Bombay High Court
Shri Ashok Gangadhar Shedge vs Ramesh Gangadhar Shedge on 9 June, 2014
Author: R. G. Ketkar
Bench: R.G.Ketkar
Tapadia RR 1 / 65 SA-25-13gr
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 25 OF 2013
Shri Ashok Gangadhar Shedge .. Appellant
Vs
Ramesh Gangadhar Shedge,
since deceased, through the legal heirs :
1a.Smt. Jayashree Ramesh Shedge and ors. .. Respondents
Mr. G.S.Godbole i/b Mr. Drupad S. Patil, Advocate for the Appellant.
Mr.P.B.Shah i/b Kayval P. shah for Respondent Nos 1A to 1C and 2.
Mr. Pramod G. Kathane, Advocate for Respondent nos 4 to 6.
ig WITH
SECOND APPEAL NO. 58 OF 2014
WITH
CAS/138/2014 IN SA/58/2014
Laxman Gangaram Meher .. Appellant
Vs.
Ramdas Gangadhar Meher and Ors .. Respondents
Mr. Vaibhav P. Patankar, Advocate for the Appellant.
Mr S.P.Golekar i/b Mr. T.D.Deshmukh, Advocate for respondent no.1.
WITH
SECOND APPEAL NO. 132 OF 2009
Govind Gopal Khot @ Govind
Rama Khot and Ors .. Appellants
Vs.
Smt. Suman Dhanpal Sawant and Ors .. Respondents
Mr.P.P.Kulkarni, Advocate for the Appellants.
Mr N.J.Patil, Advocate for respondent nos 1 and 9.
WITH
SECOND APPEAL NO. 147 OF 2014
WITH
CAS/353/2014 IN SA/147/2014
Raosaheb alias Raoso Subrao Patil and Ors .. Appellants.
Vs
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Sou.Kushali alias Mahadevi Patil and Anr. .. Respondents
Mr G.N.Salunke a/w Mr. N.B.Khaire, Advocate for the Appellants.
WITH
SECOND APPEAL NO. 220 OF 2014
Ramesh Gangadhar Shedge,
since deceased, through his LRS
1A.Jayashri Ramesh Shedge and Ors .. Appellants.
Vs
1.Shri Ashok Gangadhar Shedge and Ors .. Respondents
Mr. Mahesh Rawool i/b Mr K.P.Shah, Advocate for the Appellants.
Ms Neha Valsangkar, Advocate for respondent nos 1 to 3.
Mr Manoj Saverdekar i/b Mr P.G.Kuthane, Advocate for Respondent nos 4
to 6.
WITH
SECOND APPEAL NO. 240 OF 2011
WITH
CAS/21/2012 IN SA/240/2011
Vasant Dhondiba Choudhari and Anr .. Appellants
Vs
Sadashiv Dhondiba Choudhari .. Respondent
Mr R.S.Apte, Senior Advocate i/b Mr Vaibhav P. Patankar, Advocate for the
Appellants.
Mr G.S.Godbole a/w Mr Parshant P More a/w Mr Pratap M. Nimbalkar,
Advocate for Respondent nos 1 to 3.
Mr. M.M.Mahajan, Advocate for respondent nos 4,5 and 6.
WITH
SECOND APPEAL NO. 466 OF 2011
Sushma Tukaram Salunkhe .. Appellant
Vs
Smt.Ganhari Tukaram Salugade .. Respondent
Mr.V.S.Talkute with Mr S.R.Moray, Advocate for the Appellant.
Mr Pankaj Shinde, Advocate for Respondent Nos. 1 to 3.
WITH
SECOND APPEAL NO. 566 OF 2011
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WITH
CAS/1762/2011 WITH CAS/498/2014 IN SA/566/2011
Shri Badrinarayan Shankar Bhandari and Ors.. .. Appellants
Vs
Ompraskash Shankar Bhandari .. Respondent
Mr. A.V. Anturkar, Senior Advocate i/b Mr. S.B.Deshmukh, Advocate for
the Appellants.
Mr. G.M.Joshi, Advocate for Respondent nos 1, 4, 5 and 6.
Mr Vithaldas Shankar Bhandari, Respondent no.3 in-person.
Mr Drupad S. Patil, Advocate for respondent no.7A to 7E.
WITH
SECOND APPEAL NO. 607 OF 2013
ig WITH
CAS/26/2014 IN SA/607/2013
Ratanamala Vilas More and Anr. .. Appellants.
Vs
Tanaji Machindra Pawar and Ors. .. Respondents
Mr. Sandeep S. Salunkhe, Advocate for the Appellants.
WITH
SECOND APPEAL NO. 796 OF 2012
WITH
CAS/240/2013 IN SA/796/2012
Shri Sachin Vilas Londhe .. Appellant.
Vs
Smt. Kawribai Ramchandra Adhav . .. Respondent
Mr Abhijit Kulkarni a/w Mr Manoj Badgujar, Advocate for the Appellant.
Mr Ravindra Pachundkar h/f Mr Dilip Bodake, Advocate for Respondent
no.1,2A to 2D , 3 and 4.
WITH
SECOND APPEAL NO. 846 OF 2003
WITH
CAS/1287/2003 IN SA/846/2003
Smt.Vaijanta Vitthal Jadhav and Anr.. Appellant.
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Vs
Tanubai Vishnu Madane, deceased by heirs:
A. Sau.Shalan Maruti Shirtode and ors. .. Respondents
WITH
SECOND APPEAL NO. 1096 OF 2012
WITH
CAS/2166/2012 IN SA/1096/2012
Vasant Dhondiram Choudhari .. Appellant.
Vs
Sadashiv Dhondiram Choudhari .. Respondent
Mr. Vaibhav P. Patankar h/f Mr. S.C.Wakankar, Advocate for the Appellant.
Mr.G.S.Godbole a/w Mr Prashant More, Advocate for respondent nos 1 to
3.
WITH
SECOND APPEAL NO. 641 OF 2013
WITH
CAS/1551/2013 IN SA/641/2013
Padmini Dilip Pawar and others .. Appellants.
Vs
Shemanta Gajanan Pawar and others .. Respondents
Mr. P.J.Pawar, Advocate for the Appellants.
Mr V.S.Tadke i/b Mr. Y.G.Thorat, Advocate for Respondent no.3.
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CORAM : R.G.KETKAR,J.
RESERVED ON: 23/04/2014.
PRONOUNCED ON: 09 /06/2014
ORDER:
1. Heard Mr. A.V.Anturkar, Mr. R.S.Apte, learned senior counsel, Mr. G.S.Godbole, Mr. Vaibhav Patankar, Mr. P.P.Kulkarni, Mr. G.N.Salunkhe, Mr. V.S.Talkute, Mr. Sandeep Salunkhe, Mr. Abhijit Kulkarni, learned counsel for the appellants in all Appeals and Mr. P.B.Shah, Mr. Pramod Kathane, Mr. T.D.Deshmukh, Mr. N.J.Patil, Mr. N.B.Khaire, Mr. Pratap M. Nimbalkar, Mr. M.M.Mahajan, Mr. Pankaj Shinde, Mr. G.M.Joshi, Mr. Ravindra Pachundkar, Mr. S.C.Wakankar, learned counsel for the respondents in all Appeals and Mr. Vithaldas S. Bhandari, respondent no.3 in-person in S.A.No.566 of 2011, at length.
2. The question whether Section 6 of the Hindu Succession Act, 1956 (for short 'Principal Act') as amended by the Hindu Succession (Amendment) Act, 2005 (for short 'Amendment Act') is prospective or retrospective in operation, falls for consideration. Some of the learned counsel submitted that the said section is retrospective in operation while other learned counsel submitted that it is prospective in operation.
3. Mr. Anturkar submitted that the decision rendered by the Division Bench of this Court in the case of Vaishali Satish Ganorkar and Ors Vs. ::: Downloaded on - 22/06/2014 23:28:10 ::: 6 / 65 SA-25-13gr Satish Keshavrao Ganorkar and Ors1 requires to be referred to a larger Bench as the said decision does not lay down correct Law. He submitted that the decision of this Court in the case of Vaishali Ganorkar cannot be said to be per incurium of the judgment delivered by the Apex Court in Ganduri Koteshwaramma and Ors Vs. Chakari Yanadi and Anr. 2. The issue involved in Ganduri Koteshwaramma is entirely different from the issue involved in Vaishali Ganorkar. The issue in Ganduri Koteshwaramma was that after the preliminary decree was passed and before passing of the final decree, if any supervening circumstance has taken place (such as variation of the share necessitated on account of death of any coparcener, or on birth of any coparcener, or on account of the change in the law) then whether without requiring, the party who would be benefited by such change to file the appeal against the preliminary decree, can it be said that while passing the final decree cognizance is required to be taken, of such changes and consequentially whether there has to be variation in the shares allotted or is it necessary that an appeal has to be filed and without filing of the appeal no cognizance can be taken of such changes. As against this, the issue involved in Vaishali Ganorkar was that in case of a daughter, who is born before 9th Sept 2005 whether if her father, is alive on and after 9 th September 2005 and therefore the succession has not opened, can it be said that until the succession opens on account of the demise of her father, no 1 2012(5) Bom C.R. 210 2 (2011) 9 SCC 788 ::: Downloaded on - 22/06/2014 23:28:10 ::: 7 / 65 SA-25-13gr right in the coparcenary property "devolved upon her".
