317😊How ORAL PARTITION of Ancestral Coparcenary Property before2005amendment DAMAGES Woman's Rights?

#Coparcenary #Ancestral #2005


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. DIARY NO.32601 OF 2018
VINEETA SHARMA … APPELLANT(S)
VERSUS
RAKESH SHARMA & ORS. … RESPONDENTS



“6. Devolution of interest in coparcenary property.—When a
male
Hindu dies after the commencement of this Act, having at the
time of his death an interest in a Mitakshara coparcenary
property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and
not in accordance with this Act:


46. The substituted provision of section 6 by the Amendment Act,
2005 is extracted hereunder:
“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 .
(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 , 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 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 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 predeceased
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.
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(4) After the commencement of the Hindu Succession
(Amendment) Act, 2005 , no court shall recognise 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
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 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.
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 was 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.
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.'.”