 for the first time, they can always watch our first part on trial of partition suits, the procedural law by Mr. Esar Somashekhar, retired principal district judge from Bangalore rural district. And those who have been connected with us, they know that the way he gives his insights is always a pleasure to be learned about and I was sharing with him in one of the groups lot of people are speaking of high volumes about the way he puts across his knowledge and without even going for that fact, at least we have all heard him and we all know the way he takes things forward. Before I request him, I would again request that kindly maintain the social distancing keep on wearing your mask and only go out of the house if it is extremely essential and help anyone who is in the need because as they say, especially during the testing times, you should try to help everyone. What we studied in the model science was only this, that you have to pay back to the society. If we go by shaft class, it also speaks of that. So it's always the right time to help to the society, but in testing times, we should not let people test, but you should help them to the way you can. Right, over to you sir, you could take things forward. Hi, good evening Mr. Vikas Chetrat and good evening friends. Before I start, I should apologize you for a small mistake that I committed on the last occasion. I told the audience that when the defendant seats his share in the written statement, he has to pay quote fee under section 8 of the Karnataka quote fees and suits valuation net. I stand corrected. Section 8 of the Karnataka quote fees and suits valuation net provides for quote fee if set off or counter claim is cleared. It is section 35 of section 3 of the Karnataka quote fees and suits valuation net which provides for living of quote fee of the defendant seats his share and only 50% of the fee payable by the plaintiff has to be paid by the defendant, that is number one. Number two, I myself heard the presentation I made on YouTube. Of course, I don't know whether many have noticed it. I said in respect of a property that should have been the proper sale. I have said sale deed in favor of a property sale deed in favor of a person sale deed in respect of a property. Those who are very particular about language and grammar will please would have a read please correct me by some mistake. I go that way. The next thing is two questions have been forwarded to me and one of course I will answer the other one Mr. Prajit Kumar asked on the other day. I have understood the question in a particular way and I will answer it. The question that is forwarded to me the gist of this is this. There are different release leads by a few co-partners. Before one thing I want to tell, I will answer both the questions. If there are further queries they may put it at the end because my flow will be detracted and the attention of other audience also will get distracted. If you are not satisfied with the answer, let there be further queries at the end. Last I forget I am just giving the answers right now. One of the questions is there are different release leads by a few co-partners. The leads are all 30 year old. Release lead is obtained for a consideration of Rs. 30,000 whereas the purchase value of the property is Rs. 20,000. Suit for partition is filed till that nobody has challenged the release leads. The defense is that the release leads are nominal and not acted upon. Based on these facts, two questions are raised. When is a registered lead nominal? Second, when can a deed be said to be not acted upon when the deeds are registered? Now the question is whether it is a when a registered lead can be said to be nominal. To say that a deed is nominal, whether the document is registered or not registered is of no consequence. But while appreciating evidence by the court, maybe registration is a factor if the court will take into consideration because knowing fully well the contents of the document, a particular person has executed and also presented it for registration. That's a different aspect of the matter. Now when is a registered lead nominal? Whether it is a release lead or a sale deed or whatever it is. It might so happen that I want to loan from a particular person. He is not satisfied with a promissory note or a check. He is not even satisfied with a mortgage deed. He wants me to execute a sale deed in respect of a property. The clear understanding between me and that person is that it should be triggered as a security for the loan and wants. It is in that sense he may plead that document to be a nominal one. Of course, it requires a higher degree of proof to establish that a transaction is really nominal because the provisions of section 92 of the evidence that also would come in our way and there are exceptions to section 92 that would require a different session in that way. Anyway, there is no difficulty in taking such a plea. How do you establish it? The fact that subsequent to the execution of the document, Kata is not changed to the name of the purchaser. Well, tax is not paid, possession is not delivered and the purchaser has allowed the so-called vendor to deal with the property as his own. Maybe the vendor has himself let out the property. He is collecting grants. All these things would give an indication that the deed is nominal. Many times to see that the execution of a decree is avoided. A sale deed is executed maybe by the father in favor of his brother son like this. And registration, as I said, it doesn't much matter. Then there is some reference to 30-year-old in the facts. Whether it is 30-year-old or 20-year-old, the fact that for a very long time, the document is not challenged. Maybe there was no occasion for him to challenge. Maybe of some consequence, I don't know why this 30-year-old is mentioned, that has nothing to do with section 90 of the evidence that this is one thing. Pradeep Kumar's question, if I have understood correctly and it has been put to me, yet said five children, sons and daughters, how many sons he had, how many daughters he had is not known. One son died unmarried, issue less. One daughter is also dead. Whether her children, the daughter of the, the children of the deceased daughter, can ask for a share. And obviously we should presume that there was no partition. Certainly a suit for partition would lie. Now, who are the plaintiffs in the suit already filed or in the contemplated suit would be the children of the deceased daughter. I have put in the genealogy like this. X is the propositor who owns the property. I have presumed that it is his own property because the facts are not very clear. X, I presume that it was his own property. He had, he left behind five children, A, B, C, D, E. From the facts, I am sure that one of them is a daughter and yet another person is a son. I do not know how many others are his sons and daughters. Anyway, that may not be of much consequence. Now, let us see this. I also take it that this X died after 17, 6, 1956. The date on which the Hindu succession act came into force. All is why I presume that his wife is dead. His mother is also dead. Then A, B, C, D, E would be class one years. Each of them would be entitled to one fifth share. Now, this A is dead. Now, let us see the consequence. A, I take it as that female. And whether her children can file a suit for partition is the question. Please go to section 15 of the Hindu succession act. The property of a female Hindu dying interstate shall devolve at or into the rule set out in section 16. Property of a female Hindu. This is the general rule. But there is an exception to it thought out in subsection two. Not extending anything contained in subsection one. Any property inherited by a female Hindu from her father or mother shall devolve in the absence of any son or daughter of the deceased. Not upon the years referred to in subsection one, in the order specified therein, but upon the years of the father. In this case, since X has left behind her children in my opinion, well, section under section 15 to her children can very well maintain a suit for partition. These are the two questions. There is yet another question and I'll have to see it. And I have told with us that I would examine and get back to you. Then the third thing I found on the YouTube. The presentation made during the last year when we had a similar pandemic by an advocate from Chennai by name Shreemati Chitra Sampath. Her full name appears to be Chitra Shreemath Sampath. Normally after lunch, when I am in the house, I would have a nap. But today somehow I did not feel like sleeping. And I heard that entire presentation made by her on YouTube for nearly one hour. It was an education to me also. Now, I have spoken about this trial of partition source for one of two hours of the last occasion. Today it depends upon the time because gives for final degree proceedings I have asked him to do. What I have covered in this one and a half hours or what I would be proposing to cover has been beautifully covered by her in about one hour 15 minutes. Almost every aspect has been covered. And I request the audience to hear her presentation which is available in the YouTube. In fact, I collected her cell number from Mishvita's Chitra. I also spoke to her, told her that I also got educated after hearing to her. There are one or two things and I and she share a common way about it. With regard to the prayer for meal profits in a partition suit. Well, there cannot be a prayer for meal profits in a partition suit. It can only be a prayer for accounts. Then she has also said that there is no need to register a final degree. There is no need for registration of a compromised degree. Judicial officers who have heard me in the judicial academy know that I have been telling this frequently and I am personally glad that I have understood the legal position because Thaming as it does from a very senior and competent member of the bar of the Tamil Nadu, I find that understood the legal position correctly. Then she also said that there is no limitation for filing initiating final degree proceedings in a partition suit. And last occasion I drew your attention to a decision of the Supreme Court in a year 1980 Supreme Court 691 Neelavati versus Natarajan. Though I said it in the context of a co-owner cannot be said to be in unlawful position, every co-owner is deemed to be in joint possession. That is actually a decision rendered with reference to section 37-2 of the Tamil Nadu Court fees and suits valuation which is in parry materia with our act. And she also said that co-owners are deemed to be in joint possession. She has a for she referred to an earlier decision in a year 1958 Supreme Court 545. Various other aspects have been beautifully explained by her and I request all the participants to hear that at their leisure that this would be a revealing thing. Now as I told on the last occasion at least in the state of Karnataka for most of the suits are partitioned, the parties would be Hindus. In the remaining the suits either the parties are Muslims or Christians. I had also told you that my own knowledge of these two personal laws related to Muslims, Christians or Parsis is very limited and I do not want to venture into a field with which I am not myself very familiar. But yet I told you that I would be drawing your attention to the relevant provisions of the Indian Succession Act and the chapter in Mullah's Muhammadal Law as so that as and when an occasion arises you can do it. I am not citing any decision. I am only telling you where you find the law. I only tell you where the law is. I am not telling you what the law is. To tell you what the law is it requires further preparation on my part and it requires a good lot of