SUPREME COURT ON UNFETTERD COPARCENARY RIGHTS OF DAUGHTERS

 

SUPREME COURT ON UNFETTERED COPARCENARY RIGHTS OF WOMEN

The daughter has equal rights on the ancestral property

The Hindu Succession (Amendment) Act 2005 and its applicability analysed

Prior to enactment of The Hindu Succession ( Amendment) Act 2005, a daughter had no rights in the ancestral property of the family and only limited rights were available to a daughter in terms of The Hindu Succession Act 1956. The journey of equal treatment, has now run a full circle in as much as in terms of The Hindu Succession  (Amendment) Act 2005 , the daughter is treated as coparcener, like her brothers and equal rights and entitlement was bestowed on her in the estate of her father. However, the right was not unfettered, in as much if, the father of the daughter, had breathed his last, prior to the enactment of The Hindu Succession ( Amendment) Act 2005, then, such daughters could not have claimed the rights in the ancestral properties. That anomaly is set at rest by the hon’ble Supreme Court with authoritative pronouncement of judgment reported as Vineeta Sharma Vs Rakesh Sharma AIR 2020 Supreme Court 3717. The analysis of the judgment needed to be pondered over in the prelude to the judgment, shall be worthwhile.

The legislative history of section 6 throws light in understanding the provision before the Act of 1956 was enacted. Women were not having any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Hindu Succession Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, the women did not become a coparcener, but they could inherit the property.

The 174^th Report of Law Commission of India recommended the adoption of the Kerala Model, and the amendments were effected in Kerala, Andhra Pradesh, Karnataka, and in several States, giving coparcenary rights to the daughters.

The question concerning the interpretation of section 6 of the Hindu Succession Act, 1956  as amended by Hindu Succession (Amendment) Act, 2005 (in short, 'the Act of 2005') were referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of the Supreme Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343.

In the case of Lokmani & Ors. v. Mahadevamma & Ors., [S.L.P.(C) No.6840 of 2016], the High Court held that section 6, as amended by the Act of 2005, is deemed to be there, since, 17.6.1956 when the Act of 1956 came into force, the amended provisions are given retrospective effect, when the daughters were denied right in the coparcenary property, pending proceedings are to be decided in the light of the amended provisions. Inequality has been removed. The High Court held that the oral partition and unregistered partition deeds are excluded from the definition of 'partition' used in the Explanation to amended Section 6(5).

In Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/2015], the question raised is about the retrospectivity of section 6 as substituted by Amendment Act, 2005 and in case the father who was a coparcener in the joint Hindu family, was not alive when the Act of  2005 came into force, whether daughter would become a coparcener of joint Hindu family property?

In the matter of Sistia Sarada Devi v. Uppaluri Hari Narayana & Ors. [SLP [C] No.38542/2016], the question raised is where the final decree has not been passed in a suit for partition, whether the redistribution of shares can be claimed by the daughters by amended section 6, as substituted?

In Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C] No.6403/2019], the question raised is whether section 6, as substituted, is prospective as the father died in the year 1994 and, thus, no benefit could be drawn by the daughters.

In Indubai v. Yadavrao [SLP [C] No.24901/2019], a similar question has been raised. In B.K. Venkatesh v. B.K. Padmavathi [SLP [C] Nos. 176667/ 2020], the daughters have been accorded equal shares in Item No. 1 of Schedule A property, that has been questioned.

Another  Division Bench of the Supreme  Court in Prakash v. Phulavati (supra) held that section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. The Supreme Court further opined that the provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition, on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener, which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect. The provisions of section 6 has been held to be prospective.

In Smt. V.L. Jayalakshmi v. V.L. Balakrishna & Ors. [SLP [C] No. 14353/2019], the petitioner sought partition of his father's ancestral properties, and suit was filed in 2001. The trial court granted 1/7^th share to all the parties. The same was modified. It was held that petitioner, and daughters were entitled to only 1/35^th share in the light of the decision of the Supreme Court in Prakash v. Phulavati (supra).

In Danamma (supra), the Supreme Court held that the amended provisions of section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. Gurunalingappa died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener's father was not alive when the substituted provision of section 6 came into force. The daughters, sons and the widow were given 1/5^th share apiece.

Acquisition of Rights in Coparcenary Property

According to Supreme Court while dealing with Vinetta Sharma (Supra) It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise. The argument raised that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. According to the Supreme Court such interpretation cannot be accepted, because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener. The precise declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9.9.2005 by section 6(3).

In effect, the suits/appeals pending before different High Courts and subordinate courts were delayed due to  legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section. It was therefore directed that the pending matters be decided, as far as possible, within six months. In view of this judgment, the Supreme Court has overruled  the contrary views expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is also partly overruled to the extent it is contrary to this decision.

The right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition. The daughter has now become entitled to claim partition of coparcenary  w.e.f. 9.9.2005, which is a vital change brought about by the statute. A coparcener enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter are pari passu with a son. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away.

The decision in Hardeo Rai v. Sakuntala Devi & Ors., (2008) 7 SCC 46 lays down that when an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. After taking a definite share in the property, a coparcener becomes the owner of that share, and, as such, he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. It was observed:

“22. For the purpose of assigning one’s interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as “joint tenants” but as “tenants-in-common”. The decision of this Court in SBI, (1969) 2 SCC 33, therefore, is not applicable to the present case.

23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.”

                             PRELIMINARY DECREE AND FINAL DECREE: ANALYSIS

When  a suit for partition is preferred in courts of law, generally, a preliminary decree is followed by a final decree. The Preliminary decree ascertains the shares of the parties in the suit and as regards modalities of partition, demarcation of properties, sale or auction of the properties, if the properties are not capable of being divided by metes and bounds. The appointment of surveyor, Local Commissioner may also have to be appointed in view of fully and finally decide  the claim of partition.

To elucidate the aspect further, the Supreme Court has consistently held that a preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. The three-Judge Bench decision of the Supreme Court in Phoolchand & Anr. v. Gopal Lal, AIR 1967 SC 1470, it is Court stated as follows:

"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. … So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; … there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. … for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. … a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree….."

As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition , that is, division by metes and bounds takes place by passing a final decree. An application requesting the Court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of the Limitation Act). It is only a reminder to the Court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.

On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the Court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.

The right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition. The daughter has now become entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital change brought about by the statute. A coparcener enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter are pari passu with a son. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away.

What is interesting is  that for instance, if a suit for partition was filed in the year 2002 and during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788, held that the rights of daughters in coparcenary property as per the amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

What emerges, therefore, is that It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise. To argue that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener. The precise declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9.9.2005 by section 6(3).

The discussion , if taken further shall entail that the protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved.  

A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous  transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

 

Significantly, the Supreme Court has held in Vineeta Sharma (Supra) as under:

128. The expression used in Explanation to Section 6(5) ‘partition effected by a decree of a court’ would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.

The Supreme Court had answered the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20^th day of December, 2004.

