Adverse Possession

“People are often astonished to learn that a trespasser may take the title of a building or land from the true owner in certain conditions and such theft is even authorized by law.”

(State Of Haryana vs Mukesh Kumar & Ors, Civil Appeal No. 28034 of 2011 of Supreme Court)

The claim to rights and interests qua immovable property on the basis of possession is acknowledged in all legal systems. Uninterrupted and uncontested possession for a specified period, adverse to the rights and interests of true owner, is considered to be one of the legally recognized modes of acquisition of ownership. The prescription of periods of limitations for recovering possession or for negation of the rights and interests of true owner is the core and essence of the law of adverse possession.

In Karnataka Board of Wakf vs Government of India & ors, Civil (Appeal) No. 16899 of 1996, the Supreme Court stated following:

“In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period………………………………… 

Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” 

The statutory period is derived through Article 65, Schedule I of the Limitation Act, 1963 prescribing a limitation of 12 years for a suit for possession of immovable property or any interest therein based on title. It is important to note that the starting point of limitation of 12 years is counted from the point of time “when the possession of the defendants becomes adverse to the plaintiff”. Article 65 is an independent Article applicable to all suits for possession of immovable property based on title i.e., proprietary title as distinct from possessory title. Article 64 governs suits for possession based on possessory right. Article 65 as well as Article 64 read with Section 27 of the Limitation Act, 1963, which bears the heading – “Extinguishment of right to property”. It lays down:

“At the determination of the period hereby limited to any person for instituting the suit for possession of any property, his right to such property shall be extinguished.”

As far as the Government (Central or State) property is concerned, the period of limitation for any suit (except a suit before the Supreme Court) is 30 years and the starting point of limitation is the same as in the case of a suit by a private person (vide Article 112, Schedule I of Limitation Act, 1963).

In Culley v Doe, (1840) 11 A & E 1008, following was held:

“At common law, Daniel Taylerson had a prima-facie right to devise his interest, inasmuch as tenants in common have the same right, under the statute 34 & [1022] 35 H. 8, c. 5, as persons legally seised. And, as his possession, and those under whom he claims, was also the possession of the Culley family, there was nothing to prevent his devising the estate, but that, after being out of the participation of the receipt of the rents and profits of the estate for above thirty years, an ouster might be presumed. But length of time alone is not an ouster, till so found by the jury; and, as there has been none found, we could not intend it.

But suppose an ouster had been found: unless by that it was meant that a disseisin or other tortious ouster of the freehold had taken place, it would not reduce it to an undeviseable right of entry.”

In Radhamoni Debi vs The Collector of Khulna and ors., (1900) ILR 27 Cal 943, the Calcutta High Court stated following with regard to ‘Adverse Possession’:

“It is necessary to remember that the onus is on the appellant and that what she has to make out is possession adverse to the competitor. That persons deriving from her any right they had have done acts of possession during the twelve years in controversy may be conceded and is indeed evidenced by the dispute which ended in the Magistrate’s order of 1885. But the possession required must be adequate in continuity, in publicity, and in extent, to show that it is possession adverse to the competitor. The appellant does not present a case of possession for the twelve years in dispute, which has all or any of these qualities. The best attested cases of possession do not cover the whole period and apply to small portions of the ground. While exhibiting those positive deficiencies, the appellant’s case is moreover confronted by tangible evidence of possession by the respondent which is far superior in quality.”

         (Emphasis Supplied)

In Perry v. Clissold, 4 CLR 374; [1907] AC 73, the privy council stated following:

“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.” 

In Correa v. Appuhamy et al, (1911) 15 NLR 65, the Privy Council held following with regard to coheir in possession:

“A co-owner’s possession is in law the possession of his co-owners. It is not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something, equivalent to ouster could bring about that result.” 