time. I am only telling where the law is. You find what the law is. To go there you will know what the law is. I am only showing you the place what is available there. I will tell you where the shop is whether what you want is available there it is for you to what all is available you go there. Please go to part now as many of you may be knowing the Indian Succession Act deals with testamentary succession regarding wills and it also deals with interstate succession. There are other provisions like probate letters of administration then succession certificate and other things. Now with regard to interstate succession the provisions are contained in part five of this Indian Succession Act. The principle of a law college where I studied law was teaching Indian Succession Act. He said that the term Indian Succession Act itself is a misnomer because it doesn't apply to many Indians. Now part five chapter one section 29. This part shall not apply to any interstacy occurring before the first day of January 1986 1866 or to the property of any Hindu Mohammedan Buddhist shift or Jai. So Indian Succession Act does not apply to interstate succession to the property of Hindus, Mohammedans, Buddhists, Sikhs or Jai. Then go to section 31 it is available in chapter 2 section 31. Nothing in this chapter shall apply to Parsis. So the entire part five does not apply to Hindus, Mohammedans, Buddhists, Sikhs or Jai. Chapter 2 does not apply to Parsis. Then what applies to Parsis? Sections 50 to 56 please make a note of it. Sections 50 to 56 applies to parties. The act doesn't apply to Hindus, Mohammedans, Buddhists, Sikhs or Jai. Then section 50 to 56 applies to Parsis. Therefore by implication chapter 2 of part 1 applies to Christians. There also there is some doubt with regard to section 33 capital A sub section 5. It requires some investigation and interpretation. I neither had time nor the resource to do it. When you have an invitation comes you go through it. Sections 32 to 49 of chapter 2 also applies to Christians. So I repeat section then 29 doesn't say does not apply to Hindus, Mohammedans, Buddhists, Sikhs or Jai. Then chapter 3 sections 50 to 56 applies to Parsis. By implication chapter 2 of part 1 applies to Christians. The relevant provisions are sections 32 to 49. There is nothing like birthright no concept of joint family and all that. Please remember that when an occasion comes you can go through it. One thing is all of us know that if a person does not leave behind a will he is said to have dead interstate. We have understood it. In fact the Indian session act specifically says there is a provision section 30 30. A person is removed to die interstate in respect of all property of which he has not made a testamentary disposition which is capable of taking that. Then as far as Mohammedans are concerned there may be several other authors. I am a little comfortable with Mulla's principles of Mohammedan law. I have it me a later edition also but since I have marked some portions in the earlier edition 18th edition I don't think that in the subsequent editions there is any change. One thing as far as Mulla's books are concerned the same chapter number synopsis number section number is maintained in the subsequent editions also may be some recent decisions would be added. Now one chapter you need to know you need to read chapter 3 in Mulla's principles of Mohammedan law. The title of the book is Mulla's principles of Mohammedan law chapter 3. The title of that book is the title of the chapter is Mohammedan sects and subsets Sunnis and Shias. There it is said the Sunni Mohammedans of India belong principally to the Hanafi school. The great majority of the Mohammedans of this country being Sunnis the presumption will be that the parties in a suit are proceeding or Sunnis unless it is sure that the parties belong to the Shias sect. So therefore we will have to start with a presumption. Judicial officers have to start with a presumption that the parties before them are Sunnis. Lawyers will have to presume that they claim to come to them are Sunnis and it is for them to specifically say whether they are Shias or not. Then go to chapter 6 in Mulla's Mohammedan law. It deals with inheritance. Chapter 6 in Mulla's Mohammedan law deals with inheritance. There are two basic principles are important. There is no distinction between ancestral and self-acquired property as in the case of Hindus. Birthright is not recognized only after the death of the owner. His years would get a share. Then in chapter 7 we have the Hanafi law of inheritance which is applicable to Sunnis. Now under the Hindu succession act we say class 1 years, class 2 years, agnates, agnates, under the conventional Hindu laws of Indus, Ammonas, Bandhus and other things. Similarly under the classic Mohammedan law we have three classes of years, sharers, recitiaries and distant kindred. Who are the sharers? A big list is given. Then after everything is given to the sharers. If anything still remains, if a recitiary remains that goes to the recitiary and if recitiaries and sharers are not there it goes to the distant kindred. Distant kindred obviously means they are related to the disease distinctly. This is the concept. What is the sharers and recitiaries? You see let us take an example from the Hindu succession act. Yatsda is living behind this class 1 years. As per section 10 of the Hindu succession act, all those class 1 years succeed simultaneously and generally they get an equal share. But here under the Mohammedan law they don't get an equal share. They get different shares. Supposing after giving the legitimate share to the sharer something still remains then you can't find some other sharer that has to go to the recitiary. This is all what it means. I will be usually giving this example. See when we sit for dinner in the house, well the mother shares the food amongst all her children and herself. With all that something remains then she will say it will go to the servent mate. The recitiary will go to the servent mate yesterday. I am not degrading the recitiaries to the level of servent mates. Neither I degraded the servent mates also I have all respects for them. I am only telling you to understand the concept. We eat something, we take something and that is full for us. Still there is something remaining that cannot be given to the sharers that is to the recitiary. I think this should be sufficient beyond that as I said neither the time permits nor I am resourceful enough to speak about it. Now coming to the Hindu law, substantive law. As you know it is classic law and also or the classic Shastraic Hindu law and then the Statute As I told you on the last occasion one of my good friends had phoned me day before yesterday morning and asked me to tell the audience which I did on the last occasion also. Appearing for the plaintiff he must specifically plead in the plaint how the property is joint family property. There is a distinction between ancestral property and joint family property. Ancestral property is only one species of joint family property. That is father, the son, father, grandfather, great grandfather, four generation it is so. So I get a property from my forefathers that is ancestral property. Supposing the ancestral property is sufficient enough to acquire other properties, properties acquired from out of the ancestral properties already available, they are also treated to be joint family properties. But the properties so available as they are called as nucleus they should be sufficient enough yielding enough to acquire other properties. I gave that example. There is only one ether of dry land. If the income from that one ether of dry land certainly would not be sufficient to purchase a big building in a district headquarters or a city. So availability of a nucleus, availability of a property to the joint family, availability of an ancestral property itself is not sufficient to say that all other acquisitions or other acquisition is or are joint family properties. This is another thing. Then every joint family member can also have a separate acquisitions. There is no problem. But if he has made that acquisition from out of joint family funds, then that will also be treated as joint family property. Then it may be his own acquisition, but ultimately he throws it to the joint family hotspot. Thereby, that self separate property or self acquisition gets the character of a joint family property. I and my brothers we have divided the properties. Well, I purchased some property from my own funds. My brother purchases some property from his own funds. We decide, all right, though we have purchased it from out of our own funds, we shall treat it as joint family property. It is called throwing the property to the joint family hotspot. Well, I have seen in many cases, a plea is taken that some property is purchased by a woman or the salee is in her name and therefore it is said it is also a joint family property. There is no question of a woman, though I remember the joint family, of course, subject to this amendment to Hindu succession and when she becomes co-poster all that is a different thing. There is no question of a woman blending a separate property or throwing the property into the joint family hotspot. I usually tell, she blends herself with the matrimonial home with the joint family, use up all her individual rights and becomes a member of that family, but there is no question of her separate property being thrown to the joint family hotspot. If time is available, I may refer to a decision of the supreme court because I'll have to take those three files separately. First, let us know the concepts. There is nothing like a woman throwing her property to the joint family property to joint family hotspot. It is only a male member who can do it. This is another concept. So then attrition to the joint family property. There are some attrition made, something more is acquired and that is also stated as joint family property and if you read sections 216 to 217, I mean 216 and 217, 216 and 217, in chapter 12 of Ulla Siddhula, you will get a clear concept of this joint family and co-parsonary. Then with the result of this classification of property, which is ancestral, which is separate property, you have in sections 220, 223, 227, 228, 230 and 231. I repeat 220, 223, 227, 228, 230 and 231 and you should be very clear property acquired from volatiles like uncles, other things. They do not become joint family properties and the question of property acquired from the maternal side that also would not be treated as joint family property. Then this is the basic thing which you should know. Then we have this concept of alienation there. Who can all alienate? Go to sections 255, 263 in Ulla Siddhula. The first category is all the adult co-parsoners where they are all adults, all adult co-parsoners can alienate the entire joint family property. There is no question of legal necessity, benefit of estate and all that because all of them are owners, they can do it. The manager for legal necessity and benefit of estate, everybody is familiar with it. It is covered by section 242 in Mulla Siddhula. When I say section, don't mistake me as if it is a statute. I have seen in some judgments, passages from Mulla refer to as sections. In some judgments as paras, in most of the judgments, I find it as sections so and so in Mulla Siddhula, Mulla Mahandana, merely because in the judgments they are referred to as sections or the author himself has referred to as section, it doesn't mean that it is a statutory provision. Then, father has some special powers of alienation to discharge antithesis and deaths and all that, that is covered by sections 225, 226 and 296. Then a sole surviving co-parsner, a