1. The plaintiff and defendants 2 & 3 have filed this regular second appeal challenging the judgment and decree dated 17.12.2011 passed by the IV Addl. District Judge, Mysuru, in R.A.No.377/2011 reversing the judgment and decree dated 16.06.2011 passed by the Civil Judge (Sr.Dn.), Nanjangud, in O.S.No.17/2009.

2. For the sake of convenience, the parties are referred to by the rank assigned to them in the court at first instance.

3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are, the plaintiff had filed O.S.No.17/2009 before the Trial Court seeking partition and separate possession of the suit schedule properties and she claimed 1/4th share in the suit schedule properties. It is the case of the plaintiff that plaintiff and defendants are the children of one Madegowda and their mother was Madamma. Madegowda and Madamma had another son by name Moogegowda who had expired unmarried prior to the filing of the suit. The suit schedule properties are their ancestral joint family properties and after the death of Madegowda and his wife Madamma, the khatha in respect of the suit schedule properties were got transferred in the name of defendant no.1. However, the plaintiff and other defendants continued to be in joint possession of the suit schedule properties along with defendant no.1. No partition was effected in the family after the death of Madegowda, and therefore, the plaintiff had requested the defendants to effect partition on 12.12.2008 and since the defendants kept on postponing the same, the plaintiff was constrained to file O.S.No.17/2009 seeking 1/4th share in the ancestral joint family properties left behind by their father. 

4. Defendants 2 & 3 who are the sisters of the plaintiff had filed written statement admitting the case of the plaintiff and they had claimed their share in the suit schedule properties and they also admitted that the suit schedule properties were the joint family properties.

5. Defendant no.1 who is the brother of the plaintiff and defendants 2 & 3 had filed written statement contending that the plaintiff and the other defendants are not entitled for a share in the suit schedule properties. It is his case that the plaintiff and defendants 2 & 3 were married daughters of late Madegowda and they are residing separately with their respective husband. It was further contended by defendant no.1 that at the time of marriage of the plaintiff and defendants 2 & 3, huge amount was spent for the purpose of marriage and also for giving gold and other articles to them at the time of marriage. He had further contended that he had improved the suit schedule properties by investing huge amount and the suit schedule properties have been partitioned between himself and his children, and therefore, there is no scope for further partition.

6. On the basis of the rival pleadings, the Trial Court had framed the following issues:

7. During the course of trial, the plaintiff in support of her case, got examined her son who was also her general power of attorney holder as PW-1 and two other witnesses were examined as PWs-2 & 3. In support of the plaintiff's case, 12 documents were produced and marked as Exs.P-1 to P-12. On behalf of the defendants, five witnesses were examined as DWs-1 to 5 and 11 documents were produced and marked as Exs.D-1 to D-11. After completion of recording the evidence, the Trial Court heard the arguments of the contesting parties and by its judgment and decree dated 16.06.2011 decreed the suit with costs and held that the plaintiff was entitled for 1/4th share in the suit schedule properties. The Trial Court ordered for partition of the suit schedule properties by metes and bounds and to hand over 1/4th share to the plaintiff. Being aggrieved by the said judgment and decree, defendant no.1 had filed R.A.No.377/2011 before the First Appellate Court. The First Appellate Court, on re-appreciation of the oral and documentary evidence available on record, had formulated the following points for consideration.

"1. Whether the plaintiff is entitled for partition of the plaint schedule property and whether she is entitled for any share, if so what is her share

2. Whether the judgment and decree passed by the Court below is erroneous, calling for Interference by this Court"

8. Having answered point no.1 in the negative and point no.2 in the affirmative, the First Appellate Court by its judgment and decree dated 17.12.2011 allowed R.A.No.377/2011 by reversing the judgment and decree passed by the Trial Court in O.S.No.17/2009, and resultantly, the suit of the plaintiff was dismissed. It is under these circumstances, the plaintiff and defendants 2 & 3 have approached this Court in this second appeal.

