SA/3/2026 of SHRI. JAG NARAYAN Vs SMTI. KAMAL DEVI AND ORS on 5 October 2026

1. This second appeal has been filed assailing the impugned judgement and decree dated 16th June, 2025 passed by the learned District Judge at Port Blair, District South Andaman in connection with Title Appeal No. 15 of 2022.

2. By passing the impugned judgement and decree the First Appellate Court affirmed the judgment and decree dated 26th April, 2022 in connection with Title Suit No. 95 of 2015 (previously numbered as TS No. 68 of 2010) passed by the learned Civil Judge Senior Division at Port Blair, District South Andaman.

3. Being aggrieved by and dissatisfied with the said impugned judgement and decree passed by the First Appellate Court dated 16th June, 2025 the present appeal has been preferred at the behest of the defendant/respondent No.1 (appellant herein).

4. The plaintiff/respondent No. 1 instituted the suit seeking a declaration of her one-fourth share and partition in respect of the properties comprising Survey No. 43, measuring 0.92 hectares; Survey No. 408, measuring 0.01 hectares; Survey No. 346/1, measuring 0.39 hectares; Survey No. 260, measuring 0.07 hectares and Survey No. 261, measuring 0.12 hectares, all situated at Garacharma Village, Port Blair Tehsil, South Andaman District. The detailed particulars and descriptions of the aforesaid properties have been set out in the schedule appended to the plaint.

5. The case of the plaintiff/respondent No. 1 is that Siri Narayan, being her father as well as the father of defendant No. 1 and the predecessor-in-interest of defendant Nos. 2(a) and 2(b), was the recorded tenant in respect of the properties described in the schedule to the plaint. Siri Narayan died on 02.03.2002, leaving behind his wife, Gouriamma, and three daughters, namely, Amar Devi, Kamala Devi (the plaintiff/respondent No. 1 herein) and Lalita Devi. He also left behind two sons, namely, Jag Narayan, the appellant/defendant No. 1, and Jugesh Narayan, who subsequently died leaving behind defendant Nos. 2(a) and 2(b) as his legal representatives.

6. It is the further case of the plaintiff that her mother, Gouriamma, and one of her sisters, namely Amar Devi, had furnished their no-objection and relinquished their respective claims in respect of the suit properties, thereby permitting mutation of the properties in the names of the plaintiff and the defendants.

7. According to the plaintiff, on 22.06.2004, the appellant/defendant No. 1 brought a purported deed of partition to her office while she was engaged in urgent administrative work and obtained her signature thereon. The plaintiff asserts that she signed the document without being made aware of its contents. Subsequently, when she attended the office of the Sub-Registrar, she came to know that, under the said deed of partition, she had been allotted only 200 sq. metres of house site in Survey No. 261, instead of her alleged one-fourth share in the entire landed property.

8. Upon coming to know of the contents of the said deed, the plaintiff submitted a written objection before the Sub-Registrar, requesting that the deed of partition should not be registered. The Sub-Registrar, South Andaman, thereafter heard the parties and passed an order dated 02.09.2005, holding, as alleged by the plaintiff, that she was entitled to a one-fourth share in the scheduled properties, whereas the proposed deed of partition allotted to her only 200 sq. metres of land. Consequently, the deed of partition was not registered and was directed to be returned.

9. Aggrieved by the aforesaid decision of the Sub-Registrar, the appellant/defendant No. 1 approached this Court by filing Writ Petition No. 208 of 2005. The said writ petition was dismissed by order dated 13.03.2006. The said order was thereafter assailed before the Hon’ble Division Bench in MAT No. 12 of 2006, which came to be disposed of by an order dated 08.06.2006. By the said order, the appellant/defendant No. 1 was directed to prepare a deed of rectification and to make the same available to the private respondents and to such other persons, if any, who were not, parties to the proceedings, for obtaining their respective signatures.