sole surviving co-parsner is a person who absolutely becomes the absolute owner of it, therefore he can sell it. Now, when an alienation is made by the manager, purporting to be for joint family benefit and the legal necessity, the burden is on the purchaser that is the alien to establish that there was that legal necessity. Therefore, if the plaintiff files a suit for partition and somewhere pleads the first defendant being a manager without there being any legal necessity or without there being any benefit for the estate has sold the joint family property or a portion of it to the second defendant and therefore the sale is bad and all that, there is no question of the plaintiff taking burden on the trial. It is for the alien who is shown as one of the defendants who established that there was legal necessity. It is not even for the alien are to show that there was that legal necessity. Sometimes the alien are supports the alien and says that there was that legal necessity and experience has shown that the alien are either remains expected or supports the plaintiffs or the in effect he himself is the plaintiff, the plaintiffs are only enamel enters. So, the burden is on the alien based on the principle of K-way attempt, he should make enquiries about it. Having said that I must also tell those appearing for the alien is yet another principle. The burden of your client who is the alien is only to establish that there is a legal necessity for sale what is that legal necessity benefit of estate there are good number of decisions you will get it. It is for your client to establish it. When once he places sufficient evidence to say that he made all enquiries before purchasing the property that there is a pressing demand that there is a pressing need for the manager to alienate the property that is sufficient. He need not further establish that every pipe of the sale proceeds which he parted with the alien are was used for distorting this debt or for that legal necessity. I mean the manager want to renovate a house or purchase a costly house or purchase some wet lines. Therefore, I sell a property belonging to a joint family. The purchaser made all enquiries he satisfied that I have the family has that pressing need and purchases it. I pay him some 5 lakhs. He has no further burden to say that every pipe of that 5 lakhs which I have parted with has been used by me for the benefit of the estate or for legal necessity. That is also a legal position there are good number of decisions with the supreme court. I think any digest on Hindu law would give you all those decisions to it. Then last time I told you even without there being a prayer for cancellation of this sale deed or even without there being a prayer for a declaration that the alienation made by one of the defendants in fear of the other does not bind the plaintiff share the suit is still maintainable. No vote fee need be paid of course if different state enactments have a particular provision saying that vote fee has to be paid on that also a value will follow in as far as the state of Karnataka is concerned there is no need to pay separate vote fee because the prayer itself is redundant. I this is another aspect that you will bear in mind. Now we will go to the statutory law. I don't know whether I told it on the last occasion if I have told it take it as a repetition if I have not told it well it will be for the first time. Do not be under the impression that these knowledge of these personal laws beat the Hindu law Hindu classic law or the statutory law or the Mohammedan law or the Indian succession act is relevant only when you come across a partition suit knowledge of these personal laws is absolutely necessary even when you try a suit for declaration or even sitting in your chambers you give opinion to a person when he wants to buy a property don't think that they are relevant only in a suit for partition it may be that many decided cases have a rise amount of partition suits but that does not mean that these acts are relevant only when you think of a partition suit please be clear about it. Now please go to section four of the Hindu succession act 1956 I will just give a brief outline of the entire enactment definitions you can read it one more thing don't presume the meaning of any expression it may be that some of the expressions found in section three have their meaning has the proper as the great exponents to the Hindu law have given in the classic Hindu law it is there but yet do not presume the meaning do not assume that the term is not defined in anywhere in the act don't give your own meaning please go to the dictionary in the act that is section three and give the meaning given there in there even the word year is defined there interstate is defined there who is related is also defined there don't say related means my brother he is related he is my sister related means related by legitimate kinship legitimate kinship this is one thing which you will bear in mind then go to section four of the act overriding effectively act save as otherwise expressly provided in this act most of you be knowing save means except as otherwise save is not saving money or saving something right now to see that we are not impoverished during the expected third wave that saving is not in that sense save in law also means accept save as otherwise expressly provided in this act any text rule or interpretation of Hindu law or any custom or usage as part of that law enforce immediately before the commencement of this act shall cease to have effect with respect to any matter for which provision is made in this act what does that mean if the classic Hindu law has proposition a and the statutory law has a different proposition it is the statutory law which prevails if there is any inconsistency between the classic Hindu law and the statutory provision it is the statutory provision it prevails if there is no inconsistency the classic Hindu law provides any other law enforce immediately before the commencement of this act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this act is more or less the same then section five we can read it at your leisure now before going to section six which needs a little explanation I want to deal with other sections which do not require so much of explanation it is simple mathematics there is nothing except section 14 and some provisions of section 15 others do not all for much interpretation but see the title to these chapters if you have with you the barat of Hindu succession act please see the title chapter one as usual preliminary chapter two the title is interstate succession the title of chapter two is interstate succession I have already told you by referring to section 30 of the Indian succession act interstate means a person dies without a testamentary without without a testament you find such a definition in 3g also a person is removed to die interstate in respect of a property of which he or she has not made a testamentary disposition capable of taking effect therefore commencing from section five ending with section 30 29 the provision for the Hindu succession act deal with interstate succession it is section 30 which deals with testamentary succession section 30 deals with testamentary succession it is in chapter three there is only one section not much of an interpretation or explanation is required I will read it and be done every with it any Hindu may dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him or by her that her is included after when the Hindu succession act was amended by act number 39 39 of 2005 with effect from 99 2005 in accordance with the provisions of the Indian succession activities the testament will have to be in accordance with the provisions of this Hindu succession act or any other law for the time being enforced and applicable to him what does it mean any Hindu may dispose of by will or other testamentary disposition which is capable of being so disposed of by him I am not the owner of the property I am a Hindu I am not capable of disposing of a property belonging to Vitaacharya therefore please be clear about it then this explanation is important the interest of a male Hindu in a mitacharya of a personary property or the interest of a member of a big list is given shall not withstanding anything contained in the set or in any other law for the time being enforced we deem it to be property capable of being disposed of by him or her within the meaning of the section therefore whatever undivided interest we have in the proportionary property can also be disposed of by by will this is a thing with regard to section 30 now section 6 for the typing I am not dealing with it because it requires some explanation and all that let us go to section 8 let there be no confusion between section 6 and 8 what is section 6 I will come there see many times we presume that all suits for partition are in respect of joint family properties oh bhasuri properties there can be a suit between Hindus for partition even in respect of a property which is not a joint family property please be very very clear about it yet say male Hindu dies after the coming into force with the Hindu succession act he was a member of a joint family his joint family did not have even a single wife everything is acquired by him therefore section 8 refers to a property owned by him it is his own property then there is a female she has her own property therefore whether it is section 8 or 15 that is applicable you have to be seen don't go under the impression that suit is for partition with a joint family and all that there can be a suit for partition even in respect of the self acquisitions of a male and the property of a female let us be very clear about this section 8 the property of a male Hindu dying interstate shall devolve according to the provisions of this chapter firstly upon the years being the relatives specified in class 1 of the schedule so that is why we popularly called as class 1 years schedule has classes class 1 who is the class 1 here son daughter widow mother son of a pre-diseased son daughter of a pre-diseased son of a pre-diseased son of a pre-diseased son daughter of a pre-diseased son of a pre-diseased son widow of a pre-diseased son a big list goes on and after this 2005 amendment two or more are also included there they are all class 1 years you did not think he is my father father is my not my class 1 year it is he who has given birth to me how can father be excluded the legs later in the system thought that the father should be a class 2 year we can't do anything about father is not a class 1 year don't go by your knowledge of the cases under the motor vehicle said when a person dies his father and mother both would be the claimants they claim dependency I was depending on my son certainly where the situation is different when compensation is awarded under the motor vehicle said for the death cause in an accident where the question is whether the claimants were dependent on the disease for their living that is one head is a loss of dependency there don't go by that notion after all father is not a class 1 year obviously not because the lot has not recognized him as a class 1 year so for supposing if class 1 years are alive only they get the share not others secondly if there is no year of class 1 so even if there is one class 1 year the entire property goes to him or her please be very clear about this so you have to come out of some of these notions well he died my brother my brother died except my sister in law my brother's wife he has not left to hit anybody I took care of my brother I got him educated everything well who is it he alone can get it I have his brother I was like his father no he gets it secondly if there is