Exception To Section 6(1) Hindu Succession Act Does Not Apply To Properties Alienated In Violation Of Court Orders: Karnataka High Court

The Karnataka High Court has made it clear that the exception made under Section 6 (1) of the Hindu Succession Act, can be availed by a person who has alienated properties lawfully and the benefit cannot be extended if the alienation is made in violation of court orders.

Section 6 (1) was amended in the year 2005 and it confers the status of a coparcener to a daughter of a male Hindu, retrospectively, with an exception to alienation of property if done before 20th December 2004.

A single judge bench of Justice Anant Ramanath Hegde, sitting at Dharwad bench dismissed the appeal filed by one Thirakavva (second wife of propositus Kannappa), and her daughter Roopa challenging the order of the trial court which decreed the partition suit filed by the first wife Shantavva and her daughter Ratnavva (plaintiffs), and held that two daughters from the first marriage, the daughter from the second marriage, and the first wife, all entitled to 1/4th share each.

The second wife contended that daughter from first marriage Ratnavva (plaintiff no.1) had no right over the properties in the year 1995, held by Kannappa, and as the suit was filed when her father was alive, the suit is not maintainable.

Further, during the pendency of the suit i.e. on 18.02.2003, defendant No.1, (Kannappa) gifted suit properties in favour of his daughter Roopa from the second marriage. Hence the properties alienated before 20th December 2004, the cut-off date under the Act are not available for partition.

Moreover, Kannappa had transferred certain properties in favour of the plaintiffs before filing the suit, as such, the suit without including those properties is not maintainable. Those properties are to be treated as properties allotted to plaintiffs’ share and consequently the suit ought to have been dismissed, it was contended.

The appeal was opposed by the first wife and daughter contending under Section 6 of Amendment Act, 2005, the daughter is given the status of a coparcener. Assuming that plaintiff No.1 (Ratnavva) had no cause of action to file suit in the year 1995, as the amendment is held to be retrospective in operation, it must be deemed that the daughter had a share in the properties when the suit was filed in 1995.

Further, the defendants 1 and 2 are not entitled to claim the benefit of alienation made on 18.2.2003, as the said alienations violate the interim prohibitory order passed by the Court which was in force as on the date of the execution of the alleged gift deeds. The alienations are invalid and cannot be construed as a valid alienation of the properties before the cutoff date under the Act.

Findings:

The bench noted that alienation of properties before 20th December 2004, is an exception to Section 6(1) of the Act. If the coparcenary properties are alienated before 20th December 2004, then the daughter who is given the status of a coparcener cannot claim a share in the alienated properties. The alienation has to be necessarily that is lawful.

Admittedly, it noted, on the date of the execution of the gift deeds dated 18.2.2003, there was a prohibitory order restraining defendant no.1 from alienating the suit schedule properties.

Thus it held

“Since the alienation is in the teeth of the prohibitory order of the Court, the wrongdoer (seller) cannot be granted the protection provided under the proviso to Section 6(1) of the Act. If the alienation is held to be valid, then it amounts to rewarding the wrongdoer/ the 1st defendant who was bound to obey the order passed by the Court.”

It added “in this case, the transferee is also a party to the proceeding where the interim order is passed and was very much aware of the interim prohibitory order. Thus alienations referred to above cannot defeat the rights conferred on the daughter.”

Further it said “The properties cannot be construed as alienated before 20th December 2004, and proviso to Section 6 (1) of the Act has no application to the case. This being the position, given the fact that the amendment to Section 6 of the Act is retrospective in operation, the plaintiffs are entitled to claim a share in the said properties.”

The court also rejected the contention of the second wife that the first wife and her daughters were given properties before filing the suit and the same should be treated as the share allotted to the plaintiffs.

It said “The records would reveal that certain properties are allotted to the plaintiffs in lieu of their claim relating to arrears of maintenance. The properties given in lieu of arrears of maintenance cannot be equated with the share in the properties.”

It then opined “The right to property as a coparcener/sharer is different from the right of maintenance. There can be a right to claim maintenance without there being a right in the property.”

Thus it held “If a property is transferred in lieu of arrears maintenance, said the transfer will only discharge the liability towards arrears of maintenance and nothing more. Said transfer property will not extinguish the right of the person to claim a share in the property if such person had a share in the property. In other words, the discharge of liability towards arrears of maintenance cannot be allowed to be set off against the claim for partition.”

Accordingly it dismissed the appeal.

Case Title: Thirakavva & ANR Ratnavva & Others

Case No: REGULAR FIRST APPEAL NO.1659 OF 2007 (PAR-) C/W RFA CROSS OBJ NO.101 OF 2008

Citation: 2023 LiveLaw (Kar) 154

Date of Order: 05-04-2023

Appearance: N.P. Vivekmehta, Advocate for Appelants.

Sanjay S Katageri for R1.

M V Hiremath and Shivanand D S, Advocates for R2.