IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1926 of 2008 KAMLAWATI DEVI & ANR Versus RADHA MOHAN SINGH & ANR ----------- 2. 20.11.2008 Having heard counsel for the petitioner and for the reasons mentioned in I.A.No. 6715/2008 the delay in filing of this civil revision application is condoned. On merits, this Court must record that this impugned order passed by the court below cannot be sustained, inasmuch as what really is required to be looked into in a suit filed by a daughter claiming her share in a coparcenary property in terms of section 6 of the Hindu Succession Act (hereinafter referred to as the Act), that from the date of commencement of the Act she can exercise such coparcenary right provided that she can not question the alienation or disposition made prior to 20.12.2004. That in precisely the spirit of the amended Section-6 of Act, which reads as follows: “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.- 2 (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 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. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the 3 commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property by a joint Hindu family governed by the Mitakshara Law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and © the share of the pre-deceased child of pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre- deceased, as the case may be. (4) After the commencement of the Hindu succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great grandson for the 4 recovery of any debt due from his father, grandfather or great grandfather solely on the ground of the pious obligation under the Hindu Law, of which son, grandson or great grandson to discharge any such debt; Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment)Act, 2005 nothing contained in this sub- section shall affect- (a) the right of any creditor to proceed against the son, grandson or great grandson, as the case may be, or (b) Any alienation made in respect of, or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.” 5 Therefore, the court below was required to look into the entire averment in the plaint to find out whether the suit stands barred in terms of amended provision of section 6 of the Hindu Succession Act. Thus no cut and dry formula can be adopted as with regard to dismissing the suit filed by a daughter claiming share by way of partition in her father’s property only on the basis of date of institution of the suit. That being so, this Court would set aside the impugned order and remit the matter back to the court below to re-examine the issue afresh in the light of the aforementioned observations. This application is accordingly allowed to extent indicated above. (Mihir Kumar Jha,J.) Surendra/