4. Mr.Anturkar submitted that the decisions of the learned Single Judge of this Court in the case of Babu Dagadu Awari Vs Baby w/o Namdeo Lagad and others3 as also of the another learned Single Judge of this Court in the case of Krishna Foundation Malkapur Vs Puja Jaywant Shinde and ors4 have been rendered contrary to the binding decision of the Division Bench of this Court in the case of Vaishali Ganorkar. The decision of the Division Bench of this Court in the case of Vaishali Ganorkar is binding on the learned Single Judge of this Court. He submitted that the learned Single Judge has to follow the decision of a larger Bench. However, if the learned Single Judge is inclined to take a different view, he has to refer the matter to a larger Bench. If there is any direct judgment of the Apex Court which is operating in the field either before or after that judgment of the High Court, then to follow the Supreme Court Judgment and to record that he is not following the decision of the larger Bench because the field is now covered by the Apex Court Judgment.
5. Mr. Anturkar submitted that the decision of the Division Bench of this Court in Vaishali Ganorkar does not lay down correct law. The Division Bench heavily relied upon what is described as "sub-title of section". The expression 'sub-title' would only mean marginal note. The Apex Court in the cases of (i) Commissioner of Income Tax Vs. Ahmedbhai 3 Civil Revision Application No.47 of 2013 decided on 24th March, 2013 4 Second Appeal No.721 of 2011 decided on 16th April, 2012 ::: Downloaded on - 22/06/2014 23:28:10 ::: 8 / 65 SA-25-13gr Umarbhai & Co5, (ii) Board of Muslim of Wakfs Rajasthan Vs. Radhakishan and others6 (iii) Dilawar Balu Khurana Vs. State of Maharashtra7, and (iv) Union of India Vs. National Federation of the Blind 8 has laid down that the marginal note cannot be taken into consideration for the purpose of interpretation. In any case, even if the marginal note is taken into consideration, it can be taken into consideration only when the words employed in the section are unclear and ambiguous. Even in that case, the marginal note cannot be used for the purpose of controlling an otherwise liberal and beneficial meaning flowing from the main body of section.
6. He further submitted that the Division Bench has held that Section 6 is prospective in operation and the said conclusion is based on the use of the word "shall" which is indicative of "future participle" and "future tense". In other words, it is the grammatical name use of the verb "to be" which has impressed the Division Bench. He submitted that as a matter of fact there is no "future participle" in English language. He relied upon the definition from Wiktionary Free Dictionary. He further submitted that the Apex Court in the cases of (i) Keru Co. Ltd Vs. Union of India9, (ii) Trimbhak Vs Ratilal Patil10, and (iii) M. Satyanarayan Vs. State of Karnataka11 has not permitted grammar to be used for the purpose of making statutory interpretation. He 5 AIR 1950 SC 134 6 AIR 1979 SC 289 7 (2002) 2 SCC 135 8 (2013) 10 SCC 772 9 (1975) 2 SCC 791 10 1968 Mh.L.J.287 11 1986 (2) SCC 512 ::: Downloaded on - 22/06/2014 23:28:10 ::: 9 / 65 SA-25-13gr further submitted that the Division Bench has not reproduced entire Section 6 and consequently has not considered entire section 6. The Division Bench has reproduced only sub-section (1) of Section 6 and not the subsequent sub-sections. He further submitted that there is apparent inconsistency in what is stated in paragraph 10 on one hand and paragraphs 13 and 14 on the other. In paragraph 10, the Division Bench held that devolution of interest will be on and from 9.9.2005 whereas in paragraphs 13 and 14 it is held that there is no devolution of interest until the coparcener dies and his succession opens and a succession takes place.
7. Mr. Anturkar further submitted that the Division Bench has not considered explanation and the proviso attached to Section 6. The Division Bench has also not taken into consideration the Statement of Objects and Reasons. Perusal of the Statement of Objects and Reasons clearly indicates that intention of the Legislature is to put a daughter in the same position as that of a son. Whatever rights are conferred to a son before 9.9.2005 would be conferred to a daughter by the legislature. Such interpretation has to be given to section 6 for the purpose of advancing object of the legislature. He further submitted that the decision of the Apex Court in the case of G. Sekar Vs Geetha and Ors.12 dealt with Section 23 and not section 6.
8. Mr. Godbole also submitted that Section 6 is retrospective. The decision of the Division Bench of this Court is per incurium of the judgment delivered by the Apex Court in the case of Ganduri 12 (2009) 6 SCC 99 ::: Downloaded on - 22/06/2014 23:28:10 ::: 10 / 65 SA-25-13gr Koteshwaramma. He invited my attention to the provisions of Section 29A of the Hindu Succession Act, 1956 (as amended by Andhra Pradhesh.) as also the decision of the Apex Court in the case of S. Sai Reddy Vs. S. Narayan Reddy13 as also paragraphs 17 and 18 of Ganduri Koteshwaramma. He submitted that in paragraph 18 of Ganduri Koteshwaramma, the Apex Court reproduced paragraph 7 from the S. Sai Reddy case and observed that the legal position enumerated therein is wholly and squarely applicable. In other words, he submitted that Section 6 of Amendment Act is retrospective. Though the Apex Court held in Ganduri Koteshwaramma that section 6 is retrospective, the decision of the Division Bench in Vaishali Satish Ganorkar is given in ignorance of the decision of Apex Court in Ganduri Koteshwaramma and is, therefore, per in curium. He also prayed for referring the decision to a larger Bench.
9. Mr. N. J. Patil relied upon the decision of the Division Bench of this Court in the case of Kaushalyabai B. Pateriya Vs. Hiralal B. Gupta 14 to contend that the provisions of amended Section 6 are retrospective in operation. My attention was also invited to the decision rendered by the learned Single Judge of this Court in the case of Sadashiv S. Patil Vs. Chandrakant15.
10. On the other hand, Mr Salunke and Mr. Shinde and other learned counsel submitted that the Division Bench has rightly held that amended 13 (1991) 3 SCC 647 14 2007 (4) Bom.C.R. 219 15 2012 (1) Mah.L.J. 197 ::: Downloaded on - 22/06/2014 23:28:10 ::: 11 / 65 SA-25-13gr Section 6 is prospective in operation and not retrospective. Mr. Salunke submitted that the language employed in section 6 is absolutely clear. It lays down that on and from commencement of Amendment Act, namely, on and from 9.9.2005, in a joint Hindu Family governed by the Mitakshra law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and is entitled to same rights in the co-
parcenary properties as she would have had if she had been a son. Thus on and from 9.9.2005 the daughter has been conferred two rights as contemplated in clauses (a) and (b) of sub section (1) of Section 6.
Simultaneously on and from that date the daughter is subject to same liabilities in respect of the said coparcenary property as that of a son as contemplated in clause (c) of sub-section (1) of Section 6.
11. Mr Salunke further invited my attention to clauses (a) and (b) of sub-
section (1) of Section 6. He submitted that by clause (a) on and from 9.9.2005 the daughter shall, by birth became a coparcener. As per clause
(b) the daughter shall have the same rights in the coparcenary properties.
He, therefore submitted that the Division Bench has correctly held that Section 6 is prospective in operation and no case is made out for referring the matter to a larger Bench. Mr. Shinde submitted that amended Section 6 is prospective in operation. The wordings employed therein admit no other interpretation.
12. Mr. Vithaldas Bhandari - respondent No.3 in Second Appeal No.566 ::: Downloaded on - 22/06/2014 23:28:10 ::: 12 / 65 SA-25-13gr of 2011 submitted that Section 6 of the Act before and after the amendment is not applicable as the facts in this Appeal are totally different. He, therefore, submitted that the said Appeal may not be tagged along with other Second Appeals.
13. I have considered the rival submissions made by the learned counsel appearing for the parties. Before I consider the submissions advanced by the learned counsel appearing for the parties as to whether amended section 6 is retrospective or prospective, the following things are required to be borne in mind.
(a) What was the law before the amendment?
(b) What was the mischief and defect for which the earlier law did not provide for?
(c) What is the remedy the parliament intended by amending the law?
(d) The true reason for such remedy?
14. Prior to coming into force of the Principal Act, Hindus were governed by Shastric and Customary laws which varied from region to region. The earliest legislation bringing females into the scheme of inheritance was the Hindu law of Inheritance Act, 1929. This Act conferred inheritance rights on three female heirs, i.e. son's daughter, daughter's daughter and sister, thereby creating a limited restriction on the rule of survivorship. This was followed by the Hindu Women's Right to Property Act, 1937. This Act enabled the widow to succeed along with the son and to ::: Downloaded on - 22/06/2014 23:28:10 ::: 13 / 65 SA-25-13gr take a share equal to that of the son. But, the widow did not become a coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family. She was entitled only to a limited estate in the property of the deceased with a right to claim partition. As against this, a daughter had virtually no inheritance rights.
15. The One Hundred and Seventy-fourth Report of the Law Commission focused on the property rights of women In the context of proposed reforms under the Hindu Law. One of the terms of reference empowered the Law Commission to make recommendations for the removal of anomalies, ambiguities and inequalities in the law. The aforesaid subject was taken up suo motu in view of the discrimination prevalent against women in relation to laws governing inheritance and succession of property amongst the members of a joint Hindu family. The Law Commission noted "social justice demands that a woman should be treated equally both in the economic and the social sphere. The exclusion of daughters from participating in coparcenary property ownership merely by reason of their sex is unjust. It was abundantly clear that a radical reform of Mitakshara law of coparcenary was needed."
16. The Law Commission thought it appropriate that before any amendment in the law is suggested with a view to reforming the existing law, it is proper that opinion is elicited by way of placing the proposed amendments before the public and obtaining their views and if possible by ::: Downloaded on - 22/06/2014 23:28:10 ::: 14 / 65 SA-25-13gr holding workshops etc. The Commission thus decided to have the widest possible inter action with a cross section of society including judges, lawyers, scholars, Non-Governmental Organizations (NGOs) etc by issuing a questionnaire. Among others, the commission elicited views as regards granting daughters coparcenary rights in the ancestral property or to totally abolish the right by birth given only to male members. The Law commission carefully considered all the replies and the discussions at the workshop held at ILS Law College, Pune before formulating its recommendations to amend the Principal Act with a view to giving the Hindu woman, an equal right to succeed to the ancestral property.