no year of class 1 then upon the years being the relative specifying class 2 can list is given brother sister and all that father thirdly if there is no year or any of the two classes then upon the agnates of the disease who are those agnates is also defined in section 3 of the act section 3 3 a aggregate one person is said to be an aggregate of another is it to are related by blood or adoption only through men's coordinate one person is said to be a coordinate of another if the two are related by blood or adoption but not only through men's thirdly upon the agnates lastly if there is no agnet then upon the coordinates of the disease then section 9 among the years specified in the schedule those in class 1 shall take simultaneously yet stays dies living behind his class 1 years sons daughters widow mother etc all of them will take simultaneously and to the exclusion of all others yes might have got his brother educated his father may be alive no they are all excluded by the presence of class 1 years those in the first entry in class 2 shall be preferred to those in the second entry those in the second entry shall be preferred to those in the current entry and so on in succession till such time your memory serves you right please do not depend upon your memory and advise your clients or argue the matter trust your eyes read the statute let us not presume something you would have read something yesterday and we think that we have we have understood it or it is still in our memory sometimes our memory fails let us not trust our memory let us trust our eyes let us read the provision let us not presume something what have what happens many times is well sorgsakar made this presentation and retired the stature he must have correctly stated I might have also given a run proposition why do you go by that read the statute first know what is stated there do not go directly to the decisions first to go to the statute in jurisprudence they have learned first is statue class then presidents then custom and other thing first read the statute understand the statute if it is not clear then go to the decisions then you ask me a question sir when you have been telling that you should first go to the statutes why are all the three occasions you have been bombarding us with so many decisions well I have reason for that well I know the participants want ready made food they want decisions to be cited particularly the younger members there will be more comfortable if decisions are cited and maybe the court also has them if they are the proposition is there any authority some of our friends also asked is there any decision for that I am not again citing those decisions first understand the statute of therefore when you are client comes when a person comes before you to file a suit for a partition see whether the property in respect of which he is seeking a share is the ancestral property or joint family property or it is the separate property or self acquisition of the propositors and here again he is succeeded into a male or a female be clear about it it is also possible that in the very same suit he may seek partition in respect of family properties and also in respect of the self acquisitions of the deceased acquisitions of the mother quite possible therefore in the operative portion of the judgment it is quite possible that the plaintiffs are entitled to one fourth share in items so and so once it's share in other items such a thing is also quite possible then section 10 this is it requires a bit of explanation give me full hearing the property of an interstate shall be divided among the years in class one of the schedule in the thought and city following rules the interstates widows or if there are more widows than one all the widows together shall take one share if you simply go by rule one of section 10 you get an impression that if a male Hindu has left behind two or more widows then all of all those widows would get a share together they will get a share thereby you are tempted to believe that second marriage or third marriage is also allowed this requires some explanation please give me full attention which you are capable of giving and which I demand from you the Hindu marriage act came into force on 18 5 1955 please make a note of this the Hindu marriage that came into force on 18 5 1955 13 months thereafter on 17 6 1956 the Hindu succession act came into force on the night intervening 17 5 1955 and 18 5 1955 if a male Hindu had taken a second wife it was perfectly a valid marriage because Bidami came to be prohibited only with effect from 18 5 1955 by the Hindu marriage act so a marriage prior to a second marriage prior to the coming into force of the Hindu marriage act was perfectly a valid marriage when did the Hindu succession act come into force 17 6 1956 13 months was too short a time for the other wife to take or following her marriage was a valid marriage it is in this context section 10 has to be has to be understood if she is a widow in the sense a widow pursuant to a second marriage with that man certainly she is not hinted to do it this you will have to keep in view we have a decision to turn out the high court by Honorable Justice Ken Kumar in ILR 2013 turn out of 529 ILR 2013 turn out of 529 Lakshmi by versus Anus we have not examined whether there is any decision which is super important this point anyway please read this decision then you will be able to correctly understand clause one of section 10 of the Hindu succession act rule 2 it is not clause 1 rule 1 rule 2 the surviving sons and daughters and the mother of the interstate shall each take one share et cetera is living behind his widow W two sons S1 and S2 daughters D1 and D2 each of them is a class 1 year each of them is entitled to one fifth share rule 3 the year since the branch of each pre-decision son or each pre-decision daughter of the interstate shall take between them one share S1 died prior to the TX the branch of S1 together will take a share don't say that S1 has six children each of them would get no the all that branch of S1 together will get that one share rule 4 the distribution of the share refer to in rule 3 among the years in the branch of the pre-decision son shall be so made that his widow or widows together they are all matters of detail when an occasion comes you read it section 11 the property of our intention shall be divided between the years specified in one entry in any one entry in clause 2 so that they share equally so now let us have a cursory look at clause 2 clause 2 has totally nine entries first entry father so no clause 1 year is left behind let us take a case of a bachelor or even a married man his wife has pretty system no issues mother is dead only father is alive so father excludes or everybody else second entry son's daughter son's daughter's daughter brother sister like this it goes on what does section 11 say the property of an interstate shall be divided between the years specified in any one entry in clause 2 of the schedule so that they share equally so son's daughter son will take one share son's daughter daughter will take one share like that and then admits and coordinates such situation may not arise let us leave it there then let me go to section 15 section 8 succession to the property of a male hindu dying interstate then section 15 succession to the property of a female dying interstate the property of a female hindu dying interstate shall devolve according to the rules set out in section 16 firstly upon the sons and daughters including the children of any predecessors or daughter and the husband secondly upon the yes of the husband directly upon the mother and father fourthly upon the yes of the father and lastly upon the yes of the mother there is nothing like class 1 years or class 2 years when it comes to the property of a woman dying interstate I have heard arguments excuse me even some senior council have made submission telling she is a class 1 year of the kumar no there is nothing like class 1 year when it comes to a woman dying interstate you'll have to use the statutory language merely because it is stated as you don't file class 1 is only confined to a interstacy and a section 8 firstly upon the sons and daughters secondly upon the yes of the husband thoroughly upon mother and father subsection 2 is an exception to subsection 1 not withstanding anything containing subsection 1 any property inherited by a female hindu from her father or mother shall devolve in the absence of any son or daughter of the deceased in the order specified there in a menu not upon the years not upon the other years referred to in subsection 1 in the order specified there in but upon the years of the father supposing if she has left behind children then it goes to the children that is why in the in that problem which one of the participants had posed I said it goes her children can file a suit for partition be any property inherited by a female hindu from her husband or from her father in law shall devolve in the absence of any son or daughter of the deceased not upon the other years referred to in subsection 1 in the order specified there in but upon the years of the husband so if the woman has her own property which she might have acquired by way of a grand to say a testamentary cessation gift by whatever means it is then subsection 1 would apply but if she has inherited the property from her father or mother and if she has not left behind any children it goes to the years of the father then if she has inherited a property from her husband or from her father in law then if she has no children that is son or daughter then it goes to the years of the husband it does not go to the years of the father or mother so this distinction you will have to maintain you may please read these decisions with regard to section 15 of the hindu succession act 1998 volume 5 sec 368 1998 5 sec 368 1999 4 sec 86 1999 4 sec 86 2010 5 sec 274 2010 5 sec 274 2017 5 sec 483 not that there are no other decisions well if you read these decisions you will get a clear picture of it then 17 of course i am not working south kenara and i am not competent to speak about it now let us go to this section 14 let us give a clean clear reading to it property of a female hindu to be her absolute property any property possessed by a female hindu whether acquired before or after the testamentary site that acquisition may be prior to 17 6 1956 or subsequent to it any property possessed by a female hindu where acquired before or after the testamentary site shall be held by her as full owner thereof had not as a limited owner under this 1937 act a limited estate was given classic kindola also speaks about it therefore if she has acquired a limited estate from the commencement of this act it would enlarge into a absolute estate and what is that property explanation indies subsection property includes both mobile and immobile acquired by a female hindu by inheritance device or at a partition or entry of maintenance or arrears of maintenance or by gift from any person whether relative or not before at or after marriage by her own skill or exception by purchase or by prescription prescription means by adverse possession or in any other manner whatsoever and also any such property held by her as treason or immediately before the testamentary site see this sweep of this section almost everything acquired by a female in whatever manner that is stated therein would be treated as a absolute property now subsection 2 this is an exception to subsection 1 nothing contained in subsection 1 shall apply to any property acquired by way of gift or under a bill or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift will or other instrument or the decree order or award prescribe a restricted