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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. 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 7 / 65 SA-25-13gr right in the coparcenary property "devolved upon her".

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.

(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-

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.