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Tuesday, August 13, 2013

Section 6 of the amended Hindu Succession Act = This is the case where the daughters had already expired prior to the coming into force of the amendment Act and prior to any litigation, her son having filed the suit himself. There is nothing in the Section which shows that it would apply to all females retrospectively including a daughter who had expired prior to the coparcener himself, prior to any litigation and prior to the amendment Act itself. If such a daughter was also to be included the entire population would come to be included and the children and grandchildren of all deceased females would claim their share in the estate of their grandparents and great grandparents through their mother. It would have to be seen whether the legislation is capable of such an absurd interpretation. 14.The words “on” and “from” show and suggest that on a date prior to the Act coming into force the daughter (female) would not be included as a coparcener. Consequently, all daughters born to coparceners in a Hindu joint family living at the time the Act came into force would become coparcener. Daughters (females) who had expired a day prior thereto, unfortunately, could not, because they would be covered by the law prior to the amendment. If such interpretation is not given the words “on” and “from” “the commencement of the Hindu Succession (Amendment) Act, 2005” would lose their significance all together and would be rendered otiose. 15.This aspect is essentially decipherable from the proviso to Section 6(1) of the Act cited above. This provision has been specifically enacted to lay down a cu­toff date for the daughter of a coparcener to claim her right as a coparcener including her right of partition which is restricted by any disposition or alienation made prior to 20th December 2004. Hence when the Act came into force on 9th September 2004 partition could be claimed by a daughter, if the coparcenery property was not partitioned about nine months prior thereto. This shows that the earlier dispositions and alienations could not be challenged so that whilst the daughter was not a coparcener and certain rights were created they would stand. This is to lend stability to facts and circumstances that may have prevailed in innumerable families having joint family properties prior to the creation of the new right in favour of the daughter. In the case of Champabai W/o. Darshrathsingh Pardeshi & Ors. Vs. Shamabai @ Shamkuwarbai Gajrajsingh Pardeshi & Anr. 2010 (3) ALL MR 262 this Court considered the dwelling house and the agricultural properties of the deceased, one Dashrathsingh. He died in 1998 having married twice and leaving behind two married daughters born to his first wife and two sons born to his second wife. In this case the retrospectivity of the Act was to be considered. It was observed that succession had opened in 1998 when Darshrathsingh died. There was no amendment to the Hindu Succession Act at the relevant time. The division of shares was immediate without the rights being deferred to the married daughters who were married prior to the Maharashtra Amendment to the Hindu Succession Act. The Maharashtra Amendment with regard to the grant of coparcenery rights to daughter made an exception for married daughters. That amendment, of course, would no longer be applicable in view of the Central Amendment Act. The contention with regard to the dwelling house that the deceased would not take the share was accepted. The shares devolved upon the two sons in 1998 by application of Section 6 r.w. Section 8 of the old Hindu Succession Act of 1956.- It may be mentioned that this was main aspect which was required to be considered to see the prima facie case of the Plaintiff. Unless the Plaintiff had shown a legal right in the estate of Sakharam he cannot proceed with the suit and derail various transfers effected earlier. The filing of the suit decades after Sakharam died, mutation entries came to be made and also five years after the amendment itself came into force would even otherwise be barred by the law of limitation. In this case Sadashiv is the only son of Sakharam has been bequeathed the entire property of Sakharam. It would otherwise be a natural Will. It is also a registered Will. Sadashiv has acted upon the Will and shown himself as owner of the suit properties at least since 3rd December 2002 when the mutation entry came to be made to alter the record of rights. He has dealt with that property by assignment since 2004 and under the registered development agreement since March 2005. The initial developers have, in turn, transferred their properties. Hence transfers have come to be effected from Defendant Nos.14 to 15 to 16 etc. 29.The Defendants further claim that Sadashiv initially obtained the power of attorney from the original owners. The development agreement itself was entered into along with the power of attorney. The initial power of attorney was dated 26th March 1965. A later registered power of attorney has been executed on 16th January 1991. The registered development agreement has been executed on 24th December 2004 by Sakharam and Sadashiv. The developers have been put in possession of the suit properties under possession letters executed in December 2004. With regard to the other property bequeathed under the Will also similarly possession receipt has been executed. The developers, therefore, claim that the suit properties under the development did not even belong to Sakharam at the time of his death. Upon such contention the Counsel on behalf of the original Plaintiff claims that the properties claimed to be purchased by Sakharam and Sadashiv were out of the proceeds of other ancestral properties which formed the nucleus. No document in that regard has been produced. None is seen to have been shown in the trial Court. The impugned order makes no reference to such nucleus. 31.Consequently, on facts as well as law the Plaintiff is not seen to have made out any prima facie case for grant of any interim reliefs. No party can stall all development at such a late stage without showing an iota of legal right.

