Similar is the consequence of the words "shall become"...a coparcener in the amended Section 6 of the HSA. This becoming of a coparcener cannot take away vested rights prior to the legislation being brought into effect.
1. The appellants (original plaintiffs) are the daughters of respondent No.1 (original defendant No.1). Respondent No.2 (original defendant No. 2) is the bank from which respondent No.1 has taken a loan which has not been repaid. Respondent No.2 has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Securitisation Act).
2. The appellants have sued to protect the share that they claim in the property mortgaged to the bank by respondent No.1. They claim 2/3rd share therein as coparceners of the Hindu Undivided Family (HUF) consisting of themselves and respondent No.1. As the daughters of 2 APPL.734.2011-NM.3223.11-S.2679.11.sxw
respondent No.1 they claim in the capacity as coparcener under the amended Section 6 of the Hindu Succession Act 1956 (HSA) which came to be substituted by the Hindu Succession (Amendment) Act 2005 (39 of 1956) which came into effect from 9 September 2005 (HSA).
3. Upon the creation of the mortgage in respect of the suit property, which is a residential flat of respondent No.1 by respondent No.1 alone in favour of respondent No.2, the provisions of Securitisation Act would apply to respondent No.1. For the orders passed under Section 14 of the Securitisation Act in respect of the rights of respondent No.2 as the secured creditor under Section 13(4) of the Securitisation Act the appellants, who claim 2/3rd right, title and interest in the mortgaged property, would not be able to file an appeal under Section 17 thereof. Hence the suit.
4. Under the impugned order the learned Judge has considered what transpired between respondent Nos.1 and 2 in respect of the loan which was secured under the Act. That aspect need not be considered to see whether the appellants have a cause of action to sue i.e., whether the appellants have an enforceable right in the suit property. The arguments in the Appeal have also proceeded only upon the basis of that right. If the appellants are shown to be even prima facie entitled to claim, and hence to protect, their 2/3rd share as coparceners in the HUF stated to be consisting of the appellants and the respondent No.1, the appellants would have a right to claim an ad-interim injunction in respect of such share. If the appellants cannot show any right in law as coparceners of the HUF of the appellants and respondent No.1 no ad-interim relief can be granted to the appellants in their suit.
5. The appellants' case for claiming 2/3rd right in the suit property is upon the fact that the suit property is purchased from the nucleus of the
HUF initially constituted by their grandfather who in turn acquired a property upon partition with his father (the appellants' great grandfather one Mahadevo).
6. Mahadevo had 3 sons Keshavrao, Vasudeo and Pundalik. Keshavrao is the appellants' grandfather. A partition took place of the properties of Mahadevo in 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.56A at Amravati. Keshavrao's family consisted of his wife Taramati and his 4 children amongst whom was the appellants' father, respondent No.1 herein. Their aforesaid joint family properties under an oral partition between the members of the family and the respondent No.1 is stated to have been paid a share in the proceeds. From those proceeds respondent No.1 is stated to have purchased a flat being flat No.18 in Pankaj Mansion, Dr. Annie Besant Road, Worli, Mumbai-400 025. Respondent No.1 sold that flat to purchase the suit property. Respondent No.1 created an equitable mortgage of the suit property for securing a cash-credit facility in respect of the company in which he was a Director being M/s. Sequoia Marketing Pvt. Ltd. The loan was not repaid. Notice under Section 13(2), followed by a fresh notice of sale came to be issued by respondent No.2 and challenged by respondent No.1 in the DRT and the DRAT without success. Respondent No.1 was directed to deposit Rs.1.5 crores at the time of the filing of the appeal before the DRAT which was followed by an order for deposit of Rs.1 crore in a Writ Petition filed by the respondent No.1 which despite an application for extension of time filed and withdrawn was not deposited and after which this suit came to be filed by the appellants claiming their 2/3rd share in the suit property.
7. This appeal is not even concerned with the alleged lack of bonafides of the appellants' claim in the suit. This appeal is argued and would have 4 APPL.734.2011-NM.3223.11-S.2679.11.sxw
to be decided upon the main premise of the appellants' right in law in the suit premises.
8. This right, if at all, would accrue under Section 6 of the Hindu Succession Act 2005 which runs thus:
"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."
9. The Section is required to be dissected for interpretation. The subtitle of the section relates to devolution of interest in coparcenary property. The interest devolves upon succession. Such devolution may be upon intestate or testamentary succession. The entitlement of a daughter of a coparcener is, therefore, upon devolution and not without any such cause since devolution is only upon succession. The succession would open on a given day. It would, therefore, open only upon the death of the coparcener. Until that time the coparcener, to constitute the coparcenary of which he is a coparcener, must be a member in HUF consisting of other coparceners. In the present case admittedly aside from the appellants there 5 APPL.734.2011-NM.3223.11-S.2679.11.sxw
has been no other coparcener of respondent No.1.
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 HSA came into effect from 9 Septemeber 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, be on and from 9 September 2005.
11. No interest can devolve in a coparcenary property except on the death of the coparcener. In this case there has been no devolution of interest by any succession, testamentary or intestate, because no coparcerner (assuming that respondent No.1 was a coparcener with another in his HUF) has been deceased. The share in the coparcenary, therefore, cannot "devolve" upon anyone. The succession, therefore, has not yet, opened. The suit is, therefore, premature. The appellants, as the daughters of the coparcener, are not statutorily given any right as coparceners ipso facto before devolution of any interest.
12. Meaning of the word "devolve" in Oxford English Dictionary is: (i) transfer power to a lower level,
(ii) pass to a deputy or to a successor
It originates from the Latin word devolver - meaning "roll down"
The Concise Oxford English Dictionary shows the meaning of the word "devolve" to be "thrown, fall, descend upon, fall by succession" 6 APPL.734.2011-NM.3223.11-S.2679.11.sxw
The meaning of the devolve in the Chambers Dictionary (20th Edition) is shown as "to roll down, to hand down, to deliver over, to fall or passover in succession".
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 alongwith 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.
15. It is contended on behalf of the appellants that Section 6 of the amendment Act is retrospective in operation and hence all daughters of all coparceners would have the interest devolved upon them even if they were born prior to the amendment Act and even if the succession opened earlier than the amendment Act. We may mention that this is not a case of succession at all. It is contended on behalf of the appellants that any daughter born even prior to the amendment Act would be a coparcener as to have an equal, undivided interest in the coparcenery properties.
16. This contention is made wholly disregarding the subtitle of the 7 APPL.734.2011-NM.3223.11-S.2679.11.sxw
section. The subtitle of a section is required to be considered in the interpretation of the section and hence the devolution of the interest is condition precedent for any claim in coparcenary interest.
17. Even de hors the subtitle the section is required to be interpreted to see whether a daughter of a coparcener would have an interest in the coparcenery property by virtue of her birth in her own right prior to the amendment Act having been brought into effect. It may be mentioned that prior to the amendment Act (aside from the State Amendment Act of 1995 which amended Section 29 of the HSA) indeed the daughter was not a coparcener; she had no interest in a coparcenery property. She had, therefore, no interest by virtue of her birth in such property. This she got only "on and from" the commencement of the amendment Act i.e, on and from 9 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 past participle. It involves only the future tense. Consequently, by the legislative amendment contained in the amended Section 6 the daughter shall be a coparcener as much as a son in a coparcenery property. This right as a coparcener would be by birth. This is the natural ingredient of a coparcenery interest since a coparcenery interest is acquired by virtue of birth and from the moment of birth. This acquisition (not devolution) which until the amendment Act was the right and entitlement only of a son in a coparcenary property, was by the amendment conferred also on the daughter by birth. 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 8 APPL.734.2011-NM.3223.11-S.2679.11.sxw
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.
18. Similarly in sub clause (a) of the amended Section 6 the word "become" 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 sub clause A of Section 6 would have been instead "was".
19. Reading the operative part of the section alongside the sub clause (a) shows that the daughter "shall become" a coparcener by virtue of her birth in a coparcenery property. This future tense is consistent with the operative words "on and from". Hence on and from 9 September 2005 a daughter shall become a coparcener in a coparcenery property by birth. The words "was" or "had been" etc., would be inconsistent with the words "on and from".
20. The words "on and from" are indeed unique. They show the date from which the amendment would come into effect. The footnote of the section itself shows w.e.f 9 September 2005 hence on and w.e.f 9 September 2005 a daughter shall become a coparcener in coparcenery property by virtue of her birth. That would be acquisition of interest in a coparcenery property though not devolution.
21. Similarly in the latter part of the section after sub clause (c) the reference to a Hindu Mitakshara coparcener which would be deemed to include the daughter is also in the future tense denoted by the words "shall 9 APPL.734.2011-NM.3223.11-S.2679.11.sxw
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 copercener in a Hindu Mitakshara family would be shown to have been deemed "always have included" a reference to the daughter of a coparcener.
22. The section further contains a proviso. The proviso is to prevent mischief of application of the section to nonapplicable cases, precisely the kind of mischief that is made in the suit of the appellants themselves. The section has a limited effect. That is because for as many as about 50 years after the HSA came into force in 1956 various Hindu families having coparcenery property could have made various dispositions and alienations which had to be saved. Under the proviso any disposition including a testamentary disposition and any alienation including a partition made prior to 20 December 2004 (presumably when the Act was tabled in Parliament and which was only about 9 months prior to the coming into force of the amendment Act) were saved from the effect of the section. Hence for such disposition and alienation made prior to 20 December 2004 the daughter of the copercener would not be entitled to claim her interest in the coparcenery property.
