Skip to main content

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.

Comments

Post a Comment

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...
7 comments
Read more

Mere Agreement To Sell The Leased Property To Tenant Would Not Terminate Landlord-Tenant Relationship

In CIVIL APPEAL Nos. 1237­1238 OF 2019, Dr. H.K. Sharma vs Shri Ram Lal, the tenant had objected against the eviction suit filed by the landlord, claiming that the landlord-tenant relationship between them had ceased to exist by virtue of an agreement for sale entered between them and that he has already paid some money in advance based on the agreement. The tenant contented as the landlord-tenant relationship did not exist, the landlord cannot evict him. The matter went through various forums and finally landed before the Supreme Court in appeal. The Supreme Court referring to the judgment in Shah Mathuradas Maganlal & Co. vs. Nagappa Shankarappa Malage & Ors., held that in the instant case the lease agreement included no clauses on the fate of the tenancy. A fortiori, the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy ...
2 comments
Read more

Valuation Report of Jewellery once made is effective for Four Assessment Years

The division Bench of the Delhi High Court in Pr.Commissioner of Wealth Tax vs. Raghu Hari Dalmia held that a valuation report made by a registered valuer once adopted shall be in effect for four assessment years unless an event has occurred whereby the value is increased or decreased. The High Court made it clear that the event of “search” under Section 132 of the Income Tax Act, 1961 cannot compel the assessee to undertake a fresh valuation.
2 comments
Read more