10. According to the plaintiff, the aforesaid direction of the Hon’ble Division Bench was not complied with within the stipulated time. Consequently, the plaintiff/respondent No. 1 initiated contempt proceedings alleging non-compliance with the order dated 08.06.2006. The said contempt proceeding, however, was ultimately dismissed on 21.12.2006.

11. Thereafter, according to the plaintiff, the defendants submitted a deed of rectification on 14.12.2008, but the plaintiff contends that even in the said rectification deed her alleged lawful share was not properly recognised. The plaintiff subsequently submitted a proposed draft map before the Sub-Registrar reflecting her claimed one-fourth share, but the same was not accepted by the defendants.

12. Ultimately, on 12.05.2010, the Sub-Registrar passed an order observing that, as the parties had failed to arrive at an amicable settlement, the rectification deed submitted by the appellant/defendant No. 1 could not be registered unless the same was duly executed by all the co-sharers. The plaintiff, claiming that no other efficacious course remained open to her for securing her alleged share in the suit properties, thereafter instituted the present suit before the competent Civil Court seeking declaration of her share and partition of the suit properties.

13. Upon receipt of summons, the appellant/defendant No. 1 entered appearance and contested the suit by filing his written statement, wherein he denied the material allegations contained in the plaint. His specific case was that the suit properties were his self-acquired properties and did not constitute ancestral properties of his father, Siri Narayan. It was further contended that the properties had subsequently been recorded jointly in the names of the plaintiff and the defendants and that, after due deliberation and discussion regarding the respective shares, the plaintiff had voluntarily put her signature on the deed of partition dated 22.06.2004, which, according to the defendant, had been prepared in accordance with the mutual understanding between the parties.

14. The appellant/defendant No. 1 further contended that the plaintiff was not entitled to claim a one-fourth share in the suit properties and, consequently, that her objection before the Sub- Registrar was without any justifiable basis. It was also contended that, pursuant to the direction issued by this Court in MAT No. 12 of 2006, the appellant had prepared the draft deed of rectification and forwarded the same to the plaintiff for obtaining her signature, but the plaintiff had refused to execute the same without any cogent or legally sustainable reason.

15. Upon consideration of the pleadings of the parties, the oral and documentary evidence adduced before it, and the materials available on record, the learned Trial Court decreed the suit instituted by the plaintiff/respondent No. 1 by passing a preliminary decree against the defendant No. 1/appellant and ex parte against the remaining defendants.

16. Being aggrieved by and dissatisfied with the judgment and decree passed by the learned Trial Court, the defendant No. 1 preferred a first appeal before the learned First Appellate Court, which was registered as Title Appeal No. 15 of 2022. Upon consideration of the matter, the learned First Appellate Court also dismissed the appeal and affirmed the judgment and decree of the learned Trial Court by its judgment and decree dated 16.06.2025.

17. The appellant/defendant No. 1 has, consequently, preferred the present second appeal challenging the judgment and decree passed by the learned First Appellate Court and seeking interference with the concurrent findings recorded by the Courts below.

18. The judgement and decree passed by the First Appellate Court has been challenged by the defendant No.1 as appellant before this Court.

19. The second appeal was admitted by the Hon’ble Division Bench of this Court on 14.07.2025 after framing of the following substantial question of law:- “Whether the Appellate Court below was justified in affirming the preliminary decree in failing to appreciate that the coparcenary right of a daughter to claim partition in respect of a property belonging to a Hindu Undivided Family has been recognized only with effect from 9th September, 2005 by virtue of amended provision of section 6 of the Hindu Succession Act, 2005 and the father of the plaintiff /respondent No.1 had died on March, 2 2002.”

20. Mr. K.M.B. Jayapal, learned Advocate appearing for the appellant, submits that the learned First Appellate Court committed an error of law in affirming the judgment and decree passed by the learned Trial Court, without properly appreciating the effect and operation of the substituted provisions of Section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act, 2005. According to the learned Advocate, the amended provision operates prospectively and recognises the right of a daughter in coparcenary property in the same manner as that of a son only in accordance with the conditions prescribed therein.