estate in such property if that very instrument or decree under which the human acquire says she shall be a limited owner of it then subsection 1 would not apply having said this I must put you on guard theoretically speaking it's all very fine then judicial officers decide cases or when lawyers argue matters or when their clients talk to them for advice or when they are required to file suits or file written statement and kind of cases there will be lot of confusion in that regard now if you read the various decisions there are good number of decisions I am referring only to five or six for what of time by and large large whenever there is a doubt as to whether it is subsection 1 that is applicable to the case or it is subsection 2 that is applicable have in regard to the object of section 14 the honorable supreme court has generally lead in favor of the applicability of section 14 1 they say the object of section 14 would be defeated if we take an interpretation of course if it is a clear case where section 14 2 apply certainly they have given it but when there is some ambiguity what I have seen is they would generally lean in favor of making the woman an absolute owner one famous decision which will rate to understand the scope of section 14 and both the subsections which most of you may be knowing at least seniors would be knowing that is in tulisamma versus shesha ready tulisamma versus shesha ready reported in 1977 volume 3 sec page 99 1977 volume 3 sec page 99 please read that judgment you will understand the entire scope of section 14 of the hindu succession act and the difference between section 14 1 and 14 2 then 1996 volume 8 sec 525 1996 volume 8 sec 525 why I am referring to this decision is how these provisions will have to be interpreted in the background of constitution which provides for equality emancipation of women and all that in fact the honorable supreme court in this judgment dealing with section 14 of the hindu succession act has even referred to that famous sr bumma's case about imposition of precedent rule removal of the owners and all that even sr bumma's case has been referred to by the honorable supreme court while interpreting section 14 of the hindu succession act in this 1998 sec 525 there are other decisions also you may quickly make a note 2001 volume 5 sec 363 2001 volume 5 sec 363 then 2002 volume 3 sec 316 2002 volume 3 sec 316 2006 volume 8 sec 75 2006 volume 8 sec 75 2010 volume 9 sec 602 2010 volume 9 sec 602 2013 volume 4 sec 636 2013 volume 4 sec 636 if you have it you the bear act of the hindu succession act which you purchased after 99 2005 you will find that section 24 has been omitted by act number 39 of 2005 with effect from 99 2005 with effect from 99 2005 I am not on the aspect whether it is prospective retrospective and all that but in most of the bear acts section 24 before its omission obit red is also found in the footnote if you have a chance the hindu succession act with you please go to the page where you get section 24 there you will find it is repeated by the hindu succession amendment at 2005 in the same page in the footnote you will find section 24 which was there before its deletion by this act number 39 of 2005 how did it read any year who is related to an interstate as the widow of a predeceased son the widow of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the interstate as such widow if on the date the succession opens she has remarried it refers only to specified widows certain widows only I will give you a concrete case a situation prior to 99 2005 we will assume like this between 176 1956 and 99 2005 between 176 1956 and 99 2005 let us say a man dies yes a male hindu dies rather died because it should be the past because I said 176 1956 and 99 2005 yes the died sometime between 176 1956 and 99 2009 2005 living behind his widow w his mother yam his mother yam and brothers b1 and b2 yes died somewhere after 176 1956 prior to 99 2005 leaving behind his widow w mother yam two brothers b1 and b2 let us say that yes had some property of his own or whatever it is this b1 and b2 I mean b1 and b2 are obviously not as soon as or anything now the question is supposing this widow gets remarried is she disentitled no section 24 as it stood also did not disentitle her section 24 is totally data of the statute in this radar please refer to 1976 for SCC 674 1976 for SCC 674 2079 SCC 325 2079 SCC 325 say we have some notions ah well she was my sister in law she was my daughter in law my son died my brother died what is this immediately she has married someone why I should give a share to her no lord even prior to this and we have also we have also a judgment the karnatata high court in yiyan amrit kumar in yiyan amrit kumar versus yiyan vanita reported in 2019 2019 volume four kccr 3445 2019 volume four kccr 3445 very recent decision and two supreme court decisions also I have given please the other provisions are not of course I won't say that they are not important but I don't have time to deal with them I will just refer to section 20 right of a child in the womb then presumption in the case of simultaneous deaths let us say two persons died in an accident nobody knows who died first two persons died out of covid so presumption is the elder one died first if for the exact time cannot be known section 22 it needs a separate session sometimes if a preventive preemptive right is also recognized clearing now we will deal with this section 6 of this induced succession fact there is no of course if you want to know the historic development of the case law I have absolutely no problem you can read it at your leisure and leisure there is no difficulty about it as all of you know we if you want to know how the law developed you may read prakash versus pulavati reported in a year 2016 supreme court 769 then you may refer to dhanamma then mandammal this citation in respect of dhanamma and mandammal is available in the recent decision of vinnitsharma because I don't have time to give the party's name appeal number at all right now to understand the ratio in prakash versus pulavati my appeal to everyone of you is to read two judgments of the bombay high court judicial officers whom I see here and have heard me in the judicial academy may ask me sir you always tell that we should read decisions of our high court and the supreme court why today you have deviated from your proclaimed stand and you are asking us to read decisions of the bombay high court I have a reason for it in this prakash versus pulavati the decision of the bombay high court is referred to and uphead therefore if you want to know the basics clearly I suggest that you should read the two decisions of the bombay high court there you will first go to AER 2012 bombay 101 AER 2012 bombay 101 if I believe correctly it is a decision of two judges of course I have those decisions but I have to search it takes a good lot of time it is a decision of two judges I had one of the honorable judges who shared the division bench share the full bench also in the subsequent decision reported in AER 2014 bombay 151 please be clear about it AER 2012 bombay 101 is a decision of a division bench one of the honorable judges who share the division bench share the full bench also in AER 2014 bombay 151 his lordship was a party to the division bench while giving his opinion sitting on the sharing the full bench said though as a member of the division bench I have taken this view well after further study and understanding I now change my view that means judges are over when new facts from when new laws brought to their house are there is a rethinking certainly they reconsider it so if you want to understand this Pratash versus Pulavati you will have to read these two decisions now of course all of you know the position factory Pulavati's the law-line don't must well a living daughter of a living co-partner only from 99 2005 not earlier to eat now matter was then in Dhanamma's case though it was said that in Pulavati the legal position is settled though the death had taken place prior to 2001 this year given by the trial court and the high court was upgrade in Mandamma it was stated in Dhanamma depending upon the facts of the case such a view was taken Mandamma also it was said that the legal position in Pulavati is the parent position now all those things have been considered in great detail in Vinita Sharma's case Sharma is reported in AIR 2020 Supreme Court 3717 AIR 2020 Supreme Court 3717 the date of the judgment is 118 2020 last year also during this pandemic which the SR Sornarandram a senior member of the Chidwalapur Park was present here day before yesterday online he gave a thought exclusively on Vinita Sharma in fact he has studied the judgment extensively and if I remember correctly he was able to point out about 13 ratios or points decided by Vinita Sharma I am certainly incapable of going in depth to the extent that he went anyway for the benefit of the readers the honorable Supreme Court itself has summarized the entire legal position in the penultimate part of the judgment in the penultimate part of the judgment but this is the law of the land we will follow it we will have to follow it I have absolutely I would suggest that you comments your reading of the law from those two Bombay Hypo decisions then followed by Pulavati then by Dalamma then by Vandamma and read this the second reason as to why I recommend all of you to read Vinita Sharma is you will come across a good number of decisions 30 or 35 decisions have been cited basic concepts of Hindu family giant family property co-personary property everything has been discussed here therefore even if for some reason you won't have Mullah Sindhullah reading if you read this judgment you will find reference to a good number of decisions and all basics have been explained you can read that I will only read the penultimate part of this judgment where the legal position is summarized resultantly we answer the reference as entered the provisions contained in substituted section 6 of the Hindu succession act confer status of a co-partner on the daughter Warren before or after the amendment in the same manner as son with the same rights and liabilities the rights can be climbed by the daughter born earlier with effect from 99 2005 with savings has provided in section 61 as to the disposition alienation partition or testamentary disposition which had taken place before 20th day since the right in co-personary is by birth it is not necessary that the father co-partner should be living as on 99 2005 that is the departure from Kulavati the statutory fiction of partition created by the proviso to section 6 as originally enacted did not bring about the actual partition or disruption it was by a fiction and all that then in your the rigor of the provisions of subsection 5 yeah how to get out to oral partition i will come a little later now the requirement that the daughter should be alive on 99 2005 father should be alive is not there now to i further for a better understanding of the law leitone in Meenit Sharma's case i would also suggest that all of you read a judgment of the karnataka high court a division went to the judgment of the karnataka high court author by honorable justice n kumar in the famous atash versus pulavati atash versus pulavati i'm sorry it's time to say push palata versus padma push palata versus padma reported in ilr 2010 karnataka 1484 ilr 2010 karnataka 1484 push palata versus padma also reported in ilr i don't have the ilr citation with me please read that judgment the only one principle or one ratio laid down in the division bank has not been accepted in this vinith sharma the division bench at the karnataka high court said for a daughter to climb a share as