23. In this case the alienation was made by the respondent No.1, the father of the appellants, in 2008 by creation of the equitable mortgage in favour of the respondent No.2. Hence, if otherwise the appellants would be covered by Section 6 the alienation by the equitable mortgage created by respondent No.1 would not come in their way.
24. The express words in the section clearly indicate the intention of the legislature to make daughters coparceners in coparcenery property on and 10 APPL.734.2011-NM.3223.11-S.2679.11.sxw
from the date the amendment Act came into force. The Act also clearly shows that from that date they shall become coparceners with the same rights and liabilities and the reference to the Mitakshara would also be reference including the daughter from then on. The express provisions in the Act are, therefore, inconsistent with any retrospectivity.
25. 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 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.
26. The rights of a coparcener vest in him/her upon an interest devolving upon such coparcener. This interest would devolve by succession, intestate or testamentary. Upon the death of a coparcener his interest in a coparcenery property would devolve upon other coparceners. This devolution under the unamended Section 6 of the HSA was by survivorship in case of only male heirs and by succession, if there were female heirs also. After the amended Section 6 this devolution of interest would be upon the son and the daughter alike.
27. A reading of Section as a whole would, therefore, show that either the devolution of legal rights would accrue by opening of a succession on or after 9 September 2005 in case of daughters born before 9 September 2005 or by birth itself in case of daughters born after 9 September 2005 upon them.
11 APPL.734.2011-NM.3223.11-S.2679.11.sxw
28. The prospectivity of the Act is clear. It is not made expressly retrospective by the legislature. Further it has specified not to effect transactions prior to the specified date in the proviso. Even the intention of the legislature in keeping in tact the rights vested upon any disposition or alienation is clear and hence further supports the mischief that the amendment Act sought to remedy and the mischief that it sought to prevent. The mischief that was remedied was the discrimination between the daughter and a son in a legislation that was enacted 6 years after the coming into force of the Constitution of India which granted equal rights to all persons irrespective of their sex. The discrimination prevailed for 50 years despite the constitutional mandate of equality. The mischief that it sought to prevent was precisely a kind of mischief that the appellants have sought to create. Though alienation prior to the specified date, which was also 9 months prior to the coming into force of the Act, have been excepted, all daughters born well prior to the coming into force of the amendment Act (and in this case the date of birth of the appellant is neither known nor shown), would seek to be included to undo transactions of other members of the coparcenary either before any succession opened and only mere virtue of their birth. The mischief would be precisely that. It would set at naught the rights vested in a son or in any other coparcener when the unamended Act was not in force. It would seek to undo transactions entered into by those coparceners with third parties, such as respondent No.2 Bank in this case. It would not be known to respondent No.2 at the time the equitable mortgage was created that any part of the mortgaged property would be let off consequent upon a subsequent claim by the daughters of the mortgagors who were not known to the Bank or shown to be coparceners.
29. The aspect of the retrospectivity has been considered by the Supreme Court as well as other Courts. In the case of Sugalabai Vs. 12 APPL.734.2011-NM.3223.11-S.2679.11.sxw
Gundappa A. Maradi & Ors. ILR 2007 KAR 4790 the words "on and from" came to be considered and interpreted in paragraph 24. It was observed that it meant "immediately and after". Hence immediately and after the commencement of the Act the daughter of a coparcener became by birth a coparcener in her own right as the son.
The observation in that judgment that there was nothing in the Act which showed that only those born on and after the commencement of the Act would become coparceners would run counter to the aforesaid dissection of the section by the words "shall become".
30. The judgment in the case of Pravat Chandra Pattnaik & Ors. Vs. Sarat Chandra Pattnaik & Anr. AIR 2008 Orissa 133 showed that Section 6 of the amendment Act created a new right and the provisions were not expressly made retrospective by the legislature. The Act is clearly without any ambiguity and, therefore, the words could not be interpreted. They do not bear more than one meaning and the act was, therefore, held to be prospective creating a substantive right for a daughter and hence it was held that the daughter got rights of the coparcener from the date when the amended Act came into force.
Despite the contention that only the daughters who are born after 2005 would be treated as coparceners was not accepted, it was clarified that the daughter would have a right to be coparcener from 9 September 2005 whenever she was born and she could claim partition of the property which was not partitioned earlier. This aspect also loses sight of the subtitle of the Section which deals with only "devolution" of interest in case of such daughter born before 9 September 2005. These judgments, therefore, do not commend to us.
13 APPL.734.2011-NM.3223.11-S.2679.11.sxw
31. The Hindu Succession Act is an Act 1956 to amend and codify the law relating to the intestate succession of Hindus. It brought about changes in the law of succession amongst the Hindus and give rights which were until then unknown in relation to the women's property. The Act of 1956, however, did not interfere with the members of Hindu Mitakshara coparcenery. It was that provision that the amendment Act of 2005 sought to further codify. It applied to all Hindus belonging to any coparcenery and laid down special provisions for the daughters of a coparcener upon devolution of interest under Section 6 of the Act removing the discrimination on the ground of gender against such daughters and to render social justice to women.
32. Relating to devolution of interest, the opening of a succession came to be considered as the focal point by the Supreme Court in the case of Sheela Devi & Ors. Vs. Lal Chand & Anr. (2006) 8 SCC 581 followed thereafter in the case of G. Sekar Vs. Geetha & Ors. (2009) 6 SCC 99. It was held that the date of the opening of the succession was the relevant date and if succession opened prior to the amendment Act of 2005 the provisions of the amendment Act would have no application because rights under the succession would vest upon the successors from the date the succession opened. Paragraph 49 of the judgment in the case of G. Sekar Vs. Geetha & Ors. (2009) 6 SCC 99 extracts paragraph 21 of the judgment in the case of Sheela Devi (supra) and observes that the amendment Act had no application to the succession which opened prior to the coming into force of the Act despite the word "negative" therein.
33. In the case of Champabai W/o. Darshrathsingh Pardeshi & Ors. Vs. Shamabai @ Shamkuwarbai Gajrajsingh Pardeshi & Anr. 2010 (3) ALL MR 262 this Court similarly considered the year when the succession opened and observed that the division of shares was made 14 APPL.734.2011-NM.3223.11-S.2679.11.sxw
before when the amendment Act was not in force. In that case the shares devolved upon two sons by application of Section 6 r.w. Section 8 of the unamended HSA of 1956. Consequently, in the case of Miss. R. Kantha, d/o Doddarmaiah Reddy Vs. Union of India & Anr. AIR 2010 Karnataka 27 also that the provisions of the Act was held to be brought in force when the right of succession opened and not before. It was observed that the father of the petitioner in that case was alive and hence her right to succession as a coparcener had not opened. These are the judgments which must be accepted for the foundation they have laid.
34. We have been shown the judgment of the Division Bench of the Karnataka High Court in the case of Pushpalatha N. V. Vs. V. Padma AIR 2010 Karnataka 124 which has held that the section is retrospective and that all the daughters no matter when they were born and no matter when the succession opened were entitled to equal share along with the sons of the coparcener. The Court considered the law before the amendment, the mischief and the difficulty that the law did not provide for and the remedy therefor. In paragraph 15 of the judgment, the Court held that the construction "which would suppress the mischief and advance the remedy" and "which would suppress subtle inventions and evasions for continuance of the mischief" were to be upheld so that they would "add force and life to cure the remedy, according to true intent of the makers of the Act".
35. In paragraph 44 of the judgment the Court considered the settled rules of interpretation of the Statutes embedded in various judgments of the Supreme Court thus:
(a) statutory provisions of substantive rights are ordinarily 15 APPL.734.2011-NM.3223.11-S.2679.11.sxw
prospective.
(b) retrospective operation must be given only when it is made expressly or by necessary implication.
(c) the intention of the legislature has to be gathered from the plain words giving them a plain grammatical meaning. (d) if the legislation has two meanings, the meaning which preserves the benefits should be adopted.
(e) interpretation giving rise to absurdity or inconsistency should be discarded.
(See Mahadfolal Kanodia Vs. Administrator General of West Bengal AIR 1960 SC 936)
(a) It may be mentioned that Section 6 creates substantive rights in favour of a daughter as a coparcener; it would, therefore, be ordinarily prospective.
(b) there are no express words showing retrospective operation in the Statute and in fact the express words are "on and from" denoting prospectivity.
(c) the plain normal grammatical meaning of the words "shall become" and "shall be deemed" shows the future tense and the total absence of any past participle. The words must be given the grammatical meaning as per the grammatical tense.
(d) The section is incapable of two meanings; it cannot mention that all the daughters born before the amendment would be included and that only daughters born after the amendment would be included.
Since two meanings are not contemplated, it would rule out interpretations which are required in legislations which are capable of two meanings.