21. It is submitted that the father of the parties, namely Siri Narayan, died on 02.03.2002, much prior to the coming into force of the Hindu Succession (Amendment) Act, 2005. According to the learned Advocate, the plaintiff/respondent No. 1, being a daughter of the deceased, could not derive any right, title or interest in the scheduled properties by taking recourse to the amended Section 6, since the succession had already opened upon the death of Siri Narayan prior to the commencement of the amendment. On such premise, it is contended that the plaintiff had no enforceable right to seek partition of the scheduled properties and that the suit instituted by her was, therefore, not maintainable in law.

22. Elaborating his submission, learned Advocate contends that, since the predecessor-in-interest of the parties, Siri Narayan, died on 02.03.2002, the plaintiff/respondent No. 1 could not claim any heritable right in the coparcenary property on the strength of the

2005 Amendment. It is argued that, on the date of death of the father, the plaintiff did not acquire the right subsequently sought to be asserted by her and that she could not retrospectively derive such right by virtue of the amended provision. In support of such contention, learned Advocate places reliance upon the judgment of the Hon’ble Supreme Court in case of Prakash and Others v. Phulavati and Others, reported in (2016) 2 SCC 36.

23. Learned Advocate next submits that the suit for partition was otherwise barred by the provisions of Section 155 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966, read with the Rules framed there under. It is contended that the said statutory framework provides a specific mechanism and forum for effecting partition of landed immovable properties and that, in view thereof, a suit before the Civil Court seeking partition simpliciter, particularly in the absence of any independent claim of title, is not maintainable. Learned Advocate further invokes Section 204 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966, in support of his contention that the jurisdiction of the Civil Court stands excluded in matters falling within the exclusive domain of the revenue authorities.

24. According to learned Advocate, where a Court lacks inherent jurisdiction to adjudicate upon the subject matter of a dispute, any order or decree passed by such Court would be a nullity, as want of jurisdiction strikes at the very foundation of the adjudication. In support of this proposition, reliance is placed upon the judgment of the Hon’ble Supreme Court in Kanwar Singh Saini v. High Court of Delhi, reported in (2012) 4 SCC 307.

25. Learned Advocate further submits that the plaintiff herself has pleaded that, at the time of mutation of the suit properties, the mother of the parties and one of their sisters, namely Amar Devi, had furnished their no-objection before the competent authority and had consented to the property being mutated in the names of the plaintiff and the defendants. According to the learned Advocate, such an assertion necessarily amounts to a claim that the respective interests of the said co-sharers had been relinquished in favour of the remaining parties.

26. It is contended that there is no provision of law permitting a co-sharer to extinguish or relinquish her substantive right, title and interest in immovable property merely by making an oral statement or furnishing a no-objection before the authority concerned. Learned Advocate, therefore, submits that the findings of the learned First Appellate Court founded upon such alleged relinquishment or no-objection cannot be sustained in the absence of a legally valid instrument or other recognised mode of transfer or relinquishment.

27. Mr. Jayapal, learned Advocate, further submits that there was, in fact, a mutual settlement/family arrangement amongst the parties with respect to the suit properties and that such family arrangement, according to him, does not necessarily require registration where it merely records or recognises an arrangement already arrived at amongst the family members. It is contended that the parties had voluntarily affixed their signatures to the arrangement and, having acted upon or assented to the same, cannot subsequently be permitted to resile there from or bypass its terms.

28. In support of the aforesaid proposition, learned Advocate places reliance upon the judgments of the Hon’ble Supreme Court in Ravinder Kaur Grewal and Others v. Manjit Kaur and Others, reported in (2020) 9 SCC 706, and M. Venkataramana Hebbar (Dead) by LRs. v. M. Rajagopal Hebbar and Others, reported in (2007) 6 SCC 401.