In the Secretary of State for India in Council vs Debendra Lal Khan, (1934) 36 BOMLR 249, following was held by Bombay High Court:

“5. As to what constitutes adverse possession, a subject which formed the topic of some discussion in the case, their Lordships adopt the language of Lord Robertson in delivering the judgment of the Board in Radhamoni Debi v. Collector of Khulna (1900) L.R. 27 I.A. 136 S.C. : 2 Bom L.R. 592, where his Lordship said that (p. 140), “the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.” The classical requirement is that the possession should be nec vi nec clam nec precario…………. It may be added that it is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period. Though the possession “be not proven to have continued every quarter, month or year, yet ordinary possession will be sufficient ad victoriam caus, albeit it be proponed in the terms of a continual possession, quia probatis extremis prsumuntur media, if the distance be not great.” (Stair’s Institutions of the Law of Scotland, IV, 40, 20). “The fact of possession may be continuous though the several acts of possession are at considerable intervals. How many acts will infer the fact is a question of proof and presumption independent of prescription” (Millar on Prescription, p. 36). The nature of the requisite possession must necessarily vary with the nature of the subject possessed. The possession must be the kind of possession of which the particular subject is susceptible.” 

In N. Varada Pillai vs Jeevarathnammal, (1920) 22 BOMLR 444, the Privy Council held following taking support from Culley v Doe, (1840) 11 A & E 1008:

“Generally speaking, one tenant in common cannot maintain an ejectment against another tenant in common, because the possession of one tenant in common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant tenant in common, has not been in the participation of the rents and profits for a considerable length of time, find other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster : . . . and, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety.“

In Nair Service Society Ltd vs Rev. Father K. C. Alexander & ors, 1968 SCR (3) 163, the Supreme Court held following:

“The cases of the Judicial Committee are not binding on us. But we approve of the dictum in Perry v. Clissold. No subsequent case has been brought to our notice departing from that view. No doubt, a great controversy exists over the two cases of Doe v. Barnard and Asher v. Whitlock. But it must be taken to be finally resolved by Perry v. Clissold. A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in Perry v. Clissold and may be taken to be declaratory of the law in India.”

In Hemaji Waghaji Jat vs Bhikhabhai Khengarbhai Harijan & ors, Civil Appeal No. 1196 of 2007, criticising the ‘law of Adverse Possession’, the Supreme Court held following:

“34. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.”

In case of Dagadabai (Dead) By Lrs vs Abbas @ Gulab Rustum Pinjari, Civil Appeal No. 83 0f 2008, the Supreme Court held following:

” 21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.”

In Nanjegowda @ Gowda (D) By Lrs.Anr vs Ramegowda, Civil Appeal No.7089 of 2010, the Supreme Court held following:

“19) In our opinion, the stand taken by the defendants was wholly inconsistent. They first set up a plea of adverse possession but it was rightly held not proved. The defendants, however, did not challenge this finding in the second appeal, which became final. Even otherwise, the plea of adverse possession was wholly misconceived and untenable. It is a settled law that there can be no adverse possession among the members of one family for want of any animus among them over the land belonging to their family.“

(Emphasis Supplied)

The moral justification of the law of adverse possession was graphically stated by Justice O.W. Holmes:

“Man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, can’t be displaced without cutting at his life.”

(Excerpt from a letter written by Oliver Wendell Holmes to William James (April 1, 1907) in “The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters and Judicial Opinions” 417-18 (Max Lerner ed., 1943)

Rajni Sinha

Advocate Bombay High Court

7738080174

Accused: Preponderance of Probability

In a criminal trial, accused is presumed to be innocent until proved guilty beyond reasonable doubt. The Latin maxim, ‘Ei incumbit probatio qui dicit, non qui negat’ signify that the burden of proof is on prosecution, who asserts, not on accused, who denies. There is an essential distinction between “burden of proof”  (Section 101 of Indian Evidence Act, 1872) and “onus of proof” (Section 102 of the Indian Evidence Act, 1872), “burden of proof” lies upon the person who has to prove a fact and it never shifts, but the “onus of proof” shifts. (Addagada Raghavamma and Anr vs Addagada Chenchamma and Anr, 1964 AIR 136, 1964 SCR (2) 933)

In case of Woolmington vs. The Director of Public Prosecutions, [1935] AC 462, [1935] UKHL 1, the House of Lords reiterated following:

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.”