17. Paragraphs 1.3.1, 1.3.2 and 1.6 of Chapter I of the report of Law Commission read as under :-
1.3.1. A woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. In a patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son.
1.3.2 Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparcenars, based on birth in the family. No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth.::: Downloaded on - 22/06/2014 23:28:10 :::
15 / 65 SA-25-13gr 1.6 The Law Commission is concerned with the discrimination inherent in the Mitakshara coparcenary under Section 6 of the Hindu Succession Act, as it only consists of male members. The Commission in this regard ascertained the opinion of a cross section of society in order to find out, whether the Mitakshara coparcenary should be retained as provided in section 6 of the Hindu Succession Act, 1956, or in an altered form, or it should be totally abolished. The Commission's main aim is to end gender discrimination which is apparent in section 6 of the Hindu Succession Act,1956, by suggesting appropriate amendments to the Act. Accordingly, in the next two chapters of this report the Commission has made a broad study of section 6 of the Hindu Succession Act, 1956, and the Hindu Succession State(Amendment) Acts of Andhra Pradesh (1986), Tamil Nadu(1989), Maharashtra(1994) and Karnataka(1994) and the Kerala Joint Family System (Abolition) Act. The Acts are annexed collectively as Annexure IV."
18. In paragraph 3.2.9 of Chapter III, the Law Commission observed thus;-
3.2.9 It is further felt that once a daughter is made a coparcener on the same footing as a son then her right as a coparcener should be real in spirit and content. In that event section 23 of the HSA should be deleted. Section 23 provides that on the death of a Hindu intestate, in case of a dwelling house wholly occupied by members of the joint family, a female heir is not entitled to demand partition unless the male heirs choose to do so; it further curtails the right of residence of a daughter unless she is unmarried or has been deserted by or has separated from her husband or is a widow."
(Emphasis supplied)
19. Section 6 of the Principal Act reads as under :-
"DEVOLUTION OF INTEREST IN COPARCENARY PROPERTY.- Section 6 of the HSA dealing with devolution of interest to coparcenary property states-::: Downloaded on - 22/06/2014 23:28:10 :::
16 / 65 SA-25-13gr "When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara Coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener 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 immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2,-- Nothing contained in the proviso to his section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
20. Perusal of the above extracted section shows that the same deals with devolution of interest of a male Hindu in a Mitakshara coparcenary property and while recognising the rule of devolution by survivorship among the members of the coparcenary makes an exception to the rule in the proviso.
According to the proviso if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara Coparcenary property shall devolve by testamentary or intestate succession,under the Act and not by ::: Downloaded on - 22/06/2014 23:28:10 ::: 17 / 65 SA-25-13gr survivorship. Further under section 30 a coparcener may make a testamentary disposition in his individual interest in the joint family property. The rule of survivorship comes into operation only (i) whether the deceased does not leave him surviving a female relative specified in Class 1 or a male relative specified in Class I who claims through such female relative and (ii) when the deceased has not made a testamentary disposition of his undivided share in the coparcenary property.
21. Statement of Objects and Reasons for amending the 'Principal Act' read as follows:
"STATEMENT OF OBJECTS AND REASONS The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women's property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws.The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.
2. Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakashara coparcenary property without including the females in it means that the ::: Downloaded on - 22/06/2014 23:28:10 ::: 18 / 65 SA-25-13gr females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.
4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on ''Property Rights of Women: Proposed Reform under the Hindu Law.
5. The Bill seeks to achieve the above objects."
(emphasis supplied)
22. The Principal Act came into force with effect from 17.6.1956. The Amendment Act was passed by Rajya Sabha on 16.8.2005 and by Lok Sabha on 29.8.2005 and assented by the President of India on 5.9.2005. The Amendment Act came into force with effect from 9.9.2005. Section 4 of the Principal Act was amended by omitting sub-section (2). Section 6 of the Principal Act was substituted. Sections 23 and 24 of the Principal Act were omitted. Section 30 of the Principal Act was amended and for the words "disposed of by him", the words "disposed of by him or by her" were substituted. Schedule to the Principal Act was amended. Under sub-
::: Downloaded on - 22/06/2014 23:28:10 :::19 / 65 SA-25-13gr heading "Class 1", after the words "widow of a predeceased son of a pre-
deceased son", the words "son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter;
daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son" were substituted.
23. Mr. Anturkar submitted that the decision of the Division of this Court in the case of Vaishali Ganorkar is not per incurium of the judgment of the Apex Court in the case of Ganduri Koteshwaramma. Merely because the judgment of Gonduri Koteshwaramma relates to an aspect of amended Section 6 of the Act, on that count alone, it cannot be said that the Judgment of Vaishali Ganorkar was delivered per in curium. Mr. Godbole on the other hand submitted that the said decision is per incurium. It is, therefore, necessary to consider the decision of the Apex Court in the case of Ganduri Koteshwaramma.
24. In that case, the first respondent (the plaintiff) instituted a suit for partition against his father, Chakiri Venkata Swamy ( defendant no.1), his brother Chakiri Anji Babu (defendant no.2) and his two sisters, defendant nos 3 and 4 (the appellants before the Apex court). By Judgment and decree dated 19.3.1999 the trial Court declared that the plaintiff was entitled to one-third share in Schedule A, C and D properties and was entitled to one-fourth share in one-third share left by the first defendant. In respect of Schedule Property B, the plaintiff was declared to be entitled to one-fifth ::: Downloaded on - 22/06/2014 23:28:10 ::: 20 / 65 SA-25-13gr share. The preliminary decree was amended on 27.9.2003. The plaintiff thereafter made applications for passing the final decree and for determination of mesne profits. The trial Court appointed the Commissioner for division of the schedule property and directed the Commissioner to submit his report. The Commissioner submitted his report. In the course of consideration of the report submitted by the Commissioner and before passing of the final decree, the Amendment Act came into force on 9.9.2005. By the Amendment Act, Section 6 of the Principal Act was substituted. Defendant nos 3 and 4 therein made an application for passing the preliminary decree in their favour for partition of schedule properties A, C and D into four equal shares; allot one share to each of them by metes and bounds and for delivery of possession. The plaintiff resisted that application. By order dated 15.6.2009, the learned trial Judge allowed the application. The plaintiff challenged that order before the Andhra Pradesh High Court by filing Appeal. The learned Single Judge allowed the Appeal by his order dated 26.8.2009 and set aside the order of the trial Court. The Apex Court considered the earlier decisions in the cases of S. Sai Reddy as also Phoolchand Vs. Gopal Lal16.
25. In the case of S. Sai Reddy, the appellant had instituted suit against his father and brother for partition of the ancestral joint family property claiming 1/3 share in it. The suit was contested by father and brother. By order dated 26.12.1973 the learned trial Judge passed preliminary decree 16 AIR 1967 SC 1470 ::: Downloaded on - 22/06/2014 23:28:10 ::: 21 / 65 SA-25-13gr declaring that the appellant, his father and brother each were entitled to 1/3 share in the property. The defendants preferred appeal before the High Court against the preliminary decree. By judgment dated 15.10.1984 the High Court confirmed the findings of the trial Court with direction that an appropriate provision should be made for the maintenance and marriage expenses of respondents 2 to 5 who were unmarried sisters of the appellant. It was further directed that expenses incurred for the maintenance and marriage of respondents 2 to 5 shall be borne equally by the appellant, the father and the brother.
26. During the pendency of the proceedings before the trial Court and prior to the passing of the final decree, the Principal Act was amended by the State legislature from 5.9.1985 as a result of which unmarried daughters became entitled to a share in the joint family property. Respondent Nos. 2 to 5 filed an application before the trial Court claiming their share in the property. By order dated 24.8.1989 the trial Court rejected their application on the ground that since the preliminary decree had already been passed and specific shares of the parties had been declared, it was not open to the unmarried daughters to claim share in the property by virtue of the amended provisions of the Act. The unmarried daughters preferred revision before the High Court. By Judgment dated 2.2.1990 the High Court allowed the revision application and set aside the trial Court order and declared that in view of the newly added section 29-A of the Act the ::: Downloaded on - 22/06/2014 23:28:10 ::: 22 / 65 SA-25-13gr daughters were entitled to share in the joint family property. The Apex Court confirmed the High Court's decision.
27. The Apex Court considered Section 29-A, as amended by the State Legislature of Andhra Pradesh, wherein it was observed that unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In that case, there was no dispute that only a preliminary decree had been passed and before the final decree could be passed the Amending Act came into force as a result of which clause (ii) of section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 (unmarried sisters of appellant therein) had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its strata, it is necessary to give a liberal effect to it. The concept of partition that the legislature has in mind is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. It was further held that unless a partition of the ::: Downloaded on - 22/06/2014 23:28:10 ::: 23 / 65 SA-25-13gr property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by amendment.
Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effects of the legislation depriving a vast section of women of its benefits. The Apex Court further observed that in Phoolchand, the Court has stated the legal position that C.P.C. creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is incorrect statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings. The Apex Court also considered Section 97 of C.P.C. and observed that the said provision does not create any hindrance or obstruction in the power of the court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require.
28. Thus, the perusal of decisions of the Apex Court in the case of S. Sai Reddy and Ganduri Koteshwaramma shows that the Apex Court ::: Downloaded on - 22/06/2014 23:28:10 ::: 24 / 65 SA-25-13gr was dealing with the cases where preliminary decree was passed and the final decree proceedings were pending. While the final decree proceedings were pending, the Principal Act was amended and the question that fell for consideration was whether the development, namely, the amendment to the Principal Act, can be taken into consideration while passing the final decree. In my opinion, the Apex Court did not consider and consequently lay down that the provisions of the Principal Act as amended by the State Legislature of Andhra Pradesh or by the Amendment Act by substituting section 6 in the Principal Act, the same are retrospective in operation. I, therefore, find substance in the submission of Mr. Anturkar that decision of this Court in the case of Vaishali Ganorkar cannot be said to be per incuriam of the decision of the Apex Court in the case of Ganduri Korteshwaramma. I do not find any merit in the submission of Mr. Godbole that in the case of Ganduri Koteshwaramma, the Apex Court has held that the provisions of the Amendment Act and in particular amended section 6 are retrospective in operation.