(iii)  Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

The Hindu Succession ( Amendment) Act 2005 is thus historic and the further judgments including the one under reference ( Ref: Vineeta Sharma) has settled what was ambiguous and hitherto unsettled. The finality has emerged and in a great deal it may appear that die is cast. The ambiguity has successively been mitigated and now, probably it is settled fully and finally. The coparcenary rights of daughters are established and that too by birth as has been the norm in case of males, hence, there is no distinction between males and females as regards the rights of females. The concept recognised is “once a daughter always a daughter”. The inherent antipathy or relegation of females rights are the nuances of the past and the rights of women have now been truly and really established in inheritance.

                                      -----

                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com     

                                           

INTERPLAY IN CASES OF DIVORCE UNDER HMA AND SMA 1954

 

INTERPLAY IN CASES OF Divorce UNDER HMA AND SMA 1954

The effect of Marriage solemnised under Hindu Marriage act, but registered under Special Marriage act 1954

An interesting point was raised before the Delhi High Court in a matter bearing no. MAT. Appeal No.32/2009 captioned as Suman Kundra Vs Sanjeev Kundra. The question arose for consideration before the Delhi High Court was as to whether the court can reject an application for dismissal of the divorce petition which has been filed under the Hindu Marriage Act on the ground of cruelty and desertion when admittedly the parties have contracted a marriage under the Special marriage Act and yet give a direction suo motu to the respondent to amend the petition. Whether such an amendment is permissible.

                        FACTUAL PERSPECTIVE

1.     The appeal was filed under Section 28 of the Hindu Marriage Act, read with Article 227 of the Constitution of India by the appellant against the order dated 16.3.2009, by virtue of which the application of the appellant for dismissal of the petition for divorce filed by the respondent herein under Section 13 (i) (a) of the Hindu Marriage Act was sought to be dismissed on the ground that the marriage between the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act.

2.     The respondent/petitioner had filed a petition against the appellant/wife for grant of divorce under Section 13 (i) (a) and i(b) of the Hindu Marriage Act (HMA) on the grounds of cruelty and desertion. It was not disputed that the parties were Hindu by religion and got married on 29.10.1986 as per Hindu rites and ceremonies. The marriage, though a love marriage could not continue for very long and the relationship soured as a consequence of which the marriage got dissolved by a decree of divorce on 2.6.1988.

3.     After the decree of divorce, the parties were drawn against each other once again and they decided to get re-married for second time. This time on 3.5.1990, the marriage was solemnized before a Marriage Officer, Tis Hazari Court, Delhi under the Special Marriage Act. The parties could not reconcile their inherent differences and the husband on 21.07.2005 filed a petition for divorce on the ground of cruelty and desertion under Section 13 (i)(a) and (b)  of the Hindu Marriage Act.

4.     The appellant contested the petition and filed her written statement on 8.9.2005. Issues were framed on 27.9.2008 and the case was set down for trial. The respondent/petitioner filed his affidavit of evidence on 28.11.2008 and 7.1.2009 and the case was adjourned to 11.2.2009.

5.     On 9.2.2009, the appellant/defendant filed an application under Section 151 CPC seeking dismissal of the petition on the ground that a false averment has been made in the petition with regard to the status of the respondent/petitioner and further that the divorce petition has been filed under HMA while as admittedly the marriage has taken place under Special Marriage Act. Therefore, the petition on the face of it was not maintainable.

Per contra the respondent/petitioner in his reply to the application had stated that the petition for divorce cannot be dismissed on account of the error which has crept in the petition with regard to the mentioning of the provision for grant of divorce, which admittedly was cruelty and the said ground of cruelty apart from being a ground under Section 13 (1)(a) of the HMA is also a ground for grant of divorce under Section 27 of the Special Marriage Act. It was also contended that the learned ADJ who is to try the divorce petition under the HMA is also to try the divorce petition under the Special Marriage Act and therefore, this being only a technical objection should not come in the way of processing and dealing with the petition on merits.

After hearing both the parties, the learned ADJ  was pleased to dismiss the application of the appellant. It was held that the court had jurisdiction to entertain the petition for divorce, both under the HMA as well as Special Marriage Act and the cruelty being a ground for divorce under both the Acts, therefore, the petition could continue, as there is a cause of action for the same. The learned Judge had distinguished the judgment relied upon by the appellant reported in Harshad Chiman Lal Modi Vs DLF Universal & Anr (2005) 7 SCC 791, as the appellant had contended that a forum which did not have the jurisdiction could not have entertained  the same. It was however observed that the aforesaid judgment related to territorial jurisdiction and not to subject-matter jurisdiction, which, admittedly, the ADJ had, in the instant case. In fact, reliance was placed on the judgment relied upon by the respondent (petitioner) relied on the judgments rendered by the Gauhati High Court and Calcutta High Court, reported as Anupam Das v.Smt. Mampi Das; AIR 2008 Gau (3) 2007 and Prabir Chandra Chatterjee  Vs Kaveri Huha Chaterjee ; AIR 1987 Calcutta 191, as it was contended that the court had the jurisdiction, because, the ground of cruelty was a ground for which a provision existed as a ground for divorce under both the enactments.

Aggrieved, the appellant preferred appeal before Delhi High Court.

                        DELHI HIGH COURT FINDING

The contentions of the appellant were as under:

(i) If the marriage is solemnized under the Special Marriage Act, then one cannot invoke the jurisdiction of the court exercising the powers under Hindu Marriage Act, since, the court will not have the jurisdiction over the subject-matter, unless and until it is not a family court, under the Family Court Act  Reliance was placed on Stephen Joshus & Anr. Vs. JS. Kapoor; (1995) 58 DLT 57; Mohan Raj vs. Violet Chandra; (1993) 1 ALL India HLR 108; and D. Jacintha Kamath Vs K Padmanabha Kamath  AIR 1992 Kant 372.

(ii) Non-raising of 'No objection as to inherent lack of jurisdiction' in the written statement will not create any bar against the appellant to raise this plea at any time of the proceedings. Reliance in this regard was placed on the following three judgments Sarwan Kumar Vs Madan Lal Aggarwal; (2003) 4 SCC 147; Hira Lal Patni Vs Kali Nath  ; (1962) 2 SCR 747; and Union of India Vs Baleshwar Singh; 1994 Supp. (2) SCC 587.

(iii) The divorce petition is liable to be dismissed as the same has been filed after suppressing material facts from the Hon'ble Court and reliance in this regard was placed on Satish Khosla Vs Eli Lilly Ranbaxy Ltd; 741 (1998) DLT 1; and A. Janaki Vs John Keneddy; MANU/TN/0394/2009.

 

In Stephen Joshus's case (supra), the question raised was whether a Christian married under the Christian Marriage Act could be granted divorce on the basis of mutual consent under Special Marriage Act. It is to be noted that Section 28 of the Christian Marriage Act does not create a bar on grant of divorce by mutual consent, hence, in that case, submissions was made, that since, under the Special Marriage Act, 1954 A mutual consent is a ground of divorce it is equally applicable to all the citizens of India irrespective of the fact that as to whether the marriage is solemnized under the same or other provisions of law. It was negated by the High Court, stating that the divorce can be granted only on the grounds which are available under a particular act, under which parties have got married, meaning thereby, that since parties were married under the Christian Marriage Act, and under the said Act there was no provision for grant of divorce by mutual consent and therefore their marriage could not be dissolved by mutual consent. Similar was the ratio of judgment in Mohan Raj's case (supra).