 In King Emperor vs U. Damapala, (37) 24 A.I.R. 1937 Rang. 83, Full Bench of Rangoon High Court laid a proposition and answered it in following manner:

“The main proposition may be laid down simply as follows: in all criminal’ cases where there is a reasonable doubt as to the guilt of an accused person at the close of the whole of the evidence the accused is entitled to be acquitted?”

“Put shortly, the test is not ’whether the accused has proved beyond all reasonable doubt that he comes within any exception to the Indian Penal Code, but whether in setting up his defence he has established a reasonable doubt in the case for “the prosecution and has thereby earned his right to an acquittal.”

In Dahyabhai Chhaganbhai Thakker vs State of Gujarat, Criminal Appeal No. 58 of 1962, the Supreme Court stated following:

“The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions:

(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.

(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by s. 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.

(3) Even if the accused was not able to establish conclusively that he was, insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.”

In case of Harbhajan Singh vs State of Punjab, Criminal Appeal No. 53 of 1951 following was stated by the Supreme Court:

“Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds “in proving a preponderance of probability.” As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus that never shifts, i.e., that of establishing, on the whole case, guilt beyond a reasonable doubt.”

In Rabindra Kumar Dey vs State of Orissa, Criminal Appeal No. 193 of 1971 following was held by the Supreme Court:

“On a consideration of the evidence and the circumstances we are satisfied that the appellant has been able to prove that the explanation given by him was both probable and reasonable judged by the standard of the preponderance of probabilities This being the position, it was for the prosecution to prove affirmatively in what manner the amount was misappropriated after it had been transferred from the custody of the appellant to the custody of the Nazir. Such proof is wholly lacking in this case. As the accused has given a reasonable explanation, the High Court was in error in drawing an adverse inference against him to the effect that he had misappropriated the money.” 

In case of Partap vs The State Of U.P, Criminal Appeal No.- 120 of 1971, the Supreme Court stated following qua two full bench decision of Allahabad High Court (i) Parbhoo And Ors. vs Emperor, AIR 1941 All 402 (ii) Rishi Kesh Singh And Ors. vs The State, AIR 1970 All 51:

“The findings of the Trial Court on the defence version indicate that a question of law arise here which seems to have troubled several High Courts. It gave rise to two Full Bench decisions of the Allahahad High Court, the first in Parbhoo v. Emperor,(l) and the second in Rishi Kesh Singh & ors. v. the State(‘). It does not seem to have been considered in the same form by this Court. I think this is an appropriate case in which this Court could consider and decide it, and, it is because this aspect of the case was ignored by the Trial Court as well as the High Court that I consider this to be a fit case for a reconsideration of evidence and interference by this Court under Article 136 or the Constitution.”

The following was held in Partap vs The State Of U.P, Criminal Appeal No.- 120 of 1971:

“In the light of the above discussion, the conclusion is inescapable that the appellant had succeeded in establishing by a preponderance of probability, that the deceased was within a striking distance, poised for imminent attack on the appellant with a spear, when the latter fired the fatal gunshot. In such a situation, the appellant had reasonable and immediate apprehension that he would suffer death or grievous hurt if he did not fire at the deceased. Thus, the death was, in all probability, caused by the appellant in the exercise of his right of private defence.  

In Vijayee Singh and ors vs State of Uttar Pradesh, Criminal Appeal No. 375-77 of 1987, the Supreme Court reiterated following:

“The accused may also show on the basis of the material a preponderance of probability in favour of his plea. If there are absolutely no circumstances at all in favour of the existence of such an exception then the rest of the enquiry does not arise in spite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.” 

In Satya Narain Yadav vs Gajanand, Criminal Appeal No. 305 of 2001, the Supreme Court stated following:

“51. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal (1988 (4) SCC 302).”

 In Noor Aga vs State Of Punjab & Anr, Criminal Appeal No. 1034 of 2008, the Supreme Court held following:

“Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is “beyond all reasonable doubt” but it is `preponderance of probability’ on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.”

A mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court.

