leaving trains and sorry for the delay on our part because there was some technical glitch. And today amongst us we have Mr. Suryanarayan Rao who is an epitome of knowledge and he has always been sharing his knowledge on different issues and different perspectives. We thought why not understand the rights of rights in a capacity property as to how the law has evolved and as you all know that Mr. Rao has always been kind enough to come and share the knowledge on the channel of Beyond Law CLC. Those who have missed the previous webinars they can always check it out on our YouTube channel and they can also like, subscribe and share the link of the channel so that they can come to know as to what type of efforts is being put across and sharing your comments on the YouTube channel would also tell us that what type of topics you want or what was your response to that particular topic. That will always encourage the resource person to take things forward in the right way. Since it's a weekend we will request Mr. Rao to share his insights over to you sir and thank you for always agreeing upon to take different issues of law. Over to you. Good evening everybody. The subject of today's talk is rights in co-personality property and how those rights have evolved from a long time. In order to understand this evolution of law we have got to first understand a few concepts. First is what is a co-personality? What is a joint family? What is co-personality property? These three things will have to be correctly in mind. The first and the most important thing is co-personality. Co-personality consists of father, son, grandson and great-grandson.  Only males are members of this co-personality. And females are not members of this co-personality. Number two, in respect of all these males, their wives and their daughters and daughters-in-law put together, they would constitute a joint family. Whereas the male linear descendants would become co-personers by birth and they cease to be co-personers unless there is a partition only by their death. As far as females are concerned they become members of a joint family. When the daughters marry and go out they cease to be members of the joint family and when daughters-in-laws walk in they become members of the joint family. So therefore this is the distinction between a co-personality and a joint family. Then co-personality property is what a male acquires on succession from his father, grandfather or great-grandfather. So if property is acquired from this particular source from either the father, grandfather or great-grandfather it becomes co-personality property. The son, grandson and great-grandson they become members of the co-personality. They also acquire a right by birth in co-personality property. So therefore this is what is called as unobstructed heritage. The right that a co-personality acquires in co-personality property is not dependent upon the death of the father, grandfather or the great-grandfather as soon as he is born he becomes a member of the co-personality and he gets a right by birth in this co-personality property. Prior to 1933 the law was that women had no right in co-personality property. Women, ladies would not acquire any property even on succession to a male. It was only the males who were entitled to succeed to the assets of their father and the females would not get any right at all. That was the law prior to 1933 and for the first time two statutory enactments came into force. The first statutory enactment was the Mysore Hindu Law Women's Rights Act 1933 and this came into force on 29 June 1933 and the second enactment was the Hindu Women's Rights to Property Act 1937 and it came into force on 14th, 4th 1937. So by these two in fact the Mysore enactment was applicable to the state of Mysore that existed prior to the formation of the Union of India and the provisions of that enactment are of great significance because this enactment in particular gave rights to daughters and widows in certain situations. In section 4 of the Mysore Act is looked into what section 4 says is primarily the property of a male would first go to the grandson or great grandson. If all these three persons are alive the daughters are totally excluded from succession. In the absence of these three people the property would go to the widow. Only in the absence of the widow the property would go to the daughter. So therefore there was some room for the widow or the daughter to acquire rights in family properties under this particular enactment. Then two other concepts were also developed in this enactment that is under section 8 widows, unmarried daughters and a few other female females were entailed to a share at a partition of joint family properties. Their right was confined only to a share when a partition of the joint family takes place. They had no right to sue for partition and claim a partition of share in these joint family properties. Their rights were confined only at a partition and if there was no partition in the family they would not get any right in the joint family properties. Then there was one other concept that was introduced as far as Sridhana properties are concerned that is self acquired properties of a female are concerned. The law was that both sons and daughters they would inherit the property in equal shares only in respect of Sridhana properties. Then we may have we may go to the Hindu the other enactment which I made a reference that is the Hindu women's rights to property act this applied to other states other than the state other than the state of Mysore which existed prior to the Indian constitution. Now this consists of practically two sections only and the section 3 says when a Hindu governed by Daya Baga school of Hindu law Hindu law dies interstate living property and when a Hindu governed by any other school of Hindu law or by customary law dies interstate leaving separate property this is what is important if a man owned self acquired properties his widow or if there are more than one widow all these widows together shall subject to the provisions of social section 3 be entitled in respect of the property in respect of which he dies interstate to the same share as a son so therefore they would get the widow would get the same share as a son that is with respect to the separate property. Then this subsection 2 says when a Hindu governed by any school of Hindu law other than Taya Baga school or customary law dies having at the time of his death the any interest in a Hindu joint family property this is with respect to joint family property his widow shall subject to the provisions of subjection 3 having the property the same interest as he himself had so therefore whatever share the husband had it would go to the widow and both under the Mysore Act and also the other act whatever property was got by a Hindu female she would only take a limited estate she had only a right to enjoy this property during her lifetime she could even if she would make an alienation of the property that would survive only as long as she was alive after her death the property would river to the years of the husband and all of us are aware that by virtue of section 14 of the Hindu succession act whatever rights whatever rights the female had it would enlarge into a fully estate if she was possessed of that estate on the date when the Hindu succession act came into force in 1956 then then for the first time the Hindu law of succession was codified in the year 1956 Hindu succession act was brought into force as far as section six is concerned the law said that if a male Hindu died having an interest in copartary property in such an event the a notional partition was assumed just before his death and whatever property whatever share that you would get at this notional partition that share would go by succession to all his years and under section 30 if a coparster should make a will in respect of his property he could even deprive of his years of class one of a share in these properties so therefore the rule of survivorship was stated in literal terms a proviso was introduced to this rule of survivorship the proviso was where a male Hindu died living behind him a female here mentioned in clause one or a male or a female male relative climbing through such female relative then the property of a male Hindu dying would not go by survivorship it would go either by succession interstate or by or if he has executed a will whatever provisions are made under the will to give a simple illustration let us assume that the father had two sons and a daughter and he has he had his wife also in such a situation if the the the father and the two sons constituted a copartnery the