In D. Jacintha (Supra) the question that arose was- whether a Christian marriage where one of the parties is Hindu can be dissolved by a decree of divorce under Section 13 of Hindu Marriage Act at the instance of either of the parties. This contention was also negated by Karnataka High Court on the ground that for the purpose of dissolution of marriage under Hindu Marriage Act, the parties have to be necessarily Hindus and married according to Hindu rites and ceremonies, customary or ones which are prescribed under the said Act.

The Delhi High Court had thus held that none of the aforesaid three judgments, were applicable or helpful to the petitioner/appellant, because the ground on the basis of which the divorce is sought in the instant case is cruelty and/or desertion under the Hindu Marriage Act, which are also the grounds under the Special Marriage Act. Therefore, the question arose for consideration herein is whether a divorce petition under Section 13 of HMA filed by one of the parties, both being Hindu, but married under Special Marriage Act could be dismissed, merely, on the premise that the same ought to have been filed undersection 27 of Special Marriage Act.

The learned Trial Judge had rejected the application of the appellant/wife for dismissal of the divorce petition holding that such a petition for divorce was maintainable and the only mistake which had taken place was instead of mentioning the relevant provisions for grant of divorce under the Special Marriage Act, the provisions of the Hindu Marriage Cat were mentioned.

It is also contended on behalf of the appellant that under the Family Courts Act, it is the same Family Judge, who deals with the personal laws and the matrimonial laws of all the religions, but, before the constitution of the family courts, as the present case being an old case, the jurisdiction is vested with the District Judge and it is not necessary that the same District Judge may be assigned the task. Therefore, there will be lack of jurisdiction to entertain the petition by the District Judge which passed the impugned order.

However, Delhi High Court has repelled the contention as what involved in the present case was special jurisdiction and admittedly, it cannot be said to be inherent lack of jurisdiction to entertain a matter with regard to the special jurisdiction that a matter pertaining to personal law or a law pertaining to grant of divorce by the Trial Judge. The reason for this is that the Trial Judge under the Hindu Marriage Act as well as under the Special Marriage Act has to be the District Judge, and incidentally, in the instant case, it is the same Additional District Judge who is to decide the application for amendment both under the Special Marriage Act and the Hindu Marriage Act.

Therefore, it was held that as the same District Judge dealing with the divorce petition under the Hindu Marriage Act as well as the Special Marriage Act shall not lack the jurisdiction to entertain the application of the respondent. Moreover, objections with regard to the jurisdiction so far as the subject matter is concerned, ought to have been taken by the respondent at the earliest possible stage to avoid wastage of time and energy of both the litigants as well as of the court staff. In the instant case, the matter was filed in 2005 the evidence by way of affidavit has been filed in 2008 and the cross examination of the witness was yet to be completed. The matter has been pending now in courts for the last more than a decade and, therefore, to dismiss the divorce petition on the ground of lack of inherent jurisdiction, when the same is due to an inadvertent drafting error which can be corrected by an amendment simpliciter, would be to take a hyper technical view by this court when the thrust of the concern in matrimonial matters should be the question of grant/non grant of divorce and other ancillary reliefs to the parties. This is not, as if, the divorce under the Special Marriage Act and the divorce petition under HMA are dealt with by two different authorities. Both the powers are with the same District Judge. The contentions on behalf of the appellant was thus repelled for the simple reason as stated above, that in the instant case, it is the same District Judge, who was hearing the objections for grant of divorce, restitution of conjugal rights as well as grant of maintenance and other peripheral orders.

WRONG PROVISIONS & SUBSTANTIAL JUSTICE: BALANCE TO BE CREATED

As regard the submission that wrong mentioning of provision is different from invoking jurisdiction under a different statute. Reliance in this regard is placed on Jeet Mohinder Singh Vs Harminder Singh; (2004) 6 SCC 256, when the Supreme Court has dealt with the purpose of mentioning the correct provision for filing the application and it was held as under:

6. Though the nomenclature of an application is really not material and the substance is to be seen, yet it cannot be said that a party shall be permitted to indicate any provision and thereafter contend that the nomenclature should be ignored. Duty is cast on the parties to properly frame their applications and indicate the provisions of law applicable for making the application. Nomenclature may not be normally material. But, there is a purpose in indicating the nomenclature in a clear and precise manner. Though it is the substance and not the form which is material but as indicated above, that cannot be a reason to quote an inappropriate provision of law and then say "Don't look at the nomenclature". The care and caution which is required to be taken cannot be diluted to absurd limits. The care and caution required to be observed while making an application in the highest Court of the State are sadly missing in this case. Order XVIII Rule 17 deals with recall and examination of a witness and reads as follows:

"The Court may at any stage of a suit recall any witness who has been examined and may subject to the law of evidence for the time being in force put such questions to him as the Court thinks fit."

       

The Delhi High Court in Suman Kundra (Supra) has noted that in the aforesaid case, although the application for recalling and examination of a witness was filed, but wrong provision of law was mentioned. The Supreme Court, although impressed upon correct mentioning of the provisions of law for filing the application, but on merits of the matter as the application was filed under a wrong provision, the aggrieved party was permitted to file a fresh application under Order 18 Rule 17 which if it chose to do and the same was to be dealt with by the trial court meaning thereby that although the court impressed upon the mentioning of the correct provisions of law for the purpose of filing of an application or for that matter which would applicable to a petition also, but it did not oust the aggrieved party in the said case only on technicalities of not granting it an opportunity to rectify the deficiency by filing a fresh application under the relevant provision.

There is no quarrel with the proposition of law laid down in the said judgment that correct provision of law must be mentioned in the application or the petition, but at the same time in case a correct provision of law has not been mentioned, a party be that in an application or a petition, the said petitioner/applicant should not be made to suffer on account of these inadvertent technical errors which have cropped up. Further, much would depend of the case on the nature of the case, the stage of the case as well as the nature of mistake. In case, the case or an application is at the threshold perhaps court may dismiss the application or the petition for want of mentioning of correct provision or the party may itself like to withdraw the application or the petition with liberty to file afresh. But situation would be different in case, the case is at an advance stage or considerable time has already been spent by the court dismissing the application would be a hyper technical approach rather than doing substantive justice.

The respondent had relied upon N.Mani v.Sangeetha Theatre; (2004) 12 SCC 278 to contend in the instant case there was only a technical problem, which was already removed by the learned ADJ court by directing the respondent to file amended petition of divorce under the Special Marriage Act.

In the instant case, there is no lack of inherent jurisdiction of the forum to deal with the divorce petition. It is the same district judge who deals with the divorce petitions under different enactments. The question was whether persons who had got married under Special Marriage Act, can be given divorce when the petition for divorce has been filed under H.M.A, certainly answer to this question is in negative. But then, the question would arise should the petition be amended? The trial court has suo moto given direction to amend the petition.

