Appeal Lodging No. 734 of 2011 in Notice of Motion No. 3223 of 2011 in Suit No. 2679 of 2011. Case: Ms. Vaishali Satish Ganorkar and Anr Vs Satish Keshorao Ganorkar and Ors. High Court of Bombay (India)
| Case Number | Appeal Lodging No. 734 of 2011 in Notice of Motion No. 3223 of 2011 in Suit No. 2679 of 2011 |
| Counsel | For Appellant: Nikhil Sakhardande, S. R. Page, Advs. and For Respondents: Pradeep Sancheti, Sr. Counsel, Jayesh Desai, Ms. Hema Desai i/b. Singhi and Co., Mayur Kandeparkar i/b. Sandeep Thorat, Advs. |
| Judges | M. S. Shah, C.J. and Mrs. Roshan Dalvi, J. |
| Issue | Hindu Succession Act (30 of 1956) - Section 6 |
| Citation | AIR 2012 Bom 101 |
| Judgement Date | January 30, 2012 |
| Court | High Court of Bombay (India) |
Judgment:
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The appellants (original plaintiffs) are the daughters of respondent No.1 (original defendant No.1). Respondent No.2 (original defendant No. 2) is the bank from which respondent No.1 has taken a loan which has not been repaid. Respondent No.2 has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Securitisation Act).
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The appellants have sued to protect the share that they claim in the property mortgaged to the bank by respondent No.1. They claim 2/3rd share therein as coparceners of the Hindu Undivided Family (HUF) consisting of themselves and respondent No.1. As the daughters of respondent No.1 they claim in the capacity as coparcener under the amended Section 6 of the Hindu Succession Act, 1956 (HSA) which came to be substituted by the Hindu Succession (Amendment) Act, 2005 (39 of 1956) which came into effect from 9 September, 2005 (HSA).
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Upon the creation of the mortgage in respect of the suit property, which is a residential flat of respondent No.1 by respondent No.1 alone in favour of respondent No.2, the provisions of Securitisation Act would apply to respondent No.1. For the orders passed under Section 14 of the Securitisation Act in respect of the rights of respondent No.2 as the secured creditor under Section 13(4) of the Securitisation Act the appellants, who claim 2/3rd right, title and interest in the mortgaged property, would not be able to file an appeal under Section 17 thereof. Hence the suit.
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Under the impugned order the learned Judge has considered what transpired between respondent Nos.1 and 2 in respect of the loan which was secured under the Act. That aspect need not be considered to see whether the appellants have a cause of action to sue i.e., whether the appellants have an enforceable right in the suit property. The arguments in the Appeal have also proceeded only upon the basis of that right. If the appellants are shown to be even prima facie entitled to claim, and hence to protect, their 2/3rd share as coparceners in the HUF stated to be consisting of the appellants and the respondent No.1, the appellants would have a right to claim an ad interim injunction in respect of such share. If the appellants cannot show any right in law as coparceners of the HUF of the appellants and respondent No.1 no ad interim relief can be granted to the appellants in their suit.
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The appellants' case for claiming 2/3rd right in the suit property is upon the fact that the suit property is purchased from the nucleus of the HUF initially constituted by their grandfather who in turn acquired a property upon partition with his father (the appellants' great grandfather one Mahadevo).
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Mahadevo had 3 sons Keshavrao, Vasudeo and Pundalik. Keshavrao is the appellants' grandfather. A partition took place of the properties of Mahadevo in 1959. Keshavrao was given a property at Camp, Amravati consisting of a house of 3 floors known as Khinkhinwale on plot No.9, Survey No.56A at Amravati. Keshavrao's family consisted of his wife Taramati and his 4 children amongst whom was the appellants' father, respondent No.1 herein. Their aforesaid joint family properties under an oral partition between the members of the family and the respondent No.1 is stated to have been paid a share in the proceeds. From those proceeds respondent No.1 is stated to have purchased a flat being flat No.18 in Pankaj Mansion, Dr. Annie Besant Road, Worli, Mumbai-400 025. Respondent No.1 sold that flat to purchase the suit property. Respondent No.1 created an equitable mortgage of the suit property for securing a cash credit facility in respect of the company in which he was a Director being M/s. Sequoia Marketing Pvt. Ltd. The loan was not repaid. Notice under Section 13(2), followed by a fresh notice of sale came to be issued by respondent No.2 and challenged by respondent No.1 in the DRT and the DRAT without success. Respondent No.1 was directed to deposit Rs.1.5 crores at the time of the filing of the appeal before the DRAT which was followed by an order for deposit of Rs.1 crore in a Writ Petition filed by the respondent No.1 which despite an application for extension of time filed and withdrawn was not deposited and after which this suit came to be filed by the appellants claiming their 2/3rd share in the suit property.