immediately after the death of the father a a deemed partition by fiction was assumed and at this deemed partition the father got a one-third share the two son seats they got a one-third share each so therefore whatever share this one-third share the father had that would go by succession to his wife to his daughter and the two sons so therefore the sharers are four in number two daughters a son and a widow so therefore this one-third share of the father is again shared by these two people each one getting a one-third share thereby the son would get a one-third share as a copartner right by birth one-third share on succession to his father therefore the share of a son would be one-third plus one-twelve whereas the share of a daughter would be one-twelve and the wife would also get a one-twelve share this is what would happen if the father did not leave a will suppose the father wanted to give this one-third share to his sons only to his wife only or to a person who is a total stranger in the family and if we should execute a will then the the years of the father would not get this property and the property would go according to the what was willed by him and therefore a daughter yes the father had every right to deprive his wife and daughter of any share in the copartnery property this was the law in force when in the year 1956 then after 1956 what happened was the karnataka government amended section six of the hindu succession ad and they by by including section six a and section six c b c and d uh by substituting the original section six so what the under section six a what the statute said was in a joint family governed by mithafshara law the daughter of a copartner shall by birth become a copartner in her own right in the same manner as a son and have the same rights in the copartnery property as you would have had if you had a son inclusive of the right to climb survivorship I shall be subject to the same liabilities and disabilities in respect of thereof as as that so therefore by this enactment the the karnataka government said that a daughter also would become a copartner by birth so therefore the daughter also would become a copartner by birth from 37 1994 that was the day on which the karnataka amendment was brought into force and it also said the circumstances under which a daughter could climb a share in copartnery property because she became a copartner by birth from that day and therefore what uh under section six a b this is what the enactment said at a partition in such a joint family the copartnery property should be so divided so as to offer to a daughter the same share as is allotted to a son so therefore what is important is at a partition is what is used in this particular section so therefore in my view if when the karnataka amendment was in force if there is no partition at all in the copartnery even in such a situation though a daughter was a copartner she could not file a suit and ask for separation of her share only in cases where a partition takes place in the family she would be entitled to a share and not otherwise and there was also one other proviso introduced which said that a daughter who climbs a share as copartner should remain unmarried as on the date of the amending act that is 37 1994 so therefore this right as a copartner given to a daughter was subject to another limitation that is she should be unmarried on the date of commencement on the on 37 1994 so therefore this karnataka amendment would not would be of no help to females who were married prior to 37 1994 and it would also apply to daughters who were born after 37 1994 because they would remain unmarried after 37 1994 so therefore this the the the the the karnataka amendment would apply to the entire state of karnataka so therefore this law will have got to be kept in mind while appreciating the amendment to section 6 by its substitution by at 39 bar 2005 that is the the central government brought into force a new concept by introducing a substituted section 6 and this has created lot of confusion interpretation of this new provision of section 6 in fact under the section 6 what they said was the law of survivorship was completely abound and it said that a daughter would become a copartner by birth number one number two and she would be entitled to the same share as a son and she would also be liable to the same disabilities as a son would suffer by being a copartner this in effect is substituted section 6 of the hindu succession act now there are one or two more things that love to be kept in mind in looking into the substituted section 6 of the hindu succession act it also said that where the property was already divided by on a particular date or where the property was given away by a will and the will had taken effect before a particular date all those transactions would be saved and in respect of those properties the daughter would not would not climb any share in the in these properties the the effective date for this purpose is 20th december 2004 so therefore whatever transactions had taken place before 20th december 2004 in respect of copartnery properties either by an alienation or by virtue of a will made by the copartner all those transactions were saved well therefore the the provisions of this new section which was brought into force on 99 2005 would only be available only in cases where the transactions like this had not taken place before 20th december 2004 these things will have got to be kept clearly kept in mind then there is one very important aspect about which there are a number of decisions which have created some confusion in this regard earlier the supreme court had said in prakash this is pulavati if a daughter or a father is not alive all night hello hello hello you can start off oh right i was saying that in vinita sharma's case the court primarily said that if a daughter is alive on the date when the act came into force the provisions of the act amending act would apply to such a daughter and she would acquire the status of a copartner a reference may be made to some of the paragraphs in the judgment of the honorable supreme court which would be relevant and we are and we should correctly keep in mind these two principles laid down by the supreme court a reference may be made to para 75 the judgment in vinita sharma's case this is what the supreme court has said survivorship is the mode of succession not that of formation of a copartnery hence we respectfully find ourselves unable to agree with the concept of living copartner as laid down in prakash versus pulavati so therefore the in our opinion the daughter should be living on 99 2005 so therefore they have the supreme court has said in uniquely vocal terms for the amended provision of section six to apply the daughters should be living on 99 2005 then a reference also can be made to paragraph 105 where their lordships have said hence we have no hesitation to reject the effect of statutory fiction of proviso to section six as discussed in prakash versus pulavati supra and danama supra if a daughter is alive this what is important if a daughter is alive on the date of enforcement of the amending act she becomes a copartner with effect from the date of the amending act irrespective of the date of work earlier in point of time so therefore their lordships have said irrespective of the date of birth of the female if the female is alive on 99 2005 she would be entitled to the benefit of the amended provision and she would become a copartner from 99 2005 the supreme court has very clearly said that the amending act is not retrospective it is only retroactive it gives a right to the female as a copartner from 99 2005 taking into consideration the anterior fact of the female having born earlier so therefore the the concept of a living father was given a go by the concept of the female should be living on 99 2005 was appraised by the supreme court in vinitha sharmas case however there are two decisions of the karnataka high court which have taken a different view in this regard that is in it is not a reported decision it's a decision in rsa 11 71 bar 2015 the judgment is delivered on 21 22 in rangashamaya versus rangahanumaya in this case the court has said even if the daughter is not alive on 99 2005 whatever may be his date of birth the years of the daughter could climb the rights of their mother as a copartner by filing a suit after 99 2005 though the mother was not alive on 99 2005 this is what the high court has said in two paragraphs 19 and 20 of the judgment which are relevant for our for the consideration once the daughter is conferred the status of a copartner and acquires a right by birth this acquisition of right