The Delhi High Court has held above that there is no inherent lack of jurisdiction in the case in hand, therefore, to contend that the appellant's participation will not confer the jurisdiction in the court has no merit. The only wrong committed was the use of wrong provision by the respondent. As such objection ought to have been taken in the very beginning, as it was not done, then, what will be implicit is the waiver and the appellant should be estopped from raising the same at the belated stage. As regards the question of cause of action existed or not, that are the aspect of merit and shall have to be dealt with by the court concerned. Even the question of concealment of facts, as alleged, is concerned, that is a question of merit of the matter and need not and cannot be gone into when the dismissal of the petition is sought on account of certain procedural irregularity.

The respondent has primarily relied upon two judgments of Bombay High Court. These are:  Anandrao vs. Madhuri.; 2009 (111) Bombay LR 832  and Anupam Das Vs Smt Mampi Das AIR 2008 Gau 3.

In Suman Kundra (Supra), the marriage originally had taken place according to Hindu Rights and Ceremonies in the year 1986. The said marriage was dissolved by a decree of divorce from a competent court on 02.06.1988. The parties had again got married under the Special Marriage Act and once they got married under Special Marriage Act, therefore, their conduct with regard to the grant of divorce or relationship would be covered under the Special Marriage Act only. The respondent filed a petition for divorce under the Hindu Marriage Act. It is only incidental that some of the grounds which are available in the Hindu Marriage Act may be available as a ground for divorce under the Special Marriage Act or under the other matrimonial laws like Christian Marriage Act, but that would not be a ground to convert a petition which is filed under one enactment to a petition under another enactment as that would be resulting in chaos, because, then, there will be no end to the plea which will be available to a party though the marriage had taken place in a particular law, but, the ground of divorce is available in the different law and that is why the petition is maintainable. The law regarding amendment of the plaint or a petition is incorporated under Order VI Rule 17 of the CPC and that envisages amendment of a plaint or a written statement on an application and not on direction of the court meaning thereby that only when an application is filed by either the plaintiff or the defendant for amendment of its pleading, the court will be called upon to decide the said application at that point of time. The court has no power of its own unlike under Section 151 CPC or under Order 14 Rule 5CPC or under Order 1 Rule 10 of CPC to pass an order which may be warranted. The learned Trial Judge has exceeded its jurisdiction of also giving a direction to the respondent to amend the plaint and treat the provisions of Section 13 (1)(a) i.e. ground of cruelty as a ground for grant of divorce under the Special Marriage Act, but, at the same time, it is also noted that the courts must act in a manner so as to deliver substantive justice and to ensure that a litigant is not made into a litigant non grata for inadvertent deficiencies as the same might lead to a meritorious case being thrown out at the very threshold for mere technicalities.

It is also assumed that when a party approaches a counsel for legal advice and entrusts the matter to him, it is presumed that the same shall be dealt with utmost professionalism and due despatch. In Rafiq v. Munshilal; (1981) 2 SCC 788, the Hon'ble Supreme Court has held that once a person engages his counsel his botheration goes and it is the duty of the counsel to take care of the case. In the instant case, the inadvertent drafting error seems to have crept in on the part of the drafting counsel which mistake should not prejudice the interest of the party.

The Hon'ble Supreme Court in Bhuwan Mohan Singh Vs Meena AIR 2014 SC 2875 has observed that all such applications pertaining to maintenance, divorce, custody of child must be decided expeditiously by the court owing to the factum that the lis before it pertains to emotional fragmentation and delay can feed it to grow. The instant case was filed in 2005 and we are in 2015, in the last ten years, the matter has not seen any substantial progress on account of the same being lying pending in the docket of this court merely due to an inadvertent drafting error which can be rectified on an amendment simpliciter.

The Delhi High Court in Suman Kundra (Supra)  in the light of the above had partly allowed the appeal while holding that the court had no power suo moto to amend the plaint or give directions to that effect to any party. However, keeping in view the peculiar facts and circumstances of the case, that the case has been pending in court for the last nearly ten years and it would advance substantive justice between the parties, an opportunity is given to the respondent to take corrective steps within a period of six weeks to rectify his mistake. It was thus directed that in case such an application is filed, it shall be dealt with in accordance with law. The parties are directed to appear before the learned District Judge.

                        REMARK

It is essential to note that, though, the pleadings are of utmost importance, but, so are the provisions of law, under which a petition is filed. The courts cannot be oblivious to the obvious i.e the prospective harms to a party to the lis, hence, courts are to be by and large guided by the substantive justice, rather than, ousting a party on hyper technicalities, more so, in matrimonial cases, which are not like a commercial disputes and such cases are required to be dealt with in a different manner as human fallibilities, may cause irreversible void to the psyche of a person and scar whereof can probably never be mitigated in such disputes. The approach, therefore, in such cases, ought to be humane and to find a solution, rather than to accentuate it and in any case, no premium should be accorded to the delaying tactics adopted by the parties. Any objection with regard to jurisdiction  or lack of it, should be raised right in the beginning and in a later stage if the objection is raised and acceded to, which may be raised designedly, as the same is likely to cause incalculable harm to the other party and therefore, it should be deprecated in general and in matrimonial cases, in particular and deterring costs should be imposed on delaying parties. The Delhi High Court appears to have taken note of that in the above case.

                                        ------

                                Anil K Khaware

                        Founder & Senior Associate

                        Societylawandjustice.com

  

 

Supreme Court redefines exemption u/s 60 (1) ccc of CPC

 

Supreme Court redefines exemPtion u/s 60 (1) ccc of CPC

Solitary residential house of judgment debtor exempted from auction/sale?

