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TMI Blog2023 (12) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the status of being a Coparcener are the necessary qualifications to become a Karta. The traditional Law nowhere proscribed a female from being a manager but the requisite of being the senior most male was the necessary corollary of the fact that only male members of the Joint Hindu Family who were born within the degrees of coparcenary, were given the status of a Coparcener. Whether recognition of a daughter as a Coparcener necessarily entitles her to be a Karta? - HELD THAT:- The concept of coparcenary is derived from the joint ownership of a common pool of assets held by a family and the necessary corollary was that who owns the property, would have a right to manage it. When under the traditional Hindu law, the woman was not entitled to coparcenary property; resultantly, she could not assume the position of Karta. However, the Amendment to Section 6 of the Act, 1956 redefines the meaning of coparcenary as understood under the traditional Hindu Law, which is no longer limited to devolution of interest in the coparcenary property alone but encompasses all other incidents of a Coparcener, including the right to be a Karta. To say that a woman can be a coparcener but not a Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablished there was no continuation of D.R. Gupta Sons HUF after the demise of Shri D. R. Gupta in the year 1977 and the property got mutated in the name of all the legal heirs. In furtherance of such severance of status, the also parties determined the shares of each of the branch of the five brothers to be 1/5th as mentioned in the Memorandum of Settlement. Thus, even though no partition by metes and bounds took effect between the parties, a partition took place leading to severance of status of the undivided family into a divided family. The respondent No. 1 is hereby declared as the Karta for the purposes of representing the D.R. Gupta Sons HUF before the Competent Authority. Deficient Court fee be paid - there are no merit in the present appeal which is hereby dismissed. - HON'BLE MR. JUSTICE SURESH KUMAR KAIT AND HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA For the Appellant : Mr. Aslam Ahmed, Ms. Charu Shriyam Singh Mr. Abhishek Dwivedi, Advocates. Ms. Aakanksha Kaul, Amicus Curiae with Mr. Manek Singh, Mr. Aman Sahani Mr. Harsh Ojha, Advocates. For the Respondent : Ms. Mala Goel, Advocate for R-1. Ms. Anita Trehan, Dr. Sarita Dhuper, Ms. Kajal Chandra, Ms. Prerna Cho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case, leaving the ball in our Court. 5. The present Appeal has been preferred by the appellant/Manu Gupta (the defendant No.1 in the main Suit), against the Judgement dated 22.12.2015 whereby the Suit for Declaration for declaring the plaintiff (respondent No.1 herein) as the Karta of Late Shri D.R. Gupta and Sons, HUF, has been allowed. 6. The appellant and the respondents, being Hindus and governed by the Mitakshara Law, are the descendants of Late Shri D.R. Gupta, son of Late Shri Sunder Das Gupta, who expired on 01.10.1971. Admittedly, Late Shri D.R. Gupta constituted a Hindu Joint Family (HUF) known as D.R Gupta and Sons (HUF) since 05.01.1963 comprising of himself and his five sons. The members of the HUF are reflected in the chart below: - 7. Late Shri D.R. Gupta, voluntarily put his immoveable property commonly known as No. 4, University Road, Delhi, and shares in Motor and General Finance Ltd., besides other moveable and immoveable properties in the common hotch-potch and executed an Affidavit dated 05.01.1963 declaring that all properties shall belong to the Hindu Undivided Family (HUF) of which he shall be the Karta with right of survivorship and all other incidents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (respondent No. 17), are the coparceners who have opposed respondent No. 1 becoming the Karta. Ms. Meera Sawhney (respondent No. 9) and Ms. Gargi Gupta (respondent No. 10) initially submitted an affidavit before the learned Single Judge consenting to accept any person determined by the Court as the Karta, however, they have later staked a claim to be the eligible Karta by stating that respondent No. 1 is not a Coparcener under law. 12. The appellant/Manu Gupta, in objection to respondent no.1 s claim, declared himself as the Karta of HUF and had correspondence in this capacity with the Defence Estate Officer. 13. This led to filing of the present Civil Suit in 2006 by respondent No.1/Sujata Sharma seeking a Declaration that she is the Karta of D.R. Gupta Sons HUF . 14. As matter stood thus, the respondent No. 9/Ms. Meera Sawhney filed a suit bearing C.S. (OS) No. 142/2008 titled Meera Sawhney vs Smt. Raj Gupta for Declaration that an Oral Settlement dated 18.01.1999; Memorandum of Settlement dated 01.04.1999 and the Will dated 17.09.2000 be declared as null and void and sought partition of D.R. Gupta Sons HUF , Rendition of Accounts and Permanent Injunction for restraining the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y right of a female to be absolute without admitting any exception or restriction such as marriage. With the removal of this disqualifying factor, nothing prevents the eldest female Coparcener from becoming the Karta of an HUF. It was held that the Amendment, brought in Section 6 of the Act, 1956 by the Amendment Act, 2005, does not impose any restriction on the right of a woman of being coparcener and she cannot be denied a status of Karta to manage the affairs, including the property of HUF. The Suit was decided in favour of the plaintiff/respondent No.1and she was declared the Karta of D.R. Gupta Sons HUF . 