by birth cannot be deprived by her death whether it is before or prayer to the amendment so this is what they said even if she died earlier she would become a copartner right as a copartner then the creation of a copartnery right is by birth and creates a right in the female by virtue of her birth in the family her death in the family either before or after the amendment will have no effect on her status as a copartner once she is born in a family she becomes a copartner by operation of law and this status is definite and perennial the death of a daughter whether it occurs before the amendment of the act or after the amendment of the act would make absolutely no difference to her status as a copartner so therefore this in my view this decision of the Karnataka High Court is not in consonance with what is laid down in Vinita Sharma's case in Vinita Sharma's case in paragraph 75 of the judgment the court has unequivocally said in our opinion the daughters should be a living on 99 2005 then again in paragraph 105 it is stated if a daughter is alive on the date of enforcement of the amending act she becomes a copartner with effect from the date of the amending act irrespective of the date of birth date of birth earlier in point of time therefore my submission is these two relevant observations of the supreme court have not been taken note of by the Karnataka High Court while rendering this decision then there is one other decision of the Karnataka High Court which has also held a similar view and I would make a reference to the decision that's also an unreported decision in RSA 2893 bar 2006 it is disposed of on 5 10 2021 this is what the learned judges observed at paragraph 35 of the judgment learned counsel for appellant defendant number one V Ramaya in RSA 2629 bar 2005 submitted that as per the principles laid down in Vinita Sharma's case the children of deceased daughter are not entitled for the share equivalent to that of a deceased daughter if the said daughter died earlier to the amendment amending an amendment act 2005 in this connection the contextual reading of the judgment guides that the daughter is treated equivalent to that of a son and as all the rights of a personal her rights and her rights are enforceable by their children there is not much of a discussion made in this second decision they have also come this in the second decision also their lordships have come to the conclusion that even if the daughter is not alive on 99 2005 and they would be in the years of such a daughter could climb that their mother had become a co-personal and they would also be entitled to that share in the in the joint family properties therefore these two decisions that you cannot try to put which are not reported according to me with great respect to the honorable judges is per incurium and therefore these two decisions are required to be reviewed so this is one aspect of the matter then in Vinita Sharma you see then the concept of a notional partition under section six of the hindu succession act was explained in great detail by justice why we chandra chud in the decision reported in a i r 1978 supreme court was the deny supreme court in this case has stated the law like this the explanation one to section six of the hindu succession act resolves to the simple expedient undoubtedly fictional that the interest of a hindu metakshara professor shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place before the death what is therefore required to be assumed is that a partition is what is important that a partition had in fact taken place between the deceased and his co-personers immediately report the step the assumption once made is revocable in other words the assumption having been made once for the purpose of ascertaining the share of the deceased in the co-personary property one cannot go back on the assumption and ascertain the share of the years without reference to it the assumption with the statute permeates with them the the the assumption with the statute requires to be made that a partition had in fact taken place much permeate the entire process of ascertainment of the ultimate share of the years through all its stages so therefore the court said that a partition is assumed it is as if a partition has in fact taken place and the assumption once made is revocable so therefore the the law was that as soon as one of the co-personers died in view of this notional partition the joint family status would come to an end that was the law earlier and it was also held that the shares of the other living co-personers also would get determined at this notional partition then this concept of notional partition was again given a real look by Justice E. S. Venkataramaya in a decision reported in year year 1985 Supreme Court 716 after referring to the earlier case of Justice Chandrachudh this is what Justice E. S. Venkataramaya has said at page paragraph 9 of the judgment we have carefully considered the above decision that is Chandrachudh decision and we feel that this case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under section 6 of the act files a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she inherited and the share which have been which which have been allotted which have been notionally allotted to her as stated in explanation 6 section 6 of the act but it cannot be an authority for the position that she sees us to be a member of the family so therefore the disruption of the joint family does not actually take place the but it is not but it cannot be an authority for the position that she sees us to be a member of the family on the death of the male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family a legal fiction should no doubt ordinarily be carried to its logical end to carry out the purpose for which it was enacted but it cannot be carried carried beyond that it is no doubt to prove that the right of a female heir to the interest inherited by her in the family property gets fixed so therefore the her right gets determined gets fixed on the date of the death of the male member under section 6 of the act but she cannot be treated as having seized to be a member of the family without her volition as otherwise it would lead to strange results which would not have been in the contemplation of the parliament when it enacted that provision which might also not be in the interest of the female yes it should therefore be held this is not important it should therefore be held not withstanding the death of Shamarov that is the father the remaining members of the family continue to fold the family property together though the individual interest of the female member thereof in the family property became fixed so therefore the share got fixed but it was not divided by meats and bones the joint family still continues when she could file a suit for partition in respect of a share which was fixed on the date when her husband died so this is become so therefore the notional partition is only for the purpose of determining the share of the years of the deceased go past and it does not in fact bring about a disruption of the joint family and that is what is stated in this particular judgment then this decision is also subsequently followed by the supreme court in a year 1994 supreme court page 182 Shamadevi versus Manjushukala so therefore these these two decisions completely interpret the effect of section 6 prior to Vinita Sharma's case then in Vinita Sharma's case what they said was that after the 2005 act even at this notional partition there was no division of status also this notional partition was primarily meant for defining the shares of the years of the co-partner who died it does not fix the share of the other other co-partners as on the date of the death of one of the co-partners is what the supreme court has said in fact a few paragraphs in the judgment in Vinita Sharma's case would be very relevant because I'm just we read all these paragraphs carefully we will not be able to understand how the concept of notional partition will have got to be applied while trying to find out the share of a daughter as a co-partner subsequent to 99 2005 now in the end of paragraph 96 the supreme court makes a reference to Chandrachut decision and this is what the supreme court has said in Vinita Sharma's case the only question involved in the aforesaid matter was that is in the Chandrachut judgment was with respect to explanation of section 6 and the determination of the widow's share in that case the question was not of fluctuation in the co-partner body by a legal provision or otherwise therefore the application of Chandrachut's decision is now changed by virtue of the legal