published in http://bombayhighcourt.nic.in/generatenew.php?path=./data/judgements/2011/&fname=CAO591011.pdf&smflag=N
AO.792.2011(JUDGMENT).sxw
mnm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
APPEAL FROM ORDER NO. 265 OF 2011
Sadashiv Sakharam Patil & Ors.  ...Appellants
Vs.
Chandrakant Gopal Desale & Ors. ...Respondents
ALONGWITH
APPEAL FROM ORDER NO. 274 OF 2011
M/s. Roma Builder Pvt. Ltd.  ...Appellant
Vs.
Chandrakant Gopal Desale & Ors.  ...Respondents
ALONGWITH
APPEAL FROM ORDER NO. 518 OF 2011
M/s. Nikhil Construction ...Appellant
Vs.
Chandrakant Gopal Desale & Ors.  ...Respondents
ALONGWITH
APPEAL FROM ORDER NO. 792 OF 2011
M/s.Darshan Enterprises  ...Appellants
Vs.
Chandrakant Gopal Desale & Ors.  ...Respondents
Deepak Chitnis – Chiparikar & Co., for Appellants
Mr. Sandesh Patil for Appellant in AO No.265/2011
Mr. P. Sakseria, Sr. Counsel a/w. Mr. Mayur Khandeparkar
a/w.Mr. Ranjit Shetty a/w. Mr. Lucky Rai Indorkar, Mr. Aniket Nair
i/b. M/s. Hariani & Co., for Respondent No.1 in AO.No.265/2011
AO No.274.2011, AO No.518.2011 & AO No.792/2011
Mr. R.S. Apte, Sr. Advocate a/w. Mr. G. Godre for Appellant in
AO No.274/2011 & Respondent No.14 in AO NO.265/2011
Mr. Deepak Chitnis, Advocate for the Appellant in AO No.180.2011
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for Respondent No.13 in AO No.265/2011.
Ms.   Sharin   Shaikh   i/b.   M/s.   U.M.   Jhaveri   for   Appellant   in   AO   No.
792/2011 & for Respondent
No.12 in AO No.265/2011
Mr. A.A. Kumbhakoni, Advocate for Original Defendant.
Mr. Pradeep Samant & Associates for Respondent Nos.2 to 5
in A.O. No.265/2011.
CORAM : SMT. ROSHAN DALVI, J.
      Reserved on: 22nd August, 2011
        Pronounced on: 6th September, 2011
JUDGMENT:
1. The main challenge is to the order of injunction restraining creation
of  third  party interest in  the  suit  properties  under  the impugned
order   of   the   Second   Joint   Civil   Judge   (S.D.)   Thane   dated   23rd
November 2010.
One Sakharam had three children: 
two daughters,
Narmadabai   and   Muktabai   and   one   son,   Sadashiv.   
The   two
daughters predeceased him. 
His son succeeded him.  
2. Muktabai  died in  1978. 
 Narmadabia,  the  other  daughter  died in 1987 prior to Sakharam who died on 4th  October 1995.   
Sadashiv,claiming  to  be  the  sole  heir  and  successor  of  Sakharam,  got  the Revenue   records   altered   showing   a   mutation   entry   dated   3rd December 2002 reflecting his name.    
3. The son of Muktabai filed the suit claiming the share of Muktabai in the properties of her father Sakharam.
He claims that the properties
of Sakharam are ancestral properties or properties purchased from
the proceeds of the sale of ancestral properties.