The Supreme Court has revisited again, legal issues raised, of late, as regards whether a solitary dwelling house- residential unit belonging to judgment debtor shall be exempted from attachment and sale in execution of a decree. Though, before unravelling the situation, it is necessary to point out that exemption to a solitary dwelling unit from attachment and sale has never been under any ambiguity after the decision rendered by the hon’ble Division bench of Delhi High Court, whereby the division bench were pleased to held in a matter reported as SC Jain Vs Union of India 1983 Delhi 367 that the exemption to a judgment debtor in execution of decree is absolute and no fetter could be attached thereto. The ambiguity, though, arose in a judgment rendered by a division bench of Delhi High Court reported as Sujata Kapoor Vs Union Bank of India 2019 Lawsuit (Del) 3324, wherein it was held, that, though, the exemption to a judgment debtor shall be available, but the exemption cannot be extended to a large plot of land with building, in as much as exemption of a big plots with building may not gel with the object and purpose of the provisions as contained in the Code of Civil Procedure. In this context, it is worth mentioning that the subsequently, yet another division bench of Delhi High Court has held in Mohinder Singh ( since deceased) Through LRs Vs Bimal Saxena (Deceased through Assignee) EFA (OS) 17/2024 that judgment rendered in Sujata Kapoor (Supra) was per incuriam, since, the earlier categorical judgment of hon’ble Supreme Court reported as Kiran Bala Vs Surinder Kumar AIR 1996 Supreme Court 2094 was not referred to or placed before the division bench in Sujata Kapoor (Supra). Pertinently, no such fetter was attached by the Supreme Court in the aforesaid dicta, hence, the judgment rendered in Sujata Kapoor (Supra) shall be per incuriam, as afore stated.   That said, in the perspective as set out hereinabove, the Supreme Court has again revisited the provision as contained in Section 60(1) (ccc) of Code of Civil Procedure, albeit, in slightly different context, still, being a recent dictum, post Sujata Kapoor it assumes significance. It may be apt, though, to specify , before delineating the matter further, that, such exemption historically shall be available to the residents of Delhi and Punjab only, since the provision as contained in Section 60(1) (ccc) by way pf amendment shall only be applicable to Delhi and Punjab. Why it is so, shall be deliberated later. The Supreme Court has also reaffirmed that whereas exemption to a solitary dwelling unit, if not mortgaged, shall be available, but that will be available only to a judgment debtor or certificate debtor and such exemption shall not be available to the legal heirs of such judgment debtor. The Supreme Court, thus as referred to above, has in greater detail, analysed the law as regards section 60(1) (ccc) of Code of Civil Procedure in a matter reported as 2026 INSC 863 (arising out of Civil Appeal No. 182 OF 2016) and captioned as Sheela Gehlot Vs Mohini Hardayal Singh & Ors. The finding of the hon’ble Supreme Court as well as law existed in this regard  and also its revisit by the Supreme Court in  reiteration shall be further discussed hereinafter. The execution proceedings, whether in civil courts or before the Debt Recovery Tribunal (DRT) which is though governed by RDDB Act 1993 and recovery proceedings arising thereunder relates to 2^nd & 3^rd Schedule of Income Tax Act also adhere to the basic principles of Section 60(1) (ccc) in view of Rule 10 & Rule 11 of 2^nd Schedule of Income Tax Act.

SUJATA KAPOOR (Supra) AND AFTERMATH

The discussion will be incomplete, if the background of the judgment rendered in Sujata Kapoor (Supra) and its subsequent effect is not discussed. The brief facts of Sujata Kapoor (Supra) was as under:

(i) The writ petition was filed by a third party objector and not a certificate debtor/judgment debtor , therefore, exemption under Section 60(1) ccc of Code of Civil Procedure was not available to her.

(ii) The property was purchased by petitioner from her father-in-law.

(iii) The predecessor-in interest of Sujata Kapoor was restrained from creating any third party interest in the said property;

(iv) The certificate debtor/owner of the property had breathed his last and the objection was preferred after his death. It is worth mentioning that Sujata Kapoor was not even the LRs of certificate debtor. Though, it is reiterated that no exemption shall be available to the LRs of debtors.

(v) The objection of Sujata Kapoor seeking exemption of alleged solitary dwelling unit was discovered by the ld Recovery Officer, also in appeal against the order passed by ld Recovery Officer, even the ld DRAT had also dismissed the appeal filed against the order of Presiding Officer of DRT and thereafter, a writ petition was preferred after suffering three (3) successive and concurrent judgments against her.

(vi) The allegation of collusive sale was made.

(vii) The sale was made in defiance of Rule 16 and Rule 51 of Second Schedule of Income Tax Act.

 

As narrated above, in Sujata Kapoor (Supra) a fetter was sought to be imposed that exemption of a large piece of land and building may not be available to a judgment debtor and the exemption, though, shall be available in Delhi and Punjab, but not for inordinately large size of the plot and building. Thus, in essence, the very provision of exemption in favour of certificate debtor was upheld.

In Mohinder Singh ( since deceased) Through LRs Vs Bimal Saxena (deceased) Through Assignee, EFA(OS)17/2024, yet again,  another division bench of Delhi High Court, subsequently held that Sujata Kapoor (Supra) judgment was per incuriam in view of the fact that judgment of co-ordinate bench reported as VP Arora vs Punjab National bank 1991 SCC OnLine Del 581. Significantly, in Kiran Bala Vs Surinder Kumar (1996) 4 SCC 372 was also not brought to the attention of the concerned division bench which has provided for unfettered exemption of a solitary dwelling unit of a judgment debtor. It is held in Kirna Bala (Supra):   

“6. Having set out the above facts, it is crystal clear to us that we have to grant relief to the appellant. It is evident that she sold the house in question ostensibly to pay off her debts, but the sale has been declared by the civil court, decided in CS No. 636 dated 06/08/1991, to be null and void. The effect of this decision would be that the said sale becomes non est and parties reverted to their original position, meaning thereby that the appellant got a negative declaration that she continued to be the owner-in-possession of the house in question. On that premises, what sequelly follows cannot be withheld merely on account of the conduct of the appellant. Since, the legal consequence is that she would be the owner-in possession of the house, she would definitely be entitled to claim its exemption from attachment or sale under sub-clause (ccc) of section 60 (1) of the CPC above referred to. Had the claim of the plaintiff in the said suit been negatived as regards the transfer being with the object of defeating or delaying her creditors. The house in question would necessarily have been out of the reach of the decree holder. Merely because it has now been reverted back to the judgment debtor that fact, by itself, would not disentitle the judgment debtor from raising the legal plea of exemption. In this view of the matter, we are convinced that the executing court was in error in dismissing the objection of the petitioner/appellant and so was the High Court in dismissing the revision petition in limine”.

In VP Arora (Supra) it was held as under:

“10. As already noted, the underlying object of section 60 (ccc) is not to displace a judgment debtor from the main residential house in execution of money decree. It hardly matters whether he owned the house when decree was passed or he comes to own the house when it is sought to be attached or sold. That is why the law framers used the word “or” between attachment and sale. The last relevant time would be the date of sale and if on the date of sale a residential house is owned by the judgment debtor, it would not be sold and will have to be released from attachment”

In Mohinder Singh (Supra), therefore, the division bench , subsequent to Sujata Kapoor (Supra) has held that the earlier division bench judgment of Sujata Kapoor ( Supra) was per incuriam as judgment rendered by the Supreme Court was not placed before the concerned division bench. and hence, it did not lay down correct law.

In Brij Mohan Arora Vs Bank of Baroda & Ors 1988(4) SCC OnLine 157 Del (EFA No. 7 of 1985) the Delhi High Court has held in the context of section 60(1) (ccc) of CPC as under:

“3. It has been held by a Division bench of this Court in S.C Jain Vs Union of India and ors AIR 1983 Delhi 367 that the aforesaid clause is still applicable to Delhi. In the aforesaid case a challenge was made that by virtue of Civil Procedure Amendment Act of 1976 and in view of section 97 of the Act, this amendment made by Punjab State introducing clause (ccc) in section 60 of Code of Civil Procedure , is no longer applicable to the Union Territory of Delhi, but this challenge was repelled and it was held by the division bench of this Court that the said Clause (ccc0 continues to apply to Delhi. No challenge has been made before me to the ratio laid down in the said judgment and I am respectfully bound by the same….”

Earlier the Supreme Court in a matter reported as Ram Lal & Ors Vs Piar Lal Gobindram & Ors AIR 1973 Supreme Court 2124 has also held on the similar line.