9. This Court, on 01.06.2012, had admitted this appeal to consider the following substantial question of law.

"Whether in the light of the explanation to sub-section (5) of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 and the decision of the Apex Court in the case of Ganduri Koteshwaramma Vs. Chakri Yanadi, the lower Appellate Court was justified in dismissing the suit for declaration, partition and separate possession of joint family properties"

10. This Court heard the arguments of the counsels appearing on both sides on 07.12.2021, and thereafter, had framed the following additional substantial question of law.

Addl. substantial question of law:

"Whether the First Appellate Court was justified in reversing the judgment and decree passed by the Trial Court in O.S.No.17/2009 and thereby dismissing the suit of the plaintiff on the ground that the plaintiff was born prior to 17.06.1956 and therefore, she was not entitled for partition and share in the plaint schedule property”

11. After framing of the aforesaid additional substantial question of law, learned Counsels were granted time to address their arguments on the additional substantial question of law, and subsequently, on 17.12.2021 and 25.03.2022, learned Counsels for the parties have addressed their arguments.

12. Learned Counsel for the appellants submitted that undisputedly the suit schedule properties are the ancestral joint family properties. The plaintiff and the defendants are the children of Madegowda and Madamma, and there is no dispute with regard to the relationship. Learned Counsel for the appellants submits that after the death of Madegowda, the coparcenary properties have continued to be in possession and joint enjoyment of all the parties and having regard to the amendment to Section 6 of the Hindu Succession (Amendment) Act, 2005 (for short, 'Act of 2005'), the plaintiff and defendants 2 & 3 who are the married daughters of deceased Madegowda and the sister of defendant no.1 are entitled for a equal share along with the defendant no.1 in the suit schedule properties. She has relied upon the judgment of the Hon'ble Supreme Court in the case of VINEETA SHARMA VS RAKESH SHARMA & OTHERS - AIR 2020 SC 3717, and prays to allow the appeal. 

13. Per contra, learned Counsel for defendant no.1 submits that he is the sole surviving coparcener after the death of Madegowda, and therefore, prior to coming into force of the Act of 2005, defendant no.1 had become the absolute owner of the suit schedule properties and the said status of his cannot be disrupted even after the Act of 2005 coming into force. He submitted that the judgment of the Hon'ble Apex Court in Vineeta Sharma's case supra is, therefore, not applicable to the present case. He has relied upon the judgment of the Hon'ble Apex Court in the case of ROHIT CHAUHAN VS SURINDER SINGH & OTHERS - (2013)9 SCC 419 and contends that since the ancestral properties have remained in the hand of a single person, it is to be treated as separate properties and such person shall be entitled to dispose of the coparcenary property treating it to be a separate property. It is only if a son is born to him subsequently, the property becomes a coparcenary property and the son would acquire interest in it and also become a coparcener. Learned Counsel for defendant no.1 has also submitted that there has been a partition between defendant no.1 and his sons as per Ex.D-11 dated 03.02.2009, and therefore, the plaintiff and defendants 2 & 3 cannot be considered as coparceners in respect of the suit schedule properties.

14. I have carefully considered the arguments addressed on both sides and also perused the material evidence on record.

15. The undisputed facts of this case are, the suit schedule properties are the ancestral joint family properties which remained intact when Act of 2005 came into force. After the coming into force of the Act of 2005, the daughters have been given equal right and share in the ancestral properties along with the sons. The daughter is treated as a coparcener as a son by birth with the same rights in coparcenary property and liabilities. Under the amended Section 6 of the Hindu Succession Act, a right is given by birth to the daughters along with the sons. From a reading of Section 6, it is clear that the daughter becomes a coparcener in the same manner as a son. The effect of the Act of 2005 would be that a daughter is considered as a coparcener with effect from the date of amendment and she can claim a share equivalent to the son in the coparcenary property. To enable the daughter as a coparcener to claim a share in the coparcenary property, the coparcenary must exist on 09.09.2005.

