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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 (16 of 1908) or partition effected by a decree of a court.]"

25] Thus, the plain reading of the Proviso to sub section (1) of section 6 of the Act, makes it clear that the right given to a daughter as coparcener in the joint family property by way of Amendment Act RJ CRA 637 of 2005, cannot be available, if there is already any disposition or alienation, including any partition or testamentary disposition of property, which had taken place before the 20 th day of December, 2004. Explanation to the Section further clarifies that such partition should be made by execution of a registered deed of partition or effected by a decree of a Court.

44. Learned counsel for the appellants would, however, submit that explanation to Section 6 clearly provides that partition means any partition made by execution of a deed duly registered under the Registration Act, 1908 or a partition effected by a decree of a Court and therefore, if an oral partition had taken place before 20 December 2004, such partition would not be saved either by the proviso to sub-section (1) or sub-section (5) of Section 6. It is, therefore, submitted that oral partition effected of coparcenary property even if effected in the year 1957, would not be saved and therefore Section 6 must be held to be retrospective with effect from 17 June 1956.

45. Though the argument may prima facie appear to be attractive, it does not recognize the distinction between an oral partition or partition by unregistered document which is not followed by partition by metes and bounds on the one RJ CRA 637 hand and oral partition or 47 of 72 SA.566.2011 partition by unregistered document which was acted upon by physical partition of the properties by metes and bounds and entries made in the public record about such physical partition by entering the names of sharers as individual owner/s in the concerned public record, (such as records of the Municipal Corporation or the Property Registers maintained by the Government) on the other hand. It is only where an oral partition or partition by unregistered document is not followed by partition by metes and bounds, evidenced by entries in the public records that a daughter would be in a position to contend that the property still remains coparcenary property on the date of coming into force of the Amendment Act. Thus for the Amended Section 6 to apply, not only the daughter should be alive on the date of commencement of the Amendment Act, but also the property should be coparcenary property on the date of the commencement of the Act i.e. 9 September 2005 or at least on 20 December 2004, when the Amendment Bill was introduced in Rajya Sabha. (emphasis supplied) 27] This legal position is further considered and confirmed by the Apex Court in the case of Prakash and ors v-s- Phulavati and ors [(20016) 2 SCC 36], and again in the case of Danamma @ Suman Surpur and anr -vs- Amar and ors [2018 SCC online SC 63]. In paragraph 22 of the judgment of this latest decision, it was RJ CRA 637 categorically held that the Proviso to Section 6(1) and sub section (5) of section 6 clearly intend to exclude the transactions referred to therein, which may have taken place prior to 20-12-2004 on which date the Bill was introduced. In paragraph No.22 and 23 it has been held that :-

(emphasis supplied) 28] Thus, as per legal position set out above, the partitions which have been effected before 20.12.2004 as per the law then applicable, are uneffected on account of Amendment in section 6 of the Act.

29] It is true that as per Explanation to Section 6(5), such partition must be made by execution of a deed of partition duly registered under the Registration Act, 1908 or a partition effected by a decree of a Court. In the present case, in the earlier suit, as stated above, it is categorically held by all the three Courts upto this Court, that the partition of ancestral joint family properties has already been effected and has also been acted upon in the year 1958 itself. Therefore, there is clearly a binding judicial pronouncement made in the earlier litigation, clinchingly holding that the partition of the ancestral landed property has been effected and acted upon in the year 1958 that is much prior to Amendment Actof 2005 came into effect or the Bill was introduced in the parliament on 20.12.2004.