29. This brings me to the submissions made on behalf of the parties that the decision of the Division Bench of this Court in the case of Vaishali Ganorkar does not lay down correct law. Mr. Anturkar submitted that in that case daughters were born before 9.9.2005 and the father was alive on and after 9.9.2005. The appellants-plaintiffs therein instituted suit for partition claiming their 2/3 share in the suit property. Mahadeo had three ::: Downloaded on - 22/06/2014 23:28:10 ::: 25 / 65 SA-25-13gr sons, Keshavrao, Vasudeo and Pundalik. Keshavrao was grand father of the appellants. The properties of Mahadeo were partitioned in the year 1959.
Keshavrao was given a property at camp, Amravati consisting of a house of 3 floors known as Khinkhinwale on plot no.9, Survey no.56-A at Amravati.
The family of Keshavrao consisted of his wife Taramati and his four children amongst whom was the appellants father, respondent no.1. Their aforesaid joint family properties under an oral partition between the members of the family and respondent no. 1 was stated to have been paid a share in the proceeds. From those proceeds, respondent no.1 had purchased a flat being flat no.18 in Pankaj Mansion, Dr. Annie Besant Road, Worli, Mumbai 400 025. Respondent no.1 sold that flat for purchasing the suit property. He created an equitable mortgage of the suit property in 2008, i.e. to say after 9.9.2005, being the date of commencement of the Amendment Act for securing a cash credit facility in respect of the company namely M/s Sequoia Marketing Pvt Ltd, in which he was a Director. Since the loan was not repaid, notice under section 13(2) of Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was issued. This was followed by a fresh notice issued by respondent 2 Bank. Respondent no.1 challenged the same by approaching the DRT and the DRAT without any success. Respondent no.1 was directed to deposit Rs. 1 crore in a Writ Petition filed by him. An application for extension of time was filed and the same was withdrawn and ::: Downloaded on - 22/06/2014 23:28:10 ::: 26 / 65 SA-25-13gr amount of Rs. 1 crore was also not deposited. It is only at that stage, appellants instituted suit for partition claiming 2/3rd share in the suit property. The Division Bench observed in paragraph 10 as follows:
"10. It would have to be seen when the appellants would be coparceners being the daughter of a coparcener. The section gives the right to a daughter of a coparcener on and from the commencement of the Act. The amended provision under section 6 of the has came into effect from 9.9.2005. On and from that date the daughter of a coparcener would become a coparcener in her own right just as a son would be by virtue of her birth and she would have the same rights and liabilities as that of a son. The devolution of her interest should, therefore,
30. be on and from 9.9.2005."
Perusal of the above extracted portion shows that the Division Bench held that amended Section 6 gives the right to a daughter of a coparcener on and from commencement of the Amendment Act i.e. with effect from 9.9.2005. The amended section 6 came into effect from 9.9.2005. On and from that date, namely 9.9.2005, the daughter of a coparcener would become a coparcener in her own right just as a son would be by virtue of her birth and she would have same rights and liabilities as that of a son.
The devolution of her interest would, therefore, be on and from 9.9.2005.
To put it differently, the Division Bench of this Court held that on and from 9.9.2005, the daughter of a coparcener would become a coparcener by virtue of her birth in her own right just as a son would be and she would have the same rights and liabilities as that of a son. In other words, the Division Bench held that section 6 of the Amendment Act is prospective and the rights and liabilities specified herein accrue on and from 9.9.2005.
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31. In paragraphs 13 and 14, the Division Bench observed as follows:-
"13. Consequently, until a coparcener dies and his succession opens and a succession takes place, there is no devolution of interest and hence no daughter of such coparcener to whom an interest in the coparcenary property would devolve would be entitled to be a coparcener or to have the rights or the liabilities in the coparcenary property along with the son of such coparcener.
14. It may be mentioned, therefore, that ipso facto upon the passing of the Amendment Act all the daughters of a coparcener in a coparcenary or a joint HUF do not become coparceners. The daughters who are born after such dates would certainly be coparceners by virtue of birth, but for a daughter who was born prior to the coming into force of the Amendment Act she would be a coparcener only upon a devolution of interest in coparcenary property taking place."
32. Perusal of paragraph 13 shows that the Division Bench held that until a coparcener dies and his succession opens and a succession takes place, there is no devolution of interest. As far as this statement of law is concerned, Mr. Anturkar does not dispute correctness of that statement. He, however, submitted that the further statement of law that no daughter of such coparcener to whom an interest in the coparcenary property would devolve would be entitled to be a coparcener or to have the rights and the liabilities in the coparcenary property along with the son of such coparcener, with respect, is not correct. In paragraph 14, it was further observed that ipso facto upon the passing of the Amendment Act all the daughters of a coparcener in a coparcenary or a joint Hindu family do not become coparceners. This statement of law, with respect, is also not ::: Downloaded on - 22/06/2014 23:28:10 ::: 28 / 65 SA-25-13gr correct. It was further observed that the daughters who are born after such date, namely 9.9.2005, would certainly be coparceners by virtue of birth.
He submitted that this statement of law is consistent with what is held by the Division Bench in paragraph 10. He, however, submitted that what was thereafter held, namely, but for a daughter who was born prior to the coming into force of the Amendment Act she would be a coparcener only upon a devolution of interest in coparcenary property taking place is concerned, the said statement of law, with utmost respect, is not correct.
Even if a daughter was born prior to 9.9.2005 atleast on and from 9.9.2005 she would become a coparcener and she will be conferred the rights under clauses (a), (b) and the liabilities under clause (c) of sub-section (1) of section 6 of the Amendment Act. He submitted that there is apparent inconsistency in what is stated in paragraph 10 on one hand and in paragraphs 13 and 14 on the other.
33. He further submitted that in paragraph 17, the Division Bench interpreted Section 6 de hors the subtitle and held that the daughter got interest on and from commencement of the Amendment Act, i.e. on and from 9th September 2005. The basis of the right is, therefore, the commencement of the Amendment Act. The daughter acquiring an interest as a coparcener under the section was given the interest which is denoted by the "future participle" "shall". What the section lays down is that the daughter of a coparcener shall by birth become a coparcener. It involves no ::: Downloaded on - 22/06/2014 23:28:10 ::: 29 / 65 SA-25-13gr "past participle". It involves only the "future tense". The future tense denoted by the word "shall" shows that the daughters born on and from 9 September 2005 would get that right, entitlement and benefit, together with the liabilities. It may be mentioned that if all the daughters born prior to the amendment were to become coparceners by birth the word "shall" would be absent and the section would show the past tense denoted by the words "was" or "had been". The future participle makes the prospectivity of the section clear.
34. Mr. Anturkar also invited my attention to paragraph 18 of the report, wherein it was observed that the word "become" in clause (a) of the amended section shows what was contemplated to be in the future on and after the date the amendment came into force. It is from that date that the daughter would become a coparcener which she was not until then. If she was to be taken to be the coparcener since even prior to the coming into force of the Act, the word "become" in clause (a) of sub-section (1) of section 6 would have been instead 'was'.
35. In paragraph 19, it was observed that on and from 9 September 2005 a daughter shall become a coparcener in a coparcenary property by birth.
The words "was" or "had been" etc., would be inconsistent with the words "on and from". In paragraph 20, it was observed that the words "on and from" are indeed unique. They show the date from which the amendment ::: Downloaded on - 22/06/2014 23:28:10 ::: 30 / 65 SA-25-13gr would come into effect. The footnote of the section itself shows w.e.f. 9th September 2005 hence on and from 9th September 2005 a daughter shall become a coparcener in coparcenary property by virtue of her birth. That would be acquisition of interest in a coparcenary property though not devolution.
36. In paragraph 21, the Division Bench considered the later part of the section after clause (c) and observed that reference to Hindu Mitakshara coparcener which would be deemed to include the daughter is also in the future tense denoted by the words "shall be". Had the section being retrospective and was to be effective for all daughters born prior to the date the amendment was effected or prior to the succession having opened, the reference to the daughter as a coparcener in a Hindu Mitakshara family would be shown to have been deemed "always have included" a reference to the daughter of a coparcener.
37. The Division Bench thereafter proceeded to consider proviso to amended Section 6 as also the principles of construction of a statute. It was observed in paragraph 25 that it is settled law that unless the Statute makes a provision retrospective expressly or by necessary intent it cannot be interpreted to be retrospective. It is also settled law that vested rights cannot be unsettled by imputing retrospectivity upon a legislation by judicial interpretation or construction. Making the section retrospective would ::: Downloaded on - 22/06/2014 23:28:10 ::: 31 / 65 SA-25-13gr wholly denude the words "on and from" in the section; they would be rendered otiose. These words are unique and clear. They express the intent of the legislature which is not far to seek. In paragraph 28, it was observed that the prospectivity of the Act is clear. It is not made expressly retrospective by the legislature.
