{"id":211342,"date":"2009-08-24T00:00:00","date_gmt":"2009-08-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-s-a-no-1985-of-2008-om-vs-mr-g-s-brar-on-24-august-2009"},"modified":"2019-02-27T01:39:39","modified_gmt":"2019-02-26T20:09:39","slug":"r-s-a-no-1985-of-2008-om-vs-mr-g-s-brar-on-24-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-s-a-no-1985-of-2008-om-vs-mr-g-s-brar-on-24-august-2009","title":{"rendered":"R.S.A No.1985 Of 2008 (O&M) vs Mr. G.S.Brar on 24 August, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
R.S.A No.1985 Of 2008 (O&M) vs Mr. G.S.Brar on 24 August, 2009<\/div>\n
R.S.A No.1985 of 2008                                    ::1::\n\nIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH\n\n\n\n                                      Date of decision : August 24, 2009\n\n\n\n1.     R.S.A No.1985 of 2008 (O&M)\n\n2.     R.S.A No.1986 of 2008 (O&M)\n\n       Geja Singh vs Jagga Singh and others.\n\n                                ***\n<\/pre>\n
CORAM : HON’BLE MR.JUSTICE AJAY TEWARI<\/p>\n
                                ***<\/p>\n
Present :    Mr. T.N.Gupta, Advocate
\n             for the appellant.\n<\/p>\n
             Mr. G.S.Brar, Advocate
\n             for respondents No.1 and 2.\n<\/p>\n
                                ***<\/p>\n
1.   Whether Reporters of Local Newspapers may be allowed to see the
\n     judgment ?\n<\/p>\n
2.   To be referred to the Reporters or not ?\n<\/p>\n
3.   Whether the judgment should be reported in the Digest ?\n<\/p>\n
                                ***<\/p>\n
AJAY TEWARI, J<\/p>\n
             This order shall dispose of RSA Nos.1985 and 1986 of 2008 as<\/p>\n
common questions of law and fact are involved therein. For the sake of<\/p>\n
convenience, facts are being extracted from RSA No.1985 of 2008.<\/p>\n
             This appeal has been filed against concurrent judgments of the<\/p>\n
Courts below decreeing the suit of the plaintiffs\/respondents No.1 and 2 for<\/p>\n
declaration that they are joint owners in possession of 2\/12 shares each out<\/p>\n
of the land recorded in the name of common ancestor Chanan Singh in the<\/p>\n
revenue estate of village Kokri Phoola Singh, Tehsil Moga, District<\/p>\n
Faridkot or to any other share which they are found entitled to.<\/p>\n
             The following questions have been proposed :-\n<\/p>\n
 R.S.A No.1985 of 2008                                    ::2::\n<\/p>\n
                  ” a)   Whether there is a miscarriage of justice on<\/p>\n
                  account of non-framing of essential issues ?<\/p>\n
                  b)     Whether the appellant’s application under order 41<\/p>\n
                  Rule 27 CPC has been declined on illegal grounds ?<\/p>\n
                  c)     Whether the testimony of Megha Singh DW has<\/p>\n
                  been discarded by the trial Court and the appellate Court<\/p>\n
                  in violation of Section 138 read with Section 33 of the<\/p>\n
                  Evidence Act ?\n<\/p>\n
                  d)     Whether the judgment and decree of the appellate<\/p>\n
                  Court upholding the verdict of the trial Court is perverse?<\/p>\n
                  e)     Whether coparcenary property can be partitioned<\/p>\n
                  by oral family settlement ?\n<\/p>\n
                  f)     Whether the prohibition of Section 4 of the<\/p>\n
                  Benami Transactions (Prohibition) Act, 1988 would<\/p>\n
                  apply where the person in whose name the property is<\/p>\n
                  held is a coparcener in a Hindu Undivided Family ?<\/p>\n
                  g)     Whether the Court can declare a coparcener to be<\/p>\n
                  the owner of a defined share in coparcenary property<\/p>\n
                  before its partition ?\n<\/p>\n
                  h)     Whether the plaintiffs’ shares in Chanan Singh<\/p>\n
                  coparcener’s interest devolving on them under proviso to<\/p>\n
                  Section 6 of the Hindu Succession Act have been<\/p>\n
                  correctly worked out ?”\n<\/p>\n
            Questions No. (b), (d), (e) and (f) are questions of fact relating<\/p>\n
to the allegations of the appellant (one of the contesting defendants in the<\/p>\n
suit) that in fact a family partition had taken place between the parties and
\n R.S.A No.1985 of 2008                                   ::3::\n<\/p>\n
the entire disputed property had fallen to the share of Geja Singh-defendant<\/p>\n
No.3.\n<\/p>\n
             Learned counsel for the appellant took me through the findings<\/p>\n
as well as the evidence to argue that the evidence originally led and the<\/p>\n
evidence proposed to be led by way of the application under Order 41 Rule<\/p>\n