29. Learned Advocate lastly submits that both the learned Trial Court as well as the learned First Appellate Court committed errors of law, material irregularity and illegality in declaring a one-fourth share in favour of the plaintiff/respondent No. 1, notwithstanding the existence of the alleged family arrangement under which the plaintiff's share had already been recognised and settled between the parties. It is contended that the plaintiff was fully aware of the said arrangement and had herself executed the document, but deliberately withheld the same from the notice of the Courts below, thereby seeking to secure a declaration and partition contrary to the arrangement already arrived at amongst the parties.

30. According to learned Advocate, the Courts below failed to properly appreciate the legal and factual consequences flowing from the said family arrangement and erroneously proceeded to declare the plaintiff's one-fourth share in the suit properties. It is, therefore, submitted that the impugned judgment and decree passed by the learned First Appellate Court, as well as the judgment and decree of the learned Trial Court, suffer from errors apparent in law and material irregularities warranting interference in the present second appeal.

31. In view of the aforesaid submissions, learned Advocate for the appellant prays that the present appeal be allowed, the judgment and decree passed by the learned First Appellate Court be set aside, and consequently the judgment and decree passed by the learned Trial Court also be reversed.

32. Per contra, Mr. Pardeshia Munda, learned Advocate appearing for the respondent Nos. 1, 3(a), 3(b) and 3(c), at the outset submits that, having regard to the mandate contained in Section 100(5) of the Code of Civil Procedure, a second appeal is required to be heard only on the substantial question of law formulated by the Court. According to the learned Advocate, the parties are entitled to address their arguments only in relation to the substantial question of law so formulated, and the scope of the hearing in a second appeal cannot travel beyond such question.

33. In support of his submission, learned Advocate places reliance upon the judgment of the Hon’ble Supreme Court in Nek Pal and Others v. Nagar Palika Parishad and Others, being Civil Appeal Nos. 8038–8039 of 2024 (arising out of SLP (Civil) Nos. 11728–11729 of 2018). It is submitted that, unless a substantial question of law is formulated at the stage of admission of the second appeal or at any subsequent stage, the appeal cannot lawfully proceed to final hearing. It is further contended that a final adjudication of a second appeal without formulation of a substantial question of law would be contrary to the statutory scheme of Section 100 CPC and, consequently, the hearing itself would stand vitiated in law.

34. Accordingly, learned Advocate submits that the present second appeal ought to be confined to the substantial question of law which was formulated by the Hon’ble Division Bench at the time of admission of the appeal and that the parties should not be permitted to enlarge the scope of the appeal by raising questions beyond the substantial question of law so formulated.

35. On the merits of the controversy, learned Advocate further submits that the question concerning the right of a daughter in coparcenary property under the substituted Section 6 of the Hindu Succession Act, 1956, stands conclusively settled by the judgment of the Hon’ble Supreme Court in Vineeta Sharma v. Rakesh Sharma and Others, reported in (2020) 9 SCC 1. Placing particular reliance upon paragraphs 137 and 138 of the said judgment, it is submitted that the Hon’ble Supreme Court has authoritatively declared the legal position that a daughter, who was alive on 09.09.2005, the date on which the Hindu Succession (Amendment) Act, 2005 came into force, becomes a coparcener by birth in the same manner as a son, irrespective of whether she was born before or after the commencement of the Amendment Act.

36. It is, therefore, submitted that, in view of the authoritative pronouncement in Vineeta Sharma (supra), the plaintiff, being the daughter of the coparcener, and has an enforceable right in the coparcenary property in terms of the substituted Section 6 of the Hindu Succession Act, 1956. Consequently, according to the learned Advocate, the suit instituted by the plaintiff is legally maintainable and the learned Trial Court was justified in passing a preliminary decree declaring her share in the suit properties.