38. From paragraph 29 onwards, the Division Bench, for holding that amended Section 6 is prospective in operation, considered various decisions and the Acts. The Division Bench considered the following decisions:-
1. Sugalabai Vs. Gundappa A Maradi and Ors17;
2. Pravat Chandra Pattnaik and ors Vs. Sarat Chandra Pattanaik and Anr 18;
3. Sheela Devi and ors Vs. Lal Chand and Anr19;
4. G.Sekar Vs. Geetha and Ors;
5. Champabai w/o Darsharathsingh Pardeshi and Ors Vs. Shamabai @ Shamkuwarbai Gajrajsingh Pardeshi and Anr20;
6. Miss R.kantha d/o Doddarmaiah Reddy Vs Union of India and Anr 21;
7. Pushpalatha N. V. Vs. V. Padma22;
8. Mahadfolal Kondia Vs. Administrator General of West Bengal 23;
9. Sadashiv Sakharam Patil and Ors;
17 I.L.R. 2007 KAR.4790 18 AIR 2008 Orissa 133 19 AIR 2006 (8) S.C.C.581 20 2010 (3) All.M.R. 262 21 A.I.R. 2010 Karnataka 27 22 A.I.R.2010 Karnataka 124 23 A.I.R.1960 S.C.936 ::: Downloaded on - 22/06/2014 23:28:10 ::: 32 / 65 SA-25-13gr
10. Bijender Singh Vs. State of Haryana24;
11. Hari Ram Vs. State of Rajasthan and Anr25;
12. Mithilesh Kumari & Anr Vs. Prem Behari Khare26;
13. Shashibhusan Pati Vs Mangala Biswal27;
14. Iswari Prasad & Ors Vs. N.R.Sen & Anr.28;
15. Securities & Exchange Board of .. (SEBI) Vs. Ajay Agarwal29;
16. M/s.Jayantilal Investments Vs. Madhuvihar Co-operative Hsg. Society30;
17. Kalpita Enclaves Vs Kiran Builders Pvt Ltd31.
The Division Bench considered the following Acts:-
(i) The Juvenile Justice (Care & Protection of Children ) Act, 2000 and Amendment of 2006 to that Act;
(ii) Benami Transactions (Prohibition) Act, 1988;
(iii) The Orissa Tenants Protection Act, 1948;
(iv) The West Bengal Rent control (Amendment) Act, 1950;
(v) The Securities and Exchange Board of India Act, 1992
(vi) The Maharashtra Ownership Flats (Regulations of the Promotion of
Construction, Sale Management and Transfer) Act, 1963.
39. In paragraph 36, after considering the observations made in paragraphs 52 and 53 of Pushpalatha's case, the Division Bench 24 A.I.R. 2005 S.C. 2262 25 2009 (13) S.C.C 211;
26 1989 (2) S.C.C.95;
27 A.I.R. 1953 Orissa 171;
28 A.I.R. 1952 Cal.273 (F.B.);
29 2010 (2) Bom.C.R. 794 (S.C.) 30 2007 (9) S.C.C. 220;
31 1986 Mh.L.J.110.
::: Downloaded on - 22/06/2014 23:28:10 :::33 / 65 SA-25-13gr observed as under ;-
"If the Act was retrospective we do not see how daughters born only after 1956 would be entitled to claim interest in a coparcenery property and not daughters before 1956 also. As observed in that judgment when a provision is substituted for an earlier provision by an amendment of the Act it would apply from the date of the unamended Act. That would be from 1956. Hence, if from 1956 the daughter would get her interest by birth by the very retrospectivity bestowed upon the section it would apply equally to daughters born even prior to 1956. This analogy is, however, academic since the amending Statute is made to come into effect from a specified date i.e., 9 September 2005 and we are fortified in our view by the proviso which seeks to expressly curtail the mischief envisaged."
ig (emphasis supplied)
40. In paragraphs 53 and 54, the Division Bench observed that the suit instituted by the appellants totally lacked bonafides and was instituted as a last resort by respondent no.1 who had set up his daughters with a dishonest intention to deny the claim of the respondent no.2-Bank upon the alienation made since 2008 and which had progressed far into the rights created in favour of respondent no.2-Bank under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002. The Division Bench held that the appellants were not entitled to any ad-interim relief and accordingly refused the same. Mr Anturkar submitted that the Division Bench held that amended Section 6 is prospective in operation and not retrospective. He submitted that the Division Bench has not correctly laid down the law. He submitted that In paragraph 15 of Babu Dagadu ::: Downloaded on - 22/06/2014 23:28:11 :::
34 / 65 SA-25-13gr Awari's case, the learned Single Judge of this Court noted that decision of Division Bench in the case of Vaishali Ganorkar was challenged in the Apex Court. Operative Order produced before him showed that special leave petition was dismissed but the question of law was kept open by the Apex Court.
41. Before I consider these submissions, it is necessary to reproduce amended Section 6, which reads as under :
"6. Devolution of interest in coparcenary property. (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son ;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of ::: Downloaded on - 22/06/2014 23:28:11 ::: 35 / 65 SA-25-13gr being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;
and
(c) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased so or a pre-deceased daughter, as the case may be.
Explanation.-- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener 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 immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or greatgrand father solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the ::: Downloaded on - 22/06/2014 23:28:11 ::: 36 / 65 SA-25-13gr commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect--
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December,2004 Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court."
42. I will deal with the phraseology "on and from the commencement of the Hindu Succession (Amendment) Act, 2005" a little later. Perusal of amended Section 6 would show that in terms of clause (a), the daughter of a coparcener has, by birth become a coparcener in her own right in the same manner as the son. In terms of clause (b), the daughter of a coparcener has the same rights in the coparcenary property as she would have had if she ::: Downloaded on - 22/06/2014 23:28:11 ::: 37 / 65 SA-25-13gr had been a son. Thus, two rights are conferred under clauses (a) and (b).
This is consistent with the Statement of Objects and Reasons. It is specifically noted therein that the law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. It is proposed to remove the discrimination as contained in Section 6 of the Principal Act by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Thus, gender discrimination between the son and daughter is removed, and bringing the law in conformity with the Articles 14 and 15 of the Constitution. The Legislature also took care that while conferring rights on the daughters on par with the son they have also saddled with the same liabilities in respect of the coparcenary property as that of a son in terms of sub-section (c).
(Emphasis supplied)
43. Now as far as phraseology "on and from the commencement of the Hindu Succession (Amendment) Act, 2005" is concerned, it is material to note that by the Amendment Act Section 6 of the Principal Act is substituted. The amendment is introduced by way of substitution. In my opinion, the result is that amended Section 6 is there in the statute on the ::: Downloaded on - 22/06/2014 23:28:11 ::: 38 / 65 SA-25-13gr date when the principal Act came into force, i.e. 17.6.1956. From that date till the Amendment Act came into force on 9.9.2005, the daughter of a coparcener was not recognized as a coparcener and her status as a coparcener is recognized only on and from 9.9.2005. In my opinion, the daughter of a coparcener who is born before or after 17.6.1956 has in terms of clause (a), by birth, become a coparcener in her own right in the same manner as the son and in terms of clause (b), has the same rights in the coparcenary property as she would have had if she had been a son and at the same time in terms of clause (c) is subject to the same liabilities in respect of the said coparcenary property as that of a son. In my opinion, the rights in terms of clauses (a) and (b) and the liabilities saddled in terms of clause (c) are recognized on and from 9.9.2005. The later part after clause
(c) provides that any reference to Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of coparcener.
44. Proviso to sub section (1) lays down that nothing contained in that sub section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20.12.2004. Explanation that follows further lays down that for the purposes of Section 6, 'partition' means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court.
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45. From the language employed in proviso to sub-section(1) of section 6, it is clear that the substituted section has no application and it shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which has taken place before the 20 th day of December, 2004. The language employed in proviso is unambiguous and clear. The intention was to save disposition, alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
46. The Parliament has expressly stated in the proviso to Sub-section (1) of amended Section 6 that the declaration of right in favour of a daughter as a co-parcener though it takes effect by birth, i.e. anterior to the amendment, the same would not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. The language employed in the proviso makes it clear that the substituted provision is retrospective in operation. By substitution, it is made clear that this provision is there in the Principal Act from 17/06/1956 itself. But as the Amendment Act came into force with effect from 09/09/2005, the question would arise that what should happen to the transactions that took place before 9.9.2005. It is in this context, the Parliament has expressly stated that though the right by birth is given, if the dispositions, alienations including partitions, testamentary dispositions which had taken place before ::: Downloaded on - 22/06/2014 23:28:11 ::: 40 / 65 SA-25-13gr 20th day of December, 2004 those transactions are not affected. This conferment of right by birth would not invalidate any of the aforesaid disposition of property. Though this provision is made retrospective, if third party interests have crept in or even the co-parceners on the assumption that it has become their separate property after the partition by way of registered partition deed or effected by a decree of the Court has made improvements or alienated the properties or parted with property by testamentary disposition, those transactions cannot be reopened. It is clear that, declaration of right of the daughter of a co-parcener and conferment of right by birth shall not affect or invalidate any "disposition" or "alienation"
including any partition or testamentary disposition of property, which have taken place before the 20th day of December, 2004.
47. Section 6(5) of the Amendment Act lays down that nothing contained in this section namely section 6 shall apply to a partition, which has been affected before the 20th day of December, 2004. If the Amendment Act is prospective in operation, the amended law would not in any way invalidate any disposition or alienation including any partition or testamentary disposition which had taken place before 20th day of December, 2004.
Then, the proviso to sub-section (1) of section 6 as also sub-section (5) of section 6 would become redundant. If the proviso to sub-section (1) and sub-section (5) of section 6 had not been introduced, all the dispositions, alienations including partitions and testamentary dispositions would have to ::: Downloaded on - 22/06/2014 23:28:11 ::: 41 / 65 SA-25-13gr be set aside or declared not affecting the interest of the daughter of a co-
parcener who was not a party to such transactions. Being conscious of the fall out of the retrospective operation of this amended provision, the legislature stepped in and introduced a proviso to sub-section (1) and sub-
section (5) of Section 6 to protect the interest of third party who have acquired interest in those properties. This is yet another clear manifestation of the intention of the legislature in making this provision retrospective.
