Title: Channabasappa v Smt Parvatevva alias Kasturevva
Citation: W.P No. 105363 of 2023
Dated on: 18.12.2023
Corum: Justice Sachine Shankar Magadum
Facts of the case
In this present case the petitioner Mr. Channabasavappa has filed a petition arguing the nature of section 6 of the Hindu Succession Act and whether it is prospective or retrospective in nature. And claims that the provisions of the act are not made retrospectively by the legislature.
In the current case Ms Nagavva and Ms Sangavva are legal heirs (Daughters) of Ms Rudrappa Hosamani who demised before the 2005 Amendment of the Hindu Succession Act. Hence her legal Heirs are present before court seeking their rights in equal share of their mother’s wealth.
Now the High Court of Karnataka looks into the wider interpretation of the amendment made in 2005 though the Vinnetha Sharma case. In the Apex case of Vineetha Sharma v Rakesh Sharma, the apex court ruled that a daughter possess the right to claim for her own share in the joint Hindu family property even if the partition of the family took place before 9th September 2005.
Petitioner further claims that the rights under the amendment Act are only applicable to the living daughters of the living coparcener as on 9.9.2005 irrespective of when such daughters are born.
But as per the law laid down by the Apex Court in the case of Vineeta Sharma what emerges is that in view of amendment to Section 6 of the Act, daughter would step into the coparcenary as that of a son by taking birth before or after the Act. As the right is by birth and not of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Therefore, what emerges from the above said principle is that Hindu Succession (Amendment) Act, 2005, has virtually damaged the concept of Mitakshara coparcenary because daughter is treated like a son and she is entitled for a share on par in a coparcenary by birth.
Legal Provision
The application filed by the petitioner in final decree proceedings under Section 152 of CPC is clearly hit by the bar under Section 97 of CPC.
Section 97 of CPC clearly provides that where any party is aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in final decree proceedings. Modification of preliminary decree is permissible only on the ground of changed or supervening circumstances or change in law.
Even on this count, the application filed under Section 152 of CPC seeking modification is not at all maintainable. Petitioner having failed to question the preliminary decree cannot seek amendment by having recourse to Section 152 of CPC.
Court Analysis and judgement
The Court sought to address these conflicting views and provide a clear and consistent legal interpretation to ensure uniformity in matters of inheritance for daughters and referred to the judgement of the Vinneth Sharma case and upheld that the daughter must be treated as the coparcener right from birth and can be inferred that even in case when the daughter is not alive during the amendment to the Hindu Succession act, her legal heirs can not be deprived of the benefit of the 2005 Act. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with birth rights is alive or not. Therefore, even if a daughter passed away before the 2005 amendment to the Hindu Succession Act, her legal heirs cannot be denied the benefits of the amendment and the court in the present case dismissed the petition.
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Written by- Namitha Ramesh