37. Learned Advocate further submits that the earlier decision of the Hon’ble Supreme Court in Prakash and Others v. Phulavati and Others stands overruled to the extent indicated in Vineeta Sharma (supra). Therefore, according to him, the reliance sought to be placed by the appellant/defendant No. 1 upon the principles enunciated in the earlier decision is misplaced and cannot be sustained in view of the subsequent authoritative pronouncement of the Constitution Bench.

38. It is accordingly submitted that no substantial ground has been made out warranting interference with the judgment and decree passed by the learned Courts below and the impugned judgment and decree are liable to be sustained.

39. Mr. Rakesh Pal Gobind, learned Advocate appearing for the respondent Nos. 2(a) and 2(b), has adopted and substantially supported the submissions advanced on behalf of the respondent Nos. 1, 3(a), 3(b) and 3(c).

40. It is further submitted by learned Advocate that the suit instituted by the plaintiff is maintainable in view of Section 155(6) of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966. It is contended that Section 86 of the said Regulation preserves the jurisdiction of the Civil Court in respect of disputes, where the Government is not a party, relating to any right recorded in the record-of-rights.

41. According to learned Advocate, in the present case the Government is not a party to the dispute and, consequently, there is no statutory exclusion of the jurisdiction of the Civil Court. The Civil Court, therefore, possesses the requisite jurisdiction to entertain, adjudicate and decide the dispute between the private parties concerning the rights recorded in respect of the suit property.

42. With regard to the contention advanced on behalf of the appellant that the mother of the parties and one of the sisters of the plaintiff had no authority or entitlement to relinquish their respective shares or to furnish their consent/no-objection for mutation of the suit property, learned Advocate submits that the said issue has already been considered and dealt with by the learned Trial Court. It is pointed out that the learned Trial Court, upon consideration of the materials on record, found that Gouriamma and Amar Devi, being the mother and sister of the parties respectively, had relinquished their claim and had submitted their respective no-objection before the competent authority for mutation of the suit property in favour of the plaintiff and the defendants.

43. It is, therefore, contended that the said factual finding, having been arrived at upon consideration of the materials available before the learned Trial Court, does not warrant interference in the present second appeal in the absence of any substantial question of law arising there from.

44. Lastly, learned Advocate submits that, in view of the law declared by the Hon’ble Supreme Court in Vineeta Sharma (supra), the plaintiff’s status as a daughter-coparcener and her entitlement to claim a share in the coparcenary property cannot be seriously disputed. It is, therefore, urged that the judgment and decree passed by the learned Courts below suffer from no illegality or infirmity warranting interference by this Court in exercise of its jurisdiction under Section 100 CPC.

45. I have considered the rival submission advanced by both the parties and have gone through all the materials on record.

46. At the outset, it is necessary to determine the precise scope of the present second appeal. At the time of admission of the appeal, the Hon’ble Division Bench formulated a specific substantial question of law as to whether the First Appellate Court was justified in affirming the preliminary decree by failing to appreciate that the coparcenary right of a daughter to claim partition in respect of property belonging to a Hindu Undivided Family was recognised only with effect from 09.09.2005, upon the coming into force of the amended Section 6 of the Hindu Succession Act, 1956, particularly when the father of the plaintiff/respondent No. 1 had died on 02.03.2002.

47. The scope of jurisdiction in a second appeal is circumscribed by Section 100 of the Code of Civil Procedure. Sub-section (5)

thereof expressly provides that the appeal shall be heard on the substantial question of law so formulated. The requirement of formulation of such question is not a mere procedural formality; it is intended to ensure that the parties have due notice of the precise question of law which falls for consideration and that the second appellate jurisdiction is exercised within the parameters prescribed by the statute.

48. In Nek Pal and Others (supra), the Hon’ble Supreme Court has reiterated that, unless a substantial question of law is formulated either at the time of admission of the second appeal or at any subsequent stage, the second appeal cannot be finally heard. The Hon’ble Supreme Court further observed that final hearing of a second appeal without formulation of the substantial question of law is itself illegal. The underlying rationale is that the parties must have notice of the substantial question of law upon which the appeal is proposed to be heard so that they may address the Court effectively on the said question.