Sadashiv, who is the
Defendant   No.1   in   the   suit,   claims   that   the   properties   were
purchased   by   Sakharam   alongwith     Sadashiv   himself   and   are,
therefore, his self acquired properties.
These properties are stated to
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have been bequeathed by him under the registered Will dated 11th
September 1989.
The son of Muktabai claims that the Will is bogus
and   that   Sakharam   had   no   bequeathable   interest,   the   properties
being ancestral properties which he could not have disposed off by
Will.
The other heirs of Muktabai and Narmadabai similarly claim
the properties of their deceased mothers.
4. Upon the case that they are ancestral properties, the heirs  claim that Muktabai was a coparcener under Section 6 of the Hindu Succession Act 1956 as amended by the Hindu Succession (Amendment) Act 39 of   2005.     It   is   claimed   that   Muktabai   being   a   daughter   of   a coparcener viz: Sakharam became a coparcener by her birth in her own right as did Sadashiv. 
5. Sadashiv claims that even if the properties are ancestral properties
Muktabai or Narmadabai were not coparceners and cannot claim any
interest   therein.    
It   is   his   contention   that   only   on   and   from   9th
September  2005  on  which  date  the  Amendment Act  39  of 2005 came   into   force   that   the   daughter   who   was   then   living   would become  a coparcener.   
Muktabai  as well  as Narmadabai died not only prior to the Act having come into force, but even prior to their father.   
The  succession  of Sakharam  opened  on 4th  October 1995
when   he  expired.  
On   and  from  that  date  his  estate  had  to  be
administered.  On and from that date his coparcernary  interest in
the ancestral property would devolve by survivorship.  So far as his
intestate succession is concerned, Sadashiv as also  the children of
Muktabai   and   Narmadabai   would   take   their   shares   from   1995.
Neither of the children claimed her share.  In fact, Sakharam died
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testate leaving behind a registered Will.  Seven years after his death
the mutation entry came to be made.  Sadashiv was shown as the
owner  of  the  suit lands.    None  challenged  the  ownership  or  the
mutation entry within three years of the death of Sakharam and also
within   three   years   of   the   mutation   entry   having   been   made
respectively.
6. Sadashiv   entered   into   an   assignment   for   development   of   his
properties   with   the   other   Defendants   on   24th  December   2004
followed   by   a   registered   development   agreement   on   10th  March
2005.  The development commenced from 30th May 2005.  A public
notice dated 10th  May 2006 was not objected  by  any party.   The
initial claim has been made only in the suit filed in 2010.
7. It may be mentioned that  the aforesaid  facts are all admitted and
extracted from the pleadings.  The seminal aspect to be considered
for seeing the prima facie case of the Plaintiff, the son of Muktabai,
to restrain creation of third party rights in the suit properties taking
them  to  be  the  ancestral  properties  of  Sakharam, is
whether  his
mother  was a coparcener and was entitled to coparcenery rights in
the   suit   properties   even   assuming   that   the   suit   properties   are ancestral properties.
If that aspect is seen, it would next have to be
seen   whether   the   suit   properties   are   shown   to   be   the   ancestral
properties  from  the  record  of  rights  and if not, whether  they are
shown  to be purchased from  the proceeds of any other properties
which   were   the   ancestral   properties   of   Sakharam   which   would
constitute a nucleus.  If that is shown, the Plaintiff would prima facie
make out a case of having a share in any of the suit properties.  This
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is  in   view   of   the   fact   that  the  Defendants   have   shown   that   the
properties  have  been  acquired  by  Sakharam  and  Sadashiv jointly
from the original owners of the lands under registered documents.
8. The   learned   Judge   has   gone   into   various   record   of   rights,
proceedings under the ULC Act, certain sanctioned layout map and
mutation   entries   and   execution   of   various   documents   by   and
between Sakharam and/or Sadashiv and  the Defendants.   He has
also considered that there was no partition in the joint family, the
succession  of Sadashiv by Will which has  been challenged  by  the
Plaintiff as also the marriages of two daughters of Sakharam.