16 APPL.734.2011-NM.3223.11-S.2679.11.sxw
(e) The absurdity of making all the daughters born before or after the commencement of the amendment Act included in the amendment Act would not only be directly against and diametrically different from the express provision of making the section applicable to daughters who shall be coparceners by birth only on and after the amendment, but would make the applicability of the Act so all-perversive that the entire populace who are Hindus and have any HUF property of the family would be encompassed setting at naught various transactions entered in to by coparcerners creating vested rights as in this case.
36. It may be mentioned that in the case of Sadashiv Sakharam Patil & Ors. Vs. Chandrakant Gopal Desale & Ors. in Appeal from Order No. 265 of 2011 and other related appeals the single Judge of this Court had to contend with a claim of the heirs of the deceased daughter who claimed to be a coparcener seeking to include even daughters who have been deceased prior to the amendment! Hence the interpretation of retrospectivity would promote the mischief of dishonest litigations by claiming an interest in a coparcernery property hitherto never claimed, as in this case, rather than suppress the mischief of discrimination.
The observation in paragraph 52 of the judgment in the case of Pushpalatha (supra) relates to when the daughter would get the right under the amended Section 6 of the Act shows that it was by birth "leaving no scope for interpretation". The further observation in paragraph 53 of the judgment is that such a right is given to a daughter born after 1956.
If the Act was restrospective 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 17 APPL.734.2011-NM.3223.11-S.2679.11.sxw
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.
37. We may mention that in the extensive reading of the judgment which exudes nobility, we are in agreement with each of the observations discussed therein, but for the retrospectivity in its interpretation in view of our interpretation of the Section as set out hereinabove.
38. We may appreciate the aspect of retrospectivity upon analysing some other legislative provisions.
The Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)(JJ Act) was enacted to consolidate the law relating to juveniles in conflict with the law and children in need of care and protection in consonance with the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 29 November 1989 brought into force from 1 April 2001. The Juvenile Justice (Care and Protection of Children) Amendment Act 2+006 (J.J.Act 2006) received the assent of the President of India on 22 August 2006 and was published in the Government Gazette dated 23 August 2006.
39. In the case of Bijender Singh Vs. State of Haryana AIR 2005 SC 2262 the Supreme Court considered the perspectivity of the J.J.Act, 2000. It noted that the appointed date of the Act being 1 April 2001 was the date 18 APPL.734.2011-NM.3223.11-S.2679.11.sxw
from which the provisions of the Act would come into force. "the act, thus is prospective in its operation".
It can be seen that the Supreme Court considered the prospectivity by virtue of the fact that the legislature expressly specified the date from which the amended Act would come into force. It, therefore, held that the amended Act would come into force from that date and not from an earlier date. In para 11 of the Judgment the Supreme Court observed that the purpose of such Act would have to be seen and the act cannot be extended beyond the purpose for which it is created, or beyond the language of the provision by which it is created. The Supreme Court, therefore, concluded that a person below the age of 18 years on 1 April 2001 would be taken to be a juvenile under Section 20 of the J.J. Act 2000 and held that for the purpose of attracting Section 20 of the Act a person must be of the age of 18 years and the proceeding against him must be pending in the Court.
Though observing in paragraph 14 of the judgment that Section 20 of the J.J. Act 2000 did not take away any vested right in a person, but only granted additional protection to a person as a juvenile, it held that the Act was prospective.
40. In the amended J.J. Act 2006 the meaning of adoption was inserted by way of Section 2(aa). This definition came into effect from 22 August 2006. Section 41 of the Act was also similarly amended by which Section 42(2) came to be substituted for the earlier section. Consequently, adoption was allowed as a mode of rehabilitation in respect of all children who were orphaned, abandoned or surrendered. The adoption which was not made available until then to all non-Hindus came to be made available to them. The Legislature set out the date from which the amended provision would come into effect. Such would be a prospective legislation 19 APPL.734.2011-NM.3223.11-S.2679.11.sxw
which cannot be effectuated prior to that date.
41. The definition "Juvenile in conflict with law" under Section 2(l) in the J.J. Act was also amended by the Amending J.J. Act 2006 such as to specify the age of juvenility as on the date of the commission of the offence. The age was increased from 16 years to 18 years in respect of both male and female children in conflict with law. This definition specifying the age of juvenility also came into effect from 22 August 2006, substituting the definition of "Juvenile in conflict with Law" under the Juvenile Justice Act, 2000 which was brought into effect from 1 April 2001.
42. In the J.J. Act 2006 a specific provision under Section 1(4) was made for the applicability of the amending Act to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with the law thus:
" 1. Short title, extent [commencement and application] - (4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law.
Further special provision in respect of pending cases was made under Section 20 thus:
" 20. Special provision in respect of pending cases - Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it 20 APPL.734.2011-NM.3223.11-S.2679.11.sxw
shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence:
[Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation. - In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.]"
43. Hence the legislation expressly laid down that pending cases under the J.J. Act were not affected by the J.J. Act 2006 for the continuance of the trial of the juvenile with specific procedure for the sentence in case of a finding of commission of the offence. The explanation amplified the extent of retrospectivity in the position with regard to the Act (which was the higher age as amended) to apply even to persons who had ceased to be juveniles even before the amending Act came into force.
44. In para 26 of the judgment in the case of Hari Ram Vs. State of Rajasthan & Anr. 2009(6) SCALE 698 the Supreme Court explained the explanation to Section 20 of the J.J. Act 2006 thus:
"The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of Clause(l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1st April, 2001, when the Juvenile Justice 21 APPL.734.2011-NM.3223.11-S.2679.11.sxw
Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000."
45. Such would be the express provision for a legislation to be held to be retrospective or retroactive in operation. In its absence, similar intent of the legislature must be at least latently apparent. That aspect is missing in the amended HSA. Experience such as the one in this case demonstrates the wisdom of the legislature in providing its ambit.
46. An entirely different perspective in interpretation can be seen in the enactment of the Benami Transactions (Prohibition) Act, 1988 (DTA). Under Section 1(3) of the DTA the provisions of Sections 3, 5 and 8 were expressly stated to come into force "at once" and the remaining provisions of the Act were "deemed to have come into force on 19 May 1988". The Act received the assent of the President of India on 5 September 1988. Section 3 prohibited Benami transactions. Section 5 declared that the property held Benami was liable to acquisition. Section 8 set out the power to make rules. These three sections would come into effect on the date of the proclamation i.e. 5 September 1988.
Section 4 would be more important to analyse. The relevant part of Section 4 reads thus:
"4. Prohibition of the right to recover property held benami. - (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the 22 APPL.734.2011-NM.3223.11-S.2679.11.sxw
property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property."
The legislation prohibited the right to recover property held Benami by filing a suit or by raising a defence in a suit filed by another. This Section was expressly stated to have come into effect on 19 May 1988. Under Section 4 of the DTA the legislature created two prohibitions:
Under Section 4(1) no suit to enforce any right in respect of any property held benami could be filed against the person in whose name the property was held by or on behalf of the person claiming to be the real owner of the property.
Under Section 4(2) No defence could be taken in any suit based on a right in respect of any property held benami against the person in whose name the property is held or any other person.
47. In the case of Mithilesh Kumari & Anr. Vs. Prem Behari Khare (1989) 2 SCC 95 the Supreme Court considered the retrospectivity and the retroactivity of the said legislation.
In paragraph 21 of the judgment the Supreme Court set out the fundamental rule of English law that no statute can be construed to have retrospective operation unless the construction appeared very clearly in the Act or by implication. In that Act it was expressly made retrospective from 19 May 1988 so far as Section 4 of the Act setting out the prohibition 23 APPL.734.2011-NM.3223.11-S.2679.11.sxw
for recovery of property was concerned.
48. The Supreme Court laid down that no such retrospective operation would be given to a Statute to impair an existing right or obligation unless the statute was in fact retrospective. The presumption against retrospective operation was held to be strong if it prejudicially effected vested rights or illegality of past transactions or impaired contracts or imposed new duty or attached new disability in respect of past transactions or for consideration already passed.
The Supreme Court also set out how the retrospectivity would have to be viewed. It would not be retrospective merely because a part of the requisition for its action is drawn from a time antecedent to its passing. It laid down what must be done to conclude its retrospective operation - we must look at the general scope and purview of the statute and at the remedy sought to be applied and consider what was a former state of the Law and what the legislation contemplated.
In our case the general scope and purview of the Amendment Act of 2006 is to make all daughters coparceners so as to devolve upon them the share in coparcenery property along with and as much as all sons. The remedy that it seeks to apply is to remove gender discrimination in such devolution of interest. Further it makes every daughter by birth a coparcener. The former law was that the daughter was not by birth a copercener and no interest in a coparcenery devolved upon her by succession, intestate or testamentary. The legislation contemplated that on and from 9 September 2005 the daughter would become a coparcener by birth for the devolution of interest in coparcenery property. The Act of 2006 received the assent of President on 5 September 2005 and was published in the Gazette of India on 6 September 2005. The amended
Section 6 was to come into effect expressly from 9 September 2005.
It can be seen that unlike the BTA which was expressly stated to have been "deemed to have come into force" from an anterior date being 19 May 1988, the amended HSA of 2006 was expressly brought into effect from the posterior date being 4 days after the proclamation i.e. 9 September 2005.
