Daughter, Partition Deed and a Third-Party Purchaser
Gopal and his three sons held ancestral agricultural land at Kolhapur, in Survey Nos. 88 and 89, recorded as joint Hindu family property. Gopal's daughter Sunita married in 1998. Gopal died intestate in 2003, leaving his widow, Sunita and the three sons. In 2007 the three sons and their mother executed and registered a partition deed dividing the two survey numbers among the three sons; Sunita was not a party and received nothing. In 2010 the eldest son sold one acre out of Survey No. 88 to Deshmukh by a registered sale deed for ₹18 lakh, and Deshmukh has been in possession since. In 2022 Sunita sued for partition and separate possession of her share, impleading her brothers, her mother and Deshmukh. The defendants plead that (i) Sunita married before the 2005 amendment and the amendment cannot apply because Gopal died before the commencement date; (ii) the 2007 registered partition binds her; and (iii) the suit is barred by limitation and by the equities in favour of a bona fide purchaser for value.
1. Is Sunita a coparcener in the ancestral property, and how should her share be worked out given that Gopal died in 2003?
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Section 6 of the Hindu Succession (Amendment) Act, 2005 makes a daughter a coparcener by birth, in her own right, in the same manner as a son, and her share is held with the incidents of coparcenary ownership. The question is how far this operates where the father died before 9 September 2005.
In Vineeta Sharma v. Rakesh Sharma (2020) the Supreme Court held that the amended section is retroactive in operation and that the daughter is a coparcener by birth; the father need not be alive on the commencement date. Prakash v. Phulavati, which had required the father to be alive, was overruled. The only saving is for partitions or alienations genuinely effected before 20 December 2004, which are protected by the proviso. Sunita's marriage date is irrelevant; the section speaks of a daughter, married or unmarried.
On the conventional working: at the notional partition on Gopal's death in 2003 the coparcenary consists of Gopal, his three sons and Sunita - five coparceners of one-fifth each. Gopal's one-fifth then devolves intestate among his Class I heirs (widow, three sons, daughter), giving each one twenty-fifth. Sunita therefore holds 1/5 + 1/25 = 6/25; each son 6/25; the widow 1/25. The trial court should work this out precisely, but her status as coparcener is settled.
2. Does the registered partition deed of 2007 bind Sunita?
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No, for two reasons.
The first is statutory. The proviso to Section 6(1), as construed in Vineeta Sharma, protects only a partition effected before 20 December 2004, and even such a partition must be evidenced by a registered deed or a decree of court and must have been genuinely effected by metes and bounds; a document brought into existence later to defeat a daughter's right does not qualify. A partition in 2007 falls on the wrong side of the cut-off date and enjoys no protection.
The second is general Hindu law. A partition is a severance of status among coparceners. Sunita being a coparcener, a partition to which she was not a party cannot bind her or extinguish her undivided interest; it operates only among those who effected it. The deed of 2007 may be valid inter se the three sons and the widow as an arrangement among their own interests, but it cannot allot to itself the share that belongs to Sunita.
A further point worth noting: a coparcener's interest is undivided, so a partition deed among some members cannot prejudice the rights of an absent coparcener even if registered - registration cures want of notice to the world, not want of title in the executants.
3. Are the pleas of limitation and bona fide purchase available against Sunita, having regard to the 2010 sale to Deshmukh?
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Limitation. A suit for partition is governed by Article 110 of the Limitation Act - twelve years from the date on which the plaintiff is excluded from a share. Joint enjoyment or constructive possession does not amount to exclusion; time begins to run only on a clear denial of her right or an overt act of ouster bringing it home to her. The 2007 deed was not communicated to Sunita and the 2010 sale conveyed a specific item without reference to her interest. On the pleaded facts, no act of ouster is established before the defendants' denial in the written statement, and the suit of 2022 is within time. The defendants bear the burden of proving ouster.
Bona fide purchase. The proviso to Section 6(4) protects alienations made before 20 December 2004; the 2010 sale is after that date and is not protected. In any event, a son who is a coparcener has no power to sell the joint family property or a specific item of it so as to defeat the other coparceners; the alienation is valid only to the extent of his own undivided share, and the purchaser steps into the vendor's shoes. The doctrine of bona fide purchaser for value, and Section 41 of the Transfer of Property Act, cannot apply because the vendor was not the sole owner and could not represent that he was. Deshmukh's remedy is against the eldest son for breach of covenant, not against Sunita.