9. It may be mentioned that all these aspects would be of secondary
importance, if a primary right as a coparcenery of the two daughters
is not established. 
10.The Legislative provision upon which the Plaintiff claims his share
through his mother is Section 6 of the amended Hindu Succession
Act which runs thus:
“6. Devolution of interest in coparcenery 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 coparcenery property as she
would have had if she had been a son; 
(c)  be  subject  to  the  same liabilities in  respect  of  the  said
coparcenery property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be
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deemed to include a reference to a daughter of a coparcener:
Provided  that nothing contained in  this  sub­section  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.”  
11.The judgments interpreting  the relevant aspects of Section 6 have
been   shown   to   me   essentially   by   the   Counsel   on   behalf   of   the
original Plaintiff. 
12.In the case of Sugalabai Vs. Gundappa A. Maradi & Ors. ILR 2007
KAR 4790
the first three words of the aforesaid section came to be
considered and interpreted in paragraph 24.  It has been observed
that the words 
“on and from” mean “immediately and after” – the
commencement of the Act.
It is observed that in other words as soon
as the amending Act came into force the daughter of the coparcener
becomes, by birth, a coparcener in her own right in the same manner
as the son.   
In that case the change in law came into effect during
the  pendency  of  the Appeals.    It was  held  that  the  changed law
applied   to   pending   Appeals   and   consequently,   the   said   Appeal.
Hence the daughter in that case was held to be the coparcener.
 It
was observed that there was nothing in the Act which showed that
only those born  on and after the commencement of the Act would
become coparceners.  
Hence it was held that even a daughter who
was   born   prior   to   the   amendment   Act   became   a   coparcener
immediately on and after the Amendment Act. 
13.This is the case where the daughters had already expired prior to the coming into force of the amendment Act and prior to any litigation,
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her son having filed the suit himself.
There is nothing in the Section
which   shows   that   it   would   apply   to   all   females   retrospectively including   a   daughter   who   had   expired   prior   to   the   coparcener himself, prior to any litigation and prior to the amendment Act itself.
If  such  a daughter was  also  to  be included  the entire population
would come to be included and the children and grandchildren of all
deceased   females   would   claim   their   share   in   the   estate   of   their
grandparents and great grandparents through their mother.  It would
have to be seen whether the legislation is capable of such an absurd
interpretation.
14.The words “on” and “from” show and suggest that on a date prior to the   Act   coming   into   force   the   daughter   (female)   would   not   be included   as   a   coparcener.     Consequently,   all   daughters   born   to coparceners in a Hindu joint family living at the time the Act came into force would become coparcener.  Daughters (females) who had expired a day prior thereto, unfortunately, could not, because they would  be  covered  by  the law  prior  to  the  amendment.    If  such interpretation   is   not   given   the   words   “on”   and   “from”   “the
commencement of  the Hindu Succession (Amendment) Act, 2005” would lose  their  significance  all  together  and would  be  rendered otiose.
15.This aspect is essentially decipherable  from  the proviso  to Section 6(1)  of  the Act cited  above.   This provision has been  specifically enacted to lay down a cu­toff date for the daughter of a coparcener to claim her right as a coparcener including her right of partition which is restricted by any disposition or alienation made prior to 20th
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December   2004.     Hence   when   the   Act   came   into   force   on   9th September  2004  partition  could  be  claimed  by  a  daughter, if  the coparcenery property was not partitioned about nine months prior thereto.     This  shows  that  the earlier dispositions and alienations could   not   be   challenged   so   that   whilst   the   daughter   was   not   a coparcener and certain rights were created they would stand.  This is to lend stability to facts and circumstances that may have prevailed in innumerable families having joint  family properties prior to  the creation  of  the new  right in  favour  of  the daughter.  
Counsel  on
behalf of the original Plaintiff sought to show that the proviso has
been held to be ultra vires the constitution by the Karnataka High
Court which judgment shall be considered presently.
16.It has been held in the case of Pravat Chandra Pattnaik & Ors. Vs.