The effect of Sections 3 & 4 of the BTA came to be considered by the Supreme Court in paragraph 22 of the judgment in the case of Mithilesh Kumari (supra):
"Section 3, subject to the exceptions, states that no person shall enter into any benami transaction. This section obviously cannot have retrospective operation. However, Section 4 clearly provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie, by or on behalf of a person claiming to be real owner of such property. This naturally relates to past transactions as well. The expression "any property held benami" is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie. Similarly, sub-section (2) of Section 4 nullifies the defences based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami, the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words in its sweep Section 4 envisages past benami transactions also within its retroactivity. In this sense the Act is both a penal and a disqualifying statute."
The Supreme Court further considered the illustration of when a statute could be retroactive - the Representation of Peoples Act - under which all persons who attained 18 years of age were eligible to vote would
show that all persons who attained that age in the past before the law was enacted as also those who would attain that age when the law came into force would become equally eligible from the time they attained that age.
Besides it was held that for an act which is declaratory in nature the presumption against retrospectivity is not applicable. Consequently, declaratory statutes may be retrospective since they only declared. The Supreme Court observed that the BTA had only declared the effect of benami transactions. Hence the presumption against taking away vested rights would not apply; only the real owner would not be able to recover the property from the person in whose name the property stood.
In paragraph 23 of the judgment the Supreme Court further considered the words "shall lie" and "shall be allowed" in Sections 4(1) and 4(2) of the Act.
The Supreme Court held that these expressions show that the sections were prospective and would apply to suits pending on the date the section came into force.
49. Similar is the consequence of the words "shall become"...a coparcener in the amended Section 6 of the HSA. This becoming of a coparcener cannot take away vested rights prior to the legislation being brought into effect.
50. The retrospectivity of a legislation has been considered in acts which are expressly stated to have come into effect from a date anterior to the passing of the Bill. In the case of Shashibhusan Pati Vs. Mangala Biswal AIR 1953 Orissa 171 the Division Bench of the Orissa High Court considered the retrospectivity of Section 5 of The Orissa Tenants
Protection Act 1948. The Bill became law on 14 February 1948. The Act was enacted for the purpose of giving security of tenure to a particular backward tribe called Bhag-chasis. The Act was to come into force for protection of the land tenure of the persons from that community from 1 September 1947 if they were cultivating the land on that date. For granting such retrospectivity the legislation made an express provision as to the date from which the Act would come into effect.
Considering also the provisions of the West Bengal Rent Control (Amendment) Act 1950 which was held to be retrospective by the full Bench of the Calcutta High Court in the case of Iswari Prasad & Ors. Vs. N.R. Sen & Anr. AIR 1952 Calcutta 273, the Court considered that the provision of the Act being made applicable to pending cases so as to give it a retrospective effect would not be unreasonable because the Act did not affect vested rights and merely granted protection to Bhag-Chasis.
In the amended HSA mere protection is not granted to the daughters; they are given a substantive right to be treated as coparceners upon devolution of interest to them and even otherwise by virtue of their birth. This grant would effect vested rights, as in this case, when alienations and dispositions have been made. Hence retrospectivity such as to make the Act applicable to all the daughters born even prior to the amendment cannot be granted when the legislation itself specifies the posterior date from which the Act would come into force unlike the anterior date in the Orissa Tenants Protection Act 1948.
Even aside from the applicability of the Act from a given day, anterior or posterior to the enactment expressly made in the act, the retrospectivity of the act has been otherwise considered taking into account its effects. In the case of Securities & Exchange Board of .
(SEBI) Vs. Ajay Agarwal decided on 25 February 2010 the Supreme Court considered the applicability of Section 11B of The Securities and Exchange Board of India Act 1992 (SEBI Act 1992) under which the Board upon its satisfaction of necessity was empowered to issue directions to any person associated with the securities market or any company prohibiting or restraining them from carrying out various acts for which provision could be made by the Board under Section 11 of the Act. In that case the Board issued directions against the respondent restraining him from having any association with any Corporate Body in assisting the securities market and from buying, selling and dealing in securities upon a complaint of misstatement in the prospectus issued by the company of which he was a Joint Managing Director. It was contended on behalf of the respondent that those were wide powers which were sought to be used restrospectively for acts of alleged violations done before the provision came into effect by way of the amendment of 1995. It was observed that upon the violations alleged the respondent was given notice which he replied and was granted a personal hearing. The Court interpreted Section 11(2a) of SEBI Act which merely required the Board to regulate the business in stock exchanges and other market securities. The amendments of 1995 and 2002, which brought into on the statute book certain sub- sections of Section 11 from time to time, gave the Board power to restrain persons from accessing the securities market and being restrained from associating with the securities market to buy, sell and deal in securities. The Court considered the objections and reasons of the amending acts of 1995 and 2002 which was to meet the importance of the stock market in National Economy and deal with new demands thereon. The Court held that what the Board did was merely to restrain the respondent from doing a particular act and hence observed that it could not be said that the Board was empowered to act under the law. Its power would stand frozen in respect of the valuation which might have taken place prior to the
enactment of this provision. The board would, of course, exercise its powers only after the amendment Act came into force, but in respect of valuation made earlier so that the act could be applied restrospectively. The Court specifically held that Section 11(B) was procedural in nature and therefore, could be applied retrospectively "since none had vested right in any course of procedure".
The rights of a daughter such as to effect vested rights would be on a wholly different footing and, therefore, cannot be applied retrospectively.
51. The retrospectivity of The Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale Management and Transfer) Act 1963 (MOFA) was taken into account by the Supreme Court in the judgment in the case of M/s. Jayantilal Investments. Vs. Madhuvihar Co-operative Housing Society (2007) 9 SCC 220 in which Sections 7 & 7A of MOFA came to be analyzed together. Section 7 which was the original Section showed the requirement of obtaining the consent of all the flat purchasers in the Society for putting up any additional construction. The construction of additional buildings which were to be put up by the developer after the construction of the earlier buildings came to be challenged in the case of Kalpita Enclaves Vs. Kiran Builders Pvt. Ltd. 1986 MLJ 110. The resultant amendment to MOFA was the introduction of Section 7A which runs thus :
[7A. Removal of doubt - For the removal of doubt, it is hereby declared that clause (ii) of sub-section (1) of Section 7 having been retrospectively substituted by clause (a) of section 6 of the Maharashtra Ownership Flats (Regulations of the promotion of construction, sale management and transfer) (Second Amendment) Act, 1986 (Mah.XXXVI of 1986) (hereinafter in this section referred to as "the Amendment Act"), it shall be deemed to be effective as if the said clause (ii) as so substituted had been in force at all material
times; and the expression "or construct any additional structures" in clause (ii) of sub-section(1) of section 7 as it existed before the commencement of the Amendment Act and the expressions "constructed and completed in accordance with the plans and specifications aforesaid" and "any unauthorised change in the construction" in sub-section (2) of section 7 shall, notwithstanding anything contained in this Act or in any agreement, or in any judgment, decree or order or any Court, be deemed never to apply or to have applied in respect of the construction of any other additional buildings or structures constructed or to be constructed under a scheme or project of development in the layout after obtaining the approval of a local authority in accordance with the building rules or building bye-laws or Development Control Rules made under any law for the time being in force]"
52. The said Section 7A inserted by the amendment of 1986 expressly required no consent of the flat purchasers even of the earlier buildings which were constructed prior to the amendment Act coming into force for the construction of additional buildings to be constructed in a scheme of development in a layout. The purpose and object of the amendment itself mentions the judgment in the case of Kalpita (supra) as the reason for enacting the amending Act 36 of 1986 restospectively dealing with the restriction by which the promoter without obtaining the consent of the flat takers, in the agreed building could construct additional buildings shown in the layout plan. The thrust of the amendment was to allow construction of the FSI available under the byelaws then prevailing. Section 7A specifically sets out that the declaration in the amendment was necessitated only for removal of doubts and that the requirement of obtaining consent of flat purchasers was to be deemed never to have been there notwithstanding any judgment, decree or order of any Court. Such clearly expressed provision was aptly accepted to be retrospective in nature.
Such clarification is absent in the amended HSA. The new rights granted to a daughter which would effect vested rights would be on a 30 APPL.734.2011-NM.3223.11-S.2679.11.sxw
wholly different footing and, therefore, cannot be applied retrospectively.
53. We may mention that the suit of the appellants is essentially for a declaration that they are the owners of 2/3rd undivided interest in the suit flat, for declaration of nullity of the equitable mortgage created by respondent No.1 and for ancillary reliefs under the Securitisation Act. The suit wholly lacks bonafides and is instituted as a last resort by respondent No.1 who has put up his daughters with a dishonest intent to deny the claim of the Bank upon the alienation made since 2008 and which has progressed far into the rights created in favour of respondent No.2 Bank under the Securitisation Act (see Kanaiyalal Lalchand Sachdev & Ors. Vs. State of Maharashtra & Ors. (2011) 2 SCC 782).
54. The very premise upon which the appellants' suit is based is without merit. The appellants are not entitled to any ad-interim relief for protection of their alleged share in the suit premises. The impugned order analysing the provisions of the Securitisation Act and leaving open the case of coparcenary interest has observed the nucleus of the HUF funds and has granted ad-interim relief only upon the deposit of Rs.1.50 crores within 6 weeks of the date of the order and in default allowed respondent No.2 bank to initiate steps including the sale of the suit flat as permissible in law. We may mention, as has been argued before us, that the provisions of the Securitisation Act are irrelevant to be considered by us for grant of relief sought by the appellants claiming 2/3rd interest in the suit properties. The law as it stands upon the admitted facts show no such rights. Hence the appellants' appeal itself is dismissed. The grant of ad-interim relief is refused.