19. Aggrieved by the Judgement dated 22.12.015, the present Appeal has been filed by Shri Manu Gupta. 20. The challenge to the Judgement by the appellant/Manu Gupta is essentially premised on the ground that his cousin sister i.e., respondent No. 1 admittedly, was married on 28.02.1969 and had become an active member of the HUF in her marital home. She consequently became disconnected with the activities of the D.R. Gupta Sons HUF and has neither participated in any coparcenary activities till date nor had she resided in any of the HUF property subsequent to her marriage as c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate that a daughter upon marriage, ceases to be a member of her father s family as she becomes a member of her husband s family and with her marriage, her Gotra (lineage) also changes. The marriage symbolises daughter being reborn into her husband s family upon marriage and customarily, a new name post marriage was given to a woman. The respondent No. 1 had thus, ceased to be a member of the D.R. Gupta Family upon her marriage in 1969 and has become a member of her matrimonial family. It is a settled position of law that a person cannot be a member of two Joint Hindu Families at the same time. It is contended that a woman would anyway acquire certain rights in her husband s home, while the vice versa is not possible. This furthers the asymmetry in the rights of a woman as she acquires rights in her father s property and husband s property. Thus, a woman becomes a member of her husband s family and remains a Coparcener in her father s family; however, a man is only a Coparcener in his father s family. 26. It is reiterated that a woman ceases to be a member of her father s family upon marriage. Reliance has been placed on Narendra vs. K. Meena (2016) 9 SCC 455; Kamesh Panjiyar vs. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued that it is a settled position of law that in case of the unfortunate demise of the father, the wife, who is the mother of minor sons, can be the manager of the HUF until her sons attain majority. This, however, does not mean that the mother becomes the Karta of the HUF. In extension to this rationale, it is submitted that a married woman can be required to perform a managerial role in the HUF in her matrimonial home. However, any right to become a Karta in her father s family would clash with the rights in her matrimonial home resulting in a conflict of interest and a moral dilemma on where her loyalties should lie. 31. It is submitted that the learned Single Judge failed to consider that by declaring respondent No. 1 as the Karta of the D.R. Gupta Sons HUF , the de facto and de jure control of the HUF properties and business would lie in the hands of the husband of respondent No.1 and would result in complications in the assessment of Income Tax. 32. The law traditionally recognises a Karta as the senior most male member of the family as such a male commands respect and authority over the family members. Since respondent No. 1 lacks such attributes and because she has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said judgment does not deal with her right to become a Karta, no support can be drawn by respondent No.1 to claim such a title of Karta. It is reiterated that the case of Vineeta Sharma (supra) is not applicable to the case of respondent No. 1 as she in her Written Statement filed in the Suit filed by Meera Sawhney and Ors. (supra) has taken the stand that the HUF property has already been partitioned prior to the Amendment Act of 2006 coming into effect 38. The respondent No.1/Sujata Sharma, in her Written Arguments, submitted that 10 out of 17 respondents have given their affidavits of No Objection for respondent No.1 to become the Karta of the D.R. Gupta Sons HUF . It is further stated that Section 6 of the Act, 1956 does not make any distinction between a married, unmarried, widowed, educated or illiterate daughter, as being a daughter of a Coparcener is the sole qualification under the law. Moreover, the performance of ceremonies like Kanyadaan, Satphere, Panigrahana do not take away a woman s identity of being a daughter. In response to the appellant s contention on the change in the Gotra of respondent No. 1 after marriage, it was vociferously argued that marriage does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rights to a woman. Equal rights will form the gateway to equal treatment of a daughter and reinforce her honour and dignity in the family of her birth. It was thus asserted that the legally eligible eldest Coparcener is respondent No. 9/Meera Sawhney. 