49. It is profitable to quote the observation of the Hon’ble Apex Court in the above referred case at paragraph 3 which is reproduced herein below:- “3. The aforesaid paragraph indicates that at the time of admitting the second appeal under Section 100 of the CPC, substantial questions of law were not formulated. Unless substantial questions of law are formulated at the time of admission of the appeal or any time subsequent thereto, a second appeal cannot be finally heard. The reason is that a second appeal can be finally heard only on a substantial question of law formulated earlier. In fact, the act of finally hearing a second appeal without framing any substantial question of law is itself illegal. There is nothing on record to show that the High Court formulated the substantial questions of law and gave an opportunity to the parties to argue on the basis of those substantial questions of law. All that the High Court says is the Court has confined itself to three substantial questions of law. The High Court did not put the rival Advocates to the notice before the commencement of hearing that it was proposing to hear the appeal on specific substantial questions of law. The High court could have framed substantial questions of law and heard the appeal after few days so that the Advocates had a notice that the appeal will be heard on specific substantial questions of law.”

50. In the present case, apart from the substantial question of law formulated by the Hon’ble Division Bench, no other substantial question of law was formulated before commencement of the hearing. Accordingly, this Court is required to confine its consideration to the substantial question of law so formulated. The other grounds or questions sought to be urged on behalf of the appellant, which do not arise for determination within the framework of the formulated substantial question of law, do not require independent adjudication in the present second appeal.

51. Coming to the substantial question so formulated, it is the admitted position that Siri Narayan, the predecessor-in-interest of the plaintiff and the defendants, was the recorded tenant in respect of the suit property and that he died on 02.03.2002, leaving behind the plaintiff, the defendants, his wife Gouriamma and another daughter, namely Amar Devi. Following his death, the suit properties were mutated in the joint names of the plaintiff and the defendants. At the time of such mutation, Gouriamma and Amar Devi furnished their no-objection to the mutation of the property in favour of the plaintiff and the defendants.

52. It further appears from the record that a deed of partition was prepared by the appellant, whereby the plaintiff was sought to be allotted an extent of 200 sq. metres of house site in Survey No. 261, instead of the one-fourth share claimed by her in the suit property. Although the plaintiff had initially put her signature on the said deed, the instrument was ultimately not registered, as she raised an objection concerning the extent of her entitlement in the suit property. The materials placed before the Court further indicate that, following such dispute, certain proceedings were initiated before this Court, culminating in directions for preparation of a deed of rectification. The subsequent deed of rectification dated 04.12.2008, however, did not recognise the share claimed by the plaintiff, resulting in institution of the present suit for declaration and partition.

53. The controversy, therefore, essentially centres around the question whether the plaintiff, notwithstanding the death of her father on 02.03.2002, acquired or could assert the status and rights of a coparcener under the substituted Section 6 of the Hindu Succession Act, 1956.

54. The answer to the aforesaid question is now governed by the authoritative pronouncement of the Constitution Bench of the Hon’ble Supreme Court in Vineeta Sharma (supra). The Hon’ble Supreme Court has categorically held that the substituted Section 6 confers upon a daughter the status of a coparcener by birth, in the same manner as a son, irrespective of whether she was born before or after the commencement of the 2005 Amendment. The Court has further clarified that the daughter can claim the right with effect from 09.09.2005, subject to the statutory protection afforded to dispositions, alienations, partitions and testamentary dispositions falling within the protective ambit of the amended provision.

55. Of particular relevance to the present controversy is the categorical declaration contained in paragraph 137.3 of Vineeta Sharma (supra) that, since the right in coparcenary is acquired by birth, it is not necessary that the father-coparcener should have been alive on 09.09.2005. Thus, the mere fact that the father of the plaintiff died on 02.03.2002, prior to the commencement of the Hindu Succession (Amendment) Act, 2005, cannot, by itself, operate as a bar to the plaintiff asserting her coparcenary rights under the substituted Section 6.