55. The appellants apply for stay of this order. The stay is granted for further period of 4 weeks upon the same condition put by the learned
single Judge in the impugned order directing the appellants to deposit in this Court Rs.1.50 crores within 4 weeks from today.
CHIEF JUSTICE
ROSHAN DALVI, J.
Print Page
Bombay High Court
2. The appellants have sued to protect the share that they claim in the property mortgaged to the bank by respondent No.1. They claim 2/3rd share therein as coparceners of the Hindu Undivided Family (HUF) consisting of themselves and respondent No.1. As the daughters of 2 APPL.734.2011-NM.3223.11-S.2679.11.sxw
respondent No.1 they claim in the capacity as coparcener under the amended Section 6 of the Hindu Succession Act 1956 (HSA) which came to be substituted by the Hindu Succession (Amendment) Act 2005 (39 of 1956) which came into effect from 9 September 2005 (HSA).
3. Upon the creation of the mortgage in respect of the suit property, which is a residential flat of respondent No.1 by respondent No.1 alone in favour of respondent No.2, the provisions of Securitisation Act would apply to respondent No.1. For the orders passed under Section 14 of the Securitisation Act in respect of the rights of respondent No.2 as the secured creditor under Section 13(4) of the Securitisation Act the appellants, who claim 2/3rd right, title and interest in the mortgaged property, would not be able to file an appeal under Section 17 thereof. Hence the suit.
4. Under the impugned order the learned Judge has considered what transpired between respondent Nos.1 and 2 in respect of the loan which was secured under the Act. That aspect need not be considered to see whether the appellants have a cause of action to sue i.e., whether the appellants have an enforceable right in the suit property. The arguments in the Appeal have also proceeded only upon the basis of that right. If the appellants are shown to be even prima facie entitled to claim, and hence to protect, their 2/3rd share as coparceners in the HUF stated to be consisting of the appellants and the respondent No.1, the appellants would have a right to claim an ad-interim injunction in respect of such share. If the appellants cannot show any right in law as coparceners of the HUF of the appellants and respondent No.1 no ad-interim relief can be granted to the appellants in their suit.
5. The appellants' case for claiming 2/3rd right in the suit property is upon the fact that the suit property is purchased from the nucleus of the
HUF initially constituted by their grandfather who in turn acquired a property upon partition with his father (the appellants' great grandfather one Mahadevo).
6. Mahadevo had 3 sons Keshavrao, Vasudeo and Pundalik. Keshavrao is the appellants' grandfather. A partition took place of the properties of Mahadevo in 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.56A at Amravati. Keshavrao's family consisted of his wife Taramati and his 4 children amongst whom was the appellants' father, respondent No.1 herein. Their aforesaid joint family properties under an oral partition between the members of the family and the respondent No.1 is stated to have been paid a share in the proceeds. From those proceeds respondent No.1 is stated to have purchased a flat being flat No.18 in Pankaj Mansion, Dr. Annie Besant Road, Worli, Mumbai-400 025. Respondent No.1 sold that flat to purchase the suit property. Respondent No.1 created an equitable mortgage of the suit property for securing a cash-credit facility in respect of the company in which he was a Director being M/s. Sequoia Marketing Pvt. Ltd. The loan was not repaid. Notice under Section 13(2), followed by a fresh notice of sale came to be issued by respondent No.2 and challenged by respondent No.1 in the DRT and the DRAT without success. Respondent No.1 was directed to deposit Rs.1.5 crores at the time of the filing of the appeal before the DRAT which was followed by an order for deposit of Rs.1 crore in a Writ Petition filed by the respondent No.1 which despite an application for extension of time filed and withdrawn was not deposited and after which this suit came to be filed by the appellants claiming their 2/3rd share in the suit property.
7. This appeal is not even concerned with the alleged lack of bonafides of the appellants' claim in the suit. This appeal is argued and would have 4 APPL.734.2011-NM.3223.11-S.2679.11.sxw
to be decided upon the main premise of the appellants' right in law in the suit premises.
8. This right, if at all, would accrue under Section 6 of the Hindu Succession Act 2005 which runs thus:
"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."
9. The Section is required to be dissected for interpretation. The subtitle of the section relates to devolution of interest in coparcenary property. The interest devolves upon succession. Such devolution may be upon intestate or testamentary succession. The entitlement of a daughter of a coparcener is, therefore, upon devolution and not without any such cause since devolution is only upon succession. The succession would open on a given day. It would, therefore, open only upon the death of the coparcener. Until that time the coparcener, to constitute the coparcenary of which he is a coparcener, must be a member in HUF consisting of other coparceners. In the present case admittedly aside from the appellants there 5 APPL.734.2011-NM.3223.11-S.2679.11.sxw
has been no other coparcener of respondent No.1.
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 HSA came into effect from 9 Septemeber 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, be on and from 9 September 2005.
11. No interest can devolve in a coparcenary property except on the death of the coparcener. In this case there has been no devolution of interest by any succession, testamentary or intestate, because no coparcerner (assuming that respondent No.1 was a coparcener with another in his HUF) has been deceased. The share in the coparcenary, therefore, cannot "devolve" upon anyone. The succession, therefore, has not yet, opened. The suit is, therefore, premature. The appellants, as the daughters of the coparcener, are not statutorily given any right as coparceners ipso facto before devolution of any interest.
12. Meaning of the word "devolve" in Oxford English Dictionary is: (i) transfer power to a lower level,
(ii) pass to a deputy or to a successor
It originates from the Latin word devolver - meaning "roll down"
The Concise Oxford English Dictionary shows the meaning of the word "devolve" to be "thrown, fall, descend upon, fall by succession" 6 APPL.734.2011-NM.3223.11-S.2679.11.sxw
The meaning of the devolve in the Chambers Dictionary (20th Edition) is shown as "to roll down, to hand down, to deliver over, to fall or passover in succession".
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 alongwith 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.
15. It is contended on behalf of the appellants that Section 6 of the amendment Act is retrospective in operation and hence all daughters of all coparceners would have the interest devolved upon them even if they were born prior to the amendment Act and even if the succession opened earlier than the amendment Act. We may mention that this is not a case of succession at all. It is contended on behalf of the appellants that any daughter born even prior to the amendment Act would be a coparcener as to have an equal, undivided interest in the coparcenery properties.
16. This contention is made wholly disregarding the subtitle of the 7 APPL.734.2011-NM.3223.11-S.2679.11.sxw
section. The subtitle of a section is required to be considered in the interpretation of the section and hence the devolution of the interest is condition precedent for any claim in coparcenary interest.
17. Even de hors the subtitle the section is required to be interpreted to see whether a daughter of a coparcener would have an interest in the coparcenery property by virtue of her birth in her own right prior to the amendment Act having been brought into effect. It may be mentioned that prior to the amendment Act (aside from the State Amendment Act of 1995 which amended Section 29 of the HSA) indeed the daughter was not a coparcener; she had no interest in a coparcenery property. She had, therefore, no interest by virtue of her birth in such property. This she got only "on and from" the commencement of the amendment Act i.e, on and from 9 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 past participle. It involves only the future tense. Consequently, by the legislative amendment contained in the amended Section 6 the daughter shall be a coparcener as much as a son in a coparcenery property. This right as a coparcener would be by birth. This is the natural ingredient of a coparcenery interest since a coparcenery interest is acquired by virtue of birth and from the moment of birth. This acquisition (not devolution) which until the amendment Act was the right and entitlement only of a son in a coparcenary property, was by the amendment conferred also on the daughter by birth. 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 8 APPL.734.2011-NM.3223.11-S.2679.11.sxw
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.
18. Similarly in sub clause (a) of the amended Section 6 the word "become" 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 sub clause A of Section 6 would have been instead "was".
19. Reading the operative part of the section alongside the sub clause (a) shows that the daughter "shall become" a coparcener by virtue of her birth in a coparcenery property. This future tense is consistent with the operative words "on and from". Hence on and from 9 September 2005 a daughter shall become a coparcener in a coparcenery property by birth. The words "was" or "had been" etc., would be inconsistent with the words "on and from".
20. The words "on and from" are indeed unique. They show the date from which the amendment would come into effect. The footnote of the section itself shows w.e.f 9 September 2005 hence on and w.e.f 9 September 2005 a daughter shall become a coparcener in coparcenery property by virtue of her birth. That would be acquisition of interest in a coparcenery property though not devolution.
21. Similarly in the latter part of the section after sub clause (c) the reference to a Hindu Mitakshara coparcener which would be deemed to include the daughter is also in the future tense denoted by the words "shall 9 APPL.734.2011-NM.3223.11-S.2679.11.sxw
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 copercener in a Hindu Mitakshara family would be shown to have been deemed "always have included" a reference to the daughter of a coparcener.