provision in section 6 where the daughters are made co-partners therefore everything remained static no doubt no doubt about it the share of the disease has to be worked out as per the statutory fiction of partition created however in case of change of body of co-partners by a legal provision or otherwise so that is by virtue of this amendment unless and until at the actual partition is finally worked out writes how to be recognized as they exist at the time of the final decree it is only the share of the disease pro-partner and his years are asserted under the explanation to subsection tricks and not that of the other co-partners which keep on changing with the with birth and death then again in paragraph 110 when they provoked over to amendment section 6 of the act to the 1956 came into operation and the shares of the disease co-partner was required to be asserted right a deemed partition was resumed in the life of the disease immediately before the set such a concept notional partition was employed employed so as to give effect to the explanation to section 6 depiction of notional partition was meant for an aforesaid specific purpose it was not to bring about a real partition this is important neither did it affect the severance of interest not demarcated the interest of the surviving co-partners or the other family members so therefore it is only the share of the co-partner who died that was predicated and that was fixed the shares of the other co-partners was not fixed at all and therefore I will give you a very simple illustration a father and two sons and a daughter the father died subsequent to 99 2005 then what happens the share of the father the father the father died prior to 99 2005 not after 2005 then what happens is the share of the father prior to 99 2005 would be one third share because father and two sons they only constitute a co-personality so therefore the share of the father would get determined and this father's share would go by succession to his two sons a daughter and the mother and the mother so therefore there are four people so this one third share would be divided between the two sons the daughter and the widow all would get a one fourth of one third and it will be a one one twelve share so therefore what happens at this notional partition is this one third share of the father gets excluded and the father and his years would get one twelfth share each in the property because of the death of the father and therefore why the remaining two third share it would continue as joint family property and suppose after the act came into force the daughter would be a co-personer so therefore the daughter and the son those are the only two people in the co-personary at that time because the daughter also becomes a co-personer from 99 2005 this two thirds share would be joint family property and this two thirds share itself would be shared by the son and the daughter in equal share so therefore they would only those two people would share this two thirds share and they and that will be joint family property in their hands they will get top of this two third share each in the joint family properties and suppose with the aid of this two thirds share they acquire some more properties then what would happen see whatever properties are acquired with the aid of this two fourth share it would be co-personary property between the the surviving son and the daughter won't be and the daughter the son who died prior to 2005 they would not be entitled to any share in these properties so therefore this the concept has would create a lot of confusion so therefore the it revolves around a very careful application of the law depending upon the date of death of the co-personer so and if he died prior to 99 2005 the the share of the deceased co-personer which is a certain that a notional partition would embrace only those properties which belong to the joint family on that day you joint family properties are subsequently acquired with the aid of co-personary properties the years of the deceased co-personer would not be entitled to the benefit of the properties which are subsequently acquired with the aid of joint family properties in fact this is what is also made clear by the supreme court in a paragraph 104 of the judgment this is what is stated in paragraph 104 in in case the co-person is continued so therefore the share of the deceased is taken away and in the case the co-person is continued and later on between the surviving co-personers partitions takes place it would necessary to find out the extent of the share of the deceased co-personer that that has to be worked out with reference to the property which was available at the time of the death of the deceased co-personer who share devolved as per proviso of explanation 1 to section 6 and in case of interstate succession so therefore the the law according to me is so confusing and we have got to bestow our retention to each one of these decisions in minotaur mass case to understand the law correctly then at the in fact the earlier law was suppose a daughter filed a suit for partition a coparster filed a suit for partition or a notice was issued by one of the copars are seeking a partition in all such are a death takes place and a notional partition is made as required under explanation to section 6 in all these situations the law prior to 1956 was that the co-personer that the joint family status would come to an end there would be a severance of status in the joint family and when once there is a severance of status the shares of each one of the co-personers would get predicated and if the shares of each one of the co-personers gets predicated then it would not be subject to a fluctuation at a later later point of time but the entire the the supreme court has said yeah firing of a suit issue of a notice for partition or the death of a co-personer none of these things would bring about a change in the status of the co-personer by a co-personary so as to deprive a daughter of his share in the as a co-personer in the joint family properties so therefore the law appears to have undergone a change after 2005 now if that is so if a suit is what happens if a suit is filed prior to 2005 so according to me if a suit is filed prior to 2005 or if a notice for partition is given is given prior to 2005 there is a division of status the shares of each one of the co-personers get predicated or 99 2005 the joint family is not in existence if that is so the daughter would not get a right as a co-personer because there is a division of status prior to 99 2005 because the the supreme court has said because of the amendment we have got to interpret and say that none of these things would affect the rights of a daughter as a co-personer therefore if after 99 2005 giving of a notice filing of a suit or the death of a co-personer it does not bring about division joint family status whereas prior to the amendment all these situations would bring about a division in the status of the co-personary and the shares of all the members of the family would get predicated and there is one other factor also which has not been discussed by the supreme court in Vinita Sharma's case the the wordings used in explanation to section 6 of the amendment act is that a deemed partition has taken place immediately prior to his death partition means partition amongst all the members of the co-personer if it was intended that the share of only the co-personer who died had to be fixed and the rights of the other sharers would not get fixed the supreme court would have said if he had released himself from the family let a notional release was what would have been intended under explanation to section 1 in a notional release only one person goes out in a partition there is a division of status of the entire family so therefore the wordings used in section 6 is not a notional release of one of the members of the co-personer to find out his share and what is contemplated at the explanation is a partition therefore the word partition has a specific meaning and therefore we have got to interpret this particular explanation as saying that by the death of one of the co-personers the deemed partition would not only fix the share of the deceased at the time of his death but also the share of other co-personers in the joint family this is my opinion in regard to the interpretation of the world a partition in amended section 6 of the Hindu succession act now we see the most important thing is for application of section 6 there must be co-personary property if co-personary property is not there the question of right by birth does not arise at all so therefore section 19 of the Hindu succession act