Property given to a wife or daughter as maintenance is not the same as providing them a share in property, the Dharwad Bench of the Karnataka High Court has ruled. In an order dated April 5, 2023, the single judge-Bench of Justice Anant Ramanath Hegde also ruled that exception made to Section 6 (1) Hindu Succession Act, 1956, cannot apply if property partition is in violation of a court order.
Through an amendment made in the law, Section 6 (1) confers up on daughters coparcenary rights retrospectively. Coparcener is used to denote a person, who assumes a legal right in his ancestral property by birth in a Hindu Undivided Family (HUF). However, there is an exception to this rule—the amendment does not apply to properties lawfully partitioned before December 20, 2004.
Case study
Kannappa had two wives. Shantavva is the first wife. Thirakavva is the second wife. The second marriage to Thirakavva was void as the first marriage was subsisting. Ratnavva and Laxmavva are the daughters of first marriage. Roopa is the daughter from the second marriage. When the first wife and her daughter Ratnavva, claimed partition, Kannappa, the second wife, the daughter of the second wife, Roopa, contested the suit. During the pendency of the suit, Laxmavva, the second daughter of the first wife also impleaded after the death of Kannappa. Kannappa’s brother’s heirs were also impleaded as certain properties were jointly owned by Kannappa and his brother. The trial court held that two daughters from the first marriage, the daughter from the second marriage and the first wife, all were entitled to 1/4th share each.
The second wife and her daughter filed an appeal against the order while the plaintiffs claiming more shares.
In his appeal, the second wife argued that the daughter of the first wife had no right over the properties in the year 1995, held by Kannappa, and as the suit is filed when her father was alive, the suit is not maintainable. She also urged that during the pendency of the suit on February 18, 2003, the father gifted suit properties in favour of Roopa. Hence the properties alienated before December 20, 2004, the cut-off date under the Act are not available for partition. She also said that her late husband had transferred certain properties in favour of first wife and the daughters before the suit was filed and hence the suit without including those properties was not maintainable.
HC order
While dismissing the appeal filed by the second wife, the HC said that the right to property as a coparcener was different from the right of maintenance.
“The contention of the appellants that the plaintiffs were given properties before filing the suit and the same should be treated as the share allotted to the plaintiffs, has no merit. The records would reveal that certain properties are allotted to the plaintiffs in lieu of their claim relating to arrears of maintenance. The properties given in lieu of arrears of maintenance cannot be equated with the share in the properties. The right to property as a coparcener/sharer is different from the right of maintenance,” it said.
On the issue that the daughter from the first wife had no right over the suit properties when the suit was filed in the year 1995, before the commencement of amended Section 6 of the Act, the HC said that as the amended Section 6 is retrospective in operation. “Since Section 6 is retrospective in operation, ipso jure it is to be held that even in the year 1995, the daughter had the right over the properties, and had a cause of action to claim a share in the properties.”
While stating that the alienations made by the father in 2003 was not valid, the HC said that had the defendants obeyed the court order, there would not have been alienation at all till the commencement of Act 39 of 2005. “In that event, the plaintiffs would have acquired the right over the properties under amended Section 6 of the Act,” it said.
“The person who has alienated the properties in violation of the court order cannot be permitted to take advantage of the alienation by taking shelter under the proviso to Section 6(1) … Section 6(1) applies only to alienations that are legal and valid… Given the fact that the amendment to Section 6 is retrospective in operation, the plaintiffs are entitled to claim a share in the said properties,” it added.
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An alumna of the Indian Institute of Mass Communication, Dhenkanal, Sunita Mishra brings over 16 years of expertise to the fields of legal matters, financial insights, and property market trends. Recognised for her ability to elucidate complex topics, her articles serve as a go-to resource for home buyers navigating intricate subjects. Through her extensive career, she has been associated with esteemed organisations like the Financial Express, Hindustan Times, Network18, All India Radio, and Business Standard.
In addition to her professional accomplishments, Sunita holds an MA degree in Sanskrit, with a specialisation in Indian Philosophy, from Delhi University. Outside of her work schedule, she likes to unwind by practising Yoga, and pursues her passion for travel.
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