22. The section further contains a proviso. The proviso is to prevent mischief of application of the section to nonapplicable cases, precisely the kind of mischief that is made in the suit of the appellants themselves. The section has a limited effect. That is because for as many as about 50 years after the HSA came into force in 1956 various Hindu families having coparcenery property could have made various dispositions and alienations which had to be saved. Under the proviso any disposition including a testamentary disposition and any alienation including a partition made prior to 20 December 2004 (presumably when the Act was tabled in Parliament and which was only about 9 months prior to the coming into force of the amendment Act) were saved from the effect of the section. Hence for such disposition and alienation made prior to 20 December 2004 the daughter of the copercener would not be entitled to claim her interest in the coparcenery property.
23. In this case the alienation was made by the respondent No.1, the father of the appellants, in 2008 by creation of the equitable mortgage in favour of the respondent No.2. Hence, if otherwise the appellants would be covered by Section 6 the alienation by the equitable mortgage created by respondent No.1 would not come in their way.
24. The express words in the section clearly indicate the intention of the legislature to make daughters coparceners in coparcenery property on and 10 APPL.734.2011-NM.3223.11-S.2679.11.sxw
from the date the amendment Act came into force. The Act also clearly shows that from that date they shall become coparceners with the same rights and liabilities and the reference to the Mitakshara would also be reference including the daughter from then on. The express provisions in the Act are, therefore, inconsistent with any retrospectivity.
25. 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 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.
26. The rights of a coparcener vest in him/her upon an interest devolving upon such coparcener. This interest would devolve by succession, intestate or testamentary. Upon the death of a coparcener his interest in a coparcenery property would devolve upon other coparceners. This devolution under the unamended Section 6 of the HSA was by survivorship in case of only male heirs and by succession, if there were female heirs also. After the amended Section 6 this devolution of interest would be upon the son and the daughter alike.
27. A reading of Section as a whole would, therefore, show that either the devolution of legal rights would accrue by opening of a succession on or after 9 September 2005 in case of daughters born before 9 September 2005 or by birth itself in case of daughters born after 9 September 2005 upon them.
11 APPL.734.2011-NM.3223.11-S.2679.11.sxw
28. The prospectivity of the Act is clear. It is not made expressly retrospective by the legislature. Further it has specified not to effect transactions prior to the specified date in the proviso. Even the intention of the legislature in keeping in tact the rights vested upon any disposition or alienation is clear and hence further supports the mischief that the amendment Act sought to remedy and the mischief that it sought to prevent. The mischief that was remedied was the discrimination between the daughter and a son in a legislation that was enacted 6 years after the coming into force of the Constitution of India which granted equal rights to all persons irrespective of their sex. The discrimination prevailed for 50 years despite the constitutional mandate of equality. The mischief that it sought to prevent was precisely a kind of mischief that the appellants have sought to create. Though alienation prior to the specified date, which was also 9 months prior to the coming into force of the Act, have been excepted, all daughters born well prior to the coming into force of the amendment Act (and in this case the date of birth of the appellant is neither known nor shown), would seek to be included to undo transactions of other members of the coparcenary either before any succession opened and only mere virtue of their birth. The mischief would be precisely that. It would set at naught the rights vested in a son or in any other coparcener when the unamended Act was not in force. It would seek to undo transactions entered into by those coparceners with third parties, such as respondent No.2 Bank in this case. It would not be known to respondent No.2 at the time the equitable mortgage was created that any part of the mortgaged property would be let off consequent upon a subsequent claim by the daughters of the mortgagors who were not known to the Bank or shown to be coparceners.
29. The aspect of the retrospectivity has been considered by the Supreme Court as well as other Courts. In the case of Sugalabai Vs. 12 APPL.734.2011-NM.3223.11-S.2679.11.sxw
Gundappa A. Maradi & Ors. ILR 2007 KAR 4790 the words "on and from" came to be considered and interpreted in paragraph 24. It was observed that it meant "immediately and after". Hence immediately and after the commencement of the Act the daughter of a coparcener became by birth a coparcener in her own right as the son.
The observation in that judgment that there was nothing in the Act which showed that only those born on and after the commencement of the Act would become coparceners would run counter to the aforesaid dissection of the section by the words "shall become".
30. The judgment in the case of Pravat Chandra Pattnaik & Ors. Vs. Sarat Chandra Pattnaik & Anr. AIR 2008 Orissa 133 showed that Section 6 of the amendment Act created a new right and the provisions were not expressly made retrospective by the legislature. The Act is clearly without any ambiguity and, therefore, the words could not be interpreted. They do not bear more than one meaning and the act was, therefore, held to be prospective creating a substantive right for a daughter and hence it was held that the daughter got rights of the coparcener from the date when the amended Act came into force.
Despite the contention that only the daughters who are born after 2005 would be treated as coparceners was not accepted, it was clarified that the daughter would have a right to be coparcener from 9 September 2005 whenever she was born and she could claim partition of the property which was not partitioned earlier. This aspect also loses sight of the subtitle of the Section which deals with only "devolution" of interest in case of such daughter born before 9 September 2005. These judgments, therefore, do not commend to us.
13 APPL.734.2011-NM.3223.11-S.2679.11.sxw
31. The Hindu Succession Act is an Act 1956 to amend and codify the law relating to the intestate succession of Hindus. It brought about changes in the law of succession amongst the Hindus and give rights which were until then unknown in relation to the women's property. The Act of 1956, however, did not interfere with the members of Hindu Mitakshara coparcenery. It was that provision that the amendment Act of 2005 sought to further codify. It applied to all Hindus belonging to any coparcenery and laid down special provisions for the daughters of a coparcener upon devolution of interest under Section 6 of the Act removing the discrimination on the ground of gender against such daughters and to render social justice to women.
32. Relating to devolution of interest, the opening of a succession came to be considered as the focal point by the Supreme Court in the case of Sheela Devi & Ors. Vs. Lal Chand & Anr. (2006) 8 SCC 581 followed thereafter in the case of G. Sekar Vs. Geetha & Ors. (2009) 6 SCC 99. It was held that the date of the opening of the succession was the relevant date and if succession opened prior to the amendment Act of 2005 the provisions of the amendment Act would have no application because rights under the succession would vest upon the successors from the date the succession opened. Paragraph 49 of the judgment in the case of G. Sekar Vs. Geetha & Ors. (2009) 6 SCC 99 extracts paragraph 21 of the judgment in the case of Sheela Devi (supra) and observes that the amendment Act had no application to the succession which opened prior to the coming into force of the Act despite the word "negative" therein.
33. In the case of Champabai W/o. Darshrathsingh Pardeshi & Ors. Vs. Shamabai @ Shamkuwarbai Gajrajsingh Pardeshi & Anr. 2010 (3) ALL MR 262 this Court similarly considered the year when the succession opened and observed that the division of shares was made 14 APPL.734.2011-NM.3223.11-S.2679.11.sxw
before when the amendment Act was not in force. In that case the shares devolved upon two sons by application of Section 6 r.w. Section 8 of the unamended HSA of 1956. Consequently, in the case of Miss. R. Kantha, d/o Doddarmaiah Reddy Vs. Union of India & Anr. AIR 2010 Karnataka 27 also that the provisions of the Act was held to be brought in force when the right of succession opened and not before. It was observed that the father of the petitioner in that case was alive and hence her right to succession as a coparcener had not opened. These are the judgments which must be accepted for the foundation they have laid.
34. We have been shown the judgment of the Division Bench of the Karnataka High Court in the case of Pushpalatha N. V. Vs. V. Padma AIR 2010 Karnataka 124 which has held that the section is retrospective and that all the daughters no matter when they were born and no matter when the succession opened were entitled to equal share along with the sons of the coparcener. The Court considered the law before the amendment, the mischief and the difficulty that the law did not provide for and the remedy therefor. In paragraph 15 of the judgment, the Court held that the construction "which would suppress the mischief and advance the remedy" and "which would suppress subtle inventions and evasions for continuance of the mischief" were to be upheld so that they would "add force and life to cure the remedy, according to true intent of the makers of the Act".
35. In paragraph 44 of the judgment the Court considered the settled rules of interpretation of the Statutes embedded in various judgments of the Supreme Court thus:
(a) statutory provisions of substantive rights are ordinarily 15 APPL.734.2011-NM.3223.11-S.2679.11.sxw
prospective.
(b) retrospective operation must be given only when it is made expressly or by necessary implication.
(c) the intention of the legislature has to be gathered from the plain words giving them a plain grammatical meaning. (d) if the legislation has two meanings, the meaning which preserves the benefits should be adopted.
(e) interpretation giving rise to absurdity or inconsistency should be discarded.
(See Mahadfolal Kanodia Vs. Administrator General of West Bengal AIR 1960 SC 936)
(a) It may be mentioned that Section 6 creates substantive rights in favour of a daughter as a coparcener; it would, therefore, be ordinarily prospective.
(b) there are no express words showing retrospective operation in the Statute and in fact the express words are "on and from" denoting prospectivity.
(c) the plain normal grammatical meaning of the words "shall become" and "shall be deemed" shows the future tense and the total absence of any past participle. The words must be given the grammatical meaning as per the grammatical tense.
(d) The section is incapable of two meanings; it cannot mention that all the daughters born before the amendment would be included and that only daughters born after the amendment would be included.
Since two meanings are not contemplated, it would rule out interpretations which are required in legislations which are capable of two meanings.