a co-partner she should have taken her birth subsequent to 176 1956 a daughter born prior to 176 1956 is not entitled to the benefit at the illusat session at that has been clarified in this vinith sharma saying the date of birth of the daughter is not relevant and uh the honorable high court our honorable high court had already held that uh the since section six is substituted it goes to the date of the parent enactment 176 1956 now we usually say whether it is prospective retrospective we have a third term a retroactive legislation what is this retroactive i'll give you this example let us say today i join as a thashildar all right let me take it as 11 11 2021 for purpose of convenience on june 1st i join as thashildar 11 2020 11 16 2021 i join as thashildar there is some government order saying that all the thashildars who were recruited subsequent to 11 2020 let us say are entitled to this base case if if a person had already become a thashildar on 11 2020 so this new base case will permit to affect mean that benefit can be claimed by all those thashildars who had become thashildars has on 11 2020 so today on 16 2021 i become thashildar now what is the pay scale that is applicable to me the pay scale fits has on 11 2020 but that does not mean that i can claim salary from 11 2020 i can claim salary only from 16 2021 the day on which i join government service but my pay scale goes to that 11 2020 this is called retroactive now all of you are familiar with this amendment of plant and return statement we have different kinds of amendments some date is mentioned in the plant as the date of will or sale date there is some mistake instead of mentioning as 28 2005 you have mentioned it as 28 6 it is a clerical error that can be amended there is one kind of amendment there is some mistake in giving the property number or the boundaries that is amended sometimes a plea already taken in the plant or the return statement is sought to be elaborated plant he says that is the owner how he acquired ownership is explained by way of an amendment by way of an additional para defendant takes up an alternate plea or an additional plea he wants to take it by way of an amendment all of you are familiar with this amendment there is yet another amendment which all of you know delete para 6 of the plant delete para 8 of the return statement instead this present para be substituted so para 6 as it stood as on the date you find the plant as written statement can no longer be looked into if the amendment is allowed the amendment if it is allowed then the new para which you have substituted will be read this is what the supreme court has explained in fact if you read that pushpalata's judgment you will find reference to the judgment of the supreme court which has explained this concept of substituted you will find that section 6 is substituted what the supreme court has said is when a provision is substituted it takes its effect from the date of the parent enactment as if the new as if the substituted provision was written in ink and pen as on the date the parent enactment came into force these are the worst use of a supreme court as it was written in ink and pen and it is no longer necessary to read the old provision that is how the supreme court has said just as the planter return statement is amended and a paragraph is substituted we will not read the old plant or the old para for the plant or written statement this is the effect of course the supreme court has also said this invariably is not the rule the object with which this amendment by way of substitution is made also has to be taken into consideration all these things are there in fact even in the context of the amendment brought to this specifically fact in the year 2018 some debates are going on but i would ask you to read that pushpalata's judgment where you will find that a year 1954 or something where this concept of retrospectivity prospectivity retroactivity all those things are explained so now we have this position classic hindu law then up to 1937 of course in karnataka that too in old maishur area we had this maishur hindu law amendments right to property act of 1933 so now elsewhere up to 1937 the hindu women's right to property of 1937 then from 1937 to 176 1956 from 176 1956 to 99 2005 from 99 2005 what is the position now under section six there are two riders supposing if a partition has taken place prior to 2012 2004 the daughter cannot get it reopened obviously because on 2012 2004 nobody knew that on the night of 2012 2004 a law is going to come making a daughter a goparsner some transactions would have been affected therefore those persons those innocent persons should have been taken by surprise they should not be prejudice for the view therefore see the act has come into force on 99 2005 there is no doubt about it with regard to these alienations partitions and the testamentary dispositions there is a cutoff date 2012 2004 don't confuse these two dates 99 2005 is the date on which the ad came into force these alienations and partitions and testamentary dispositions that is the date is 2012 2004 instead of my telling what it is let me read it section six subsection one for the new act there is a proviso to that provided that nothing contained in the subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20th day of December 2004 no doubt a male goparsner can challenge an alienation made by another co-parsner on the ground that it does not bind his interest well if it is a alienation by the manager the realistic integrity when it comes to a daughter goparsner is that alienation has taken place prior to 2012 2004 she cannot challenge it if a bill has already been executed she cannot challenge it or if a partition had taken place that cannot be challenged then what is this partition please go to subsection five of section six nothing contained in the section shall apply to a partition which has been affected before the 20th day of December 2004 what is the partition explanation this is very important for the purposes of this section partition only for the purpose of section six means any partition made by execution of a deed of partition duly registered under the registration app or partition affected by a degree of work no which partition cannot be challenged by that daughter if it is a registered partition or if a final degree has already been passed here a slight departure is made in this beneath Sharma's case in the penultimate para of the penultimate para you will get this in view of the river of provisions of explanation to section six five of the act of 1956 a plea of oral partition cannot be accepted as the statutory recognized mode of partition affected by a deed of partition duly registered under the provisions of the registration net are affected by a degree of court however in exceptional cases where the plea of oral partition is supported by public documents that is revenue entries and other things and partition is finally evidenced in the same manner as if it had been affected by a degree of a court it may be accepted a plea of partition based on oral evidence alone cannot be accepted and to be rejected outright is that oral partition is supported by entries in the public documents we can act upon it despite there being an embargo as per the statute this is the law let alone by the supreme court so it is only for purposes of section five now there is one issue here with regard to section six as it stood prior to the amendment we have what is known as a concept of notional partition i want the junior members to have a notion of notional partition please understand this that word notional partition is not found anywhere in section six it is a deemed partition i have heard people telling a notional partition to place there is nothing like a notional partition taking place we presume a partition should have would have taken place you may read section six of the hindu succession net as ornamented when a male hindu dies after coming into force of this act having at the time of his death an interest in a mitature of gopalsnery property his interest in the part shall devolve by survivorship upon the surviving members of the gopalsnery and not in accordance with the provisions of the sand i'm referring to section six as ornamented prior to nine nine 2005 now a b and c were members of a gopalsnery they constitute a gopalsnery a a male member had an interest in gopalsnery one third interest after his death as per the main part of section six after his death his interest in the gopalsnery devolved upon the surviving members of the gopalsnery that is b and c that was the classic hindu law now what is the improvement made by section six of the hindu succession act a proviso he was attached to that section six saying provided that if the deceased had left behind him a female relative specified in class one of the schedule or a male relative climbing through such famous radio then his interestingly gopalsnery will devolve not by survivorship but in accordance with the provisions of the hindu succession act this is the legal position prior to nine nine 2005 so what is that share that explanation is given what is that share for the purposes of this section the interest of a hindu mitature of gopalsnery gopalsner 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 climb partition or not so while working out his share we say supposing if a partition had taken place before that before his death what was the share he would have got that share will now devolve upon all the class upon the years mentioned in the hindu succession act is all he stated it's a notion don't say a notional partition to place there is nothing like a notional partition taking place so let us have a clear notion of this notional partition if you under want to understand this concept clearly please read 1978 three scc 383 1978 three scc 383 grupa versus here a boy one thing needs to be clarified they have different schools of indola bombay school madhava school hyderabad school and all that now as per the bombay school of indola traditional indola at a partition between father and sons the mother was given a share equal to that of a son so for candidates and judicial officers in northern where the bombay school applies you will have to go by that at a partition between the father and sons mother is given a share equal to that of a son but the same is not done by the hyderabad school the hyderabad school of indola does not recognize it in fact in mullah simbola there is one statement saying the practice of giving a share to a female has become absolute not a b s o l u t absolute means word word now o b s o l u t absolute in southern india is the expression this grupa versus syrapa is a good case by honorable justice why we generally would please read that judgment the next issue that is frequently troubling thus is whether a share allotted to a co-partner at a partition is a separate property or hands stole in the hands of this linear dissentance if you read mullah's commentary or some old decisions it is clear that a property allotted to a co-partner at a partition is a separate property as far as strangers are concerned but if a son was alive as on the date of that partition it would be hands stole in the hands of his sons now because of some decisions there appears to be some mistake and motions but you please read all these decisions very carefully then you will understand depending upon the facts of that case the honorable supreme court took that view that it would be a separate property please make a note of these important decisions a year ninety i will give you a statement a year nineteen eighty six supreme court one seven five three a year nineteen eighty six supreme court one seven five three this is