In my opinion, substituted section 6 is therefore, retrospective in operation and it is not prospective. This also is a pointer indicating that provisions of section 6 are retrospective in operation. The result is that amended Section 6 is there in the Principal Act on the day it came into force, i.e. 17.6.1956 and rights and liabilities are recognized only from 9.9.2005.
48. In the case of Pushpalatha N.V., the Division Bench of Karnataka High Court considered the question whether amended section 6 is prospective or retrospective in operation. In paragraphs 56 and 57, it was observed as under:
"56. Therefore, it follows that the Act when it was enacted, the legislature had no intention of conferring rights which are conferred for the first time on a female relative of a co-parcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of Section 6 also it cannot be made retrospective in the sense applicable to the daughters born before the Act came into force. In the Act before amendment the daughter of a co-parcener was not conferred the status of a co-parcener. Such a status is conferred only by the Amendment Act in 2005. After conferring such status, right to co-parcenary property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth ::: Downloaded on - 22/06/2014 23:28:11 ::: 42 / 65 SA-25-13gr should be after the Act came into force, i.e., 17.6.1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a co-parcener who was born prior to 17.6.1956. Therefore, in this context also the opening words of the amending section assumes importance. The status of a coparcener is conferred on a daughter of a co-parcenar on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. But, both these rights are conferred under the Act and. therefore, it necessarily follows the daughter of a co-parcenar who is born after the Act came into force alone will be entitled to a right in the co-parcenary property and not a daughter who was born prior to 17.6.1956.
57. Thus, by virtue of the substituted provision what the Parliament intends to do is first to declare that, on and from the commencement of this Amendment Act in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son. Therefore, the Mitakshara law in respect of coparcenary property and co-parcenary consisting of only male members came to an end. By such a declaration the Parliament declared that from the date of the amendment shastric and customary law of coparcenary governed by Mitakshara school is no more applicable and it ceased to exist. Thus, by virtue of the aforesaid provision, a right is conferred on a daughter of a coparcenar for the first time. The said right is conferred by birth. Therefore, though such a right was declared in the year 2005, the declaration that the said right as a coparcenar enures to her benefit by birth makes the said provision retro active. Though on the date of the birth she did not have such right because of the law governing on that day by amendment the law, such a right is conferred on her from the date of the Act of 1956. A historical blunder depriving an equal right in spite of the constitutional mandate is now remedied and the lawful right to which the daughter was entitled by virtue of the constitution is restored to her from the date of her birth. This, the Parliament has done by using the express words that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son."
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49. The Division Bench also considered the proviso to sub-section (1) of Section 6 and observed in paragraphs 67 to 69 as follows:
"67. In the light of the aforesaid words used in the proviso to Sub-section (1) of Section 6 it is clear the substituted Section has no application and it shall not affect or invalidate any disposition or alienation or partition or testamentary disposition which has taken place before the 20 th day of December 2004. In other words, if there is no disposition or alienation of a property belonging to a Joint Hindu Family, the daughter who is conferred the status of a co-parcener by virtue of which she gets a right by birth is entitled to the same rights in the co-parcenary property in the same manner as the son. The language employed in the proviso is unambiguous and clear. The intention was to save disposition, alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December 2004.
68. Sub-section (2) of Section 6 further declares that any property to which a female Hindu becomes entitled by virtue of Sub-
section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in the Act, or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. Thus, equality is maintained after the daughter acquires right in the coparcenary property also, giving full effect to the object of the amended law when it clarified the legal position that any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.
69. Sub-section (3) of section deals with succession of property after the commencement of the Hindu Succession (Amendment) Act, 2005, i.e., from 09.09.2005. Sub-section (3) of the amended Section provides that, where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place. Therefore, with the passing of the Amendment Act, 2005, the concept of survivorship is given a go by once and for all."::: Downloaded on - 22/06/2014 23:28:11 :::
44 / 65 SA-25-13gr (emphasis supplied)
50. In paragraph 98, the Division Bench considered the decision of the Constitution Bench of the Apex Court in the case of Shamrao V. Parulekar and Ors Vs. District Magistrate Thane, Bombay and Ors 32. The Apex Court dealt with the scope of substitution of a provision by way of amendment and it was held as under :
"The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself or apart of itself, into the earlier, then the earlier Act, must thereafter be read and construed (except where that would lead to a repugnancy, in consistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter these is no need to refer to the amending Act at all. This is the rule in England. It is the law in America. It is the law which the Privy Council applied to India."
(emphasis supplied)
51. In paragraph 100, the Division Bench also considered the decision of the constitution Bench of the Apex Court in the case of Shyam Sunder and Ors Vs. Ram Kumar and Anr.33 and it was observed in paragraphs 100 to 103 as follows.
"100. Yet another Constitution Bench of the Apex Court in the case of Shyam Sunder and Ors. v. Ram Kumar and Anr., AIR 2001 SC 2472 was dealing with the question, whether a substituted provision necessarily means the amended provisions are retrospective in nature, after reviewing the entire case law on the point held, a substituted Section in an Act is the product of an amending Act and all the effects and 32 AIR 1952 SC 324 33 AIR 2001 SC 2472 ::: Downloaded on - 22/06/2014 23:28:11 ::: 45 / 65 SA-25-13gr consequences that follow in the case of an amending Act the same would also follow in the case of a substituted Section in an Act. Further it was held, it is well settled that where an amendment affects vested rights the amendment would operate prospectively unless it is expressly made retrospective or its retrospective operation follows as a matter of necessary implication. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or explain previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed invariably it has been held to be retrospective. Mere absence of use of word 'declaration' in an Act explaining what was the law before may not appear to be a declaratory Act but if the Court finds an Act as declaratory or explanatory it has to be construed as retrospective. Further, they went on to hold, that the function of a declaratory or explanatory Act is to supply an obvious omission or to clear up doubts as to meaning of the previous Act and such an Act comes into effect from the date of passing of the previous Act.
101. Therefore, it is clear from the aforesaid Constitution Bench judgment of the Apex Court, a vested right can be taken away by way of an amendment by the legislature by expressly saving so or by implication. Secondly, a declaratory law is retrospective in operation because the object of such declaratory law is to supply the omission. In the instant case, in 1956 when the Act was passed, the daughter of a co-parcener was not treated as co-parcener nor any right in the co-parcenary property by birth was conferred on her. Now, by a declaration such a right is sought to be conferred. It is done by way of substitution. In other words, the legislative intent is to supply the omission in the original Act. The parliament has not kept any one in doubt about their intention. The effect is the Act as enacted in 1956 is to be read and construed as if the altered words/new section had been written into the earlier Act with the pen and ink and the old Section/Words scored out, so that thereafter there is no need to refer to the amending Act at all. The constitutional validity of the substituted section is not under challenge. On the contrary the substituted section is in conformity with the constitutional provision. The effect is old Section 6 is superseded by the new Section 6, the amended section taking the place of the original section, for all intents and purposes as if the amendment had always been there. This is the way the parliament has expressly made its intention clear to the effect the amendment is retrospective.::: Downloaded on - 22/06/2014 23:28:11 :::
46 / 65 SA-25-13gr
102. Secondly though the opening words of the section declares that on and from the commencement of the Hindu Succession (Amendment) Act, 2005, the daughter of a coparcener in a joint family governed by the Mithakshara is conferred the status of coparcener, it is expressly stated that she becomes a coparcener by birth. Conferment of the status is different from conferring the rights in the coparcenery property. The right to coparcenery property is conferred from the date of birth, which necessarily means from the date anterior to the date of conferment of status, and thus the Section is made retro active. By such express words the amended section is made retrospective.
103. Thirdly, the proviso to Section 6(1) makes the intention of the parliament manifestly clear. The Parliament has expressly stated in the proviso to Sub-section (1) of Section 6 the substituted provision that the declaration of right in favour of a daughter as a co-parcener though it takes effect by birth, i.e. anterior to the amendment, the same would not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20 th day of December 2004. The way this proviso is expressed makes it clear the substituted provision is retrospective in operation. By substitution it is made clear that this provision is there in the principal Act from 1956 itself. But, as the amendment came into force only in 2005, the question would arise that what should happen to the transactions between 1956 and 2005. It is in this context the Parliament has expressly stated though the right by birth is given from 1956, if the dispositions, alienations including partitions, testamentary dispositions which had taken place subsequent to 1956 and before 20th December 2004 those transactions are not affected. This conferment of right by birth would not invalidate any of the aforesaid disposition of property. Therefore, the intention is clear. Though this provision is made retrospective, if third party interests have crept in or even the co-parceners on the assumption that it has become their separate property after the partition by way of registered partition deed or effected by a decree of the Court has made improvements or alienated the properties or parted with property by testamentary disposition, those transactions cannot be reopened. It is clear that, declaration of right of the daughter of a co-parcenar and conferment of right by birth shall not affect or invalidate any "disposition"
or "alienation" including any partition or testamentary disposition of property, which have taken place before the 20th day of December 2004. The amendment Act received the assent of the President of India on 5 th September, 2005, and ::: Downloaded on - 22/06/2014 23:28:11 ::: 47 / 65 SA-25-13gr came into force from 9th September, 2005. If the amendment Act is prospective in operation the amended law would not in any way invalidate any disposition, or alienation including any partition or testamentary disposition which had taken place before 20th December 2004. Then the entire proviso would have been redundant. If the proviso had not been introduced, all the dispositions, alienations including partition and testamentary dispositions would have to be set aside or declared not effecting the interest of the daughter of the co-parcener who was not a party to such transactions. It. is because the legislative intent was to give retrospective effect to the amended provision. Being conscious of the fall out of the retrospective operation of this amended provision, the legislature stepped in and introduced a proviso to protect the interest of third party who have acquired interest in those properties. This is yet another clear manifestation of the intention of the legislature in making this provision retrospective. Therefore, the substituted provision is retrospective in operation as is expressly declared so in the Section itself. It is not prospective."
