Guest Post : 'A Fit Case for Review' by R.Ramachandran
R. Ramachandran critically examines the latest Supreme Court judgment in Ganduri Koteshwaramma and Anr. v Chakiri Yanadi & Anr. by Justice R.M. Lodha. We have covered a post on the judgment which can be accessed here.
In Ganduri Koteshwaramma and Anr. Vs. Chakiri Yanadi & Anr. (in Civil Appeal No. 8538 of 2011) decided by the Supreme Court on 12.10.2011, it is not clear as to when was the Suit for partition instituted. This information is very much necessary, especially in the context of partition of a Hindu coparcenery property.
There are two possibilities – (1) the suit for partition might have been instituted prior to coming into force of the Hindu Succession (Andhra Pradesh) Amendment Act, 1986; or (2) instituted after the coming into force of the said Act.
Position if the partition suit had been instituted prior to 5.9.1985
If such a suit had been instituted prior to the coming into force of The Hindu Succession (Andhra Pradesh) Amendment Act, 1986 (Act 13 of 1986) which granted equal coparcenery rights to daughters with effect from 5.9.1985, then the daughters were not co-larceners by the relevant date and as such were not entitled for coparcenary share. At best, they could have only been entitled for inheritance right in the share of the property that fell to their father.
Partition in the instant case was instituted only in the year 1991
I contacted the Advocate of one of the parties to the case and ascertained that the Suit for partition had been instituted in the year 1991.
The case relates to Andhra Pradesh, and the daughters taking birth in the family had been granted equal coparcenery rights as that of the sons, by Hindu Succession (Andhra Pradesh) Amendment Act, 1986, effective from 5.9.1985. Since the suit for partition was instituted only in the year 1991, after coming into force of the AP Amendment Act, 1986, the decision of the Supreme Court, granting equal share to the daughters in the coparcenery property along with the sons in the family IS ABSOLUTELY CORRECT.
BUT THE REASONING GIVEN BY THE SUPREME COURT FOR ARRIVING AT THE SAID DECISION APPEARS TO BE WRONG FOR THE REASONS:
According to classical Hindu Law, some of the circumstances in which partition can take place are: (i) partition effected by father; (ii) partition by Agreement; (iii) severance by unilateral declaration by one of the coparcener; (iv) partition by conduct by one of the coparcener; (vi) partition by institution of suit etc.
Classical law to prevail
According to Section 4 (a) of the HSA 1956, "any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the HSA 1956 shall cease to have effect with respect to any matter for which provision is made in this Act" (emphasis supplied).
Prior to the HSA (Amendment) Act, 2005 w.e.f. 9.9.2005, there was no provision in the Hindu Succession Act, 1956 which provided for devolution of interest in coparcenery property – other than when ‘a male Hindu dies’. (See Section 6).
Thus, in the absence of any provision in the HSA, 1956, the Classical Hindu Law will prevail.
Effect of filing of suit for partition:
The institution of a suit for partition by an adult coparcener is an unequivocal intimation of his intention to separate and there is consequently a severance of his joint status from the date when the suit is instituted. [Kawal Narain v. Prabhu Lal (1915) 44 IA 159; Rachhpali v. Chandresar AIR 1924 Oudh 252.]
The moment the partition is effected in any of the above methods, the de jure (in law) partition takes place.
The partition strictly speaking is complete the moment the community of interest is severed or severance in status takes place. The actual physical division of the property by metes and bounds may, or may not follow and the members may continue to hold the property in joint possession as tenants-in-common, without the incidents of fluctuation of interest and application of the doctrine of survivorship.
The de facto partition – i.e. actual physical division of the property by metes and bounds may take place later on.
A suit demanding a partition, will effect a severance of the status from the date of its institution in a court of law, irrespective of whether he gets a decree from the court or not. [Ramalinga v. Narayana AIR 1922 PC 201.]
The following catena of decisions by the Supreme Court supports the above view.
Date of Decision
Kalyani (Dead) by Lrs.
Respondent: Narayanan and Ors.
A. N. Sen, D. A. Desai and V. D. Tulzapurkar, JJ.
10. … Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenery is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenery with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Approviar v. Rama Subha Aiyar (1886) 11 M. I. A. 75 quoted with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and Ors.  1 SCR 161 .
A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv 41 I A 151.
A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.
Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors.
AIR 1978 SC 1239
Y. V. Chandrachud, C.J.,
V. D. Tulzapurkar and
P. N. Shingal, JJ.
“11. … Whether a partition had actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of Explanation 1. That Explanation compels the assumption of a fiction that in fact "a partition of the property had taken place", the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share.