that chander same's case commissioner of wealth tax versus chander same a year nineteen eighty six supreme court one seven five three then the same decision is followed in nineteen eighty seven one sec two not four nineteen eighty seven one sec two not four the same honorable judge have written it then 2008 volume three sec 87 2008 volume three sec 87 then 2016 volume four sec 68 it is that famous wudham singh versus so bad wudham versus so bad singh 2016 for sec 68 then a year 2017 sec 494 well if you read these decisions something might tell you that it would be separate property goes by succession under section eight and all that in 2018 volume seven sec 646 2018 volume seven sec 646 shamnara and prasad versus krishna prasad honorable justice abdu laseer has clarified this saying i have to refer into earlier supreme court decisions the share allotted to a co-partner at a partition is hand system in the hands of distance if there are no sense well he's free to deal with it but the momentum is barren if there is no prior alienation he would take an interest in it to the same effect we have a judgment of honorable justice indu malhotra in arshanur singh arsh n o war arsh n o war arshanur singh versus harpal kaur reported in 2019 sec online sec 801 2019 sec online sec 801 however much i tell this unless a case comes up before you when you sit as a presiding officer to write a judgment or as a lawyer to argue a case or even opinion well you can't go by this please read these decisions very carefully and see what exactly the ratio is now one more enactment which is of some consequence when you deal with these partition suits and title suits is the hindu marriage act i told you that bidami is not recognized it is a wide marriage if you read section 11 of the hindu marriage act you will know that a man or a woman taking a second wife or a second husband during the subsistence of the first marriage that marriage becomes white now what is the status of children born of wide and wide marriages not this living relationship and other things wide and wideable marriages it presupposes to marriage but that marriage is either wide or wideable for reasons stated in section 11 and 12 you please read section 11 and 12 on your own don't presume that all marriages are wide in violation of section 5 section 5 gives the conditions of a valid hindu marriage violation of every condition will not render the marriage wide it will not render the marriage wideable you will have to read section 11 and 12 very carefully for one of time i am not doing it i am only on section 16 of the hindu marriage act because we are dealing with these partition suits section 16 subsection 1 notwithstanding that the marriage is null and wide at section 11 any child of such marriage would have been legitimated the marriage had been valid shall be legitimated whether such child is born or after the commencement of the marriage law amendment at 1976 and whether or not a decree of military is granted in respect to the marriage though the marriage is wide the child born of that marriage is a legitimated child then subsection 2 i am avoiding subsection 3 nothing contained in subsection 1 or subsection 2 shall be construed as conferring upon any child of a marriage which is null and wide or it is annulled by a decree of nullity under section 12 any rights him or to the property of any person other than the parents now children of wide and wideable marriages as the law stands today can succeed to the property of their parents self-acquisitions of the father or mother there is no question of their claiming a share in the joint family property of course the matter is now before a larger venture the supreme court in rena siddha pa versus malik arjuna in 2011 volume 11 sec page one the honorable supreme court said that the matter requires to be resolved by a larger bench the matter is now seized off by a larger bench the larger bench has not yet decided therefore as on today we are governed by the statutory provisions of section 16 and the earlier decisions so children born of wide and wideable marriages are entitled only to a share in the parents property not in the co-partnery property we have number of decisions with a gannadatha haiku but suffice if i draw the attention of this audience to three decisions of the supreme court 2003 1 sec 730 2003 1 sec 730 2006 9 sec 612 2006 9 sec 612 2010 11 sec 483 2010 11 sec 483 and as i told you on the last occasion section eight of the hindu minority and guardianship bat does not contemplate permission of the court for minors interest in the co-partnery property it is only for minors own property permission of the court is required and i have already drawn your attention to the judgment of the supreme court in 1996 volume 8 sec 54 1996 volume 8 sec 54 then one other enactment which is of relevance in this context is the hindu adoptions and maintenance at two different aspects adoptions and maintenance have it trouble together i really see no reason as to why these two things should have been under one enactment that does not examine the legislators wisdom in saving some space but section 12 of the hindu adoptions and maintenance at in the present context is important after adoption the adopted child loses all the ties with the family where he was born and dates his he becomes a member of the family which has adopted him now he becomes a co-partner also in this regard please refer to two decisions 1969 2 sec 544 1969 2 sec 544 in fact the party's names are a little interesting seetha boy versus rama chandra we have been told that there is absolutely no difference seetha had no difference with rama rama at all he say you should live like seetha seetha seetha boy versus rama chandra why had seetha boy had to file a suit against rama chandra we believe that seetha and rama were always together so 1969 2 sec 544 seetha boy versus rama chandra this has been followed in basu rajappa versus guru basamma in 2005 volume 12 sec 290 2005 12 sec 290 so he becomes a co-partner please read this i know that i am not done full justice to the subject but with the time available i dissolved what i could do i know that there will be good number questions in this seetha the best of my ability i can answer them if they are further preparation i can answer them i will do it if some reading of some decisions or statutory provisions is required let me i still believe that if you read the statutory provisions to which i have made a reference whether the hindu succession at or the indian succession at or some passages from mullah's muhammad and law and i think when a suit for partition comes up before you either has plenty or has defended with these inputs you should be able to do it law is drawing we should also draw today i have said this tomorrow morning there may be some other decision so we have to keep a track with those two decisions and i have my target group as i said is only the ender members of the bar have given a birthday view of this if this is of any use to you please make use of it thank you mr vitas chattrap and thank the all the participants as usual i have exceeded the time given to me partition suit i take a good lot of time for disposal also before the court today i have only drawn the preliminary degree for final degree there is one more session with mr vitas chattrap will give one some other occasion there was a movie they said time be apka jaga be apka this is your place and time is also yours whenever you want to take it so since i had just disabled the chat so that you would not be distracted two three questions have come so far because i've just able to chat one is a sherith has posted a big question i think presumably you will have to read it post money a and b are hindus a and b are hindus have five children c d e f g a has self acquired properties a dead interstate later on b also dies no tanayans were executed till then d born hindu and later she got married to a good stream and she got converted to a stream and she filed a suit for partition please go to section 26 where before or after the commencement of his ad a hindu has ceased or ceases to be a hindu by conversion to another religion children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their hindu relatives unless the children are descendants are hindus at the time when the succession opens you will have to read there is one enactment which i find in mullah's hindu law i have noted the question i will go through it and answer on the subsequent occasion it requires some examination right now i'm not in a position to answer that because there is inheritance removal of disabilities at i will have to go through it and answer your question in addition to it section 26 may not give the answer to your question yes naveen kumar says how does vneet sharma judgment recognize the female daughters as a co-pastor in her own right uh confirms with section 14 making her an absolute owner section 14 has nothing to do with section six 14 it stands on a different footing section six has amended has been interpreted by immediate sharma state saying that whether the daughter is alive or not father is alive or not as of 99 2005 she would be a co-pastor detect whether she was born even even if she was born prior to 99 2005 certainly she would be entitled to a share has been explained i don't think that that needs to be clubbed with section 14 so mother's old land got from a father way back in 1995 can daughter file suit for partition mother sold the land got from a father way back in 1995 i will also tell the name it is by advocate mungesh at 750 say the question is how the mother got it from her father means by way of inheritance will what is that for the uh participants you can explain in both the cases mother sold land got from her father way back in 1995 how did she get it sir i'm saying you will uh are you referring to the father of the mother are you referring to the father of this person mother sold land got from her father does it mean grandfather or your husband you see referring to the husband after the father meanwhile he will uh post the question again what is the present settler position of law regarding the nature of property obtained out of partition this is by sarup sarinivas etc i have told you it is better he reads the judgment of honorable justice nazi in that shamanara and prasad verses and the other judgment of justice in malhotra which i have given those two judgments make it clear a share allotted to a person at a partition would be separate property as for strangers in the hands of his linear descendants if they are alive you before their birth he disposes of the property nothing can be done if they are alive certainly if an alienation takes place after their birth certainly they are entitled to challenge it please explain what is the scope of partition in cases of adopted son and his children i told you at the section 12 an adopted son becomes a member of the family which he adopts several strides with the uh several strides with the family where he took his birth but there is a proviso to section 12 which is important here and which he would kindly make a note of the proviso says provided the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth if you are continuing the family of his or her birth he could not have married his brother or her brother or his sister any property which yesterday in the adopted child before the adoption shall continue to rest in such person subject to the obligation if any the adopted child shall not divest any person of any estate which yesterday or before the adoption if before the adoption of property as already vested in someone else then there is no question of the adopted child divesting that person of the property already vested as I