(emphasis supplied)
52. Mr. Anturkar submitted that construction of amended Section 6 made by the Karnataka High Court to the extent it holds that the daughter of a coparcener who is born after 17.6.1956 alone will be entitled to a right in the coparcenary property, with utmost respect, is not correct. I am substantially in respectful agreement with the law laid down by the Division Bench of Karantaka High Court in the case of Pushpalatha N.V. to the extent it holds that amended section 6 is retrospective in operation.
However, with very great respect I disagree with the view taken by the Division Bench to the extent it holds that the daughter of a coparcener who is born prior to 17.6.1956 is not entitled to a right in the coparcenary property. In my opinion, in view of amended Section 6 whether the ::: Downloaded on - 22/06/2014 23:28:11 ::: 48 / 65 SA-25-13gr daughter of a coparcener who is born before or after 17.6.1956, has by birth become a coparcener in her own right in the same manner as the son in terms of clause (a) and has the same rights in the coparcenary property as she would have had if she had been a son in terms of clause (b) and that she is subject to the same liabilities in respect of such coparcenary property as that of a son in terms of clause (c). This aspect can be considered by keeping in mind (i) Shastric and Customary laws which governed Hindus prior to coming into force of the Principal Act, (ii) the recommendations made by the 174th Report of the Law Commission, (iii) the Statement of Object and Reasons for amending the Principal Act, (iv) amended Section
6.
i) Law prior to commencement of the Principal Act:
53. As noted earlier, prior to coming into force of the Principal Act, Hindus were governed by Shastric and Customary laws which varied from region to region. The earliest legislation bringing females into the scheme of inheritance was the Hindu law of Inheritance Act, 1929. This Act conferred inheritance rights on three female heirs, i.e. son's daughter, daughter's daughter and sister, thereby creating a limited restriction on the rule of survivorship. This was followed by the Hindu Women's Right to Property Act, 1937. This Act enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not ::: Downloaded on - 22/06/2014 23:28:11 ::: 49 / 65 SA-25-13gr become a coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family.
She was entitled only to a limited estate in the property of the deceased with a right to claim partition. As against this, a daughter had virtually no inheritance rights.
54. When the Principal Act was enacted, the legislature did not provide that the daughter of a coparcener shall, by birth, become a coparcener in her own right. A Hindu coparcenary is considered a much narrower body than the joint family. It included only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent. The concept of a joint Hindu family constituting a coparcenary is that of a common male ancestral with his lineal descendants in the male line within four degrees counting from, and inclusive of, such ancestor or three degrees exclusive of the ancestor. No coparcenary can commence without a common male ancestor, though after his death, it may consist of collaterals, such as brothers, uncles, nephews, cousins, etc. No female was a coparcener although a female can be a member of a joint Hindu family.
55. According to Mitakshara law, each son acquires at his birth an equal interest with his father in all ancestral property held by the father and on the ::: Downloaded on - 22/06/2014 23:28:11 ::: 50 / 65 SA-25-13gr death of the father, the son takes the property, not as his heir, but by survivorship. A coparcener is one who shares equally with others in inheritance in the estate of a common ancestor. Otherwise called parceners, are such as have equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors. A person to whom an estate descends jointly and who holds it as an entire estate. But sometimes, two or more persons together constituted the heir, and to this case they took the land as 'parceners' or 'co-parceners'. In theory of law, coparceners together constituted a single heir, they may be but one heir and yet several persons.
They were called parceners because, every coparcener had a common law right to have a partition made. Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. Under the Mitakshara system, joint family property devolves by survivorship within the co-
parcenary which means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged.
(ii) The recommendations of the Law Commission:
56. In paragraph 1.3.1. of Chapter I, the Law Commission noted that in a patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son. In paragraph 1.3.2 of Chapter I it was noted that under the Mitakshara law, on birth, the son ::: Downloaded on - 22/06/2014 23:28:11 :::
51 / 65 SA-25-13gr acquires a right and interest in the family property. No female is a member of the coparcenary in Mitakshara law. In paragraph 1.6 of Chapter I it is set out therein that the Commission's main aim was to end gender discrimination which is apparent in section 6 of the Principal Act by suggesting appropriate amendments to it. In paragraph 3.2.9 of Chapter III, the Law Commission observed that once a daughter is made a coparcener on the same footing as a son then her right as a coparcener should be real in spirit and content.
(iii) The Statement of Objects and Reasons:
57. The Statement of Objects and Reasons and in particular paragraph 2 thereof records that the retention of the Mitakashara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. In paragraph 3, it is set out therein that it was proposed to remove the discrimination as contained in section 6 of the Principal Act by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.
(iv) Amended Section 6.
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58. Clause (a) of sub-section (1) of amended section 6 declares that the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. Clause (a), however, does not declare that daughter of a coparcener shall become a coparcener from the date of birth of the daughter. The intention of the legislature is manifest.
Otherwise, the wording of clause (a) would be to the effect that the daughter of a coparcener who is born after 17.6.1956 will become a coparcener. Daughter of a coparcener constitutes a class by itself. No further differentiation can be made between a daughter born before 17.6.1956 and a daughter born after 17.6.1956.
59. Clause (b) of sub-section (1) of amended section 6 declares that the daughter of a coparcener shall have the same rights in the coparcenary property as she would have had if she had been a son. By this clause, the legislature has created a legal fiction. The legislature is quite competent to create a legal fiction, in other words, to enact a deeming provision for the purpose of assuming existence of a fact which does not really exist provided the declaration of nonexistent facts as existing does not offend the constitution. Although the word 'deemed' is usually used, a legal fiction may be enacted without using that word. In interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the ::: Downloaded on - 22/06/2014 23:28:11 ::: 53 / 65 SA-25-13gr giving effect to the fiction. Now, the purpose of amending the Principal Act is obvious, namely, to remove the discrimination as contained in Section 6 of the Principal Act, by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. In other words, the daughters are brought on par with the sons. After ascertaining the purpose, "full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to that end "it would be proper and even necessary to assume all those facts on which alone the fiction can operate". In an oft-
quoted passage, LORD ASQUITH stated: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it--. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." Now, the question is what are the rights of a coparcener.
60. Paragraph 233 of the Principles of Hindu Law by Mulla, Twentieth Edition, deals with the rights of a coparcener which are as follows:-
(i) Community of interest and unity of possession between all the members of the family - No coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property. There is a community of interest and unity of ::: Downloaded on - 22/06/2014 23:28:11 ::: 54 / 65 SA-25-13gr possession between all the members of the family.
(ii) Share of income - A member of a joint Mitakshara family cannot predicate at any given moment what his share in the joint family property is. His share becomes defined only when a partition takes place. As no member, while the family continues joint, is entitled to any definite share of the joint property, it follows that no member is entitled to any definite share of the income of the property.
(iii) Joint possession and enjoyment - Each coparcener is entitled to joint possession and enjoyment of the family property. However, a coparcener has a common law right to have a partition made;
(iv) Exclusion from joint family property - Where a coparcener is excluded by other coparcener from the use or enjoyment of the joint property or any portion thereof and the act of the other coparcener amounts to ouster, the excluded coparcener can claim injunction against them from obstructing him in the enjoyment of the property.
(v) Every coparcener in an undivided family is entitled to be maintained out of the family estate.
(vi) Right to enforce partition - Subject to the provisions of paragraph 307, every adult coparcener is entitled to enforce a partition of the coparcenary property.
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(vii) Alienation of undivided interest - No coparcener can dispose of his undivided interest in coparcenary property by gift (Paragraph 258). Nor can he alienate such interest even for value, except in Bombay, madras and Madhya Pradesh (paragraphs 259-260).
(viii) Right of Survivorship - Where a coparcener dies before partition of the coparcenary property, his undivided interest in the property devolves not by succession upon his heirs, but by survivorship upon the surviving coparceners.
(ix) Manager - A coparcener, who is a Manager has certain special powers of disposition over the coparcenary property which no other coparcener has.
61. The conferment of rights under clause (b) does not depend upon the date of birth of the daughter of a coparcener. The cumulative effect of clauses (a) and (b) therefore leads to an irresistible conclusion that whether the daughter of a coparcener is born before or after 17.6.1956 will not make any difference. This is consistent with the recommendations made by the 174th Report of the Law Commission as also the Statement of Object and Reasons for amending the Principal Act.
62. In the case of Pushpalatha N.V., the Division Bench of Karnataka High Court held that amended section 6 is not applicable to the daughters born before the Principal Act came into force. It was further held that under ::: Downloaded on - 22/06/2014 23:28:11 ::: 56 / 65 SA-25-13gr the Principal Act the daughter of a coparcener was not conferred the status of a coparcener. Such a status is conferred only by the Amendment Act.
After conferring such status, right to coparcenary property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth should be after the Principal Act came into force, ie 17.6.1956. There was no intention either under the Principal Act or the Amendment Act to confer any such right on a daughter of a coparcener who was born prior to 17.6.1956. The right to property is conferred from the date of birth. But both these rights are conferred under the Principal Act and therefore it necessary follows the daughter of a coparcener who is born after the Principal Act came into force alone will be entitled to a right in the coparcenary right and not a daughter who was born prior to 17.6.1956.