27 of the CPC clearly proved that in fact family partition had taken place.<\/p>\n
He further argued that the findings of the learned lower appellate Court<\/p>\n
regarding non-admissibility of the evidence of Megha Singh was incorrect<\/p>\n
since he had been duly cross-examined by counsel for the contesting<\/p>\n
defendants. He further argued that his application under Order 41 Rule 27<\/p>\n
of the CPC placing on record sale deed of property situated in village Kokri<\/p>\n
Kalan,    mortgage deed of land in village Kokri Phoola Singh and<\/p>\n
consequent sale deeds whereby land was purchased in the names of<\/p>\n
respondent No.1-Jagga Singh and the third brother Bachhittar Singh clearly<\/p>\n
evidenced the plea of family partition and that the learned Courts below<\/p>\n
should have accepted this evidence since it was material for coming to a<\/p>\n
just decision of this case.\n<\/p>\n
             In my opinion, the learned lower appellate Court rightly<\/p>\n
considered the sale deeds while holding that partition had to be proved<\/p>\n
independently and could not be said to have been proved only by proof of<\/p>\n
purchase of certain properties in the names of Bachhittar Singh and Jagga<\/p>\n
Singh.    As regards this independent proof, I have gone through the<\/p>\n
statement of Megha Singh and find that the same is not enough to establish<\/p>\n
partition as has been held by the Courts below. Thus, question No.(c) is<\/p>\n
rendered otiose. With regard to questions (b), (d), (e) and (f), counsel for<\/p>\n
the appellant has not been able to persuade me that the findings of the
\n R.S.A No.1985 of 2008                                      ::4::\n<\/p>\n
Courts below that partition was not proved could not be held to be either<\/p>\n
based on no evidence or based on such misreading of evidence as would<\/p>\n
render the same perverse.\n<\/p>\n
            The answer to question No.(g)          can be found in the case<\/p>\n
reported as Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum<\/p>\n
and others<\/a>, AIR 1978 SC 1239. In paragraphs 10, 11, 12 and 13, the<\/p>\n
Hon’ble Supreme Court has given answer to question No. (g) against the<\/p>\n
appellant which is as follows :-\n<\/p>\n
                   ” 10. Two things are thus clear: One, that in a partition<\/p>\n
                   of the coparcenary property Khandappa would have<\/p>\n
                   obtained a 1\/4th share and two, that the share of the<\/p>\n
                   plaintiff in the 1\/4th share is 1\/6th, that is to say, 1\/24th.<\/p>\n
                   So far there is no difficulty. The question which poses a<\/p>\n
                   somewhat difficult problem is whether the plaintiff’s<\/p>\n
                   share in the coparcenary property is only 1\/24th or<\/p>\n
                   whether it is 1\/4th plus 1\/24th, that is to say, 7\/24th. The<\/p>\n
                   learned trial Judge, relying upon the decision in<\/p>\n
                   Shiramabai (AIR 1964 Bom 263) which was later<\/p>\n
                   overruled by the Bombay High Court, accepted the<\/p>\n
                   former contention while the High Court accepted the<\/p>\n
                   latter. The question is which of these two views is to be<\/p>\n
                   preferred.<\/p>\n
                   11. We see no justification for limiting the plaintiff share<\/p>\n
                   to 1\/24th by ignoring the 1\/4th share which she would<\/p>\n
                   have obtained had there been a partition during her<\/p>\n
                   husband’s lifetime between him and his two sons. We
\n R.S.A No.1985 of 2008                                  ::5::\n<\/p>\n
                think that in overlooking that 1\/4th share, one<\/p>\n
                unwittingly permits one’s imagination to boggle under<\/p>\n
                the oppression of the reality that there was in fact no<\/p>\n
                partition between the plaintiff’s husband and his sons.<\/p>\n
                Whether a partition had actually taken place between the<\/p>\n
                plaintiff’s husband and his sons is beside the point for the<\/p>\n
                purposes of Explanation 1. That Explanation compels the<\/p>\n
                assumption of a fiction that in fact ”a partition of the<\/p>\n
                property had taken place”, the point of time of the<\/p>\n
                partition being the one immediately before the death of<\/p>\n
                the person in whose property the heirs claim a share.<\/p><\/blockquote>\n
                12. The fiction created by Explanation 1 has to be given<\/p>\n
                its due and full effect as the fiction created by S. 18-A (9)<\/p>\n
                (b) of the India Income-tax Act, 1922, was given by this<\/p>\n
