Judgment:
ORDER
Shiv Narayan Dhingra, J.
1. This suit has been filed by the plaintiff, husband of deceased Mrs. Mithlesh Aggarwal, after coming into force of the Hindu Succession Act (Amendment Act 2005) whereby Section 6 of the Hindu Succession Act 1956 was amended.
2. The defendant has filed an application under Order VII Rule 11 CPC submitting that the suit was not maintainable and no right accrued upon the plaintiff after amendment of the Act and the partition of the disputed property had already taken place. The amended Act was not applicable. A prayer is made for rejection of the suit.
3. In order to appreciate the contention of both the parties, the brief narration of the relevant facts is necessary.
4. A civil suit bearing No. 1717/1984 was filed by defendant No. 1 and 2 for partition of the properties left behind by Mr. Pran Nath Goyal. In the suit, wife of Mr. Pran Nath Goyal and other sons and daughters including the wife of the plaintiff were the parties. During the pendency of the suit, on a joint application filed by the parties, under Section 21 of the Arbitration Act 1940, the entire matter was referred to arbitrator for deciding the question of division of property. The Arbitrator gave an award on 11.2.1989 and the award was published on 11.12.1989. The award was made rule of the Court on 8.4.1991 and a decree was passed in suit No. 1717/1984 in terms of the award. In terms of the award wife of the plaintiff Mrs. Mithlesh Aggarwal was granted 1/36th share in the two immovable properties of the deceased. An appeal was preferred against the decree being FAO No. 99/1991. The appeal was dismissed in default. Thereafter, an Execution Petition No. 14/93 was preferred before this Court which was subsequently transferred to the District Court. Mrs. Mithlesh Aggarwal, through whom plaintiff claims right for partition of the property, died on 25.11.1998. The plaintiff filed this suit, as earlier stated, after passing of the amendment in Hindu Succession Act claiming that Mrs. Mithlesh Aggarwal was entitled to 1/6th share in view of the amendment and this Court should declare her to be entitled to 1/6th share.
5. The contention of the plaintiff is that since execution petition was pending and the partition decree passed by the Court in 1991 has not been given effect to by effecting partition by metes and bounds, the partition is not complete as the decree has not been implemented. Plaintiff relied upon Section 6(5) of Hindu Succession Act as amended and stated that amended section shall apply in this case since no partition has been effected before 20.12.2004
6. On the other hand, the contention of the learned Counsel for the defendant is that since Mrs. Mithlesh Aggarwal died in the year 1998 and her share had already been determined by a competent Court and a decree has been passed which became final, no right survived in plaintiff to file a fresh suit even after amendment of Hindu Succession Act.
7. In order to decide the maintainability of the suit, a careful perusal of the amended Act of the Hindu Succession Act is needed. Section 6 reads as under:-
6. Devolution of interest in coparcenary property- (1) On and from the commencement of the Hindu Succession (Amendment ) Act 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall ,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary 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
(2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be held by her with the incidents of coaprcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and-
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre- deceased daughter, as such child would have got had he or she been alive at the time of partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be, Explanationn- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt; Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-
(a) the right of any creditor to proceed against the son, grandson or great- grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation- For the purposes of Clause (a), the expression 'son', 'grandson' or 'great-grandson', shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing, contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004
Explanation- For the purposes of this section 'partition' means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a Court.
8. The very opening words of Section 6(1) are 'On and from...in a Joint Hindu Family'. Thus, Sub-section 1 envisages existence of a Joint Hindu Family, when the amendment came into force and right of the daughter in the HUF coparcenery is to be determined if HUF is in existance. Thus, the very first condition of the application of this amended provision is that on the day when amended Act came into force, an HUF, governed by Mitakshara law must be in existence. If Joint Hindu Family is in existence on that day, the daughter shall be a coparcener in the Joint Hindu Family like any other son and shall have same right in the coparcenary as that of a son and shall be subject to the same liabilities in respect of the said coparcenary property as a son would be. If no HUF is in existence on that day, when amendment came into force, the question of daughter being coparcener does not arise. In the present case, the HUF of which Mr. Pran Nath Goyal was karta, ceased to exist when partition suit was filed by defendants No. 1 and 2 in 1984. It is settled law that once partition is demanded and a suit is filed by a member of HUF, the severance in the status of coparcener takes place. In the present case it was not only severance in the status of the coparceners but in fact coparcenary came to an end since all coparceners agreed for partition of the property and the matter was referred by joint application of the coparceners and other legal heirs having right in the property for partition to an arbitrator. The award of the arbitrator was made rule of the Court and was decreed in April 1991. Thus, there was no coparcenary in existence, of which Mrs. Mithlesh Aggarwal could have been a coparcener, at the time Hindu Succession (Amendment) Act came into force. Same is the tenor of other provisions of Section 6. It is provided that if disposition or alienation has been done by the HUF including any partition or testamentary disposition of property before 20.12.2004, the sub section shall not invalidate the same. Sub section 2 also envisages existence of a coparcenary/ HUF and by virtue of this amendment Act, daughter becomes a coparcener in the property. Sub section 3 provides that if a Hindu dies after commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession. Thus, again the basic condition of the application of the Act is that coparcenery must be in existence on the day when amendment Act came into force. Sub Section 5 provides that the amendment Act shall not be applicable where partition has been affected before 20.12.2004 The cut off date of 20.12.2004 has been given by legislature only to ensure that those partitions which were made in HUF in order to defeat the purpose of amendment Act should not be considered as partitions. However, those partitions which have been affected before 20.12.2004, when the bill was introduced in the parliament, are to be recognized. Explanationn to Sub section 5 provides that partition means a partition affected by a decree of court. Thus, it is clear that the whole sum and substance of the amendment Act is that HUF must be in existence on the day of commencement of the Act or at least on 20.12.2004 and no partition had taken place before 20.12.2004 The Explanationn to Sub section 5 which defines partition is only to ensure that a false claim of partition may not be put forward and partition shall be considered only where a deed of partition has been duly registered prior to 20.12.2004 or a partition has been effected by a decree of court. This Explanationn has been added to rule out the plea of oral partition which is normally taken by the parties to evade the application of the Act.
9. In the present case, the partition had taken place by a decree of court in 1991 itself. Mrs. Mithlesh Aggarwal, died in 1998. Mere pendency of the execution would not give right to the plaintiff, who is husband of Mrs. Mithlesh Aggarwal, to revive an HUF which ceased to exists in 1984 itself. The suit is not maintainable under the amended Hindu Succession Act as claimed by the plaintiff and has been filed frivolously just to harass the defendants. The suit is liable to the dismissed under Section 7 Rule 11 CPC and is hereby dismissed with costs of Rs. 50,000/-.