Hindu Succession | Daughters Can't Be Deemed To Have Abandoned Claim In House Property Because They Forfeited Other Shares : Karnataka High Court

The Karnataka High Court has held that daughters abandoning their share only in agricultural properties belonging to a joint family, which is partitioned among the sons of the propositus, cannot be deemed to have abandoned their shares in other joint family properties and they can seek partition of those properties.

A division bench of Justice Sreenivas Harish Kumar and Ramchandra D Huddar dismissed the appeals arising out a partition suit.

The primary contention of the defendants was that when the plaintiffs, as parties to the partition deed dated 05.04.2000, abandoned their right to claim partition in the landed properties described in ‘A’ schedule, their conduct amounted to abandoning their right to claim partition in the house properties.

It was argued : “Plaintiffs were very much aware that the house properties were also ancestral. Some of the brothers of plaintiffs 1 and 2 were residing in the houses. Section 23 of the Hindu Succession Act as it stood before amendment in the year 2005 did not permit the female members to claim partition in the dwelling houses until the male heirs chose to divide their respective shares.”

“The plaintiffs and defendant no 13, could have demanded to effect partition in the house properties, but they did not. From the fact that they gave up their right in the landed properties, it is not impossible to draw an inference that they did not want share in the house properties also. Merely because the partition dated 05.04.2000 states nothing about the house properties it cannot be said that the parties decided not to effect partition in the house properties at that point of time and thus they continued to be joint family properties.”

It was also claimed that repeal of Section 23 of the Hindu Succession Act in the year 2005 cannot be applied to grant partition to them in the house properties.

Repeal of Section 23 has retroactive effect

Though the repeal of Section 23 is prospective in operation, the Court held that it has a retroactive effect.

The Court explained "retroactive effect" by referring to the Supreme Court's judgment in Vineeta Sharma v. Rakesh Sharma :

"The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events."

The bench on going through the records said, “Though it is true that schedule ‘B’ house properties are occupied by some of the brothers of plaintiffs 1 and 2, it is also a fact that the houses were not subjected to partition. After repeal of Section 23, they (plaintiffs) got a right to seek partition.”

Noting that the Amendment Act is held to be prospective in operation with retroactive effect, the Court rejected the contention that a vested right was created in the male members of the family when no partition of the houses was effected at the time when agricultural lands were divided.

 “We have to state that the male members of the joint family did not derive any vested right in the house properties". The Court observed that the revenue extracts indicated that the houses were allowed to remain undivided.”

Further it opined : “No doubt section 23 was omitted by 2005 amendment. But section 23, as it stood before repeal, applied when a Hindu died intestate surviving him or her both male and female heirs specified in clause I of the schedule to Hindu Succession Act. That means restrictions that existed earlier did not apply to dwelling houses belonging to coparcenary.”

The Court observed that the restrictive right contained in Section 23 of the Act cannot be held to remain continuing despite the 2005 amendment.

Accordingly it dismissed the appeals.

Appearance: Advocate J S Shetty for Appellants

Advocate H.N. Gularaddi for R1 & R2.

Advocate Anand P Bagewadi for R3 and R4.

Citation No: 2023 LiveLaw (Kar) 435

Case Title: Akkamahadevi & Others And Neelambika & Others

Case No: Regular First Appeal no. 100221 of 2016 c/w Regular First Appeal No. 100197 of 2016.

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