                Court in Commr. of Income-tax, Delhi v. S. Teja Singh,<\/a><\/p>\n
                1959 Supp (1) SCR 394: (AIR 1959 SC 352). It was held<\/p>\n
                in that case that the fiction that the failure to send an<\/p>\n
                estimate of tax on income under S. 18-A (3) is to be<\/p>\n
                deemed to be a failure to send a return, necessarily<\/p>\n
                involves the fiction that a notice had been issued to the<\/p>\n
                assessee under S. 22 and that he had failed to comply<\/p>\n
                with it. In an important aspect, the case before us is<\/p>\n
                stronger in the matter of working out the fiction because<\/p>\n
                in Teja Singh’s case, a missing step had to be supplied<\/p>\n
                which was not provided for by S. 18-A (9) (b), namely,<\/p>\n
                the issuance of a notice under S. 22 and the failure to
\n R.S.A No.1985 of 2008                                  ::6::\n<\/p>\n
                comply with that notice. Section 18-A (9) (b) stopped at<\/p>\n
                creating the fiction that when a person fails to send an<\/p>\n
                estimate of tax on his income under S. 18-A (3) he shall<\/p>\n
                be deemed to have failed to furnish a return of his<\/p>\n
                income. The section did not provide further that in the<\/p>\n
                circumstances therein stated, a notice under S. 22 shall be<\/p>\n
                deemed to have been issued and the notice shall be<\/p>\n
                deemed not to have been complied with. These latter<\/p>\n
                assumptions in regard to the issuance of the notice under<\/p>\n
                S. 22 and its non-compliance had to be made for the<\/p>\n
                purpose of giving due and full effect to the fiction<\/p>\n
                created by Section 18-A (9) (b). In our case it is not<\/p>\n
                necessary, for the purposes of working out the fiction, to<\/p>\n
                assume and supply a missing link which is really what<\/p>\n
                was meant by Lord Asquith in his famous passage in East<\/p>\n
                End Dwellings Co. Ltd. v. Finsbury Borough Council,<\/p>\n
                1952 AC 109 (132). He said: If you are bidden to treat an<\/p>\n
                imaginary state of affairs as real, you must also imagine<\/p>\n
                as real the consequences and incidents which, if the<\/p>\n
                putative state of affairs had in fact existed, must<\/p>\n
                inevitably have flowed from or accompanied it; and if the<\/p>\n
                statute says that you must imagine a certain state of<\/p>\n
                affairs, it cannot be interpreted to mean that having done<\/p>\n
                so, you must cause or permit your imagination to boggle<\/p>\n
                when it comes to the inevitable corollaries of that state of<\/p>\n
                affairs.\n<\/p><\/blockquote>\n
 R.S.A No.1985 of 2008                                  ::7::\n<\/p><\/blockquote>\n
                13.     In order to ascertain the share of heirs in the<\/p>\n
                property of a deceased coparcener it is necessary in the<\/p>\n
                very nature of things, and as the very first step, to<\/p>\n
                ascertain the share of the deceased in the coparcenary<\/p>\n
                property. For, by doing that alone can one determine the<\/p>\n
                extent of the claimant’s share. Explanation 1 to S. 6<\/p>\n
                resorts to the simple expedient, undoubtedly fictional,<\/p>\n
                that the interest of a Hindu Mitakshara coparcener ”shall<\/p>\n
                be deemed to be” the share in the property that would<\/p>\n
                have been allotted to him if a partition of that property<\/p>\n
                had taken place immediately before his death. What is<\/p>\n
                therefore required to be assumed is that a partition had in<\/p>\n
                fact taken place between the deceased and his<\/p>\n
                coparceners    immediately    before    his    death.   That<\/p>\n
                assumption, once made, is irrevocable. In other words,<\/p>\n
                the assumption having been made once for the purpose of<\/p>\n
                ascertaining the share of the deceased in the coparcenary<\/p>\n
                property, one cannot go back on that assumption and<\/p>\n
                ascertain the share of the heirs without reference to it.<\/p><\/blockquote>\n
                The assumption which the statute requires to be made<\/p>\n
                that a partition had in fact taken place must permeate the<\/p>\n