43. The respondent Nos. 12 and 13, in their Written Submissions, have extended their support to respondent No. 1. It is stated that a daughter continues to be a Coparcener as well as a member of the Joint Hindu family after marriage. This implies that a daughter can be a member of two HUFs after marriage. Relying on Vineeta Sharma (supra), it is submitted that the coparcenary right under Section 6 of the Act, 1956 is available to daughters born before or after the Amendment in 2005 in the same manner as a son with the same rights and liabilities. Further, they supported the contentions of respondent No.1 that a daughter can become a Karta if she is the senior most coparcener. 44. Ms. Aakanksha Kaul had been appointed as the Amicus Curiae vide Order dated 15.01.2021 by this Court who has provided assistance to this court on two questions, namely: - A. Whether a married daughter can be the Karta of a Hindu Undivided Family (HUF)? B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Submissions heard from the learned counsels of all the parties and the Written Submissions as well as the record perused. 51. Based on the facts and submissions made by the parties, it is apodictic that the appellant is not at odds with the coparcenary interest of a daughter; however, he assails the coparcenary interest as well as the right of respondent No.1 to become the Karta of the D.R. Gupta Sons HUF by relying on the Written Statement of latter in another Suit. The respondent Nos. 9 and 10 persist on their stance that respondent No. 1 is not a Coparcener as the father of Ms. Sujata Sharma expired before the Amendment Act, 2005 came into effect. The primary point of contention is thence, her claim to become a Karta of the D.R. Gupta Sons HUF . 52. Before delineating the rights of the appellant and the respondents, it is imperative to examine the findings of the learned Single Judge on the implications of the 2005 amendment to Section 6 of the Act, 1956. ISSUE NO. 8: What is the effect of the amendment in the Hindu Succession Act, in 2005 and has it made any changes in the concept of Joint Family or its properties in the law of coparcenary? (OPP) 53. The appellant has contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here an interest in the property is created by birth. Though a joint family status is a result of birth, the possession of joint property is only an appendage and not prerequisite for the constitution of such a family as held in Haridas vs. Devaki Bai, 1926 SCC OnLine Bom 76. On the other hand, a coparcenary is created only when there is joint or coparcenary property. Position of Manager: 58. The question which thus, needs to be answered is whether recognition of a woman as a coparcener carries with it a necessary incident of becoming a Karta to assume the management of the coparcenary property. 59. In Raghavachariar s Hindu Law, a manager of a Joint Hindu Family has been described as a senior member of the family who is entitled to manage the properties and, in his absence, the next senior most male member of the family, is its manager provided he is not incapacitated from acting as such by illness or other sufficient cause. At Page 295, the position of a manager of a Joint Hindu Family is explained which is as under: - 276. Position of Manager. In a Hindu family the Karta or manager occupies a position superior to that of the other members in so far as he manages the property or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most male was the necessary corollary of the fact that only male members of the Joint Hindu Family who were born within the degrees of coparcenary, were given the status of a Coparcener. 64. This limitation has been redressed by Amendment to Section 6 of the Act, 1956 which now confers the equal status of Coparcener on woman equating her rights to be at par with a son. Therefore, having acquired the status of Coparcener, the respondent No.1 should be entitled to acquire the status of Karta. 65. The appellant, on the other hand, has contended that the Legislative Object behind the Amendment Act, 1956 as reflected in its Preamble and the Title of Section 6 (as amended in 2005) is solely to codify the law on succession of property and does not change the traditional Hindu law or amend the necessary qualification of being a male Coparcener to become the Karta of an HUF. 66. This contention of the appellant gives rise to the question of whether the heading of the provision or the Preamble of the Act, 1956 can be used to restrict the scope of express words used within the body of the section. Title of Section 6 of the Act, 1956: 67. The title of Section 6 of the Act, 1956 reads as devolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. Again, the preamble cannot be of much or any assistance in construing provisions which embody qualifications or exceptions from the operation of the general purpose of the Act. It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. 72. It was further observed in Prince Ernest of Hanover (supra) that the Courts are concerned with the practical business of deciding a lis, and when the plaintiff puts forward one construction of an enactment and the defendant another, it is the Court s business in any case of some difficulty, after informing itself of what I have called the legal and factual context including the preamble, to consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward. If they admit of only one construction, that construction will receive effect even if it is inconsistent with the Preamble, but if the enacting words are capable of either of the constructions offered by the parties, the constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. 