16 APPL.734.2011-NM.3223.11-S.2679.11.sxw
(e) The absurdity of making all the daughters born before or after the commencement of the amendment Act included in the amendment Act would not only be directly against and diametrically different from the express provision of making the section applicable to daughters who shall be coparceners by birth only on and after the amendment, but would make the applicability of the Act so all-perversive that the entire populace who are Hindus and have any HUF property of the family would be encompassed setting at naught various transactions entered in to by coparcerners creating vested rights as in this case.
36. It may be mentioned that in the case of Sadashiv Sakharam Patil & Ors. Vs. Chandrakant Gopal Desale & Ors. in Appeal from Order No. 265 of 2011 and other related appeals the single Judge of this Court had to contend with a claim of the heirs of the deceased daughter who claimed to be a coparcener seeking to include even daughters who have been deceased prior to the amendment! Hence the interpretation of retrospectivity would promote the mischief of dishonest litigations by claiming an interest in a coparcernery property hitherto never claimed, as in this case, rather than suppress the mischief of discrimination.
The observation in paragraph 52 of the judgment in the case of Pushpalatha (supra) relates to when the daughter would get the right under the amended Section 6 of the Act shows that it was by birth "leaving no scope for interpretation". The further observation in paragraph 53 of the judgment is that such a right is given to a daughter born after 1956.
If the Act was restrospective 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 17 APPL.734.2011-NM.3223.11-S.2679.11.sxw
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.
37. We may mention that in the extensive reading of the judgment which exudes nobility, we are in agreement with each of the observations discussed therein, but for the retrospectivity in its interpretation in view of our interpretation of the Section as set out hereinabove.
38. We may appreciate the aspect of retrospectivity upon analysing some other legislative provisions.
The Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)(JJ Act) was enacted to consolidate the law relating to juveniles in conflict with the law and children in need of care and protection in consonance with the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 29 November 1989 brought into force from 1 April 2001. The Juvenile Justice (Care and Protection of Children) Amendment Act 2+006 (J.J.Act 2006) received the assent of the President of India on 22 August 2006 and was published in the Government Gazette dated 23 August 2006.
39. In the case of Bijender Singh Vs. State of Haryana AIR 2005 SC 2262 the Supreme Court considered the perspectivity of the J.J.Act, 2000. It noted that the appointed date of the Act being 1 April 2001 was the date 18 APPL.734.2011-NM.3223.11-S.2679.11.sxw
from which the provisions of the Act would come into force. "the act, thus is prospective in its operation".
It can be seen that the Supreme Court considered the prospectivity by virtue of the fact that the legislature expressly specified the date from which the amended Act would come into force. It, therefore, held that the amended Act would come into force from that date and not from an earlier date. In para 11 of the Judgment the Supreme Court observed that the purpose of such Act would have to be seen and the act cannot be extended beyond the purpose for which it is created, or beyond the language of the provision by which it is created. The Supreme Court, therefore, concluded that a person below the age of 18 years on 1 April 2001 would be taken to be a juvenile under Section 20 of the J.J. Act 2000 and held that for the purpose of attracting Section 20 of the Act a person must be of the age of 18 years and the proceeding against him must be pending in the Court.
Though observing in paragraph 14 of the judgment that Section 20 of the J.J. Act 2000 did not take away any vested right in a person, but only granted additional protection to a person as a juvenile, it held that the Act was prospective.
40. In the amended J.J. Act 2006 the meaning of adoption was inserted by way of Section 2(aa). This definition came into effect from 22 August 2006. Section 41 of the Act was also similarly amended by which Section 42(2) came to be substituted for the earlier section. Consequently, adoption was allowed as a mode of rehabilitation in respect of all children who were orphaned, abandoned or surrendered. The adoption which was not made available until then to all non-Hindus came to be made available to them. The Legislature set out the date from which the amended provision would come into effect. Such would be a prospective legislation 19 APPL.734.2011-NM.3223.11-S.2679.11.sxw
which cannot be effectuated prior to that date.
41. The definition "Juvenile in conflict with law" under Section 2(l) in the J.J. Act was also amended by the Amending J.J. Act 2006 such as to specify the age of juvenility as on the date of the commission of the offence. The age was increased from 16 years to 18 years in respect of both male and female children in conflict with law. This definition specifying the age of juvenility also came into effect from 22 August 2006, substituting the definition of "Juvenile in conflict with Law" under the Juvenile Justice Act, 2000 which was brought into effect from 1 April 2001.
42. In the J.J. Act 2006 a specific provision under Section 1(4) was made for the applicability of the amending Act to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with the law thus:
" 1. Short title, extent [commencement and application] - (4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law.
Further special provision in respect of pending cases was made under Section 20 thus:
" 20. Special provision in respect of pending cases - Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it 20 APPL.734.2011-NM.3223.11-S.2679.11.sxw
shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence:
[Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation. - In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.]"
43. Hence the legislation expressly laid down that pending cases under the J.J. Act were not affected by the J.J. Act 2006 for the continuance of the trial of the juvenile with specific procedure for the sentence in case of a finding of commission of the offence. The explanation amplified the extent of retrospectivity in the position with regard to the Act (which was the higher age as amended) to apply even to persons who had ceased to be juveniles even before the amending Act came into force.
44. In para 26 of the judgment in the case of Hari Ram Vs. State of Rajasthan & Anr. 2009(6) SCALE 698 the Supreme Court explained the explanation to Section 20 of the J.J. Act 2006 thus:
"The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of Clause(l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1st April, 2001, when the Juvenile Justice 21 APPL.734.2011-NM.3223.11-S.2679.11.sxw
Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000."
45. Such would be the express provision for a legislation to be held to be retrospective or retroactive in operation. In its absence, similar intent of the legislature must be at least latently apparent. That aspect is missing in the amended HSA. Experience such as the one in this case demonstrates the wisdom of the legislature in providing its ambit.
46. An entirely different perspective in interpretation can be seen in the enactment of the Benami Transactions (Prohibition) Act, 1988 (DTA). Under Section 1(3) of the DTA the provisions of Sections 3, 5 and 8 were expressly stated to come into force "at once" and the remaining provisions of the Act were "deemed to have come into force on 19 May 1988". The Act received the assent of the President of India on 5 September 1988. Section 3 prohibited Benami transactions. Section 5 declared that the property held Benami was liable to acquisition. Section 8 set out the power to make rules. These three sections would come into effect on the date of the proclamation i.e. 5 September 1988.
Section 4 would be more important to analyse. The relevant part of Section 4 reads thus:
"4. Prohibition of the right to recover property held benami. - (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the 22 APPL.734.2011-NM.3223.11-S.2679.11.sxw
property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property."
The legislation prohibited the right to recover property held Benami by filing a suit or by raising a defence in a suit filed by another. This Section was expressly stated to have come into effect on 19 May 1988. Under Section 4 of the DTA the legislature created two prohibitions:
Under Section 4(1) no suit to enforce any right in respect of any property held benami could be filed against the person in whose name the property was held by or on behalf of the person claiming to be the real owner of the property.
Under Section 4(2) No defence could be taken in any suit based on a right in respect of any property held benami against the person in whose name the property is held or any other person.
47. In the case of Mithilesh Kumari & Anr. Vs. Prem Behari Khare (1989) 2 SCC 95 the Supreme Court considered the retrospectivity and the retroactivity of the said legislation.
In paragraph 21 of the judgment the Supreme Court set out the fundamental rule of English law that no statute can be construed to have retrospective operation unless the construction appeared very clearly in the Act or by implication. In that Act it was expressly made retrospective from 19 May 1988 so far as Section 4 of the Act setting out the prohibition 23 APPL.734.2011-NM.3223.11-S.2679.11.sxw
for recovery of property was concerned.
48. The Supreme Court laid down that no such retrospective operation would be given to a Statute to impair an existing right or obligation unless the statute was in fact retrospective. The presumption against retrospective operation was held to be strong if it prejudicially effected vested rights or illegality of past transactions or impaired contracts or imposed new duty or attached new disability in respect of past transactions or for consideration already passed.
The Supreme Court also set out how the retrospectivity would have to be viewed. It would not be retrospective merely because a part of the requisition for its action is drawn from a time antecedent to its passing. It laid down what must be done to conclude its retrospective operation - we must look at the general scope and purview of the statute and at the remedy sought to be applied and consider what was a former state of the Law and what the legislation contemplated.
In our case the general scope and purview of the Amendment Act of 2006 is to make all daughters coparceners so as to devolve upon them the share in coparcenery property along with and as much as all sons. The remedy that it seeks to apply is to remove gender discrimination in such devolution of interest. Further it makes every daughter by birth a coparcener. The former law was that the daughter was not by birth a copercener and no interest in a coparcenery devolved upon her by succession, intestate or testamentary. The legislation contemplated that on and from 9 September 2005 the daughter would become a coparcener by birth for the devolution of interest in coparcenery property. The Act of 2006 received the assent of President on 5 September 2005 and was published in the Gazette of India on 6 September 2005. The amended
Section 6 was to come into effect expressly from 9 September 2005.
It can be seen that unlike the BTA which was expressly stated to have been "deemed to have come into force" from an anterior date being 19 May 1988, the amended HSA of 2006 was expressly brought into effect from the posterior date being 4 days after the proclamation i.e. 9 September 2005.