                entire process of ascertainment of the ultimate share of<\/p>\n
                the heirs, through all its stages. To make the assumption<\/p>\n
                at the initial stage for the limited purpose of ascertaining<\/p>\n
                the share of the deceased and then to ignore it for<\/p>\n
                calculating the quantum of the share of the heirs is truly
\n R.S.A No.1985 of 2008                                    ::8::\n<\/p>\n
                   to the permit one’s imagination to boggle. All the<\/p>\n
                   consequences which flow from a real partition have to be<\/p>\n
                   logically worked out, which means that the share of the<\/p>\n
                   heirs must be ascertained on the basis that they had<\/p>\n
                   separated from one another and had received a share in<\/p>\n
                   the partition which had taken place during the lifetime of<\/p>\n
                   the deceased. The allotment of this share is not a<\/p>\n
                   processual step devised merely for the purpose of<\/p>\n
                   working out some other conclusion. It has to be treated<\/p>\n
                   and accepted as a concrete reality, something that cannot<\/p>\n
                   be recalled just as a share allotted to a coparcener in an<\/p>\n
                   actual partition cannot generally be recalled. The<\/p>\n
                   inevitable corollary of this position is that the heir will<\/p>\n
                   get his or her share in the interest which the deceased had<\/p>\n
                   in the coparcenary property at the time of his death, in<\/p>\n
                   addition to the share which he or she received or must be<\/p>\n
                   deemed to have received in the notional partition.”<\/p><\/blockquote>\n
            Counsel for the appellant has relied upon a Division Bench<\/p>\n
judgment of Karnataka High Court in Babu Ningappa Yalgundri (deceased)<\/p>\n
by L.Rs) and others v. Arunkumar alias Basappa and others, AIR 1988<\/p>\n
Karnataka 139, wherein in para 25, the judgment of the Hon’ble Supreme<\/p>\n
Court in Gurupad Khandappa Magdum’s case (supra) has been considered.<\/p>\n
He has referred me to paragraphs 25, 26 and 27 and more particularly on the<\/p>\n
last part of para 27. The said paragraphs read thus :-<\/p>\n
                   “25. Mr. Mandgi, next placed reliance on the decision of<\/p>\n
                   the Supreme Court in the case of Gurupad Khandappa
\n R.S.A No.1985 of 2008                                  ::9::\n<\/p>\n
                Magdum v. Hirabai Khandappa Magdum, AIR<\/a> 1978 SC<\/p>\n
                1239. In the said case, it has been observed that the<\/p>\n
                widow’s share in the coparcenary property must be<\/p>\n
                ascertained by adding the share to which she is entitled at<\/p>\n
                a notional partition during her husband’s lifetime and the<\/p>\n
                share which she would get in her husband’s interest upon<\/p>\n
                his death. It was further laid down that in order to<\/p>\n
                ascertain the share of the heirs in the property of<\/p>\n
                deceased coparcener, it was necessary in the very nature<\/p>\n
                of things, and as the very first step, to ascertain the share<\/p>\n
                of the deceased in the coparcenary property. For, by<\/p>\n
                doing that alone could one determine the extent of the<\/p>\n
                claimant’s share. Explanation 1 to Sec. 6 resorts to the<\/p>\n
                simple expedient, undoubtedly fictional, that the interest<\/p>\n
                of a Hindu Mitakshara coparcener ‘shall be deemed to be’<\/p>\n
                the share in the property that would have been allotted to<\/p>\n
                him if a partition of that property had taken place<\/p>\n
                immediately before his death. What is therefore required<\/p>\n
                to be assumed is that a partition had in fact taken place<\/p>\n
                between the deceased and his coparceners immediately<\/p>\n
                before his death.<\/p><\/blockquote>\n
                26. That does not amount to ruling that on the death of<\/p>\n
                the Mitakshara coparcener it does, ipso facto, follow that<\/p>\n
                a partition has taken place immediately prior to his death<\/p>\n
                and his interest must devolve by succession or<\/p>\n
                inheritance and not by survivorship. The ruling does no
\n R.S.A No.1985 of 2008                                  ::10::\n<\/p>\n
                more than lay down the procedure by which the quantum<\/p>\n
