Najmi Waziri JUDGMENT
Najmi Waziri, J.
1. The issue which is to be decided in this case is whether the plaintiff, being the first born amongst the co-parceners of the HUF property, would by virtue of her birth, be entitled to be its Karta. Her claim is opposed by defendants Nos. 1 to 4 while the defendants Nos. 5 to 9 have given their 'no objection' to it and their 'NOC has been filed along with the plaint. Therefore, defendant Nos. 5 to 9 are virtually plaintiffs. Defendants No. 10 and 11 state that their position is to be determined as per law. Ms. Mala Goel, the learned counsel for the plaintiff, submits that the parties to the suit are the co-parceners of the D.R. Gupta & Sons, HUF.
2. The suit property comprises residential property at 4, University Road, Delhi-110007 and some movable properties and shares such as (i) Shares of Motor and General Finance Ltd.; (ii) Deposits with Motor and General Finance Ltd.; (iii) Bank of Account in Bank of India, Asaf Ali Road; and (iv) Bank Account in Vijaya Bank, Ansari Road.
3. To determine the lis in this case, the following issues were framed vide order dated 15.09.2008:
"1. Whether the suit has been valued properly and proper court fee has been paid thereon? (OPP)
2. Whether the suit for declaration, is maintainable in its present form? (OPP)
3. Whether there exists any coparcenary property or HUF at all? (OPP)
4. Whether the plaintiff is a member of D.R. Gupta and Sons HUF? And if so, to what effect? (OPP)
5. Whether the interest of the plaintiff separated upon the demise of her father Sh. K.M. Gupta in 1984? (OPD)
6. Assuming existence of a D.R. Gupta and Sons HUF, whether the plaintiff can be considered to be an integral part of the HUF, particularly after her marriage in 1977, and whether the plaintiff has ever participated in the affairs of the HUF as a coparcener, and its effect? (OPP)
7. Assuming existence of D.R. Gupta and Sons HUF, whether the plaintiff is a coparcener of and legally entitled to be the Karta? (OPP)
8. What is the effect of the amendment in the Hindu Succession Act, in 2005 and has it made any changes in the concept of Joint Family or its properties in the law of coparcenary? (OPP)
9. Relief."
4. Issue 1
This issue was decided in favour of defendant Nos. 1 to 4 by this Court, which was subsequently set aside in Appeal No. 293/2010 on 17.01.2013, therefore, this issue stands settled in favour of the plaintiff.
5. Issues No. 2, 3, 4 and 7.
Ms. Mala Goel, the learned counsel for the plaintiff submits that pursuant to the Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as the 'amended Act') which amended the Hindu Succession Act, 1956, all rights which were available to a Hindu male are now also available to a Hindu female. She submits that a daughter is now recognised as a co-parcener by birth in her own right and has the same rights in the co-parcenary property that are given to a son. She relies upon Section 6 of the Hindu Succession Act, 1956 which reads as under:
"6. Devolution of interest in coparcenary property.-
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall -
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienat........