In view of above discussion, in our view the correct legal position is that Section 6 as amended by the 2005 Amendment Act is retroactive in nature meaning thereby the rights under Section 6(1)(b) and (c) and under sub-Rule (2) are available to all daughters living on the date of coming into force of the 2005 Amendment Act i.e. on 9 September 2005, though born prior to 9 September 2005. Obviously, the daughters born on or after 9 September 2005 are entitled to get the benefits of Amended Section 6 of the Act under clause (a) of sub section (1). In other words, the heirs of daughters who died before 9 September 2005 do not get the benefits of amended Section 6.
IN THE HIGH COURT OF BOMBAY
Decided On: 14.08.2014
Appellants: Badrinarayan Shankar Bhandari etc. etc.
Vs.
Vs.
Respondent: Ompraskash Shankar Bhandari etc. etc.
Citation: 2014(5)CTC353, 2014(5)MhLj434,2014(5) ALLMR846 FB
(i) A prospective statute operates forwards from the date of its enactment conferring new rights on parties without reference to any anterior event, status or characteristic;
(ii) Retrospective statute, on the other hand, operates backwards, attaches new consequences, though for the future, but to an event that took place before the statute was enacted. It takes away vested rights. Substantive benefits which were already obtained by a party are sought to be taken away because of legislation being given effect to from a date prior to its enactment. The rules of interpretation of statute raise a presumption against such retrospective effect to a legislation. In other words, if the Legislature has not expressly or by necessary implication given effect to a statute from a date prior to its enactment, the Court will not allow retrospective effect being given to a legislation so as to take away the vested rights. Statutes enacted for regulating succession are ordinarily not applicable to successions which had already opened, as otherwise the effect will be to divest the estate from persons in whom it had vested prior to coming into force of the new statutes. (Muhammed Abdus Samad Vs. Qurban Hussain) ILR. 26 All 119 (129) P.C.
(iii) There is the intermediate category called "Retroactive Statute" which does not operate backwards and does not take away vested rights. Though it operates forwards, it is brought into operation by a characteristic or status that arose before it was enacted. For example, a provision of an Act brought into force on 1 January 2014, the Act applies to a person who was employed on 1 January 2014 has two elements:
(a) that the person concerned took employment on 1 January 2014-an event;(b) that the person referred to was an employee on that day-a characteristic or status which he had acquired before 1 January 2014. Insofar as the Act applies to a person who took employment on 1 January 2014, the Act is prospective. Insofar as the Act applies to a person who had taken employment before 1 January 2014, the Act is retroactive.
39. The first celebrated case in the intermediate category is R Vs. Inhabitants of St. Mary, Whitechapel 1848 (2)-QB-120 , wherein the Court was called upon to construe Section 2 of the Poor Removal Act, 1846, which provided that "no woman residing in any parish with her husband at the time of his death shall be removed from such parish, for twelve calendar months next after his death, if she so long continues a widow". In that case it was sought to remove a widow within twelve months from the date of the death of her husband who had died prior to the Act came into force; and it was argued that to apply the Act to such a case was to construe it retrospectively. In rejecting the contention, Lord Denman, C.J. made the following oft-quoted observations:
It was said that the operation of the statute was confined to persons who had become widows after the Act was passed, and that the presumption against a retrospective statute being intended supported this construction: but we have before shown that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing.(Emphasis supplied)
While the Indian cases in this category are catalogued in the "Principles of Statutory Interpretation" by Justice G.P. Singh (13th Edition 2012, Chapter 6, Pages 561-567), it is necessary to refer to the leading decision of the Constitution Bench of the Supreme Court in State of Jammu & Kashmir Vs. Triloki Nath Khosa MANU/SC/0401/1973 : (1974) 1-SCC-19 wherein the Court was called upon to examine the challenge to the service rules which after amalgamating different cadres of engineers into one class, prescribed Bachelor's Degree in Engineering as a qualification for promotion, though such qualification was not prescribed for promotion from the cadre of Assistant Engineers before amalgamation of cadres.
It was contended that requiring the Assistant Engineers already in service to possess such qualification for promotion amounted to making a retrospective rule. Turning down the challenge, the Supreme Court observed thus:
16. ... ... It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned Rules do not recall a promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the Rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have founded on the rock of retroactivity. But such is not the implication of Service Rules nor is it their true description to say that because they affect existing employees they are retrospective. ... ...