Sarat Chandra Pattnaik & Anr. AIR 2008 Orissa 133    that  the
aforesaid   Section   was   enacted   for   removing   the   gender
discrimination that prevailed leading to oppression and negation of
the  fundamental  right  of equality  to women  and  to  render  social
justice by giving them equal status in the Society. The Act came into
force  from 9th  September 2005 and  the statutory provisions under
Section 6 of Hindu Succession Act, 1956 thereof created a new right.
The   provisions   are   not   expressly   made   retrospective   by   the
legislature. The Act is clear and there is no ambiguity.   Therefore,
words  cannot  be interpolated.   They do  not  bear more  than  one
meaning.  The Act is therefore, prospective.  It creates a substantive
right in  favour  of  the daughter.   The daughter  gets  a  rights  of  a
coparcener  from the date when the amended Act came into force.
Consequently, the contention that only the daughters who were born
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after 2005 would be  treated as coparceners was not accepted.    It
specifically clarifies that  the daughter gets a right as a coparcener
from  the year 2005 whenever she may have been born.   She can
claim a partition of the property which was not partitioned earlier.
However,   the   judgment   specifies   a   rider.   That   is   in   view   of   the
proviso to Section 6(1) of the Act.
“But   if   the   same   was   effected   earlier   i.e.,   prior   to   20th
December, 2004 the same should not be reopened.”
17.Hence   the   prospectivity   of   the   Act   is   clear.     There   can   be   no
retrospective operation for the reason that it is not expressly made
retrospective   by   the   legislature   and   it   is   specified   not   to   effect
transactions prior to the specified date in the proviso.
18.It would, therefore, have to be seen when in this case the daughters of Sakharam would become  coperceners.  Both the daughters had died prior to Sakharam and definitely prior to the Act coming into force.  
Consequently, on and from 9th September 2005 they were not living to be coparceners in their own right in the same manner as
Sadashiv had.   Had  they been living on 9th  September 2005  they
would have had the same right in their father’s property as his son.
It   is,   therefore,   that   it   is   rightly   contended   on   behalf   of   the Defendants in  the  suit  that  Sakharam’s  succession  opened  on  4th October   1995   on   that   date   his   daughters   Muktabai   and/or Narmadabai were not coparceners.  His coparcenery property would devolve by survivorship to his only son Sadashiv.  The devolution of interest   in   the   coparcenery   property   as   specified   in   the   sub­ title/heading of Section 6 would  take place only  to  the son.   The
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words in the sub­title “devolution of interest” also therefore, show
that for an interest to devolve upon a person that person must be
alive.   No devolution of interest in coparcenery property can  take
place  upon  a  deceased  coparcener.    On  the  date  of  the  death  of Sakharam his daughters were not even coparceners; they were not even alive.  No devolution of interest upon them could take place.
19.In the case of Sheela Devi & Ors. Vs. Lal Chand & Anr. (2006) 8
SCC 581 the  Court considered the estate of one Babu Ram who died
in the year 1989.  He was one of the 5 sons of Tulsi Ram and one of
the members of the coparcenery property.  He left behind two sons
and  three daughters.   Babu Ram had inherited 1/5th  share of  the
property of his father and 1/20th share through another brother who
had died intestate without issues.  The succession between the two
brothers and their descendants was in issue.
The applicability of the
Section   6   of   the   Hindu   Succession   Act   of   1956   was   under consideration.    Though   that  is  a  different  matter,   observation  in paragraph 21 of the judgment relates to the new Act of 2005. It was inter  alia  observed  that  the  succession   was  opened in   1989  and
hence  the provisions  of  the amendment Act 2005 would have no
application.  
Thereupon Section 6(1) of the old Act of 1956 which
related to succession on the death of a coparcener in the event the
heirs were only male descendants came to be considered. 
We are not concerned with the interpretation of the old Section 6
which was  the issue in  the case of  Sheela Devi (supra). We are
concerned   with   only   the   aspect   of   the   applicability   of   the
amendment Act on  the date  the  succession opened.   Since it was
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held that the new Act would not apply when succession opened prior to the date on which it came into force – in that case in 1989 – the Court considered Section 6 of the earlier Act. 
