Gauhati High Court: Mir Alfaz Ali, J., while allowing an appeal, held that the trial court was totally misdirected to hold that the present suit was not maintainable on the basis of Proviso to Section 6(1) and Section 6(5)of the Hindu Succession Act, 1956.
The appellant had filed a suit for declaration of right, title, interest, partition and recovery of possession. As per the factual matrix, the suit property originally belonged to one Sasi Mohan Dev. After Sashi’s death, his property delved upon his 7 legal heirs which was partitioned among them. Subodh Kumar Dev, one of Sashi’s sons got the certain property which was inherited by the appellant and her brother (predecessor of the defendants). The land was divided into two parts, one of which was already partitioned between the appellant and her brother. However, the other part, which formed the bone of contention in the present matter, was not so partitioned. Presently, the appellant sought her equal share in the said part. But the defendants contended that she relinquished her right over the land as per an alleged agreement dated 25-11-2004. The appellants submitted that the alleged agreement is fake and fraudulently prepared by the defendants. However, the trial court held that the suit was not maintainable on the basis of Proviso to sub-section (1) and sub-section (5) of Section 6. Aggrieved thereby, the present appeal was filed by the appellant (original plaintiff).
B. Chakraborty, Advocate for the appellant submitted that parties to the present suit were governed by Dayabhaga school of law, and such Section 6 was not applicable. Per contra, Senior Advocate B.D. Konwar assisted by S. Sharma and B. Sharma, Advocates representing the defendants supported the impugned order.
Finding favour with the submission of Mr Chakaraborty, the High Court observed, “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 any 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.” Alternatively as well, according to the Court, that said section is not applicable in a case where a party alleges fraud in the transaction. In this context, without expressing any opinion on merits of the case, it was observed, “It is common knowledge, that fraud vitiates everything and as such, sub-section (5) or proviso to Section 6(1) of the Act can by no stretch of imagination be held to have intended to exclude any fake or fraudulent transaction from the purview of the main provision of Section 6. Therefore, even in case of Mitaksara coparcenery property governed by Section 6, the proviso to Section 6(1) and sub-section (5) shall not be applicable when fraud is alleged.” In such view of the matter, the appeal was allowed and the matter was remitted back to the trial court for consideration of merits. [Kalpita Deb v. Kajori Deb, 2019 SCC OnLine Gau 1019, dated 28-02-2019]