12. The fiction created by Explanation 1 has to be given its due and full effect as the fiction created by Section 18A(9)(b) of the Indian Income-tax Act, 1922, was given by this Court in Commissioner of Income-tax, Delhi v. S. Teja Singh MANU/SC/0062/1958 . It was held in that case that the fiction that the failure to send an estimate of tax on income Under Section 18A(3) is to be deemed to be a failure to send a return, necessarily involves the fiction that a notice had been issued to the assessee Under Section 22 and that he had failed to comply with it. In an important aspect, the case before us is stronger in the matter of working out the fiction because in Teja Singh's case, a missing step had to be supplied which was not provided for by Section 18A(9)(b), namely, the issuance of a notice Under Section 22 and the failure to comply with that notice. Section 18A(9)(b) stopped at creating the fiction that when a person fails to send an estimate of tax on his income Under Section 18A(3) he shall be deemed to have failed to furnish a return of his income. The section did not provide further that in the circumstances therein stated, a notice Under Section 22 shall be deemed to have been issued and the notice shall be deemed not to have been complied with. These latter assumptions in regard to the issuance of the notice Under Section 22 and its non-compliance had to be made for the purpose of giving due and full effect to the fiction created by Section 18A(9)(b). In our case it is not necessary, for the purposes of working out the fiction, to assume and supply a missing link which is really what was meant by Lord Asquith in his famous passage in East End Dwellings Co. Ltd. v. Finsbury Borough Council.  A.C. 109/132. He said if you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenery property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mita-kshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenery property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenery property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.
Anar Devi & Ors. V. Parmeshwari Devi & Ors.
AIR 2006 SC 3332
Follows the above decision.
Munni Lal Mahto and Ors. Vs. Chandeshwar Mahto and Anr.
AIR 2007 Pat. 66
Navaniti Prasad Singh, J of Patna High Court
Relied upon the decisions of Supreme Court in:
Kalyani v. Narayan and Ors. AIR 1980 Supreme Court 1173; wherein it has been inter-alia held that “holds that once there is a partition then there is a disruption in the joint family status and the rights are crystalised although not immediately followed by a de facto actual division of the subject matter of dispute. This decision clearly shows that the effectuate partition, it is not necessary that all joint family properties must be divided by metes and bounds and till that is not done, the joint family would continue. This judgment clearly lays down otherwise. The fact is that the moment the preliminary decree was passed, the joint family status stood disrupted and the parties became tenants in common.”
M.L. Subbaraya Setty and Ors. v. ML Nagappa Setty and Ors. AIR 2002 Supreme Court 2066 holding that “severance of joint family status takes place no sooner preliminary decree is filed even though properties are not physically partitioned. Members of the joint family becomes tenants in common of the family property from the said day.”
The Supreme Court in the instant case of Ganduri Koteshwaramma has mainly dealt with the following two aspects to arrive its conclusion in the matter:
(1) Meaning of the term “partition”
(2) Preliminary decree can be altered
The meaning of the term ‘Partition’:
In the instant case, the Supreme Court also heavily relied upon the Explanation under Section 6(5) in regard to the meaning of the term “Partition”. According to the said provision, “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.
It is worth noting that this explanation has been introduced only in the HSA (Amendment) 2005 Act. Therefore, the same could not be made applicable to the position obtaining prior to the coming into force of the Amendment Act.
This is for the reason that the Amendment Act, 2005 itself very specifically says that the said amendment is effective “on and from the commencement of the Hindu Succession (Amendment) Act, 2005.”
Thus, the SC could not have invoked the explanation under Section 6(5) of the Amended HSA, 1956 to give meaning to the word “partition”.
Even otherwise, the explanation under Section 6(3) of the amended Act is in pari material with the explanation 1 under un-amended Section 6 of the HSA, 1956.
The Supreme Court (three judge bench) has already ruled that once a fiction of ‘partition’ has been created it has to be given its logical end. See Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors. AIR 1978 SC 1239.
Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Approviar v. Rama Subha Aiyar (1886) 11 M. I. A. 75 quoted with approval in Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and Ors.  1 SCR 161 .
A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv 41 IA 151.
A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.
In view of the above categorical decisions by the SC decisions, the latest decision does not appear to be correct. Further, in case of conflict, the decision of the higher bench (3 judge bench) would prevail than the decision of the division bench.
Modification of preliminary decree
The decision in Phoolchand and Anr. Vs. Gopal Lal (AIR 1967 SC 1470) quoted by the SC to support the view that “If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed situation” is totally misplaced and misapplied. The changed circumstances does not talk about changed circumstances in law; but the changed circumstances in facts of the case.
NO NEED for invoking the provisions of Hindu Succession (Amendment) Act, 2005
Since the Suit for partition was instituted in the year 1991, even according to the Hindu Succession (Andhra Pradesh) Amendment Act, 1986, the daughters have become equal co-larceners in the coparcenary property.
Therefore, there was no need for the Supreme Court to have invoked the provisions of the 2005 Amendment Act at all.
A FIT CASE FOR ‘REVIEW’
The latest decision by the SC, which according to my understanding is not well founded on legal reasoning, is bound to upset the well settled legal positions and would cause immense confusion and doubts as regards the rights and entitlements in regard to the partition of the Coparcenery property is concerned. Since the instant decision appears to have overlooked a plethora of earlier decisions and has not addressed several legal issues in a cogent and logical manner, and the reasoning for the decision is ill-founded, it is a fit case for seeking Review. Review is also a must in order to protect the interests of scores of persons whose suit for partition might be pending adjudication throughout the country.
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