20.My attention has been drawn by Counsel on behalf of the original
Plaintiff to the judgment in the case of  G. Sekar Vs. Geetha & Ors.
(2009) 6 SCC 99 
 to show that this aspect has been negated in the
later judgment of the Supreme Court.
Paragraph 49 of the judgment
extracts the case of Sheela Devi and the entire paragraph 21 thereof.
It is observed that in the case of Sheela Devi the amendment Act had
no application as the succession has opened prior to 1989 and hence
that contention came to be negatived to consider and interpret the
vesting  of  the  right  of  the  coparcener  under  the  old  Act.    It is,
therefore,   entirely   erroneous   to   contend   upon   reading   the   word
“negatived” that the contention that upon the succession opening in
1989   the   amendment   would   have   no   application   was   negatived
without  reading  the entire  paragraph  49  as  a whole.    It may  be
clarified  that in  the case of  Sheela Devi  upon  the applicability of
Section   6   of   the   old   Act,   the   contention   with   regard   to   the
applicability of the new Act was negatived and the old Section was
considered.  Consequently, the fact that succession did open in 1989
when  Babu Ram died which did not make the new Act applicable
was   accepted.     We   would   do   well   to   read   the   two   judgments
together.
21.In the case of Champabai W/o. Darshrathsingh Pardeshi & Ors.
Vs.   Shamabai   @   Shamkuwarbai   Gajrajsingh   Pardeshi   &   Anr.
2010 (3) ALL MR 262   this Court considered the dwelling house
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and the agricultural properties of the deceased, one Dashrathsingh.
He   died   in   1998   having   married   twice   and   leaving   behind   two
married daughters born  to his  first wife and  two sons born  to his
second wife.  In this case the retrospectivity   of the Act was to be
considered.  It  was  observed  that  succession  had  opened in  1998
when Darshrathsingh died.  
There was no amendment to the Hindu Succession Act  at  the  relevant  time.    
The  division  of  shares was immediate   without   the   rights   being   deferred   to   the   married daughters who were married prior to the Maharashtra Amendment to  the Hindu Succession Act.   The Maharashtra Amendment with regard   to   the   grant   of   coparcenery   rights   to   daughter   made   an exception for married daughters.  That amendment, of course, would no longer be applicable in view of the Central Amendment Act.  
The contention with  regard  to  the    dwelling  house  that  the  deceased would not take the share was accepted.  
The shares devolved upon
the two sons in 1998 by application of Section 6 r.w. Section 8 of the old Hindu Succession Act of 1956.
22.The judgment in the case of Champabai relates to the earlier State
amendment.     The   Central   amendment   is   not   in   terms   thereof
entirely.     Hence   the   bifurcation   of   retrospectivity   amongst   the
property which is a dwelling house and the agricultural properties
cannot be read into it after the Central Amendment Act of 2005 was
enacted.  Consequently, the reliance upon the earlier case of Lata @
Bhagyashree   Arunkumar   Sangole   Vs.   Madhukar   Rajaram
Ganjare, 2008(5) All MR 302 of the same learned Judge applying
retrospectivity to the agricultural properties and not dwelling house
cannot be considered as applicable law after the amendment Act of
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2005.
23.In fact the observation in paragraph 8 of the judgment in the case of
Miss. R. Kantha, d/o Doddarmaiah Reddy Vs. Union of India &
Anr. AIR 2010 Karnataka 27  to which also my attention has been
drawn   by   Counsel   on   behalf   of   the   original   Plaintiff   would   be
material.  It runs thus:
“It   follows,   therefore,   that   the   provisions   of   the   Act   can   be
enforced when the right to succession opens and not before.  The
petitioner’s  father  is  said  to  be  alive  and  hence   her   right  to
succession as a co­parcener has not opened.”
24.In   that   case   the   Plaintiff/Petitioner   applied   for   partition   of   the
coparcenery property whilst her father was alive under Section 6 of
the new Act of 2005 upon the premise that she, as a coparcener, was
entitled   to   all   the   rights   of   coparcener   including   partition.     Her
father was alive at that time.  It was held that Section 6 of the new
Act   of   2005   was   the   law   relating   to   intestate   succession   which
regulates  the succession of properties of all Hindus by its heading
itself  which  speaks  of  “devolution”  of interest.    It  was  held  that
“Devolve” means  to pass  from  a person dying  to  a person living.