                of share of heirs including female heirs may be<\/p>\n
                ascertained if the proviso is given effect to Sec. 6 of the<\/p>\n
                Hindu Succession Act.\n<\/p><\/blockquote>\n
                27. Sec. 6 of the Hindu Succession Act and the<\/p>\n
                explanations thereto indicates the mode of ascertainment<\/p>\n
                of shares or extent of shares and no more. This becomes<\/p>\n
                clear by the very language of Sec. 6 of the Hindu<\/p>\n
                Succession Act which is as follows :\n<\/p><\/blockquote>\n
                        “6.   When    a   male   Hindu    dies   after   the<\/p>\n
                        commencement of this Act, having at the time of<\/p>\n
                        his death an interest in a Mitakshara coparcenary<\/p>\n
                        property, his interest in the property shall devolve<\/p>\n
                        by survivorship upon the surviving members of the<\/p>\n
                        coparcenary and not in accordance with this Act.<\/p>\n
                Provided that, if the deceased had left him surviving a<\/p>\n
                female relative specified in Class I of the Schedule or a<\/p>\n
                male relative, specified in that class who claims, through<\/p>\n
                such female relative, the interest of the deceased in the<\/p>\n
                Mitakshara coparcenary property shall devolve by<\/p>\n
                testamentary or intestate succession, as the case may be,<\/p>\n
                under this Act and not by survivorship.<\/p><\/blockquote>\n
                Explanation 1.- For the purposes of this Section, the<\/p>\n
                interest of a Hindu Mitakshara coparcener shall be<\/p>\n
                deemed to be the share in the property that would have<\/p>\n
                been allotted to him if a partition of the property had
\n R.S.A No.1985 of 2008                                     ::11::\n<\/p>\n
                  taken place immediately before his death, irrespective of<\/p>\n
                  whether he was entitled to claim partition or not.<\/p>\n
                  Explanation 2.- Nothing contained in the proviso to this<\/p>\n
                  Section shall be construed as enabling a person who has<\/p>\n
                  separated himself from the coparcenary before the death<\/p>\n
                  of the deceased or any of his heirs to claim on intestacy a<\/p>\n
                  share in the interest referred to therein.”<\/p>\n
                  In no part of the Section is it laid down by the legislature<\/p>\n
                  that a partition must necessarily follow or be assumed to<\/p>\n
                  have followed on the death of a coparcener if he has left<\/p>\n
                  behind him female heirs as specified in Class I of the<\/p>\n
                  Schedule. Even the Supreme Court has said that<\/p>\n
                  assumption must be made that there was a partition only<\/p>\n
                  in order to ascertain the quantum of share. To read more<\/p>\n
                  than that into the decision would be to re-write Sec. 6 of<\/p>\n
                  the Hindu Succession Act.”<\/p><\/blockquote>\n
            I do not see how the judgment of Karnataka High Court in<\/p>\n
Babu Ningappa Yalgundri (deceased) by L.Rs) and others’ case (supra)<\/p>\n
helps the appellant in any way. That was a case where on the fiction<\/p>\n
expounded by the Hon’ble Supreme Court in the case of Gurupad<\/p>\n
Khandappa Magdum’s case (supra), the adopted son’s interest in the joint<\/p>\n
property was sought to be negated by alleging that on the death of<\/p>\n
prepositus of the joint family a deemed partition had taken place and, thus,<\/p>\n
the joint family ceased to exist. All that the learned Judges laid down was<\/p>\n
that the fiction of deemed partition would not result in the break up of the<\/p>\n
joint family. Thus, by applying the judgment of the Hon’ble Supreme Court
\n R.S.A No.1985 of 2008                                     ::12::\n<\/p>\n
in Gurupad Khandappa Magdum’s case (supra), the shares of various<\/p>\n
coparceners at the time of Chanan Singh’s death would have to be worked<\/p>\n
out.\n<\/p>\n
            With regard to question No.(a), it may be mentioned that the<\/p>\n
only additional issue proposed is with regard to the allegation of partition.<\/p>\n
However, in my opinion that issue would be covered by issue No.1 framed<\/p>\n
before the Courts below. Coming now to question No. (h) it would be seen<\/p>\n
that Chanan Singh left behind three sons, three daughters and one widow.<\/p>\n
Undisputedly, Section 6 of the Hindu Succession Act, 1956 (for short “the<\/p>\n