63. Now this aspect can be considered by illustration;
Take a case of two daughters "A" and "B" of a coparcener. Daughter 'A' is born before 17.6.1956 and "B" is born after 17.6.1956. As per the decision of the Karnataka High Court in the case of Pushpalatha N.V., "B" will become a coparcener by birth and not 'A". In paragraph 56, the Division Bench of Karnataka High Court held that right to coparcener is given "from the date of birth of the daughter of a coparcener". In my humble opinion, the Division Bench of Karnataka High Court, with utmost respect, has not properly interpreted clause (a) and has added the words ::: Downloaded on - 22/06/2014 23:28:11 ::: 57 / 65 SA-25-13gr "from the date of birth". It has also not given due importance to clause (b) of sub-section (1) of amended Section 6 which does not depend upon the date of birth of the daughter. That apart, in paragraph 36, the Division Bench in the case of Vaishali Ganorkar, after considering the observations made in paragraphs 52 and 53 of Pushpalatha N.V.'s case, observed that if the Amendment Act was retrospective it did not see how daughters born only after 17.6.1956 would be entitled to claim interest in the coparcenery property and not the daughters born before that date. As observed in Pushpalatha N.V.'s case, when a provision is substituted for an earlier provision by an amendment to the Principal Act, it would apply from the date of unamended Act and that would be from 17.6.1956. Hence, if from 17.6.1956 the daughter would get her interest by birth by the very retrospectivity bestowed upon the section, it would apply equally to daughters born even prior to 17.6.1956. I respectfully agree with the statement of law enunciated in paragraph 36 of Vaishali Ganorkar's case.
If it is held that the daughter of a coparcener who is born prior to 17.6.1956 is not entitled to a right in the coparcenary property, it will defeat the very object of the amending Principal Act. It cannot be said that by one hand the legislature has conferred rights in the coparcenary property on the daughters born after 17.6.1956 and by other it has taken away the rights in the coparcenary property of daughters who are born prior to 17.6.1956.
64. Alternatively, this aspect also can be looked from other angle. For ::: Downloaded on - 22/06/2014 23:28:11 ::: 58 / 65 SA-25-13gr the time being, I proceed on the footing that the daughter of a coparcener who is born after the Principal Act came into force, ie 17.6.1956 alone will be entitled to a right in the coparcenary property and not a daughter who was born prior to 17.6.1956. Clause (a) declares that the daughter of a coparcener shall, by birth, become a coparcener in her own right. Clause (b) of sub-section (1) of amended Section 6 declares that the daughter of a coparcener shall have the same rights in the coparcenery property as she would have had if she had been a son. Thus, having regard to the express language employed in clause (b), the daughter of a coparcener whether she is born before or after 17.6.1956, shall have the same rights in the coparcenary property as she would have had if she had been a son. Birth being an accident, the legislature took care of those daughters who are born before 17.6.1956 by conferring same rights in terms of clause (b). In view of clause (b) of sub-section (1) of amended Section 6, I am of the opinion that even if the daughter of a coparcener is born prior to 17.6.1956, she shall have the same rights in the coparcenary property as she would have had if she had been a son. In my humble opinion, the Division Bench of Karnataka High Court, with utmost respect, has not given due importance to clause (b) of sub-section (1) of amended Section 6.
65. If the construction of amended Section 6 made by the Karnataka High Court is accepted, then with very great respect, clause (b) would be rendered otiose. To borrow the words from paragraph 57 of Pushpalatha's ::: Downloaded on - 22/06/2014 23:28:11 ::: 59 / 65 SA-25-13gr case with a slight modification, "a historical blunder depriving an equal right inspite of the constitutional mandate is now remedied and the lawful right to which the daughter was entitled by virtue of the constitution is restored by declaring that she has, by birth, become a coparcener. This the parliament has done by using the express words that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son".
66. In my opinion, in view of the amended Section 6 of the Act, whether the daughter of a coparcener, is born before or after 17.6.1956, (i) has by birth become a coparcener in her own right in the same manner as the son (in terms of clause (a), (ii) has the same rights in the coparcenary property as she would have had if she had been a son (in terms of clause (b)) and that (iii) is subject to the same liabilities in respect of the said coparcenary property as that of a son [in terms of clause (c) of sub-section (1) of Section
6. The significance of phraseology "on and from" the commencement of the Amendment Act is that the said rights are recognized only from the date of the commencement of the Amendment Act viz. 9.9.2005. But the rights were conferred on a daughter of a coparcener by birth and were conferred the same rights in the coparcenary property in terms of clauses (a) and (b) and was also subject to the same liabilities in respect of the coparcenary property as that of a son in terms of clause (c). Section 6 of the amended ::: Downloaded on - 22/06/2014 23:28:11 ::: 60 / 65 SA-25-13gr Act is by way of substitution. In view of the decision of the Apex court in the case of Shamrao V. Parulekar, rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act, must thereafter be read and construed (except where that would lead to a repugnancy, in consistency or absurdity) as if the altered words had been written into the earlier act with pen and ink and the old words scored out so that thereafter there is no need to refer to the Amendment act at all. This the rule in England. It is the law in America. It is the law which the Privy Council applied to India. In the instant case, the construction placed by me does not lead to a repugnancy, inconsistency or absurdity. Rather it advances the objects sought to be achieved by the Amendment Act.
67. In the case of Shyam Sunder, the Apex Court, after reviewing the entire case law, held that a substituted section in an Act is the product of an Amendment Act and all the effects and consequences that follow in the case of an Amendment Act the same would also follow in the case of a substituted Section in an Act.
68. In my opinion, the provisions of the Amendment Act are beneficial legislation and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its strata, it is necessary to give a liberal effect to it as held by the Apex Court ::: Downloaded on - 22/06/2014 23:28:11 ::: 61 / 65 SA-25-13gr in the case of S.Sai Reddy. In that case, the Apex Court held that spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effects of the legislation depriving a vast section of women of its benefits. It is precisely for that reason proviso to section 6(1) lays down that nothing contained in subsection (1) shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. Explanation for the purpose of section lays down that "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court. Apart from that, having regard to Statement of Objects and Reasons record that the law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. The Amendment Act is for giving equal rights to daughters in the Mitakshara Coparcenary property as the sons have.
69. In the case of Vaishali Ganorkar, the Division Bench held that amended section 6 is prospective in operation. The Division Bench heavily relied upon what is described as "sub-title of section"/Heading of the Section. The Division Bench also based its conclusion on the use of word "shall" which according to the Division Bench is indicative of "future ::: Downloaded on - 22/06/2014 23:28:11 ::: 62 / 65 SA-25-13gr participle" and "future tense". In other words, it is grammatical name use of the verb "to be" which has impressed the Division Bench. The Division Bench also held that the vested rights cannot be unsettled by imputing retrospectivity upon a legislation by judicial interpretation or construction.
It was further observed that making the section retrospective would wholly denude the words "on and from" in the section. The Division Bench, with respect, has considered only amended section 6(1) and has not considered the explanation and proviso attached to section 6. The Division Bench, also with respect, did not take into consideration the Statement of the Objects and Reasons. There is also prima facie inconsistency in what is stated in paragraph 10 on one hand and paragraphs 13 & 14 on the other.
70. In the light of the aforesaid discussion, my conclusions are as under:
I. Section 6 of the Principal Act was substituted by Section 6 of the Amendment Act. In view thereof, for all intents and purposes, amended Section 6 is there from 17.06.1956, being the date of commencement of the Principal Act.
II. The daughter of a coparcener who is born before or after 17.6.1956 has by birth become a coparcener in her own right in the same manner as a son in terms of clause (a) and has the same rights in the coparcenary property as she would have had if she had been a son in terms of clause (b) and is subject to the same liabilities in respect of the said coparcenary property as that of a son in terms of clause (c) of sub-section (1) of amended Section 6.::: Downloaded on - 22/06/2014 23:28:11 :::
63 / 65 SA-25-13gr III. The rights under clauses (a) and (b) and liabilities under clause (c) of sub-section (1) of amended Section 6 are recognized for the first time on and from 09.09.2005, being the date of commencement of the Amendment Act.
IV.Even if the daughter of a coparcener has by birth become coparcener in her own right in the same manner as a son in terms of clause (a) and as also she has the same rights in the coparcenary property as she would have had if she had been a son in terms of clause (b) , the same shall not affect or invalidate any disposition or alienation including any partition which is duly registered under the Registration Act, 1908 or effected by decree of a Court or testamentary disposition of property which had taken place before the 20th day of December, 2004.
V. The decision of the Division Bench in the case of Vaishali Ganorkar is not per in curium of Gandori Koteshwaramma and others.
71. For all these reasons, I respectfully disagree with the view expressed by the Division Bench of this Court in the case of Vaishali Ganorkar.
72. Respondent no.3 in Second Appeal No. 566 of 2011- Mr Vithaldas Bhandari submitted that the question whether amended Section 6 is prospective or retrospective in operation, does not arise in this Appeal. He, therefore, submitted that Second Appeal No.566 of 2011 may be detagged from rest of the Appeals. Mr Anturkar disputes this position. In the order ::: Downloaded on - 22/06/2014 23:28:11 ::: 64 / 65 SA-25-13gr dated 23.4.2014, I indicated that having regard to the time constraint I will examine only this question and will not go into facts in each of the Appeals.
In view thereof, respondent no.3 is at liberty to apply for detagging of Second Appeal No.566 of 2011 from rest of the Appeals.
73. In view of Rule 7 in Chapter I of the Bombay High Court Appellate Side Rules, 1960 and in view of the fact that I respectfully disagree with the view expressed by the Division Bench of this Court in the case of Vaishali Ganorkar, the matters are required to be referred to a Bench of two or more Judges. I, therefore, direct the Registry to place the papers before the Hon'ble Chief Justice for passing appropriate orders for referring the following questions to a larger Bench of two or more Judges.
(a) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act is prospective or retrospective in operation?
(b) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, applies to daughters born prior to 17.6.1956?
(c) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, applies to daughters born after 17.6.1956 and prior to 9.9.2005?
(d) Whether Section 6 of the Hindu Succession Act, 1956 as ::: Downloaded on - 22/06/2014 23:28:11 ::: 65 / 65 SA-25-13gr amended by the Amendment Act, applies only to daughters born after 9.9.2005?
(e) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?
(R. G. KETKAR, J.) ::: Downloaded on - 22/06/2014 23:28:11 :::