Rajni Sinha

Advocate Bombay High Court

7738080174

Survivorship Vs Intestate Succession

The Hindu Succession Act, 1956 came into force on 17^th June, 1956. The section 4 of the Hindu Succession Act, 1956 reads as follows:

         “4. Over-riding effect of Act. —

(1) Save as otherwise expressly provided in this Act, —

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force 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;

(b) any other law in force 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.”

Thus, any text, rule or interpretation of Hindus law including customs and usage ceased to have effect if same is contrary to the Hindu Succession Act, 1956. Past case law including few cited below has been rendered ineffective if its interpretation is contrary to provision of the Hindu Succession Act, 1956. However, few of cases is cited below to give reader a flavor of classical cases:

In case of Girja Bai vs Sadashiv Dhundiraj, (1916) 18 BOMLR 621, the privy council held following:

“Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co- sharers.”

In case of Suraj Narain and another vs. Iqbal Narain and others, (1913) ILR 35 All 80, following was held:

“10. The principle applicable to cases of separation from the joint undivided family has been clearly enunciated by this Board in Rewun Persad v. Mussumat Radha Beebyi (1846) 4 M.I.A. 137 and the well-known case of Appovier v. Rama Subba Aiyani (1866) 11 M.I.A. 75. What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint undivided family and convert a joint tenancy into a tenancy in common must depend on the facts of each case. A definite and unambiguous indication by one member of intention to separate himself and. to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed. In the present case that element appears to their Lordships to be wholly wanting. “

In case of Soundararajan vs. T.R.M.A.R.R.M. Arunachalam Chetty, (1916) ILR 39 Mad 159, cited various Hindu text for arriving at following decision:

“In the result, I would give the following answer to the reference, namely, that a member of a joint Hindu family becomes separated from the other members by the fact of suing them for partition and by the unequivocal declaration made in the plaint in that suit when such unequivocal declaration has been clearly expressed to the other coparcener or coparceners through the Court or otherwise. “

The section 6 of the Hindu Succession Act, 1956 provides for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants-in-common and not as joint tenants. The “Explanation Clause” to subsection 3 of section 6 provides following:

“Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”

This explanation provides for legal fiction with regard to deemed partition immediately before the death of deceased coparcener. In case of Gurupad Khandappa Magdum vs Hirabai Khandappa Magdum and Ors, 1978 SCR (3) 761, following was held by Supreme Court:

“Explanation 1 to section 6 resorts to   the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener “shall be deemed to be “the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place  between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through     all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one’s imagination to boggle.”

In State of Maharashtra vs Narayan Rao Sham Rao Deshmukh & Ors, 1985 SCR (3) 358, following was stated by the Supreme Court, while distinguishing it from Gurupad Khandappa Magdum vs Hirabai Khandappa Magdum and Ors:

“A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. “

In Uttam vs Saubhag Singh & Ors, Civil Appeal No.2360 of 2016, the Supreme Court laid following guidelines with regard to to joint family property governed by the Mitakshara School, prior to the amendment of 2005 :        

“(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).

(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition. 

(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. 

(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property. 

(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.“

In G.Sekar vs Geetha & Ors, Civil Appeal No. 2535 of 2009, the Supreme Court emphasized following:

“20. We may in the aforementioned backdrop notice the relevant portion of the Statement of Objects and Reasons of the 2005 Act, which reads as under: 

“3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the same section so as to remove the disability on female heirs contained in that section.”

21. It is, therefore, evident that the Parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act but also conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act. “

In case of Prakash & Ors. Vs Phulavati & Ors, Civil Appeal No.7217 Of 2013, the Supreme Court stated following with regard to birth of daughter for the purpose of the Hindu succession (Amendment) Act, 2005:

“23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.“

Thus, above decision of the Supreme Court overruled, Vaishali Satish Ganorkar & Anr vs Mr. Satish Keshaorao Ganorkar & Anr, AIR 2012, BOM 101, where the Bombay High Court held that the amendment will not apply unless the daughter is born after the 2005 Amendment.

Rajni Sinha,

Advocate Bombay High Court,

7738080174