and section 8 of the Hindu succession act if they are carefully read most of the property which is acquired subsequent to 1956 would all be self-acquired properties of the members of the joint family they would not partake the character of joint family properties at all suppose if the grandfather acquired a property after the Hindu succession act 1956 that is subsequent to 1956 then it is self-acquired property in his hands if the grandfather dies the property in the hands of his son would not be joint family property though the property is acquired from the father because the supreme court has said in a number of decisions because the property is acquired by the grand by the father on succession to the grand father under section 8 the property would be self acquired property in his hands and therefore the grandson would have no right in these properties in fact for this proposition there are a number of authorities in this regard that is I would make a reference to only a few of them the leading authority in this the first and the most important authority is one EIR 1986 supreme court page 1753 Kapoor and others versus Chandrasek this is what is popularly called as Chandrasek's case in this case the court said as stated above after coming into force of the Hindu succession act 1956 self-acquired or separate property of a male Hindu that is the grandfather acquiring the property after 1956 on his dying interstate devolves on his years in their individual capacity so therefore it devolves upon the father in his individual capacity and not as Kopa's 30 property in such a case their children that is the grandchildren will not acquire any right by birth in such property this was what was laid down and this principle was followed in 1987 supreme court page 558 Yudhisthira versus Satyakumar and and this is what the court has said the court observed that this position that is the property have acquired that the father acquiring property from the grandfather would become his answer would become ancestral in his hands that was the earlier law this court observed that this position has been affected by section eight of the Hindu succession act 1956 and there and therefore after the act that is 1956 when a son inaugurated the property in a situation contemplated by section eight he does not take it as Kartha of his own underrated family but takes it in his individual capacity and they also said yeah if that if that be the position when the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather would not be said to be HEO property so therefore the and there are a number of decisions in that regard again another decision in yeah yeah 2008 supreme court page 1490 and the latest decision is a 2009 19 yes yeah or civil 809 Ashur Singh versus all her pa her paul cover they say in paragraph 816 at page 816 paragraph 7.5 this is what he stated after the Hindu succession act 1956 came into work this position has undergone a change post 1956 if a person inherits a self acquired property from his pet up the land sister the said property becomes his self acquired property and does not remain for personal property so this this law is also followed in a number of decisions by the Karnataka High Court and I do not would not like to burden further with a large number of authorities on the same proposition therefore what I would like to emphasize is if property is acquired by either the father or the grandfather or the great grandfather after 1956 so now we are in 22 44 44 plus 22 66 years in the last 66 years if any one of these people father grandfather or great grandfather has acquired this property after 1956 so therefore the property acquired by the grand great grandfather would be self acquired property in the hands of the grandfather that property again would be self acquired property in the hands of the father again that property would be self acquired property that as long as they are alive their sons or grandsons cannot live initially these properties therefore so the the if all these properties acquired after in the last 66 years with the family would not partake the character of joint family properties at all and all these properties become self acquired properties in the hands of whoever upon whom it has devolved in these last 66 years therefore a large probably a large chunk of property which would have been which would have been otherwise the co-personary property or taken out and therefore section six does not apply to any of these properties so this is one aspect of the matter then the second aspect of the matter varies suppose there are co-personary properties there is a division of these properties when once a division takes place then the then the then the property that that are taken by the individual co-personary division they would become self acquired property in their hands by virtue of section 19 of the Hindu succession act I will give you a simple illustration there is a father the father has two sons and two daughters let us suppose the father dies the two sons and the two daughters let us say they are all co-personers they get a one fourth share in these properties and all of them divide is one fourth share after 1956 what happens is this one fourth share in the hands of the father though these properties are acquired or co-personary properties earlier they become self acquired properties after a partition takes place between these four persons therefore only those persons who are alive on the date when the when this partition takes place they would be entitled to a share suppose a son is barren subsequent to this partition he would not get a right by birth I will give you a simple illustration in fact that's also what the supreme court has said in one of those cases the grandfather is alive he has got two sons and a daughter so the the grandfather dies the two sons and the daughter they form a co-personary the the two sons and the father the two sons and the daughter they divide the property one third each and they take their shares suppose after this partition one of these sons gets another child the child born after the partition or after the death of the grandfather because the grandfather's property gets shared after the death of the grandfather he would not be entitled to any share in these properties and in fact this principle was first laid down by the supreme court in a decision reported in year 2008 to supreme court 2489 this is Harudev Roy versus Sekhuntala Devi in that is one concept which has got to be very clearly kept in mind once the share of a co-parser is determined it ceases to be co-parser the property the parties in such an event does not possess the property as giant tenants but as tenants in common the decision of this court in SBI therefore is not applicable to the present case where this is what is important where a co-parser takes definite share in the property he is the owner of that share and as such he can alienate the same by sale or market in the same manner as he can dispose of his separate property so when once he gets a share at a partition after 1956 he becomes his individual property and his sons born subsequent to the partition cannot lie in his share in fact we have got to read section 19 very carefully if section 19 of the hindu succession act is closely read we will just read section 19 of the hindu succession act this is what section 19 reads in fact in fact this provision is lost sight of in many cases if two or more years succeed to the property of an interstate they said take the property save as otherwise expressly provided in the set per capita and not per steps so they take it as per capita and not per steps and as tenants in common and not as joint shares so therefore they unless they take it as if they take it as a joint tenants it will be joint family property if they take it as tenancy in common it would be their individual property and not joint property so therefore per capita would mean that whoever is alive on the day when the success when the succession opens they would only be entitled to a share and those persons for born subsequent to this succession they would not be entitled to a share in this property so if section 19 of the hindu succession act is closely read the wordings in that section indicate that the same would be applicable to cases where there is a succession of property after the hindu succession act came into power the word used in the section is succession and not inheritance for this reason this section applies both in case of acquisition of joint family property at a partition or by inheritance for this reason where a partition takes place subsequent to 1956 even of ancestral property the parties to the partition