76. We thus, observe that Section 6 of the Act, 1956 in clear and unambiguous words, confers equal rights as a coparcener to a daughter as well as the son. The dichotomy of status of coparcener and its necessary incidents in conferring differential rights to son and daughter, hence stand addressed, giving equal rights to both. Whether recognition of a daughter as a Coparcener necessarily entitles her to be a Karta: 77. The appellant s entire arguments are premised essentially on the ground that the Hindu Succession Act, 1956 was enacted to amend and codify the law relating to intestate succession of property amongst Hindus and in no manner tinkers with the customary Hindu law in regard to Karta and his obligations which are specifically protected and preserved by virtue of Section 4 of the Act, 1956. 78. The concept of coparcenary is derived from the joint ownership of a common pool of assets held by a family and the necessary corollary was that who owns the property, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daughter of a Coparcener as opposed to the spouse. Thus, the reliance on Shreya Vidyarthi vs. Ashok Vidyarthi (supra) is misplaced and is of no assistance to the appellant. 81. We thus, concur with the observations of learned Single Judge that Section 4 of the Act, 1956 cannot be invoked artificially to prevent what has been expressly done by the Legislature. To give any other interpretation to deny the right of a woman to be a Coparcener and consequently a Karta, would strike at the very Object of giving the woman an equal right to property as a man. The right to manage the property is incidental to ownership, and it is absurd to claim that the owner of an estate is curtailed from the right to manage it. ISSUE NO. 6: Assuming existence of a D.R. Gupta and Sons HUF, whether the plaintiff can be considered to be an integral part of the HUF, particularly after her marriage in 1977, and whether the plaintiff has ever participated in the affairs of the HUF as a coparcener, and its effect? (OPP) 82. The appellant claims that the learned Single Judge failed to appreciate a significant aspect that performance of spiritual and managerial duties is by the Karta of the HUF which respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fits to be conferred on the deceased. 88. Mitakshara interprets Sapinda as the nearest in blood that will be the heir. The Mitakshara system is, therefore, based on consanguinity or proximity of blood relationship. The fundamental principle of Mitakshara Law of Succession is propinquity, with the crucial exception that no cognate aside from a daughter's son may succeed an agnate in preference. The principle of spiritual benefit does not find mention in the Mitakshara Law for determining the order of succession. Among Bhinna Gotraja Sapinda, the test is propinquity, i.e., the nearness in blood and agnates are preferred to cognates. Mitakshara thus, recognises two modes of devolution of property, namely, survivorship and succession. The rules of survivorship apply to joint family property, and the rules of succession apply to property held in absolute severalty by the last owner. 89. Mulla explains the right to inheritance under the Mitakshara School of Law as under: - Though under the Mitakshara the right to inherit does not arise from the right to offer oblation, the test to be applied when a question of preference arises in the case of sagotra sapindas, is the capacity to offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent it in legal matters is derived from the authority given by the family or the Karta and not from any principle of Hindu Law. The Court relied on the judgement of Bhagwan Dayal vs. Reoti Devi (1962) 3 SCR 440 wherein it was observed as under: - The legal position may be stated thus: Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. . Ordinarily the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property. subject to the limitations laid down by the said law, for or on behalf of the family. 94. Punjab and Haryana High Court in Madan Mohan vs. Balkishan Das 1964 SCC OnLine Punj 256, stated that in some exceptional cases, the Karta need not be the eldest Coparcener. Be that as it may, a managing member does not become a Karta merely because he was managing the properties of the HUF on behalf of its members. 95. In a similar vein, in Sunderlal Nanalal (HUF) vs. Commissioner of Income-Tax, Gujarat-II, Ahmedabad 1983 SCC OnLine Guj 198, it was observed that the Karta of the HUF, due to his old age and indifferent health, can assign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fluence of her husband and his family, if married . This seems to be patently unfair as women are proving themselves equal to any task and if women are influenced by their husbands and their families, men are no less influenced by their wives and their families. 