56. It is profitable to quote the observation of the Hon’ble Apex Court in the above referred case of Vineeta Sharma (supra) at paragraph 137 which is reproduced herein below - “137. Resultantly, we answer the reference as under :

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

137.2. 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 the 20th day of December, 2004.

137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.

137.4. The statutory fiction of partition created by the 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 1956 Act or male relative of such female. The provisions of the substituted Section 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.

137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, 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 (sic effected) 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.”

57. The aforesaid proposition, however, is subject to the statutory protection relating to partitions already effected within the period protected by Section 6(5) of the Act. The Constitution Bench has made it clear that a plea of partition cannot ordinarily be accepted merely on the basis of oral evidence and that, for the purposes of Section 6(5), the recognised modes of partition are a duly registered instrument of partition or a decree of a Court. An exceptional case may be considered where a plea of oral partition is

supported by public documents and is otherwise conclusively established in the manner contemplated by law.

58. In the present case, there is no material on record establishing that the suit property had been validly and finally partitioned before 20.12.2004 by a registered instrument of partition or by a decree of a competent Court. On the contrary, the materials indicate that the purported deed of partition was not registered and that the dispute concerning the plaintiff's entitlement continued thereafter. The subsequent proceedings and the deed of rectification dated 04.12.2008 also demonstrate that the question of the plaintiff's share remained unresolved.

59. The mere fact that the mother, Gouriamma, and the sister, Amar Devi, had furnished their no-objection at the stage of mutation cannot, in the absence of a legally recognised partition satisfying the requirements of Section 6(5), by itself extinguish or defeat the statutory coparcenary right claimed by the plaintiff. Mutation in the Record of Rights and a no-objection to such mutation do not, on the materials placed before this Court, establish a completed partition of the coparcenary property in the manner contemplated by the amended Section 6.

60. It is, therefore, the continued existence of the coparcenary on 09.09.2005, coupled with the absence of any legally protected partition prior to 20.12.2004, which assumes determinative significance. The death of the father on 02.03.2002 is not, by itself, decisive against the plaintiff. Unless it is demonstrated that the coparcenary had ceased to exist by reason of a legally recognised partition protected by Section 6(5), the plaintiff, being the daughter, is entitled to assert the coparcenary right conferred by the substituted Section 6.

61. The earlier view expressed in Prakash v. Phulavati, insofar as it proceeded on the premise that the father-coparcener was required to be alive on 09.09.2005 for the daughter to claim the benefit of the amended Section 6, no longer holds the field in view of the subsequent authoritative pronouncement of the Constitution Bench of the Hon’ble Apex Court in Vineeta Sharma (supra). The legal position now stands clarified that the daughter's coparcenary right is founded upon birth and is not dependent upon the father being alive on the date on which the 2005 Amendment came into force.

62. Accordingly, the substantial question of law formulated by the Hon’ble Division Bench is answered against the contention advanced by the appellant and in favour of the plaintiff/respondent No. 1. The plaintiff, being a daughter and the coparcenary continuing to subsist in the absence of any legally protected partition prior to 20.12.2004, is entitled to assert her coparcenary share in the suit property in accordance with the substituted Section 6 of the Hindu Succession Act, 1956.

63. Since the present second appeal is confined to the substantial question of law so formulated, the other points sought to be urged on behalf of the appellant do not require separate consideration.

64. In view of the foregoing discussion, this Court finds no merit in the present second appeal and accordingly dismissed.

65. The judgment and decree passed by the learned First Appellate Court are accordingly affirmed. Consequently, the judgment and decree passed by the learned Trial Court shall also stand affirmed.

66. There shall, however, be no order as to costs.

67. The Registry is directed to draw up the decree accordingly.

68. Let a copy of this judgement along with Trial Court Record be sent down to the Trial Court immediately.

69. Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on payment of requisite fees.

(PRASENJIT BISWAS, J.)