Hence,  the right of a daughter  to be  treated like a son should be
construed only with regard to the share that “devolves” on her when
her right to succession opens having regard to the scope and ambit
of the Act itself.
Hence   the   judgment   in   the   case   of  Ms.   R.   Kanta  shows   the
restrictive   operation   of   Section   6   as   applying   to   devolution   of
interest upon the death of coparcener only.
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25.This judgment has however been relied upon by Counsel on behalf
of the original Plaintiff to show that the proviso to Section 6(1) has
been declared ultra vires.  That has been declared by a single Judge
of  the Karnataka High Court.   The same proviso and its logic has
been   considered   by   a   single   Judge   of   this   Court   in   the   case   of
Champabai (supra) in paragraph 11 thereof.  The proviso sets the
cut­off date beyond which claims cannot be made. It, therefore, sets
out a specific classification based upon an intelligible criteria so as
not to undo all that has been done in the distant past. We cannot
read into that proviso anything which would render it discriminatory
or arbitratory.   The  reasoning of  the proviso as mentioned herein
above, therefore, must stand.
26.It may be mentioned that this was main aspect which was required
to be considered to see the prima facie case of the Plaintiff.  Unless
the Plaintiff had shown a legal right in the estate of Sakharam he
cannot proceed with  the  suit and derail various  transfers effected
earlier.  The filing of the suit decades after Sakharam died, mutation
entries came to be made and also five years after the amendment
itself came into force would even otherwise be barred by the law of
limitation. 
27.It is no good for a Court to consider the prima facie case upon seeing
irrelevant   aspects   or   aspects   of   secondary   importance.   The
observations of the learned Judge in the impugned order that all this
will  be  seen in  trial is  avoiding  the issue  of consideration  of  the
prima face case. The seminal case of the Plaintiff setting out his legal
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rights must be first seen. If that is not shown, no prima facie case can
be said to have been made out. 
28.In   this   case   Sadashiv   is   the   only   son   of   Sakharam   has   been bequeathed  the entire property of Sakharam.  It would otherwise be a natural Will.  It is also a registered Will.  Sadashiv has acted upon the Will and shown himself as owner of the suit properties at least since 3rd December 2002 when the mutation entry came to be made to alter  the  record of  rights.   He has dealt with  that property by assignment   since   2004   and   under   the   registered   development agreement since March 2005.  The initial developers have, in turn, transferred   their   properties.   Hence   transfers   have   come   to   be effected from Defendant Nos.14 to 15 to 16 etc. 
29.The Defendants  further claim  that  Sadashiv initially  obtained  the power   of   attorney   from   the   original   owners.     The   development agreement itself was entered into along with the power of attorney.
The initial power of attorney was dated 26th  March 1965. A later
registered  power  of  attorney  has  been   executed  on   16th  January 1991.  The registered development agreement has been executed on 24th  December   2004   by   Sakharam   and   Sadashiv.   The   developers have been put in possession of the suit properties under possession letters   executed   in   December   2004. With   regard   to   the   other
property bequeathed under the Will also similarly possession receipt
has been executed.   The developers,  therefore, claim  that  the suit
properties under the development did not even belong to Sakharam
at the time of his death.
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30.Upon such contention the Counsel on behalf of the original Plaintiff claims that the properties claimed to be purchased by Sakharam and Sadashiv   were   out   of   the   proceeds   of   other   ancestral   properties which  formed  the nucleus. No document in  that  regard has been produced.  None is seen to have been shown in the trial Court.   The impugned order makes no reference to such nucleus.  
31.Consequently, on facts as well as law the Plaintiff is not seen to have made out any prima facie case for grant of any interim reliefs.  No party can stall all development at such a late stage without showing an iota of legal right. 
32.Consequently  the impugned order deserves  to be and is set aside.
This order is stayed for 3 weeks.
(SMT. ROSHAN DALVI, J.)
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