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Section 6 of Hindu Succession Act doesn’t apply to Dayabhaga school law

In RFA 11/2017, SMT KALPITA DEB vs SMT KAJORI DEB, the appellant had sought her equal share in the suit property. But the defendants contended that she relinquished her right over the land as per an alleged agreement dated 25-11-2004 which was assailed as forged by the appellant. The trail court however agreed with the defendants and that the suit was not maintainable, purportedly on the basis of the proviso to sub-section (1) and sub-section (5) of Section 6 of the Hindu Succession Act (as amended in 2005) since as per the said provision any partition or disposition or alienation or testamentary disposition of property having taken place before 20th December, 2004 have been excluded from the purview of the amended section 6 of the Hindu Succession Act, and that the amended provision of Section 6 of the Hindu Succession Act was prospective.

On appeal the High Court observed that Section 6(1) relates to the interest in coparcenary property only. So far as the general rule of succession or devolution in respect of the property of a Hindu dying intestate or the Dayabhaga school of law is concerned, the amended Hindu Succession Act, 2005 has not made ay change except deleting the provision of Section 23 and 24 of the 1956 Act. Therefore, the amended provision of Section 6 of the Hindu Succession Act, has nothing to do with the succession to the property, governed by the Dayabhaga law or the general rule of succession under the Act.

The court further opined that the plaintiff had raised the issue of fraud which is ignored by the trial cover and even without going into the merit of the allegation, when the plea of fraud was raised in respect of the transaction, learned trial court could not have dismissed the suit on preliminary issue of maintainability taking recourse to sub- section (5) or proviso to Section 6(1) of the Hindu Succession Act, 2005. The object of sub- section (5) or the proviso to sub-section (1) of Section 6 was to given finality to the transaction having taken place prior to 20.12.2004. But the provision of sub-section (5) or proviso to sub- section (1) of Section 6 cannot be construed to have excluded any fake transaction. Therefore, when the plea of fraud was raised, in respect of any transaction effected prior to the 2005 amendment came into force, the suit cannot be disposed on preliminary issue taking recourse to the proviso of Section 6(1) or sub-section (5) of the Section.

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