Yet again, Delhi High Court in Punjab National Bank Vs Suresh Kumar Jain & Ors 2000 SCC OnLine Del 160 has held as under:

“ learned counsel for the decree holder has rightly drawn my attention to the judgment of division bench of this court which is fully binding on me. In Jain (S.C) Vs Union of India (1983) 143 ITR 607 (Delhi) : AIR 1983 Delhi 367, which is relied by both the parties, it has firstly clarified that the Punjab Amendment is fully applicable to Delhi, and thereafter it has been held that a residential house of a judgment debtor or assessee which is occupied by him is exempted from being proceeded against for execution of a simple money decree or income tax demands.. This judgment therefore recognises the existence of a disparate status of a money decree vis-à-vis a mortgage decree. This dichotomy is preserved. This decision, would, therefore, leave no option but to negative the arguments put forward by the learned counsel for the applicant/judgment debtor no.2. In these circumstances, the application is rejected and dismissed…”.

Thus, the aforesaid discussion clearly brings forth the fact that the solitary dwelling unit of a judgment debtor is exempted from attachment or sale if the same belonged to a judgment debtor/certificate debtor and the judgment debtor is in possession of the said solitary dwelling house and in case that is not mortgaged. As referred to above, however, the exemption, shall only relate to solitary residential house belonging to the judgment debtor in Delhi and Punjab. The Legal heirs (LRs) of the judgment debtor , though, shall not have such exemption as has been successively held and again reinforced recently by the Supreme Court in Sheela Gehlot case.  

In order to further navigate to the stream of law with a view to deal with the aforesaid aspect in the light of the dictum of Sheela Gehlot (Supra) the further comprehensive discussion may be imperative.

                PRELUDE TO SECTION 60(1) CCC

The clause (ccc) is incorporated in sub-Section (1) of Section 60 of the Code, by means of Section 35 of the Punjab Relief of Indebtedness Act, 1934 as amended by Punjab Amendment Act No. XII of 1940 and Punjab Amendment Act No.VI of 1942, application of which was extended to  the erstwhile State of Delhi by a subsequent notification dated 08.06.1956 published in the Gazette on 16.06.1956. Admittedly, Section 60(1)(ccc) of the Code applies to National Capital Territory of Delhi. The relevant extract of Section 60(1)(ccc) of the Code is reproduced below: -

“60. Property liable to attachment and sale in execution decree-

(1) x x x

Provided that the following particulars shall not be liable to such attachment or sale, namely, (ccc) one main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant there to and necessary for their enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by him:

Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered.”

Section 60(1)(ccc) of the Code in its application to Delhi exempts attachment and sale of one main residential house belonging to judgment-debtor other than an agriculturist and occupied by him the protection is by its own text personal to the judgment debtor as it is confined to a house belonging to and occupied by the judgment debtor and this protection does not extend to legal representatives of judgment debtor.

The Delhi High Court in Yogesh Sharma & Ors. v. Devi Dayal & Ors., AIR 1977 Delhi 270, while interpreting Section 60(1)(ccc) of the Code has held that a legal representative is a distinct juridical concept from judgment debtor and liability devolving upon legal representative is limited to the estate in his hands and he cannot, merely by virtue of residing in a house which belonged to the deceased judgment debtor, claim personal exemption that Section 60(1)(ccc) of the Code affords to a judgment-debtor alone. The same view has commended itself to the Punjab & Haryana High Court in two decisions, reported as  (i) K.L. Bawa v. Basant Textiles, AIR 1982 P&H 275, (II)  Pargat Singh & Anr. v. Gurmail Kaur & Ors.; 2014 SCC OnLine P&H 23436.

Thus, it is abundantly clear that the plea of exemption under Section 60(1)(ccc) of the Code is personal to the judgment-debtor and is not available to be raised by his legal representatives.

In Sheela Gehlot (Supra) The High Court allowed the writ petition, while setting aside the judgment of the DRAT dated 01.02.2008, and remitted the matter to the DRT, with a direction that an inquiry be held within three months, and a decision be rendered within six weeks to ascertain whether respondent No.1 had suffered substantial prejudice by reason of alleged non service of notice and whether the Delhi property qualified for exemption under Section 60(1)(ccc) of the Code. It directed status quo as to possession of the Delhi property to be maintained pending the fresh inquiry and left the parties to bear their own costs of the writ petition.

Being aggrieved, the Auction-Purchaser namely, Ms. Sheela Gehlot has preferred C.A. No.182 of 2016, the Bank has preferred C.A. No.190 of 2016 and Mr. Jagminder Singh, son of judgment-debtor has preferred C.A. No.191 of 2016.

SUBMISSIONS by the appellant

The benefit of Section 60(1)(ccc) of the Code is limited for the benefit of the judgment-debtor himself and not for his legal heir. Reliance was placed on :

(a)      Yogesh Sharma Vs Devi Dayal & Ors 1977SCC OnLine Del 39

(b)      It was urged that by virtue of the Punjab Relief of Indebtedness Act, 1934 (1934 Act), which introduced Section 60(1)(ccc) into the Code, the judgment-debtor alone could have invoked the aforesaid provision, and also the language of the 1934 Act excludes the debts given by scheduled banks. It was, therefore, urged Section 60(1)(ccc) of the Code has been misapplied and misused as it excludes the debts by the scheduled banks.

(iii) The reliance was also placed on judgment of the High Court of Delhi reported as Sujata Kapoor (Supra).

(iv) It was pointed out that the case was transferred from Morena court after the enactment of the 1993 Act and there was no occasion to issue notice under Order XXI Rule 22 of the Code.

(v) Insofar as alleged absence of notice under the Second Schedule to the 1961 Act, is concerned, admittedly, the judgment-debtor herself filed detail objections in an application on 24.10.2004 seeking recall of the order passed by the Recovery Officer, DRT on 20.09.2004 and, therefore, the question of prejudice to the respondent no.1, does not arise as she had complete knowledge and exercised the opportunity to vigorously object to the direction for auction by filing detailed objections in which all factual and legal points were urged.

It was, therefore, contended that the impugned judgment deserves to be set aside. It was further contended that the appeal filed by the son of judgment-debtor is devoid of any merit and is liable to be dismissed.

 

On behalf of the appellant in C.A. No.191 of 2016 it was submitted that:

(i) The  High Court erred in holding that equities were in favour of auction purchaser and ought to have appreciated that no notice of execution proceeding was served either on the widow or the legal representative of the judgment-debtor.

(ii) The Delhi property is the residential house of the legal representative of the judgment-debtor and is exempt under the provision of Section 60(1)(ccc) of the Code.

(iii) On account of non-compliance of Section 31A of 1993 Act, the auction was required to be set aside.

(iv) The DRT had no jurisdiction to execute the decree in respect of an immovable property not situated within its local limits.