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This appeal is not even concerned with the alleged lack of bona fides of the appellants' claim in the suit. This appeal is argued and would have to be decided upon the main premise of the appellants' right in law in the suit premises.
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This right, if at all, would accrue under Section 6 of the Hindu Succession Act, 2005 which runs thus:-
"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."
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The Section is required to be dissected for interpretation. The sub-title of the section relates to devolution of interest in coparcenary property. The interest devolves upon succession. Such devolution may be upon intestate or testamentary succession. The entitlement of a daughter of a coparcener is, therefore, upon devolution and not without any such cause since devolution is only upon succession. The succession would open on a given day. It would, therefore, open only upon the death of the coparcener. Until that time the coparcener, to constitute the coparcenary of which he is a coparcener, must be a member in HUF consisting of other coparceners. In the present case admittedly aside from the appellants there has been no other coparcener of respondent No.1.
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It would have to be seen when the appellants would be coparceners being the daughter of a coparcener. The section gives the right to a daughter of a coparcener "on and from" the commencement of the Act. The amended provision under Section 6 of the HSA came into effect from 9 Septemeber, 2005. On and from that date the daughter of a coparcener would become a coparcener in her own right just as a son would be by virtue of her birth and she would have the same rights and liabilities as that of a son. The devolution of her interest should, therefore, be on and from 9 September, 2005.
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No interest can devolve in a coparcenary property except on the death of the coparcener. In this case there has been no devolution of interest by any succession, testamentary or intestate, because no coparcerner (assuming that respondent No.1 was a coparcener with another in his HUF) has been deceased. The share in the coparcenary, therefore, cannot "devolve" upon anyone. The succession, therefore, has not yet, opened. The suit is, therefore, premature. The appellants, as the daughters of the coparcener, are not statutorily given any right as coparceners ipso facto before devolution of any interest.
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Meaning of the word "devolve" in Oxford English Dictionary is:
(i) transfer power to a lower level,
(ii) pass to a deputy or to a successor,
It originates from the Latin word devolver - meaning "roll down".
The Concise Oxford English Dictionary shows the meaning of the word "devolve" to be "thrown, fall, descend upon, fall by succession".
The meaning of the devolve in the Chambers Dictionary (20th Edition) is shown as "to roll down, to hand down, to deliver over, to fall or passover in succession".
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Consequently, until a coparcener dies and his succession opens and a succession takes place, there is no devolution of interest and hence no daughter of such coparcener to whom an interest in the coparcenary property would devolve would be entitled to be a coparcener or to have the rights or the liabilities in the coparcenary property along with the son of such coparcener.
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It may be mentioned, therefore, that ipso facto upon the passing of the Amendment Act all the daughters of a coparcener in a coparcenary or a joint HUF do not become coparceners. The daughters who are born after such dates would certainly be coparceners by virtue of birth, but for a daughter who was born prior to the coming into force of the amendment Act she would be a coparcener only upon a devolution of interest in coparcenary property taking place.
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It is contended on behalf of the appellants that Section 6 of the amendment Act is retrospective in operation and hence all daughters of all coparceners would have the interest devolved upon them even if they were born prior to the amendment Act and even if the succession opened earlier than the amendment Act. We may mention that this is not a case of succession at all. It is contended on behalf of the appellants that any daughter born even prior to the amendment Act would be a coparcener as to have an equal, undivided interest in the coparcenery properties.
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This contention is made wholly disregarding the sub-title of the section.The subtitle of a section is required to be considered in the interpretation of the section and hence the devolution of the interest is condition precedent for any claim in coparcenary interest.
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Even dehors the subtitle the section is required to be interpreted to see whether a daughter of a coparcener would have an interest in the coparcenery property by virtue of her birth in her own right prior to the amendment Act having been brought into...
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