16. It is the case of defendant no.1 that even prior to the Act of 2005 coming into force, having regard to the then prevailing law, he was the single surviving coparcener, and therefore, he had become the absolute owner of the coparcenary property. In support of this contention of his, he has relied upon the judgment of the Apex Court in Rohit Chauhan's case and has referred to paragraph 11 of the said judgment, which reads as under:

"11. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr. Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no dfinite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener."

17. A reading of the said judgment makes it very clear that a coparcener has no definite share in the coparcenary property but he has an undivided interest in it and the same would enlarge by death and diminish by birth. It has been held in the said case that on partition, if an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be a separate property. But in the case on hand, there has been no partition in the ancestral joint family properties in respect of which the present suit is filed, and therefore, the judgment of the Apex Court relied upon by defendant no.1 would not be applicable to the facts of the present case.

18. The contention of the learned Counsel for defendant no.1 that there has been a partition as per Ex.D-11, and therefore, plaintiff and defendants 2 & 3 cannot be considered as coparceners of the suit schedule property is liable to be rejected for the simple reason that the alleged partition had come into effect after the Amendment Act of 2005 came into force, and admittedly, the plaintiff and defendants 2 & 3 are not parties to the said document. Apart from the same, Ex.D-11 is not a registered document, and therefore, the same cannot be considered as a document evidencing partition.

19. The Hon’ble Supreme Court in the case of GANDURI KOTESHWARAMMA & ANOTHER VS CHAKIRI YANADI & ANOTHER – (2011)9 SCC 788, has held that the rights of the daughters in coparcenery property as per the amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as the partition suits are concerned, the partition becomes final only after passing a final decree. Where such situation arises, the preliminary decree will have to be amended taking into account the change in law.

20. The Hon’ble Supreme Court in the case of VINEETA SHARMA VS RAKESH SHARMA & OTHERS – AIR 2020 SC 3717, has observed at paragraph 129(v) as under:

“(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration At, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

Therefore, the first substantial question of law is required to be answered in the negative.

21. The First Appellate Court has set aside the judgment and decree passed by the Trial Court placing reliance on the judgment of this Court in the case of PUSHPALATHA.N.V. VS V.PADMA – ILR 2010 KAR 1484, wherein it was held as under:

“The status of the coparcener is conferred on a daughter of a coparcener on and from the commencement of the Amended Act, 2005. The right to property is conferred from the date of birth. These rights are conferred under the Act and therefore necessarily follows that the daughter of coparcener who is born after the Act came into force alone will be entitled to a right in the coparcenary property and not a daughter who was born prior to 17.06.1956.”

22. The Hon’ble Supreme Court in Vineeta Sharma’s case supra, has held that the amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener in her own right and in the same manner as the son. Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenery, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenery property as she would have had if she had been a son.

23. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed with effect from 09.09.2005, the provisions are of retroactive application, they confer benefits based on the antecedent event, and the Mitakshara coparcenery law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. The daughter will step into the coparcenery as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment i.e., 09.09.2005 with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).

24. The effect of the amendment is that a daughter is made coparcener with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenery. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 09.09.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3). The rights of other relatives remain unaffected as prevailed in the proviso to Section 6 as it stood before amendment. 25. In the present case, it is seen that the coparcenary had remained intact as on 09.09.2005, and therefore, the daughters of Madegowda and Madamma are entitled for equal share in the suit schedule property along with defendant no.1 who is their son. The date of birth of the daughters is immaterial for claiming rights under the amended provisions of Section 6 of the Act. The judgment in Vineetha Sharma’s case supra would be squarely applicable to the facts of the case and in view of the said judgment, having regard to the fact that the coparcenery had remained intact as on 09.09.2005, the daughters of Madegowda are entitled for equal share in the suit schedule property along with defendant no.1. Therefore, the additional substantial question of law is answered in the negative. 26. Accordingly, this second appeal is allowed. The impugned judgment and decree dated 17.12.2011 passed by the IV Addl. District Judge, Mysuru, is set aside, and the judgment and decree dated 16.06.2011 passed by the Civil Judge (Sr.Dn.), Nanjangud, in O.S.No.17/2009 is confirmed.