told you by referring to that Sita boy versus Ramachandra and the other decision following it he becomes a co-partner the same section six would apply to him and if it is not a co-partnery property well his adoptive father rise or mother rise it depends either on section eight or section 50 just as other class one other years getting depending upon whether he succeeds the father or mother section eight or section 15 reply then there is a question as to what is this concept of blending in fact it used to be very beautifully explained by honorable justice a retired judge of the karnataka height in fact he used to explain this concept of blending very beautifully if he would say you see he would in one cup he would take some water in the other cup some coffee decoction and another cup milk right now milk is given by yes one of the co-partners purchases milk another brings some coffee powder and prepared prepares coffee detection someone else has some water only now so long as they are separate he can say this coffee detection is prepared by me it belongs to me I brought this water of water it belongs to me this half liter of milk belongs to me then once it is mixed it becomes coffee and neither neither water nor sugar I mean he gave example of sugar I'm sorry not water neither sugar nor coffee powder nor milk can be taken blending is this see I own a property I acquired it from my own funds from my own labor I'm still a member of the joint family I allow this property to be treated as joint family property I blend myself a position or my separate property with the properties belonging to the joint family this blending can take place only so on yes the properties are joint and the family is joint after they are separated there is no question of blending and if woman cannot blend that property but there is a decision also to that effect I will have to search it and give it huge gen on the youtube under section 14 of the hindu succession act is oral gift to a sister valid or is valid at least three time the question is this when was the gift made see now after we coming into probably the force of the transfer of property at is that what are you recognized this is yes this is again by shubham with the capacity property of a hindu female become absolute property under section 14 of the hindu succession act now the question is it is from 99 2005 we have this amendment this requires a good lot of debate and cases will have to come now the act has come into force on 99 2005 the honorable supreme court has interpreted saying that even if the daughter is barren prior to 99 2005 she would still be a co-parsner and now if prior to 99 2005 she has become a co-parsner she has acquired a co-parsnery interest she has acquired it as a member of the co-parsnery it would be an undivided interest there is no question of section 14 being applied and this is by Ram Pratap father in his life settled his self acquired property in favor of his mother yes she does she become a full owner or not definitely if it is by a registered instrument father if they have settled his own property his separate property as self acquisition in favor of his wife that is my mother then and if it is by a registered instrument certainly the mother would become the full owner of it so this is by Suresh Prabhu Suresh Babu just kindly read the question I will just take it from the Facebook if we have any questions before that I have one small question by someone here I will just before you take it out what is ancestral property please go to Mullah Sindhola instead of me explaining it I will just read out that passage if you read we need Sharma's case you will get that explanation of it for your immediate benefit I will read what is this co-parsnery ancestral property all property in it you please read synopsis number or para number or section by whatever name you call 223 in chapter 12 of Bhullas Gopah Bhullas Hindula co-parsnery property Bhitakshara law friends from West Vendal who have joined me will excuse me because I am not familiar with Gaya Bhadala chapter 12 co-parsnery property Bhitakshara law 223 all property inherited by a male Hindu from his father father's father or father's father's father is ancestral property four generations including the person who claims are excluding him three generations father father's father or father's father the essential feature of ancestral property according to Bhitakshara law is that the sons grandsons and great grandsons of the person who inherits it acquire an interest in it by birth yes were you able to get that on the face sir I thought there are a lot of questions out here there are two questions on the facebook yes son has been disowned by a disownment deed based in which he was removed from the shared household which was subsequently withdrawn on the pretext of settlement the same didn't happen what is the remedy where the partition soup has been terrible in such circumstances it requires a good lot of factual considerations when was he disowned what is that dwelling house who acquired it is he a co-parsner was it his father's acquisition mother's acquisition those factual details are required otherwise it will be difficult to answer whether an unregistered deed of disownment has a bearing the disownment of a we don't call any deed as in Tharnadika's deed of disownment does he means a released it or what I have not heard of a disownment I disowned means what does he mean because we say a relinquishment deed or a release deed does he mean by a disownment deed a relinquishment deed or what because I am not familiar with that word a disownment deed we say a relinquishment a release deed it should be by way of a registered instrument only because I don't think that there is any immobile property no worth below rupees 100 it definitely requires registration there is nothing like that so the last question you can yes last question you can take off the roots uh seroop sarinivas yes what is that question seroop mother obtains the property by way of gift from her father she executes a partition against her two sons one of the son executes a will be quitting his property to his one of his hairs can other hairs of the son who executed the will challenge the will what is the question is mother obtains property by way of gift from her father does it mean mother's father or what he is referring to husband mother's father you will say that yes is that man why mother's father mother's father it sees that man she is the mother's father why is her daughter she executes a partition amongst her two sons one of his sons executes a will be feeding his property to one of his hairs can other hairs of the son who executed the will challenge the will what is the nature of the property presently the simple thing is this mother has obtained a property from her father by way of a gift i presume that it is by way of a registered instrument right she has become the absolute owner of that property have become the absolute owner of the property she chose to divide the property between her two sons between her two sons one correction when you say only two you should use the word between there are more than two then the word should be amongst she executes a partition between her two sons all right she has done it one of the sons don't say one of the son one of the son is an incorrect you said one of the sons one of two i got two friends one of them this is a run you said one of the sons one of my brother one of my friend we says one of my friends one of my sons one of these sons this should be the way of one of the sons executes a will be feeding his property to one of his hair absolutely no problem he's free to do it can the other years of the son who executed the will challenge the will what is the nature of the property presenting the other years can only say that the person who executed the will did not was not in a sound disposing state of mind i don't think that they can question his authority to etc what is the nature of the property presently the son who has acquired the property under that will becomes the absolute one of the last question yes it's a it's a family of husband wife and five children yes it's at eight eight two 22 by dr madhukar three daughters and two sons they have only ancestral property in 1994 father and two sons get separated through a registered partition deed by meats and mounts no property was allotted to the his daughter's father dies in the state on 10th september 2005 mother dies in 2014 in the state whether does the separated son whether he separates its sons get the properties of the shares of the ancestral it's family of husband wife and five children three daughters and two sons they have only ancestral property in 1994 father and two sons got separated through a registered partition deed by meats and mounts no property was allotted to the daughter yes father died interstate on 10 september 2005 mother died in 2014 interstate where does the separated son get whether the separate it should be whether the separated son get share in the father's share of ancestral property please go to section six for the hindu succession at first the question is not very clear to me one thing there could have been a partition in the year 1994 to the exclusion of the daughter with us now we have seen if it is only any partition which has taken place prior to 2012 2004 and a registered instrument cannot be challenged by the daughter that is clear no property was allotted to the daughter alright father died interstate on september 2005 father he saw some property he acquired under a partition to a registered partition he died interstate on 10 9 2005 well when he died interstate on 10 9 2005 whatever he got at that partition that would be his separate property and that would devolve on all his class one years then the mother died in the year 2014 interstate whether the separated sons get a share in the father's share of the ancestral property here the you will have to read section six you will see now prior to this amendment we had this provision explanation two to section six i am reading explanation two to subsection six as it stood prior to the amendment nothing contained in the proviso to the section shall be construed as enabling a person who has separated himself from the goparsnery before the death of the deceased or any of his years to climb on interstate a share in the interest referred to dairy so if you go by the explanation two to section six of the hindu succession act has ornamented it is doubtful whether he can get it because he has separated himself from it of course now we know the deletion of this explanation two consequent to the amendment to section six the legal position might show it requires some more examination appears to be a pending case well you argue the matter for the best of your ability leave the rest to the court yes sir we will part for the day wise thank you for this opportunity no tomorrow we will be having on session at 430 do stay connected with us and on behalf of all those who have been watching us live on the youtube facebook and on this platform we are thankful to mr. esau mashekar as usual it was lucidly explained and all questions were rightly taken up and in the meantime we also learned the several differences between between and amongst which is a very material for the understanding as they say even for the purposes of bear act you should also understand the differences how to interpret a particular section etc and we are thank you and we will come with another session of mr. esau mashekar on the partitions further do stay connected with us everyone stay safe stay blessed keep on wearing your mask maintain social distancing and keep on get your vaccination done as and when you get the time thank you