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TMI Blog2014 (1) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... on an affidavit. The Income Tax record of the subsequent year upto the Assessment Year 1999-2000 would evidence that the plaintiff’s father had been filing Income Tax Returns and been assessed to Income Tax as Karta of HUF. Suit premises was initially acquired by the plaintiff’s father in his own name and it was in those circumstances that the suit premises continued to be assessed to property tax in his individual name than that of HUF. The payment of property tax by any means does not create any right or title in the name of the assessee. Filing an eviction case by the plaintiff’s father in his own name instead of the HUF, can also be said to be only for the convenience. In any case, the partition could only be filed by him in his name, being the Karta of HUF. The conclusion comes out to be that the suit premises was the HUF property of the plaintiff’s father, with he being the Karta thereof till his death. Plaintiff is entitled to one-fourth share in the suit premises. This will however be conditional to the payment of deficient court fees by the plaintiff as indicated above, which she would be required to deposit within four weeks from the date of this order - Decided par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in possession of any portion of the suit premises and state that the suit being not properly valued, was liable to be dismissed. They aver that the plaintiff is also not entitled to any share, as the suit premises was a HUF property, and was so assessed by the Income Tax Department as also the Wealth Tax Authorities. It is averred that after the death of their father, their mother (defendant No.3) had been residing with defendant No. 2 and whenever the plaintiff visited her mother, she returned back to her matrimonial house on the same day. They denied their having had a meeting on 21.07.2001 or having agreed to the partition of one-fourth share of the plaintiff, as alleged. They aver that they were told about the Will by Sh. B.D.Sharma, the elder brother of their father in the presence of the plaintiff, but, he died before handing over the said Will to the defendants and so the said Will could not be made available to them. Defendant No. 1 also states having substantially contributed in the acquisition and development of the suit premises, as he paid Rs. 11000/- to his father for repayment of the loans taken for construction of the premises. 4. On the pleading of the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hotchpotch of HUF. 9. The law relating to blending of separate property with joint family property is well settled. Property, separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property, if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein, but to establish such abandonment a clear intention to waive separate rights must be established. 10. The contention of the learned counsel that in the absence of there being any joint family property, the separate property of the plaintiff s father could not be impressed with the character of joint family is noted for rejection. The law in this regard is well settled. Reference can be made to the decision of our High Court in Dr.Keswal Krishan Mayor Vs. Kailash Chand Mayor and Ors., 1977(1) 2 Delhi 97, wherein it was held thus: As I understand the law laid down by the Supreme Court, it does not lay down that a separate property could not be impressed with the character of joint Hindu family property in the absence of the existence of a joint family or coparcenary property. The existence of joint family pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted as HUF property vide Assessment Order dated 31.03.1976 for the Assessment Year 1972-73. They stated that from the Assessment Year 1972-73 to 1988-90 and until the demise of their father, the premises had been assessed to Income Tax as well as Wealth Tax, as HUF under the provisions of Income Tax Act as well as Wealth Tax Act. 12. Learned counsel for the defendants placed reliance on the cases of Andhra Pradesh High Court in Gundlapalli Mohan Rao and Others v. Gundlapalli Satyanarayana and Others, Appeal Nos. 430/1965 254/1966, decided on 30.07.1970, wherein it was observed thus: ..that it was manifest from the conduct of 1st defendant, in the absence of any explanation, that the statement in the return was deliberately made out of his own volition abandoning or giving up his interest in the self-acquired property and impressing it with the character of joint family property, and the fact that the Income-Tax Officer did not accept his statement was of no consequence . 13. The defendants also relied upon the judgment of Calcutta High Court in Commissioner of Income-Tax v. Bhikraj Jaipura, decided on 21.02.1978, wherein it was observed as under: This appeared to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Order dated 31.03.1972 of the Assessment Year 1972-73, it is seen that the plaintiff s father had declared some income from the suit premises in the status of HUF. It is also seen therefrom that the HUF came into existence under the assessee s declaration made on 23.05.1966 on an affidavit. The Income Tax record of the subsequent year upto the Assessment Year 1999-2000 would evidence that the plaintiff s father had been filing Income Tax Returns and been assessed to Income Tax as Karta of HUF. The incomes received from the suit premises was being declared by the plaintiff s father as of HUF and was assessed as such during all these years. The Assessment Order under the Wealth Tax Act of the years 1977-78 onward would also evidence the suit premises having been assessed as HUF for the purpose of Wealth Tax. From all this record, it would leave no manner of doubt that the plaintiff s father, for all purposes, had consciously abandoned his individual rights in the suit premises to HUF with effect from 23.05.1966. The affidavit filed by the plaintiff s father with Income Tax Department declaring the suit premises as HUF on 23.05.1966 was not the solitary step taken by him, but, he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9-9-2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. 12. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before 20.12.2004. Sub- section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not expressly made retrospective by the legislature . 21. Again, the case of Ganduri Koteshwaramma (supra) was also relied upon by this court in Manoj Jain v. Smt. Krishna Jain Ors., CS (OS) No. 2413/2007 decided on 04.10.2012, wherein, it was held thus: 17. Section 6 as amended by Act 39 of 2005 specifically brought in an explanation which was added below sub-Section 5. In terms of this explanation only those partitions which were through a registered partition deed or by a decree of a Court, were saved from the application of Section 6(1). Therefore, the legislature by conscious language has made Section 6(1) prospective only under certain facts, situations and retrospective under other facts situations i.e where there is no registered partition deed or decree of a Court the provision of Section 6(1) will be retrospective. The categorical intention so expressed by the legislature has to be abided to. Since the judgments of the Supreme Court in the cases of Sheela Devi(supra) and G. Sekar (supra) are based in ignorance or overlooking the explanation added below sub-Section 5 of Section 6, these judgments in view of the ratio in the Division Bench judgment of three Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into force, the Amendment to Sec. 6 conferring equal rights in property, came into effect w.e.f. 9th September, 2005, during the pendency of the suit. It is also pertinent to note that Sec. 23 of the Act has also been omitted vide the Amendment Act, in order to remove the discrimination contained in Sec. 6. In this regard, I find it relevant to rely upon the observation of the Apex Court in the G. Sekar Case, (supra): 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: 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. It is, therefore, evident that the Parliament intended to achieve the goal of removal of discri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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