In the same vein, in Dilip Vs. Mohd. Azizul Haq and another MANU/SC/0181/2000 : (2000) 3-SCC-607, the Supreme Court observed, inter alia, as under:
9. ... ... We must bear in mind that the presumption against retrospective legislation does not necessarily apply to an enactment merely because a part of the requisites for its action is drawn from time antecedent to its passing. The fact that as from a future date tax is charged on a source of income which has been arranged or provided for before the date of the imposition of the tax does not mean that a tax is retrospectively imposed as held in Commrs. Of Customs and Excise Vs. Thorn Electrical Industries Ltd.(1975) 1-WLR-1661 . ......
40. A bare perusal of sub-section (1) of Section 6 would, thus, clearly show that the legislative intent in enacting clause (a) is prospective i.e. daughter born on or after 9 September 2005 will become a coparcener by birth, but the legislative intent in enacting clauses (b) & (c) is retroactive, because rights in the coparcenary property are conferred by clause (b) on the daughter who was already born before the amendment, and who is alive on the date of Amendment coming into force. Hence, if a daughter of a coparcener had died before 9 September 2005, since she would not have acquired any rights in the coparcenary property, her heirs would have no right in the coparcenary property. Since Section 6(1) expressly confers right on daughter only on and with effect from the date of coming into force of the Amendment Act, it is not possible to take the view being canvassed by learned counsel for the appellants that heirs of such a deceased daughter can also claim benefits of the amendment.
41. Learned counsel for the appellants would, however, vehemently submit that because the Legislature has provided to ignore partitions other than partitions effected by registered deeds or decrees of the Court, the amendment was intended to be retrospective and would apply even to a daughter who died before 9 September 2005 and ignoring all partitions (other than those effected by registered deeds or decrees of Court), the coparcenary properties which existed on 17 June 1956 will continue to be coparcenary properties in which the daughter of the coparcener or the heirs of the deceased daughter will get rights with effect from 9 September 2005. Reference is also made to the decision of Division Judge of Karnataka High Court in Pushpalatha case (supra) MANU/KA/0124/2010 : AIR-2010-Karnataka-124.
42. Two conditions necessary for applicability of Amended Section 6(1) are:
(i) The daughter of the coparcener (daughter claiming benefit of amended Section 6) should be alive on the date of amendment coming into force;(ii) The property in question must be available on the date of the commencement of the Act as coparcenary property.
Proviso to Section 6(1) reads as under:-
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, 2004.43. It is significant to note that amended Bill was introduced in Rajya Sabha on 20 December 2004 and therefore Parliament saved all dispositions or alienations including partition and testamentary disposition of property, which had taken place before introduction of the Bill in Rajya Sabha, but even registered partition deeds and the partitions obtained by decree of Court after 20 December 2004 are not saved. Otherwise some people might have executed such registered partition deeds or obtained collusive decrees of the Court between 20 December 2004 and 8 September 2005 to deprive daughters of their rights in the coparcenary property by removing the property in question from the stock of coparcenary property, thus changing the nature of the property by such device.
Similarly, sub-section (5) of Section 6 makes it clear that nothing in amended section shall apply to a partition which was effected before 20 December 2004.
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 hand and oral partition or 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 atleast on 20 December 2004, when the Amendment Bill was introduced in Rajya Sabha.
46. Learned counsel for the appellants submitted that Section 3 of the Amendment Act 2005 substituted Section 6 of the Principal Act and therefore strong reliance is placed upon the decision of the Supreme Court in Zile Singh vs. State Of Haryana & Others MANU/SC/0876/2004: (2004) 8-SCC-1 in support of the contention that a substitution results not only in old rule ceasing to exist but also that new rule is brought into existence in place of the earlier rule. It is, therefore, contended that the daughter of the coparcener has equal right in the coparcenary property, as if she had been the son right from June 1956 and not merely from 9 September 2005 when the Amendment Act came into force. It is contended that amended Section 6would, therefore, cover all coparcenary property except that which was covered by any testamentary dispossession or alienation including any partition, provided such partition was made by the execution of the deed of partition duly registered under the Registration Act 1908 or partition effected by the decree of the Court.
47. We have serious doubt about the above contention advanced on behalf of the appellants for more than one reason. In the first place, though Section 3 of the Amendment Act of Hindu Succession (Amendment) Act 2005 has substituted with effect from 9 September 2005, erstwhile Section 6by the new Section 6, it cannot be said that the new Section 6 relates back to 17 June 1956, when the Principal Act came into force. In fact, sub-section (1) of amended Section 6 opens with the specific words "On and from the commencement of the Hindu Succession (Amendment) Act, 2005". Secondly, sub-section (3) of Section 6 also opens with the words "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 and not by survivorship ... ...". Amended Section 6 no where provides as to what is to happen to a case where Hindu died before commencement of 2005 Amendment Act. Obviously, Legislature did not intend to leave any vacuum for the period prior to 9 September 2005 when the Amendment Act came into force. Case of a Hindu, who died prior to 9 September 2005 continues to be governed by pre-amended Section 6.
