 171 of the Income Tax Act. Such finding of partition can be recorded only where the property admits to physical division which has taken place. Mere physical division of the income without a physical division of the property, cannot be treated as a partition. 144. Therefore, having concluded that the severance of status had taken place in the year 1977 and that a partition of the suit property which was till then in the nature of Joint Hindu property has also been effected by the parties vide Memorandum of Family Settlement dated 01.04.1999, but it has still not been partitioned by metes and bounds, but it would still continue to be assessed as a Hindu Undivided property in the Government records/Income Tax records and for that purpose one of the family members has to represent himself on behalf of an HUF. This is exactly what has been stated by the appellant in his testimony that it is only for the purpose of communication with the Government authorities that the suit pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Court Fee Act, the minimum valuation of the Suit for Declaration has been assessed as Rs. 200/- on which a court fee of Rs. 20/- is payable. This is when the plaintiff chooses to value the Suit for Rs. 200/- which also determines the forum where the Suit shall be tried. 150. Section 8 of the Suits Valuation Act, 1887 provides that where a Suit is valued at a certain amount for the purpose of jurisdiction, then the court fee shall be also payable at the same amount. 151. Since the Suit valuation for the purpose of jurisdiction is Rs. 1,00,00,000/-, the plaintiff/ Respondent No.1 has been in error in paying fixed court fee of Rs. 20/-.as ad valoraem fee should have been on the sum of Rs. 1,00,00,000/-. The court fee is deficient, and the plaintiff/respondent No. 1 is directed to make good the deficient court fee within 1 (one) week. 152. CM APPL. 6041/2016 has been filed by the appellant in the present appeal seeking for an exemption from paying additional Court Fees beyond the fixed Fee of Rs. 20. Since the Suit has been valued at Rs. 1,00,00,000, by respondent No. 1, the appellant shall also be liable to pay the deficient court in the same manner for the present appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
