IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1930 of 2008 SMT. LAL MUNI DEVI & ORS Versus MOST. BHAGMANO KUNWAR & ORS ----------- 2 21/11/2008 Heard counsel for the petitioners. The impugned order proceeds on an assumption the suit filed by married daughter whose marriage had taken place prior to coming into force the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005)hereinafter referred to as the Act will not be maintainable because upon her marriage she had lost the status of a co- parcener and ceased to be in fact a family member for claiming partition in the property of her father. Apparently, this cannot be held as a sound proposition of law. Two things have to be always kept in mind with regard to maintainability of the suit:- (1)that under section 9 of the Code of Civil Procedure (C.P.C.) all suits except those specifically barred under any statute are maintainable and (2) an order for dismissing the suit on the ground of maintainability has to be passed as per the procedure envisaged under the code of Civil Procedure, namely, either 2 by way of rejection of the plaint under Order VII Rule 11 of the C.P.C. at the initial stage or after framing of issues in terms of Order XIV Rule 2 of the C.P.C. by way of a preliminary issue. What has been done in this case is that the Court has perused the plaint and refused to admit the suit for final hearing on the ground that the plaintiff-petitioner being married daughter could not have claimed her right under the Hindu Succession (Amendment) Act, 2005 seeking partition in her father‟s property as she after her marriage seems to have lost status of co- parcener. In the opinion of this Court, such sweeping view of the court below cannot be sustained because after amendment of section 6 the same 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.- (a) by birth become a coparcener in her own right in the same 3 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 commencement of the Hindu Succession (Amendment) Act, 2005, 4 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 (c) 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 recovery of any debt due from his father, grandfather or great 5 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.” In view of such provision made, putting restriction with regard to questioning the alienation made only on or 6 before 20th December, 2004, it cannot be said that a married daughter cannot seek for her relief for partition as per her share if the property of father has remained joint as on 20.12.2004. The status of co-parcener to a daughter under the Act has not been given from a particular date on which such amendment was sought to be incorporated, rather the same recognized such right which automatically entitled her to have right to sue for partition against the other co- parcener. This Court in this regard gets support from an earlier judgment of this Court in the case of „Ram Bilash Singh Vs. Uttam Lal Singh & Ors‟ reported in 2008 (2) B.B.C.J. 224. The matter can be viewed from yet another angle. If the court below at the stage of screening of the suit at the time of admission had really applied itself for finding out as to whether the plaint was fit to be admitted or not, it could strictly apply principle as laid down under order VII Rule 11 of the C.P.C. However, even if view of the court below as recorded in the impugned order is stretched to its all 7 logical conclusion, it would be difficult for this Court to hold and sustain that the suit as framed filed by the plaintiff- petitioner was barred under order VII Rule 11 (d) of the C.P.C, in as much as, neither the Hindu Succession Act nor the amended provision of Hindu Succession Act bars a suit by a married daughter seeking partition in father‟s property. This Court, however, would definitely record that in paragraph 8 of the plaint the plaintiff-petitioner had made certain specific averment with regard to sale deeds executed by Dhanano Kuer and Janardan Pandey. There being however no specific dates of such sale deeds, this issue can be taken up after adducing of evidence even at the time of judgment along with all other issues by looking into as to whether in reality the plaintiff-petitioner while assailing the sale deeds and/or alienation of suit property was trying to over come the specific statutory bar imposed under amended provision of section 6 of Hindu Succession (Amendment) Act, 2005 which only lays down that nothing contained in this section shall 8 apply to partition, which has been effected before the 20th day of December, 2004, and a married daughter cannot raise this question for effecting partition on account of amendment in the Hindu Succession Act 2005, which came into force with effect from 9.9.2005. That aspect of the matter however has not been gone into by the court below in the impugned order wherein it has been only mechanically held that the suit for partition by a married daughter is not at all maintainable. Thus for the reasons indicated above, this Court, therefore, must hold that the impugned order refusing to admit the plaint of the plaintiff-petitioner suffers from apparent jurisdictional error and accordingly the impugned order is set aside. This would however not mean that the question of maintainability of the suit would not be gone into by the court below at an appropriate stage or that this court has held that the suit of the plaintiff- petitioner is maintainable. Infact it will be open to court below to frame a specific issue in this regard and decide the same in 9 the light of evidence on record. With the aforementioned observations and directions this application is disposed of. ( Mihir Kumar Jha, J. ) Abhay Kumar