48. For all these reasons, it is not possible to accept the contention urged on behalf of the appellants that the Amendment Act 2005 is retrospective in nature and that it relates back to 17 June 1956 when the Principal Act came into force, so as to unsettle all the partitions which were not effected by decrees of Court or registered documents even if executed prior to 20 December 2004.
The learned counsel for the Appellants went so far as to contend that the retrospective effect of the Amendment Act of 2005 would even set at naught all notional partitions under the proviso to Section 8 of the pre-amended Principal Act if such notional partition is not followed by partition by metes and bounds. We are not impressed because the Amendment Act of 2005 affects partitions inter vivos which were effected without decree of Court or by registered partition deed. There is nothing in the Amendment Act to indicate that statutory partitions are rendered nugatory. In case of statutory partition, there would be no possibility of any contrived or got up partition.
49. To conclude this debate, we would like to quote the following statement of law made by Staughton LJ in Secretary of State for Social Security Vs. Tunnicliffe (1991) 2-ALL-ER-712 :
In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree. The greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.
The above statement of law was reiterated by House of Lords in L'Office Cherifien Vs. Yamashita Limited (1994) 1-ALL ER-20 , wherein Lord Mustill explained the rule of presumption against retrospectivity in following words:
...... ... rule is none more than simple fairness, which ought to be the basis of every legal rule. True it is that to change the legal character of a person's acts or omissions after an event will very often be unfair; and since it is rightly taken for granted that Parliament will rarely wish to act in a way which seems unfair it is sensible to look very hard at a statute which appears to have this effect, to make sure that this is what Parliament really intended. This is, however, no more than common sense, the application of which may be impeded rather than helped by recourse to formulae which do not adopt themselves to individual circumstances, and which tend themselves to become the subject of minute analysis, where what ought to be analysed is the statute itself.(emphasis supplied)
50. We will now deal with the arguments which appealed to the Division Bench in Ganorkar's case the first being Title to amended Section 6"Devolution of interest in coparcenary property". The Division Bench laid great emphasis on the said marginal note to come to the conclusion that even on or after 9 September 2005, unless the coparcener died and his succession opened, there is no devolution of interest and hence no daughter (born before 9 September 2005) of such coparcener would be entitled to become a coparcener or to have rights or liability in the coparcenary property alongwith son of such coparcener.
51. While earlier legal position was that the marginal note appended to the section cannot be referred to for the purposes of construing the statute, even now, the settled legal position is that marginal note cannot control or obstruct the meaning of the body of the section, when the language of the section is clear and unambiguous (Dilawar Balu Karane Vs. State of Maharashtra MANU/SC/0005/2002 : (2002) 2-SCC-135 and Union of India Vs. National Federation of Blind MANU/SC/1025/2013 : (2013) 10-SCC-772).
52. It is necessary to note that the pre-amended Section 6 dealt only with the devolution of the property on the death of the coparcener and therefore the marginal note to pre-amended Section 6 was "Devolution of interest in coparcenary property". However, in the amended Section 6, only sub-section (3) provides for devolution of property upon the death of the coparcener. In other words, sub-section (1) of pre-amended Section 6 has been converted into sub-section (3) of the Amended Section 6 with certain modification. But sub-section (1) of Section 6 is entirely new provision, which confers new rights on a daughter of coparcener without contemplating death of the coparcener. It appears to be sheer inadvertence on the part of the draftman of the Amendment Act, 2005 that marginal note of Section 6 is not amended, though Parliament drastically amended existing law on the subject, by conferring on crores of daughters rights in the coparcenary property, even without reference to death of the coparcener in sub-section (1) & sub-section (2) of the Amended Section 6.
53. In view of above discussion, in our view the correct legal position is that Section 6 as amended by the 2005 Amendment Act is retroactive in nature meaning thereby the rights under Section 6(1)(b) and (c) and under sub-Rule (2) are available to all daughters living on the date of coming into force of the 2005 Amendment Act i.e. on 9 September 2005, though born prior to 9 September 2005. Obviously, the daughters born on or after 9 September 2005 are entitled to get the benefits of Amended Section 6 of the Act under clause (a) of sub section (1). In other words, the heirs of daughters who died before 9 September 2005 do not get the benefits of amended Section 6.
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