101. Experience has shown that any culture or practice that is ingrained in the society is bound to face some apprehension and resistance by the society when systemic changes are made to it. But with passage of time it becomes a tool of social change. The amendment to Section 6 of the Act, 1956 owes its provenance to the right to equality guaranteed under Article 14 of the Constitution of India. Such societal displeasure was also witnessed in the cases of Navtej Singh Johar and Ors. vs. Union of India, Ministry of Law and Justice, (2018) 1 SCC 791; K.S. Puttaswamy and Anr. vs. Union of India and Ors, (2017) 10 SCC 1 where the test of popular acceptance was applied to hold that the guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard statutory rights that are conferred with the sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving daughters of living Coparceners as on 09.09.2005 are entitled to the rights under the substituted Section 6, regardless of when such daughters are born. Howbeit, a three-Judge Bench of the Apex Court in the land mark case of Vineeta Sharma (supra) concluded that the Court in Prakash and Ors. (supra) did not bring attention to the issue of how a coparcenary is formed. It is not required for a previous Coparcener to be alive in order to form a coparcenary or to become a coparcener; what matters is birth within the degrees of the coparcenary to which it extends. The mode of succession, not the process of forming a coparcenary, is one of survival. 107. The Apex Court thus, clarified the rights of a daughter as a Coparcener under the amended Section 6 of the Act, 1956 and concluded that it is not necessary that the father of the daughter should be alive on the date of the amendment. 108. The Apex Court in Vineeta Sharma (supra) further observed that the amended provision of Section 6(1) of the Act, 1956 provides that on and from the date of Amendment, the daughter is conferred the right of coparcenary in her own right‟ and in the same manner as a son‟. The right of Copa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 filed by respondent Nos. 9 and 10) where it was asserted by her that the suit property had already been partitioned in 1999. Thus, respondent No.1 cannot claim to be a Karta when the coparcenary itself has ceased to exist. 115. Admittedly, Shri D.R. Gupta, the common ancestor of all the parties to the Suit, had constituted a D.R. Gupta Sons HUF on 05.01.1963 of which his five sons were the Coparceners. Shri D.R. Gupta had drawn both moveable and immoveable properties into a common hotchpotch to be owned by the HUF. The HUF was assessed to Income Tax and was allotted PAN No. AAA HD 4230 M. Further, it is not in dispute that all the sons of Shri D.R. Gupta had expired, the last being Shri R.N. Gupta who expired on 14.02.2006. 116. The essential question is whether the HUF stood dissolved upon the demise of Shri D.R. Gupta on 02.09.1977 or continued even after the demise of his five sons. 117. The appellant DW1/Manu Gupta had deposed that D.R. Gupta Sons HUF ceased to exist in the year 1971 on the demise of Shri D.R. Gupta and thus, the question of anyone being the Karta of this HUF does not survive. PW3/N.V. Satyanarayan, Defence Estate Officer, Delhi Circle, Delhi produced the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the records as joint owners. Though the property was declared as HUF property, but all the legal heirs, including the girls were made joint owners. Had there been an HUF continuing after the demise of Late Shri D.R. Gupta, the property need not have been mutated in the name of daughters as they were not Coparceners according to the law existing then. The very fact that all the legal heirs from time to time have been recorded as joint owners on demise of their father in the mutation records of the suit property, leads to an inference that there was no HUF that continued after the demise of Late Shri D.R. Gupta and the properties of the HUF became the joint property of the legal heirs of Shri. D.R. Gupta. 121. Respondent No. 1 Sujata Sharma has asserted that a partial partition of moveable assets took place on 26.03.1977 in respect of deposits and shares in Motor and General Finance Limited. There is no denial that pursuant to this partial partition, each coparcener became entitled to receive from the HUF, a sum of Rs. 28,000/- from the deposits of Motor and General Finance Limited held by HUF and further each was to get 1000 equity shares of the Motor General and Finance Limited a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , New Delhi e) Deposit with the Motor General Finance Ltd. of Rs. 6,400/-. 2.3 The parties effected partition of Hindu Undivided Family Dr. Gupta Sons (HUF) and that the parties hereto being the members of the said Hindu Undivided Family were entitled to and were owners of the movable and immovable properties of the said Hindu Undivided Family mentioned in para 2.2 above to the extent as under: a) Shri Krishan Mohan Gupta (The eldest son of late Shri D.R. Gupta, who died on 17th Feb. 1984) and is survived by his wife Smt. Shanta K Mohan and Mrs. Sujata Sharma Mrs. Radhika Seth, daughter, heirs to the party of the First Part . 1/5th Share. b) Shri Mahendra Nath Gupta (as karta of the Second Party ). 1/5th Share. c) Mr. Ravinder Nath Gupta (party of the Third Part ). 1/5th Share. d) Mr. Bhupinder Nath Gupta (Party of the Fourth Part ). 1/5th Share. e) Mr. Jitender Nath Gupta (Party of the Fifth Part ). 1/5th Share. 7. No one party or parties hereto shall be entitled to bind the other parties hereto by his acts or deed with respect to the affairs of the said business. 