It was thus urged that in the appeals preferred by the Auction- Purchaser and the Bank, no interference was called for. In support of the aforesaid submissions, reliance were placed on the following:

(i) Syam Mandal v. Satinath Banerjee, AIR 1917 Cal 728;

(ii) Charan Kanwal Rice General Mills & Ors. v. New Bank of India & Ors., [I (2000) BC 26 ORT]; (iii) O. Vasantha v. Karnataka Bank Ltd., Mangalore & Ors. [II (1999) BC 54];

(iv) Punjab & Sind Bank v. M/s Avi Autos & Ors.; [I (2000) BC 112 ORT; DRT, Mumbai;

(v) Gauri Lal v. Smt. Sujham Devi & Ors. AIR 1986 Himachal Pradesh 3;

(vi) Rajagopala Aiyar v. Ramanuja Chariyar & Anr., AIR 1924 Madras 431;

(vii) Kanchamalai v. Shahaji Rajah Sahib & Ors. AIR 1936 Madras 205; Leelachand Walchand Gujar v. Vishnu Ganesh Lakade, AIR 1945 Bombay 409;

(viii) Ajab Lal v. Hari Charan, AIR 1945 Patna 1; (viii) Marotrao Shama v. Narayan Jasrup & Ors., AIR 1948 Nagpur 300;

(ix) Rm. P. Ar. Ramanathan Chettiar v. Pl. Ar. Lakshmanan Chettiar, AIR 1951 Madras 325; (x) Prabhash Chand Jain & Ors. v. Punjab & Sind Bank, [(2000) 1 BC 43 (DRAT)] ;

(x) Devassia v. South Indian Bank Ltd. [(2001) 2 BC 524];

(xi) Calcutta Dock Labour Board v. Smt. Sandhya Mitra and Ors., (1985) 2 SCC 1;

(xii) Badri Chando v. Raja Inderjit Pratap; (1932) ILR 54 All 736; and

(xiii) Radhakisan Hakumji v. Balvant Ramji, (1883) ILR 7 Bom 5

It was contended on behalf of the respondent no. 1 in C.A. 182 of 2016, that Order XXI Rule 22 is mandatory and admittedly no notice was issued by the executing court to respondent no. 1 and her children and therefore, the auction is void. It was submitted that Rule 2 of the Second Schedule to the 1961 Act, is couched in mandatory language which has not been followed in the instant case. In support of the aforesaid submission, reliance has been placed on a decision of the Supreme Court:

Satyanarain Bajoria & Anr. v. Ramnarain Tiberwal & Anr., (1993) 4 SCC 414

             

              SUBMISSIONS BY THE BANK

(i) An auction sale conducted under the 1993 Act, cannot be assailed by the judgment-debtor without filing an appropriate application under Rule 60 or 61 of the Second Schedule to the 1961 Act.

(ii) The High Court in exercise of the powers of superintendence does not act as a court of appeal or as a court of error.

(iii) A sale can be set aside only if there is a material irregularity or fraud in the sale which has resulted in substantial injury to an applicant.

It was thus canvassed that the appeal preferred by the legal representative of the judgment-debtor is liable to be dismissed. In support of the aforesaid submissions, reliance were placed on the following decisions:

(i) Sadhana Lodh v. National insurance Co. Ltd. & Anr., (2003) 3 SCC 524;

(ii) Shamshad Ahmad & Ors. v. Tilak Raj Bajaj (Deceased) Through LRs. & Ors., (2008) 9 SCC 1;

(iii) Canara Bank v. M/s. Luthra Industries & Ors., (2017) SCC Online Del 8165;

(iv) Sujata Kapoor v. Union Bank of India & Ors., (2019) SCC OnLine Del 12184;

(v) Saheb Khan v. Mohd. Yousufuddin & Ors. (2006) 4 SCC 476.

ANALYSIS BY THE SUPREME COURT

The questions which arose for determination are as follows:

(i) whether the plea of non-compliance of Order XXI Rule 22 of the Code has any impact on auction sale?

(ii) whether failure to serve notice under Rule 2 of Second Schedule to 1961 Act to the respondent no.1 and her children in respect of Delhi property has rendered the execution or sale void? and

(iii) whether the Delhi property was exempt from attachment under Rule 10 of the Second Schedule read with Section 60(1)(ccc) of the Code?

According to the Supreme Court the statutory framework within which the aforesaid questions arose for consideration. The 1993 Act is an Act enacted with an object of expeditious adjudication and recovery of debts due to banks and financial institutions and matters connected therewith or incidental thereto. Chapter IV of the 1993 Act deals with the procedure of Tribunals. Section 19 provides for an application to the Tribunal whereas Section 22 enumerates the procedure and powers of the Tribunal and the Appellate Tribunal. Section 22 which is relevant for the purposes of controversy involved in the appeals reads as under: -

“22. Procedure and powers of the Tribunal and the Appellate Tribunal.—

(1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings.

(2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses or documents;

(e) reviewing its decisions;

(f) dismissing an application for default or deciding it ex parte;

(g) setting aside any order of dismissal of any application for default or any order passed by it ex parte;

(h) any other matter which may be prescribed.

(3) Any proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860) and the Tribunal or the Appellate Tribunal shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

(4) For the purpose of proof of any entry in the ‘bankers books’, the provisions of the Bankers’ Books Evidence Act, 1891 (18 of 1891) shall apply to all the proceedings before the Tribunal or Appellate Tribunal.”

 

Thus, it was observed that Section 22(1) of the RDDB Act 1993 stipulates that Tribunal while deciding an application under Section 19 of the 1993 Act, shall not be bound by the procedure of the Code and shall be guided by the principles of natural justice. Section 29 of the 1993 Act makes certain provisions of the 1961 Act, applicable to recovery of the amount of debt due under the 1993 Act. Section 29 is extracted below for the facility of reference :-

“29. Application of certain provisions of Income-Tax Act.—

The provisions of the Second and Third Schedules to the Income tax Act, 1961 (43 of 1961) and the Income tax (Certificate Proceedings) Rules, 1962, as in force from time to time shall, as far as possible, apply with necessary modifications as if the said provisions and the rules referred to the amount of debt due under this Act instead of to the Income-tax:

Provided that any reference under the said provisions and the rules to the “assessee” shall be construed as a reference to the defendant under this Act.”

Section 29 of the 1993 Act mandates the Recovery Officer to proceed in accordance with the procedure envisaged under the Second Schedule to the 1961 Act subject to such modification as may be notified for recovery of debts due under the Act.

It is apposite to take note of Order XXI Rule 22 of the Code which reads as under:

“22. Notice to show cause against execution in certain cases. –

(1) Where an application for execution is made, -

(a) more than two years after the date of the decree, or

(b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44A or

(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him: Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.”

It was held that requirement contained in Order XXI Rule 22 is mandatory and the use of word “shall” in Order XXI Rule 22 of the Code admits of no ambiguity and the executing court is under an obligation to issue notice to the person against whom a decree is sought to be executed in the circumstances enumerated in the following:-

(i) Bharat Kantilal Dalal (Dead) through LR v. Chetan Surendra Dalal & Ors., 2025 SCC OnLine SC 2502;

(ii) Rahul S. Shah v. Jinendra Kumar Gandhi & Ors.; (2021) 6 SCC 418;

(iii) Barkat Ali & Anr. v. Badrinarain (Dead) by LRs., (2008) 4 SCC 615 and

(iv) Satyanarain Bajoria & Anr. (supra)

It was observed as under in Sheela Gehlot (Supra):

At this stage, it is pertinent to take note of the addition made to Order XXI Rule 22 for the State of Punjab by which a proviso was inserted to sub-rule 2 of Order XXI Rule 22 of the Code by High Court Notification No. 125-GAZ-XI-Y-14 dated 07.04.1932. For the facility of reference Order XXI Rule 22(2) with proviso as applicable to the State of Punjab is extracted below:-

“22(2)-Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.