acquire the property in their individual capacity and their children who were neither born nor alive on the date of the partition would on the date of the would not get any share in the properties which are the subject matter of the partition this is the principle affirmed by the supreme court in the decisions which I have already referred to so in this in fact this decision of the supreme court is further affirmed in the recent decision of the supreme court in 2020 SCR civil 127 that is Radha avoid versus so in this case the principle laid down in Haridio Roy's case was affirmed under the the facts of that case make the law further clear in the case before the supreme court the grandfather was one Jagannath Singh he died in 1973 he owned corporeal properties he the the the the the joint family consisted of the father and the sons the grandson who was born in the year 1977 after the death of the grandfather the grandfather died in 1973 there was a notional partition that is there was a succession to the properties the properties vested in his sons so the grandson filed a super partition claiming a one-fourth share in the joint family properties the supreme court held that as on the date of the death of the grandfather the plaintive grandson was not alive at a notional partition the plaintive would not get any share further as the property which had already vested in the father in the year 1973 and acquired the character of self-acquired property in view of section 19 of the Hindu subscription act the grandson had no right in these properties a close reading of this section that is section 19 would indicate that the property was held to the ancestral property in the hands of Jagannath Singh and this property loses the character of joint family property on the death of Jagannath Singh and therefore it was held that the grandson who was not born on the date of death of the grandfather would not be entered to a share in the joint family properties in fact a similar question also arose in another decision of the supreme court in year 2016 supreme court page 1169 in fact in this uttams case the law prior to 2005 has been nicely stated by the supreme court in in six principles and what is relevant for us is principle number six which which reads as follows on a conjoint reading of section 4 8 and 19 of the act after joint family after joint family has been after joint family property has been distributed in accordance with section 8 on the principle of interstacy the joint family ceases to be joint family property in the hands of various persons who have succeeded with and therefore the property as tenants in common and not as joint tenants so therefore this is what the court has held in all these decisions now in view of what the supreme court has said in Vinita Sharma's case we will have to find out whether a relook would be required in respect of this interpretation because see at a notional partition the supreme court assume that the shares of all the co-partners is determined so done now the supreme court has said in Vinita Sharma's case it is only the share of the co-partner who died that only gets predicated the shares of the other co-partner does not does not get predicated after 99 2005 because of the amendment therefore whether these decisions would apply or not and whether the principle in Vinita Sharma's case has got to be applied along with the principles laid down in these three decisions we'll have got to be carefully looked into and analyzed that that's also one gray area which requires a little more light so therefore in therefore we will find that a a large sync of properties properly practically would partake the character of self-acquired properties and when there is no co-personary property at all the discussion in regard to section six would only become academic so therefore all properties acquired by father grandfather great grandfather after 1956 all those things become self-acquired properties all properties which are partitioned after 1956 whoever gets a share all of them would be self-acquired properties what else is left to say that there is co-personary property on which section six can act upon so therefore according to me section six would operate only in a very limited field I think it is only on a very minor section so only on those properties in fact as stated by the supreme court in Arshur Singh's case if the property is acquired by the grandfather prior to 1956 act and if the grandfather dies after 1956 such property alone will be joined family property so therefore those properties which are acquired by the by any one of the family linear ascendance prior to 1956 and that person should die prior to 1926 only in such situation it will be co-personary property and not allowed so therefore the discussion with regard to section six according to me is more academic because it operates on in a very limited field where the property is co-personary property so therefore the primary attack for getting out of section six is always to find out whether we can say that the property is self-acquired property or co-personary property if we can bring it under section 19 or section eight then section six would not apply and therefore the section six will have no application in such cases so therefore these are very important questions that will have got to be kept in mind there is one other area which we have got to best our attention that is whether the Karnataka amendment would still apply or not and what is the period during which this Karnataka applies then for that there is a leading decision of the Karnataka High Court a bench decision rendered by Justice B. V. Nagarathna and Justice and another where that is a decision reported in ILR 2020 Karnataka page 2697 in fact this act came into force on 37 1994 and the amendment to the section six of the Hindu Succession Act came into force on 8 9 2005 so therefore by virtue of the central enactment the provisions of the Karnataka Act would get superseded would would get eclipsed and therefore the Karnataka amendment act would not apply after 9 9 2005 so therefore where the daughter where there is an unmarried daughter after 37 1994 or where a daughter is born between 37 1994 and 9 9 2005 she would acquire a right as a copartner and that right as a copartner could be exercised and that is this is what the High Court has said in that bench decision the central amendment would apply from 9 9 2005 the applicability being predicted on when succession opens and availability of the properties that is that there are neither they are neither partition or sold by way of a registered instrument therefore this is what the court has said after review of the earlier judgments that the that the period prior to 9 9 2005 going back to 37 1994 would therefore be occupied by the Karnataka amendment the same not having been repealed by the Karnataka legislature but having only been eclipsed by the central amendment of the Karnataka amendment act of the Hindu succession act in terms of section 6A and 6C would apply from 37 1994 to 8 9 2005 in view of the race ratio laid down in Krakash versus Pulavati Supra so therefore see this is see when we can actually apply this Karnataka amendment suppose a daughter remained unmarried on 30 after 37 1994 and she died prior to 9 9 2005 for such daughters we can apply the Karnataka amendment and the heirs of such daughters could say that they are entitled to a share in the in the properties as if her mother was a co-past that when she died so therefore this aspect of the matter will have got to be kept in mind so the date of death the date when the co-pastry actually opened succession actually opened these things will have got to be clearly kept in mind and I did not go into the other earlier aspects of saying that in a co-pastry the shares are not predicated unless there is a partition in the family properties there is always an increase in the share by the death of a co-past and decrease in the share the birth of a co-past and all those things they are all settled principles I just wanted to concentrate on the law that that is subsequently developed in view of Finita Sharma's case because that would be more relevant for the purpose of this discussion and there is one also one other important conclusion which the court has arrived at in Vinita Sharma's case in fact that one sentence in Vinita Sharma's case the application of which could be very important in this case that is I make a reference to paragraph 64 of the judgment in Vinita Sharma's case this is what the judgment has said the effect of the amendment is that your daughter is made a co-pastry with the effect from the date of the amendment she can