RSA No.2072 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.2072 of 2009 (O&M) DATE OF DECISION: 25.10.2010. **** Smt. Kusum Rani . . . . Appellant Vs. Smt. Bala and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.M.S. Rakkar, Sr. Advocate with Mr.P.S. Baath, Advocate for the appellant. Mr.Pritam Saini, Advocate for the respondents. **** RAKESH KUMAR JAIN J. The plaintiff is in second appeal against the judgment and decree of the Courts below by which her suit for declaration has been dismissed on the ground that she had no right to the property in dispute. A few skeletal facts are necessary to unfold the dispute between the parties, who are closely related to each other as plaintiff and defendants No.4 and 5 are the daughters and defendants No.1 & 2 are the sons of defendant No.3, who suffered a collusive decree in Civil Suit No.793-CS of 1998 on 30.1.1999 in respect of the property in dispute in favour of defendants No.1 and 2 which is challenged by the plaintiff in the present suit on the ground that the property in dispute was ancestral and defendant No.3 had illegally and without legal necessity transferred the property in dispute in favour of defendants No.1 and 2. In the written statement, the relationship was admitted but it was alleged that on the basis of a family settlement arrived at between defendants No.1 to 3, the land in dispute was transferred by the impugned judgment and decree dated 30.1.1999. It was also alleged that the plaintiff had earlier filed similar suit to challenge the impugned decree but that was unconditionally RSA No.2072 of 2009 (O&M) -2- withdrawn by her on 30.08.2003, therefore, the present suit is not maintainable. The plaintiff did not file replication, however, from the pleadings of the parties, the trial Court struck the following issues on 26.04.2004: “(i) Whether the judgment and decree dated 30.01.1999 passed in Civil Suit No.793-CS of 1998 is liable to be set aside as alleged? OPP (ii) Whether the suit is not maintainable? OPD (iii) Whether the plaintiff is estopped from filing the present suit by her own act and conduct? OPD (iv) Whether the suit is liable to be dismissed with special costs? OPD (v) Relief?” The learned Courts below, on appraisal of the evidence, dismissed the suit of the plaintiff on the ground that she had failed to prove her right in the property in dispute and her suit was not maintainable as she had earlier filed a similar suit challenging the impugned judgment and decree but the said suit was withdrawn by her unconditionally without reserving her right to challenge it in future on the same cause of action. Aggrieved against the judgment and decree of the Courts below the present appeal is preferred by the plaintiff in which learned counsel for the appellant has submitted that the plaintiff has a right in the property in dispute in terms of Section 6 of the Hindu Succession Act, 1956 (for short ‘the Act’) which has been amended by the Hindu Succession (Amendment) Act, 2005 (Act No.39 of 2005) (for short ‘the Amended Act’). It is submitted that as per Section 6(1) of the Act, after the commencement of the Amended Act on 09.09.2005, the plaintiff being the daughter of Panch Ram (defendant No.3) has also become coparcener in the Joint Hindu Family and has a right by birth in the same manner as that of the son, therefore, defendant No.3 could not have entered into family settlement without her participation and also could not have transferred the coparcenary property to defendants No.1 & 2 by way of impugned judgment and decree. Insofar as withdrawal of the earlier suit is concerned, it is submitted that the said suit was withdrawn due to RSA No.2072 of 2009 (O&M) -3- compromise between the parties but since the defendants had backed out from their compromise, therefore, the plaintiff had to file the suit which is not barred. In reply, learned counsel for the respondents has submitted that the plaintiff has no right to the property, therefore, her suit has rightly been dismissed by the learned Courts below and insofar as the amendment in Section 6 of the Act is concerned that is not applicable in the present case because as per the proviso to Section 6(1) of the Act, provision of Section 6(1) of the Act would not be applicable to the transaction which had taken place before the 20th day of December 2004. In respect of the second submission that the plaintiff, after unconditional withdrawal of the earlier suit, has the competence to file the present suit, it is submitted that the provisions of Order 23 Rule 1(4)(b) of the Code of Civil Procedure, 1908 (for short ‘CPC’) are squarely applicable and as such the suit has been rightly dismissed by the Courts below on this ground as well. I have heard learned counsel for the parties and have perused the available record. Adverting to the first question about the right of the plaintiff in the property in dispute, it would be worthwhile to refer to the bare provisions of Section 6 of the Act: “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; RSA No.2072 of 2009 (O&M) -4- (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. (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 in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of 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 as is allotted to a son; RSA No.2072 of 2009 (O&M) -5- (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-decreased daughter; and (c) the share of the pre-deceased child or of a 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 daughter, as the case may be. Explanation – For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (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 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 RSA No.2072 of 2009 (O&M) -6- such 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 the 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 debit, 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. Explanation – For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. RSA No.2072 of 2009 (O&M) -7- Explanation: - For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a Court.” The aforesaid provision came into being by virtue of the Amended Act and became operative w.e.f. 09.09.2005. The object and reason of the Amended Act was that the Mitakshara coparcenary property was earlier devolved upon by virtue of survivorship amongst the members of the coparcenary excluding female which means that they were not entitled to inherit the ancestral property as their male counterparts do. It was realized that exclusion of daughter from coparcenary ownership not only contributes to discrimination because of gender but also leads to oppression and negation of her fundamental right of equality guaranteed by the Constitution to render social justice to the women. A bare look at the amended provision shows that after the commencement of the Amended Act, a daughter has also got equal right as that of a son in the coparcenary property subject to an exception added in the proviso that the provisions of Sub Section (1) of Section 6 of the Act would not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20th day of December 2004, meaning thereby the right to property as a coparcener is conferred upon a daughter but she is precluded from questioning the disposition, alienation, partition or testamentary disposition of the property which had taken place before 20th December 2004. Thus, it would mean that she could challenge the disposition, alienation, partition etc. of a coparcenary property if it occurs after 20th December 2004 and not otherwise. In the present case, admittedly, the decree suffered by defendant No.3 in favour of defendants No.1 & 2 is of the year 1991, therefore, even as per the provisions of the Amended Act, which has been relied upon by the counsel for the plaintiff, the said decree, whereby the coparcenary property has been transferred by the ‘Karta’ of the family in favour of the members of the coparcenary, cannot be challenged by the plaintiff/daughter as there is a clog on her right created by the proviso to RSA No.2072 of 2009 (O&M) -8- Section 6(1) of the Act. Thus, I do not find any error in the judgment and decree of the Courts below in this regard. In respect of the second question that the plaintiff is debarred from challenging the impugned judgment and decree as the suit filed by her earlier challenging the same judgment and decree was withdrawn by her unconditionally, in this regard, it is worthwhile to mention that the plaintiff had suffered a statement (Ex.P-8) on the basis of which an order was passed on 14.8.2003 (Ex.P-9). Order 23 Rule 3 of the CPC provides that a suit can be disposed of on the basis of compromise between the parties and Order 23 Rule 1(4)(b) of the CPC provides that where the plaintiff withdraws from the suit without obtaining permission of the Court to challenge it again with same cause of action then she shall be precluded from instituting any fresh suit in respect of the said subject matter or even part of it. In the present case, earlier suit was withdrawn by the plaintiff unconditionally, meaning thereby no permission of the Court was sought, therefore, she has no right to challenge the earlier compromise decree. No other point has been raised in this appeal. In view of the above discussion, I do not find any merit in this appeal and hence the same is hereby dismissed though without any order as to costs. (RAKESH KUMAR JAIN) OCTOBER 25, 2010 JUDGE Vivek