In Sheela Gehlot (Supra) it bears emphasis that Delhi property was the subject matter, and it was neither attached nor brought to sale in execution of the decree as a proceeding before the Morena (M.P) court. It was attached and sold in exercise of powers under the 1993 Act which is a special enactment for expeditious recovery of debts due to banks and financial institutions. The transfer of execution proceeding from Morena court to the DRT, effected under Section 31 of the 1993 Act, did not merely change the forum of execution, it clothed the Recovery Officer, with the power to recover the amount in accordance with the procedure prescribed under Section 29 of the 1993 Act read with Second Schedule to the 1961 Act, in supersession of procedure under the Code before the Morena Court. The procedure governing the execution before the Recovery Officer only required the notice under Rule 2 of Second Schedule to 1961 Act.

Therefore, the first question was answered in as much as it was held that Order XXI Rule 22 of the Code has no impact on the validity of the auction sale.

As regards analysing the second question, the Supreme Court had taken note of Rule 2 and Rule 61 of the Second Schedule to the 1961 Act, which read as under:-

“2. Issue of notice.—

When a certificate has been received by the Tax Recovery Officer from the [Assessing Officer] for the recovery of arrears under this Schedule, the Tax Recovery Officer shall cause to be served upon the defaulter a notice requiring the defaulter to pay the amount specified in the certificate within fifteen days from the date of service of the notice and intimating that in default steps would be taken to realise the amount under this Schedule.

61. Application to set aside sale of immovable property on ground of non service of notice or irregularity.—

Where immovable property has been sold in execution of a certificate, [such Income-tax Officer as may be authorised by the  [Principal Chief Commissioner or Chief Commissioner] or  [Principal Commissioner or Commissioner] in this behalf], the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale of the immovable property on the ground that notice was not served on the defaulter to pay the arrears as required by this Schedule or on the ground of a material irregularity in publishing or conducting the sale:

Provided that—

(a) no sale shall be set aside on any such ground unless the Tax Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of the non-service or irregularity; and

(b) an application made by a defaulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in the execution of the certificate.”

The Rule 2 of the Second Schedule to the 1961 Act, requires a notice of demand to be served upon a defaulter before recovery is levied against him. Rule 2 of the Second Schedule incorporates principles of natural justice to the procedure for recovery. However, it is to be noted that the Second Schedule also contains Rule 61 which supplies the consequences of and the remedy precisely for such a default, namely an application to set the sale aside on the ground of non-service of notice or of irregularity. Such an application has to be made within a period of 30 days from the sale and requires that sale shall be set aside only if an applicant has sustained substantial injury by reason of non-service or irregularity.

Admittedly, no notice under Rule 2 of the Second Schedule was served either on respondent no. 1 or on her children. However, it is pertinent to note, respondent no. 1 and her children were already parties to the execution proceedings. The respondent no. 1 had notice about the auction of Delhi property as she had filed M.A. No. 65 of 2003 before DRT, Delhi seeking release of original title deeds of the Delhi property. In the said M.A. respondent no.1 had stated about pendency of execution proceeding. The respondent no.1 had also filed an application seeking recall of the order dated 20.09.2004 directing an auction. Therefore, the question of substantial injury being caused to respondent no. 1 and her children on account of non-service of notice under Rule 2 of the Second Schedule to the 1961 Act, does not arise. It is also pertinent to note that even after the sale, the legal representative did not take recourse to the remedy provided under Rule 61 of the Second Schedule of the 1961 Act. Therefore, in the facts and circumstance of the case, absence of notice under Rule 2 of the Second Schedule to the 1961 Act, does not render either the execution or the sale void. Accordingly, the second question is answered in the negative.

As regards the third question the supreme court had noted that clause (ccc) incorporated in sub-Section (1) of Section 60 of the Code, by means of Section 35 of the Punjab Relief of Indebtedness Act, 1934 as amended by Punjab Amendment Act No. XII of 1940 and Punjab Amendment Act No.VI of 1942, application of which was extended to  the erstwhile State of Delhi by a subsequent notification dated 08.06.1956 published in the Gazette on 16.06.1956. Admittedly, Section 60(1)(ccc) of the Code applies to National Capital Territory of Delhi. The relevant extract of Section 60(1)(ccc) of the Code is already narrated above.

Thus, it is abundantly clear that the plea of exemption under Section 60(1)(ccc) of the Code is personal to the judgment-debtor and is not available to be raised by his legal representatives.

The Supreme Court in reference to the above has held as under in Sheela Gehlot (Supra) as under::

“44. The view taken by the Delhi and Punjab & Haryana High Courts about the interpretation of local amendment to Section 60(1) of the Code, namely Section 60(1)(ccc) of the Code which is applicable to the State of Punjab, Haryana and Delhi has held the field for thirty seven long years. We find no good ground to differ with the view taken by the aforesaid High Courts. Therefore, the plea of exemption under Rule 10 of the Second Schedule read with Section 60(1)(ccc) of the Code is not available to respondent no. 1 and her children”.

It was further held by the Supreme Court that It is a well-settled legal proposition that a pure question of law can be raised at any stage of the proceeding but a question of fact that requires an investigation and inquiry for which no factual foundation has been laid cannot be allowed to be agitated in a writ petition. Thus, a mixed question of law and fact cannot be raised for the first time in a writ petition. Reliance was placed on Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors.; (2010) 9 SCC 157.

The Supreme Court in Sheela Gehlot (Supra) has categorically held as under:

46.Since, the respondent no. 1 neither in her application before the Recovery Officer on 24.10.2004, nor in M.A. 65 of 2003 filed before the DRT, Delhi raised an objection with regard to plea of exemption under Section 60(1)(ccc) of the Code. The respondent no. 1 also did not raise the plea in her appeal against order dated 10.10.2006 (31 of 2006) and in the writ petition filed against the order dated 13.11.2006 passed by the DRT and  The respondent no. 1’s plea of exemption under Section 60(1) (ccc) of the Code, came to light for the first time in a writ petition filed against the order dated 27.02.2007 rejecting the application for stay wherein the High Court while dismissing the writ petition observed that there is no iota on record that the exemption was ever claimed by her. In the proceeding before the DRT, leading to order dated 29.05.2007, the respondent no. 1 did not either plead or lead any evidence with regard to applicability of exemption under Section 60(1)(ccc) of the Code. Therefore, the High Court erred in entertaining and in remitting the matter to the Recovery Officer, DRT to decide the same after giving an opportunity to the parties to lead evidence. Accordingly, the third question is answered”.

The Impugned judgment dated 15.05.2009 passed by the High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 2199 of 2008 was thus quashed and set aside. In the result C.A. No. 182 of 2016 and C.A. No. 190 of 2016 were allowed whereas C.A. No. 191 of 2016 was dismissed.

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                                Anil K Khaware

Founder & Senior Associate

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