climb partition also which is a necessary incompetent of the co-pastry such as 61 recognizes a joint hindu family governed by Vita Sharma law the co-pastry this is what is important the co-pastry must exist on 99 2005 to enable the daughter of a co-pastry to enjoy rights conferred upon conferred on her as the right as the right by birth and not by the intergenerations it is relevant that a co-pastry whose daughter is conferred with the rights is alive or not conferral is not based on death of the father or other co-pastry so therefore so the co-pastry must exist on 99 2005 so if emphasis is given to this particular section what happens is suppose a suit is filed prior to 99 2005 or a notice issued prior to 99 2005 there is a division of status the co-pastry has come to an end so even in such situations the amended have to not apply that is one other important aspect of the matter and there is also one very important factor which has got to be kept in mind suppose prior to 19 prior to the amending act the father lies there is a notional partition in the family and the shares of all the shares get predicated and all those shares when the share of all those shares shares become their self-acquired property and with the aid of those properties which are self-acquired in the hands of the surviving co-partners they acquire other properties then what happens to this property the property so acquired would not become joint family property those properties only become joint property in the hands of the acquirers and therefore their sons would not get any right by birth in these properties in fact there is one decision of the supreme court in this regard where they make a distinction between joint family property and a joint property and there and how this property will have got to be looked into see that was a case where the property belonged to the father the father died subsequent to acquire the property subsequent to 1956 and he died after 1956 so therefore all the four sons got their shares in this property by succession to the father and therefore by application of section eight these properties become self-acquired properties in the hands of the grandfathers so in the hands of the father the grand son filed a sign with the help of these properties which were self-acquired property in the hands of these four people few other properties were also acquired so therefore he has sued for partition was filed in respect of those properties which are jointly acquired by the father and his brothers jointly subsequently this is what the supreme court has said in fact I would read only a few sentences from the decision of the supreme court in this case in view of the interpretation of the full pens for the madras I called that the sons in such a situation would get self acquired property of their father by inheritance having the status as tenants in common they could thus treat such properties in their hands even though joint in enjoyment as Hindu Hindu family properties likewise they likewise the income derived there from if employed to purchase other property would not close the new acquisition with the character of joint Hindu family property but may otherwise be joint properties so they would only be joint properties they would not be joint family properties then again if the parties hearing for co-owners of that property and the said property had been purchased from the income derived from joint property then obviously the same as to be accounted for as a joint property and not a joint family property for what we have said about it is plain that the property in possession of these two branches of the family sought to be proposition was not joint Hindu family property because these three sons three sons obtained it by inheritance from their father the last elder and their status was that of tenant tenants in common so therefore if the property is in the hands of the son they were joint properties and not joint family properties therefore the property acquired with the aid of these joint properties would also be joint property and not joint family property so therefore this concept is kept in mind as I've already said there is very little area where section 6 can operate because there is very little area where we can say with certainty that the property is co-partner property therefore I think I have taken more time than what was allotted to me and thank you very much for having given me a patient hearing I thank Mr. Vikat Chetra for having given me an opportunity to be on this stage along with a large number of legal unions thank you thank you very much Chetrat you are muted tell me sir tell me sir anyway there are any questions no question in that they wanted only one citation right they wanted only one citation probably that I can give no no right sir so in that case I shall disconnect myself I shall I disconnect myself in that case shall I disconnect myself now all right thank you thank you thank you all


Well, hello. Welcome back to legislative update. I am delighted to be hosting this show, the longest running show on WSCS. I'm just thrilled. Today, I am honored to have two old friends, two longtime friends, two people well known in Wisconsin politics, at least one well-known in Sheboygan politics. We have today State Senator Cal Potter, who was first a assembly person and then State Senator, and now he is representing Common Cause of Wisconsin. And I'm delighted to have Jay Hatt, who is the executive director of Common Cause. You two go back a long way. You hosted your own television show a long time ago when you were in the State Senate based in Madison. Tell me, first of all, about Common Cause. Why? What do you do there? Well, we are a nonpartisan organization. We don't endorse candidates for public office. And really what Common Cause is, it's part of national Common Cause. So it's a national organization. We're interested in what we call good government, clean, honest, transparent, ethical, things that people used to think were important in government. And a lot of people still do. And as I say, we don't endorse candidates, but we endorse ideas. Less money in politics is probably a good idea because ideas should matter more than campaign cash. No gerrymandering of legislative and congressional districts because people deserve to to elect their legislature rather than the legislature choosing who their voters should be. But things like ethics, things like behaving well when you're in the legislature and when you're running for Congress or for the legislature also being held to a high standard just so that people will have confidence in the kind of work you're doing. And those things don't have party labels. They apply to everybody. And so for there to be almost 50 years in 2020, that's what Common Cause has been doing. I've had the privilege of representing Common Cause in Wisconsin as the director for 23 years. It's almost half that time. And before that, I was in the Wisconsin, I worked in the Wisconsin legislature, and I was very fortunate to host a program called the Cal Potter Show here in Sheboygan, although we did most of the filming in Madison. And so I've known Cal a long time. He is the epitome to me of someone who was interested in all of those things, good government, transparency, ethics, integrity, things that we need from both Republicans and Democrats. I heard you speak at the Democratic Party a couple years ago. You spoke about money and politics. You are nonpartisan, so you are not afraid to take on Democrats and Republicans. Can you give me an example of a time you took on Democrats? Oh my goodness, yes. 2002 was something called the legislative caucus scandal. It brought down the Senate majority leader of the Wisconsin Senate, the guy by the name of Chuck Kuala, and the chairman of the Joint Finance Committee, a Democrat by the name of Brian Burke. And both of those individuals were involved in felony misconduct in public office related to campaign fundraising. They were using their offices to raise money and using employees in the Capitol to run campaigns, both of which were illegal. Now and back then. And so we went after those people. We went after Governor Jim Doyle for not pursuing a campaign pledge he made in 2002 to clean up the scandal in the Capitol. He decided once he was governor that he could raise a lot of money as governor rather than try to curb the influence of special interest money. So I was not welcome in Governor Doyle's office for most of the eight years that he was governor. So we'll go after anybody who doesn't behave above board, or at least I'd like to think we would. So we just got done talking about the special session. We're taping this three days after Governor Walker signed the bill that was very controversial, several bills actually, which reduced the power of Tony Evers. I forgot where I was going with that. Let me go back to money in politics. That was one of your number one issues. And I remember when I, people who follow, who know me know that I ran for state assembly twice and both times the very first question. Political people who were advising me said, and then that, okay, it's great that you want to run. How much money can you raise? That's not who are you? Not what do you stand for? Not what are your skills?  