8. It has been further agreed between the parties that the immovable property No. 4 University Road, Delhi, after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it was Shri Krishan Mohan Gupta. He also clarified that after the death of Shri Krishan Mohan Gupta, there was no Karta as such but for the Military Defence Estate Office, the information regarding the passing away of Mr. Krishan Mohan Gupta was given by Mahender Nath Gupta, holding himself to be the Karta of HUF. After Mr. Mahender Nath Gupta, there was no Karta as such but for the Military Defence Estate Office, the information regarding the passing away of Mahender Nath Gupta, was given by Mr. Ravinder Nath Gupta . 129. DW1/Manu Gupta (appellant herein) thereafter deposed that earlier Income Tax Returns were being filed, but the same have not been filed now for the last many years. On being asked specifically if he was a Coparcener of D.R. Gupta Sons HUF , DW1 stated that assuming the HUF exists, I am Coparcener otherwise I am member of the Joint Family . 130. DW1/Manu Gupta further deposed that like the members before him who informed the Defence Estate Office about the passing away of previous Karta to the Estate Office as the Karta of the family, he also informed the said Office. He even informed the Motor and General Finance Limited Company where the HUF holds some sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made **under the document** and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2)of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only a statement of what would be their rights on a partition. Until a partition all their rights consist merely in a common enjoyment of the common property, to which is further added the right of male issue to forbid alienations, made by their direct ancestors 138. Thus, when the partition of an HUF takes place, the shares are divided amongst each branch of the HUF. However, this division amongst branches does not lead to the creation of a separate coparcenary in each branch; rather the share so allotted to a branch is equally divided amongst all its leaves (members). 139. In the present case, the shares in the Family Settlement of 1999 has been determined as 1/5 per stirpe (which included the legal heirs of Late Shri K.M. Gupta, Shri M.N. Gupta, R.N. Gupta, Shri J.N. Gupta), thus constituting a division of their respective shares as per Hindu Law. 140. In this context, the decision of the Privy Council in Appovier vs. Rama Subba Aiyan 11 M.I.A. 75 (1866) described the manner in which severance of status of HUF may take place which reads as under: - According to the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after referring to Appovier (supra), the Hon ble Apex Court concluded that Hindu law does not require that the property, must in every case be partitioned by metes and bounds or physically into different portions to complete a partition. Disruption of status can be brought about by any of the modes (1) by a father during his lifetime between himself and his sons by dividing properties equally amongst them, (2) by agreement, or (3) by a suit or arbitration. It is open to the parties to enjoy their share of property as tenants-in-common in any manner known to law according to their desire. However, Income Tax law introduces certain conditions of its own to give effect to the partition under Section 171 of the Income Tax Act. Section 171 postulates that until a claim is made under Section 171(2) of the Income Tax Act that there has been a partition (total or partial) of the HUF, it continues to exist under the Income Tax records. Sub-Section 1 of Section 171 of the Income Tax Act contains a deeming fiction that provides that a Hindu family hitherto cease as undivided, shall be deemed for the purpose of the Income Tax Act to continue to be a Hindu Undivided Family, except where and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines the forum where the Suit is to be filed i.e., whether before the District Court or the High Court, the valuation of the Suit for the purpose of court fee is for the purpose of affixing the requisite court fee. 148. We find that the respondent No. 1 has vaguely stated that the Suit valuation is more than Rs. 1,00,00,000/-. The plaintiff/respondent No. 1 should have been specific in giving valuation for the purpose of jurisdiction. Considering that the plaintiff has the discretion to value their suit as held by the full bench of this Court in Smt. Sheila Devi vs. Kishan Lal Kalra ILR (1974) 2 Del 491and as the trial has continued for over 18 years, we do not deem it appropriate to seek further clarification on this aspect and hold the jurisdictional valuation as Rs. 1,00,00,000/-. 149. The next aspect is what should be the court fee payable on this valuation. The declaratory Suits essentially deal with the status of a person or a property and, therefore, being an inherent right is not subject to any valuation. Therefore, under the Court Fee Act, the minimum valuation of the Suit for Declaration has been assessed as Rs. 200/- on which a court fee of Rs. 20/- is payable. This is w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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