Act”) would be applicable which is quoted herein below :-<\/p>\n
                  ” 6.-Devolution of interest in coparcenary property.-<\/p>\n
                  (1) On and from the commencement of the Hindu<\/p>\n
                  Succession (Amendment) Act, 2005, in a Joint Hindu<\/p>\n
                  family governed by the Mitakshara law, the daughter of a<\/p>\n
                  coparcener shall,-\n<\/p><\/blockquote>\n
                         (a)    by birth become a coparcener in her own<\/p>\n
                         right in the same manner as the son;\n<\/p><\/blockquote>\n
                         (b)    have the same rights in the coparcenary<\/p>\n
                         property as she would have had if she had been a<\/p>\n
                         son;<\/p><\/blockquote>\n
\n<\/blockquote>\n
                         (c)    be subject to the same liabilities in respect of<\/p>\n
                         the said coparcenary property as that of a son,<\/p>\n
                  and any reference to a Hindu Mitakshara coparcener shall<\/p>\n
                  be deemed to include a reference to a daughter of a<\/p>\n
                  coparcener:\n<\/p><\/blockquote>\n
                         Provided that nothing contained in this sub-section
\n R.S.A No.1985 of 2008                                  ::13::\n<\/p><\/blockquote>\n
                shall affect or invalidated any disposition or alienation<\/p>\n
                including any partition or testamentary disposition of<\/p>\n
                property which had taken place before the 20th day of<\/p>\n
                December, 2004.\n<\/p><\/blockquote>\n
                (2)     Any property to which a female Hindu becomes<\/p>\n
                entitled by virtue of sub-section (1) shall be held by her<\/p>\n
                with the incidents of coparcenary ownership and shall be<\/p>\n
                regarded, notwithstanding anything contained in this Act<\/p>\n
                or any other law for the time being in force in, as<\/p>\n
                property capable of being disposed of by her by<\/p>\n
                testamentary disposition.\n<\/p><\/blockquote>\n
                (3)     Where a Hindu dies after the commencement of the<\/p>\n
                Hindu Succession (Amendment) Act, 2005, his interest<\/p>\n
                in the property of a Joint Hindu family governed by the<\/p>\n
                Mitakshara law, shall devolve by testamentary or<\/p>\n
                intestate succession, as the case may be, under this Act<\/p>\n
                and not by survivorship, and the coparcenary property<\/p>\n
                shall be deemed to have been divided as if a partition had<\/p>\n
                taken place and,-\n<\/p><\/blockquote>\n
                        (a)   the daughter is allotted the same share as is<\/p>\n
                        allotted to a son;\n<\/p><\/blockquote>\n
                        (b)   the share of the pre-deceased son or a pre-<\/p><\/blockquote>\n
\n<\/blockquote>\n
                        deceased daughter, as they would have got had<\/p>\n
                        they been alive at the time of partition, shall be<\/p>\n
                        allotted to the surviving child of such pre-deceased<\/p>\n
                        son or of such pre-deceased daughter; and
\n R.S.A No.1985 of 2008                                   ::14::\n<\/p><\/blockquote>\n
                        (c)   the share of the pre-deceased child of a pre-<\/p>\n
                        deceased son or of a pre-deceased daughter, as<\/p>\n
                        such child would have got had he or she been alive<\/p>\n
                        at the time of the partition, shall be allotted to the<\/p>\n
                        child of such pre-deceased child of the pre-<\/p>\n
                        deceased son or a pre-deceased daughter, as the<\/p>\n
                        case may be.\n<\/p><\/blockquote>\n
                Explanation.- For the purposes of this sub-section, the<\/p>\n
                interest of a Hindu Mitakshara coparcener shall be<\/p>\n
                deemed to be the share in the property that would have<\/p>\n
                been allotted to him if a partition of the property had<\/p>\n
                taken place immediately before his death, irrespective of<\/p>\n
                whether he was entitled to claim partition or not.<\/p>\n
                (4)     After the commencement of the Hindu Succession<\/p>\n
                (Amendment) Act, 2005, no court shall recognise any<\/p>\n
                right to proceed against son, grandson or great-grandson<\/p>\n
                for the recovery of any debt due from his father,<\/p>\n