How much money can you raise? Are we ever going to get away from that? Well, you know, one of the things that we talk about being operable on both sides and calling both sides wrong when they're wrong. Democrats, when they were in power, oftentimes had an arrogance about them. For example, the reapportionment was something that was done by the courts previously. And they had really a golden opportunity to put in place something that would have drawn districts in Wisconsin, Congressional and State Legislature, without going to the courts, by going to something like the Iowa Plan, where you get a non-partisan entity to do it. Well, during the Doyle administration and the legislature being Democrat, they never took that up. We had opportunities to, in Congress particularly, on the national level, to go to some type of public financing and really strong restrictions on special interest money. They didn't do anything, either, because they thought they could raise all kinds of money. The gravy train was going to last forever for both sides. And so when Common Cause comes out and talks about being open and honest and ethical and so on, one of the reasons I got on the board is because I feel that this is an organization that needs a voice all over and a strong voice because there are problems on both sides of the aisle occasionally. And not pursuing what ought to be done when the opportunity avails itself. And when we look at the lawsuit, for example, that's winding its way through the various courts on redistricting, it involves states that have gerrymandered on the Democratic side as well as the Republican side. And so we're saying, this is wrong, no matter who does it, and we need changes. And so we're a group that I feel very strongly about is a unique group in that it is not taking, it doesn't take sides, it takes sides on issues and it puts forth criticism where criticism is due. And one thing I just want to add to that with regard to the money situation, you know, there was a very critical Supreme Court, United States Supreme Court decision in 2010, Citizens United, which makes it more difficult in some respects to be able to put limits on money. That's a decision that was narrowly decided by a five to four margin. It could be easily overturned, provided we get the correct balance on the United States Supreme Court. But more than that, there's much that we can still do. Public financing is something that's desperately needed again in Wisconsin. We had that because public financing, in order to accept it, you have to agree to limit the campaign spending that you do. And that's important because too much money in politics, I don't care if you are conservative or progressive. Most people think that has a corrupting influence on public policymaking. It's pretty obvious. It's been so hard to convince people. I hear all the time from people, I don't want my tax money to go to pay for any of those politicians. And you try to explain, well, no, if everyone got the same equal amount, government would be much more responsible to all of us, correct? Instead of just the rich donors or people from some lobbying group that are tunneling times of money. Not only that, but as Republican Senator Michael Ellis of Nina used to say, the reason you want public financing is because if you don't have it, that money is supplied by special interest groups who then put their hooks into the state budget and receive special treatment, special favors. And that costs taxpayers a tremendous amount of money. The small amount of money that's required to have a robust public financing system is just, it's such a good way to ensure that the people's interest will be watched for in the state budget rather than special interests who basically make a lot of the decisions about where the money goes. So it's in every way a good thing. When candidates take public financing, they're beholden to the public. When they take money from special interest groups, they're beholden to the special interest groups. And this is how other countries do it, correct? Absolutely. They have a shorter campaign period instead of these years-long thing. News coverage all about the horse race instead of issues. It's just, it's so frustrating if you want to join politics. And I'm sure you can tell stories of how when you first got on the state assembly in 1975, you joined the state senate in 1985, is that correct? In 1991. 1991, for how long? Eight years. OK, for eight years.  I forgot the acronym for your department. Department of Public and State. But a big change. Wisconsin used to have a reputation for clean governments. Nobody says that anymore today. That's why I moved here. You know, one of the things in response to people saying, I don't want government money going into politics, is it shows a great, I think, misnomer about how people, how the economy works. Where do you think corporate monies that go into politics come from? They come from when you buy a car or a refrigerator or whatever it is that that corporation is making, part of their budget that their profit or whatever count they take it out of, goes to pay for their lobbyists, goes to pay for contributions to candidates. So, yeah, people are paying for it already. Every time you buy a soft drink or a car or whatever it is.  So, they're paying for it. So, you might as well have some control as to who gets it and how much, rather than this idea that... You know, the other thing we could have tomorrow, if the legislature had the will to do it, was we could have much greater transparency and disclosure. Right now, as a result of what the Republican legislature and the governor did three years ago in 2015, Wisconsin has more dark money flowing into its politics. And by dark money, you mean nobody knows where it came from? Unregulated money that can come from anywhere. It can come from anywhere in the country. In some cases, it can come from overseas. But we don't know that because it's all, we don't have required disclosure of where that money comes from. People, at least when there are television or media advertisements, people at least have the right to know who's behind that money so they can see who's trying to influence their own. One would think. So, what's on your radar screen? Anyone can join your organization. You probably have very modest dues, if any. We do. It's about 3,000 members, but we also have about 7,000 activists. We were in coalition with other folks. But yes, our agenda is, as I've mentioned at other times, we're looking at the next election, the Supreme Court election. The best thing that people can do is to participate in democracy. And that is by making sure that they have what's required to vote. Wisconsin has among the most restrictive voter ID requirements in the country, more so than most southern states who went out of their way to make it difficult for people to vote. But the key is for people to make sure they have what they need in order to vote. And then the key also is to be engaged with the legislature and the governor to make sure your voice is heard. I think Cal could tell you, people have a lot more power than they think they do often. I mean, all it takes is about 10 or 12 activists in your district to put an issue on the radar screen of a legislator. And then over time, sometimes, that can work to change minds and hearts. And that's how you get changes by that citizen activism. So that's critical. So we promote that. Don't lose hope in the system. Don't lose hope? No, don't. Despite the special session that we talked about on a different show. And I know you took a very public position on that. You were opposed. But even despite that, despite these very controversial bills passed, you're still optimistic. Well, yeah, because the alternative is the end of democracy. So you have to continue to push the levers of democracy. Change doesn't happen overnight. It sometimes takes years. OK, that's good to know. So I very much appreciate your time. I think we're going to end the show for now. So thank you very much. This has been a legislative update. Thank you so much for joining us.