                grandfather or great-grandfather solely on the ground of<\/p>\n
                the pious obligation under the Hindu law, of such son,<\/p>\n
                grandson or great-grandson to discharge any such debt:<\/p>\n<\/blockquote>\n
                        Provided that in the case of any debt contracted<\/p>\n
                before the commencement of the Hindu Succession<\/p>\n
                (Amendment) Act, 2005, nothing contained in this sub-<\/p>\n
                section shall affect-<\/p><\/blockquote>\n
\n<\/blockquote>\n
                        (a)   the right of any creditor to proceed against<\/p>\n
                        the son, grandson or great-grandson, as the case
\n R.S.A No.1985 of 2008                                    ::15::\n<\/p><\/blockquote>\n
                        may be; or<\/p>\n<\/blockquote>\n
                        (b)    any alienation made in respect of or in<\/p>\n
                        satisfaction of, any such debt, and any such right or<\/p>\n
                        alienation shall be enforceable under the rule of<\/p>\n
                        pious obligation in the same manner and to the<\/p>\n
                        same extent as it would have been enforceable as if<\/p>\n
                        the Hindu Succession (Amendment) Act, 2005 had<\/p>\n
                        not been enacted.\n<\/p><\/blockquote>\n
                  Explanation.- For the purposes of clause (a), the<\/p>\n
                  expression “son”, “grandson” or “great-grandson” shall<\/p>\n
                  be deemed to refer to the son, grandson or great-<\/p>\n
                  grandson, as the case may be, who was born or adopted<\/p>\n
                  prior to the commencement of the Hindu Succession<\/p>\n
                  (Amendment) Act, 2005.\n<\/p><\/blockquote>\n
                  (5)   Nothing contained in this section shall apply to a<\/p>\n
                  partition, which has been effected before the 20th day of<\/p>\n
                  December, 2004.\n<\/p><\/blockquote>\n
                  Explanation.- For the purposes of this section “partition”<\/p>\n
                  means any partition made by execution of a deed of<\/p>\n
                  partition duly registered under the Registration Act, 1908<\/p>\n
                  (16 of 1908) or partition effected by a decree of a court).”<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
            In consonance with the judgment of the Hon’ble Supreme Court<\/p>\n
in Gurupad Khandappa Magdum’s case (supra), at the time of death of<\/p>\n
Chanan Singh a notional partition would be deemed to take place among<\/p>\n
five co-parceners viz. Chanan Singh, his three sons and widow with each<\/p>\n
having 1\/5th share. This separate share of Chanan Singh, in keeping with the
\n R.S.A No.1985 of 2008                                     ::16::\n<\/p><\/blockquote>\n
proviso to Section 6 of the Act, would be divided among all seven of his<\/p>\n
heirs. Thus, respondent No.1 would be entitled to 1\/5th + 1\/35th =8\/35th<\/p>\n
share while respondent No.2 would be entitled to 1\/35th share. In addition<\/p>\n
thereto, on the death of the widow of Chanan Singh, her 8\/35th share would<\/p>\n
again devolve upon her six heirs, thus, giving an additional 8\/210th share<\/p>\n
each to respondents No.1 and 2. Respondent No.1 would ultimately be<\/p>\n
entitled to 8\/35th + 8\/210th =56\/210th =4\/15th share, while respondent No.2<\/p>\n
would be entitled to 1\/35th +8\/210th = 14\/210th = 1\/15th share.<\/p>\n
            With this modification in the exact share of the respondents and<\/p>\n
in view of the decision on the questions of law above, these appeals are<\/p>\n
dismissed with no order as to costs.\n<\/p>\n
            As the main appeals have since been dismissed, all the pending<\/p>\n
civil miscellaneous applications, if any, also stand disposed of.<\/p>\n
                                          ( AJAY TEWARI             )\nAugust 24, 2009.                               JUDGE\n`kk'\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court R.S.A No.1985 Of 2008 (O&M) vs Mr. G.S.Brar on 24 August, 2009 R.S.A No.1985 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : August 24, 2009 1. R.S.A No.1985 of 2008 (O&M) 2. R.S.A No.1986 of 2008 (O&M) Geja Singh vs Jagga Singh and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-211342","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nR.S.A No.1985 Of 2008 (O&M) vs Mr. G.S.Brar on 24 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-s-a-no-1985-of-2008-om-vs-mr-g-s-brar-on-24-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.S.A No.1985 Of 2008 (O&M) vs Mr. G.S.Brar on 24 August, 2009 - 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