The effect of Sections 3 & 4 of the BTA came to be considered by the Supreme Court in paragraph 22 of the judgment in the case of Mithilesh Kumari (supra):
"Section 3, subject to the exceptions, states that no person shall enter into any benami transaction. This section obviously cannot have retrospective operation. However, Section 4 clearly provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie, by or on behalf of a person claiming to be real owner of such property. This naturally relates to past transactions as well. The expression "any property held benami" is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie. Similarly, sub-section (2) of Section 4 nullifies the defences based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami, the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words in its sweep Section 4 envisages past benami transactions also within its retroactivity. In this sense the Act is both a penal and a disqualifying statute."
The Supreme Court further considered the illustration of when a statute could be retroactive - the Representation of Peoples Act - under which all persons who attained 18 years of age were eligible to vote would
show that all persons who attained that age in the past before the law was enacted as also those who would attain that age when the law came into force would become equally eligible from the time they attained that age.
Besides it was held that for an act which is declaratory in nature the presumption against retrospectivity is not applicable. Consequently, declaratory statutes may be retrospective since they only declared. The Supreme Court observed that the BTA had only declared the effect of benami transactions. Hence the presumption against taking away vested rights would not apply; only the real owner would not be able to recover the property from the person in whose name the property stood.
In paragraph 23 of the judgment the Supreme Court further considered the words "shall lie" and "shall be allowed" in Sections 4(1) and 4(2) of the Act.
The Supreme Court held that these expressions show that the sections were prospective and would apply to suits pending on the date the section came into force.
49. Similar is the consequence of the words "shall become"...a coparcener in the amended Section 6 of the HSA. This becoming of a coparcener cannot take away vested rights prior to the legislation being brought into effect.
50. The retrospectivity of a legislation has been considered in acts which are expressly stated to have come into effect from a date anterior to the passing of the Bill. In the case of Shashibhusan Pati Vs. Mangala Biswal AIR 1953 Orissa 171 the Division Bench of the Orissa High Court considered the retrospectivity of Section 5 of The Orissa Tenants
Protection Act 1948. The Bill became law on 14 February 1948. The Act was enacted for the purpose of giving security of tenure to a particular backward tribe called Bhag-chasis. The Act was to come into force for protection of the land tenure of the persons from that community from 1 September 1947 if they were cultivating the land on that date. For granting such retrospectivity the legislation made an express provision as to the date from which the Act would come into effect.
Considering also the provisions of the West Bengal Rent Control (Amendment) Act 1950 which was held to be retrospective by the full Bench of the Calcutta High Court in the case of Iswari Prasad & Ors. Vs. N.R. Sen & Anr. AIR 1952 Calcutta 273, the Court considered that the provision of the Act being made applicable to pending cases so as to give it a retrospective effect would not be unreasonable because the Act did not affect vested rights and merely granted protection to Bhag-Chasis.
In the amended HSA mere protection is not granted to the daughters; they are given a substantive right to be treated as coparceners upon devolution of interest to them and even otherwise by virtue of their birth. This grant would effect vested rights, as in this case, when alienations and dispositions have been made. Hence retrospectivity such as to make the Act applicable to all the daughters born even prior to the amendment cannot be granted when the legislation itself specifies the posterior date from which the Act would come into force unlike the anterior date in the Orissa Tenants Protection Act 1948.
Even aside from the applicability of the Act from a given day, anterior or posterior to the enactment expressly made in the act, the retrospectivity of the act has been otherwise considered taking into account its effects. In the case of Securities & Exchange Board of .
(SEBI) Vs. Ajay Agarwal decided on 25 February 2010 the Supreme Court considered the applicability of Section 11B of The Securities and Exchange Board of India Act 1992 (SEBI Act 1992) under which the Board upon its satisfaction of necessity was empowered to issue directions to any person associated with the securities market or any company prohibiting or restraining them from carrying out various acts for which provision could be made by the Board under Section 11 of the Act. In that case the Board issued directions against the respondent restraining him from having any association with any Corporate Body in assisting the securities market and from buying, selling and dealing in securities upon a complaint of misstatement in the prospectus issued by the company of which he was a Joint Managing Director. It was contended on behalf of the respondent that those were wide powers which were sought to be used restrospectively for acts of alleged violations done before the provision came into effect by way of the amendment of 1995. It was observed that upon the violations alleged the respondent was given notice which he replied and was granted a personal hearing. The Court interpreted Section 11(2a) of SEBI Act which merely required the Board to regulate the business in stock exchanges and other market securities. The amendments of 1995 and 2002, which brought into on the statute book certain sub- sections of Section 11 from time to time, gave the Board power to restrain persons from accessing the securities market and being restrained from associating with the securities market to buy, sell and deal in securities. The Court considered the objections and reasons of the amending acts of 1995 and 2002 which was to meet the importance of the stock market in National Economy and deal with new demands thereon. The Court held that what the Board did was merely to restrain the respondent from doing a particular act and hence observed that it could not be said that the Board was empowered to act under the law. Its power would stand frozen in respect of the valuation which might have taken place prior to the
enactment of this provision. The board would, of course, exercise its powers only after the amendment Act came into force, but in respect of valuation made earlier so that the act could be applied restrospectively. The Court specifically held that Section 11(B) was procedural in nature and therefore, could be applied retrospectively "since none had vested right in any course of procedure".
The rights of a daughter such as to effect vested rights would be on a wholly different footing and, therefore, cannot be applied retrospectively.
51. The retrospectivity of The Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale Management and Transfer) Act 1963 (MOFA) was taken into account by the Supreme Court in the judgment in the case of M/s. Jayantilal Investments. Vs. Madhuvihar Co-operative Housing Society (2007) 9 SCC 220 in which Sections 7 & 7A of MOFA came to be analyzed together. Section 7 which was the original Section showed the requirement of obtaining the consent of all the flat purchasers in the Society for putting up any additional construction. The construction of additional buildings which were to be put up by the developer after the construction of the earlier buildings came to be challenged in the case of Kalpita Enclaves Vs. Kiran Builders Pvt. Ltd. 1986 MLJ 110. The resultant amendment to MOFA was the introduction of Section 7A which runs thus :
[7A. Removal of doubt - For the removal of doubt, it is hereby declared that clause (ii) of sub-section (1) of Section 7 having been retrospectively substituted by clause (a) of section 6 of the Maharashtra Ownership Flats (Regulations of the promotion of construction, sale management and transfer) (Second Amendment) Act, 1986 (Mah.XXXVI of 1986) (hereinafter in this section referred to as "the Amendment Act"), it shall be deemed to be effective as if the said clause (ii) as so substituted had been in force at all material
times; and the expression "or construct any additional structures" in clause (ii) of sub-section(1) of section 7 as it existed before the commencement of the Amendment Act and the expressions "constructed and completed in accordance with the plans and specifications aforesaid" and "any unauthorised change in the construction" in sub-section (2) of section 7 shall, notwithstanding anything contained in this Act or in any agreement, or in any judgment, decree or order or any Court, be deemed never to apply or to have applied in respect of the construction of any other additional buildings or structures constructed or to be constructed under a scheme or project of development in the layout after obtaining the approval of a local authority in accordance with the building rules or building bye-laws or Development Control Rules made under any law for the time being in force]"
52. The said Section 7A inserted by the amendment of 1986 expressly required no consent of the flat purchasers even of the earlier buildings which were constructed prior to the amendment Act coming into force for the construction of additional buildings to be constructed in a scheme of development in a layout. The purpose and object of the amendment itself mentions the judgment in the case of Kalpita (supra) as the reason for enacting the amending Act 36 of 1986 restospectively dealing with the restriction by which the promoter without obtaining the consent of the flat takers, in the agreed building could construct additional buildings shown in the layout plan. The thrust of the amendment was to allow construction of the FSI available under the byelaws then prevailing. Section 7A specifically sets out that the declaration in the amendment was necessitated only for removal of doubts and that the requirement of obtaining consent of flat purchasers was to be deemed never to have been there notwithstanding any judgment, decree or order of any Court. Such clearly expressed provision was aptly accepted to be retrospective in nature.
Such clarification is absent in the amended HSA. The new rights granted to a daughter which would effect vested rights would be on a 30 APPL.734.2011-NM.3223.11-S.2679.11.sxw
wholly different footing and, therefore, cannot be applied retrospectively.
53. We may mention that the suit of the appellants is essentially for a declaration that they are the owners of 2/3rd undivided interest in the suit flat, for declaration of nullity of the equitable mortgage created by respondent No.1 and for ancillary reliefs under the Securitisation Act. The suit wholly lacks bonafides and is instituted as a last resort by respondent No.1 who has put up his daughters with a dishonest intent to deny the claim of the Bank upon the alienation made since 2008 and which has progressed far into the rights created in favour of respondent No.2 Bank under the Securitisation Act (see Kanaiyalal Lalchand Sachdev & Ors. Vs. State of Maharashtra & Ors. (2011) 2 SCC 782).
54. The very premise upon which the appellants' suit is based is without merit. The appellants are not entitled to any ad-interim relief for protection of their alleged share in the suit premises. The impugned order analysing the provisions of the Securitisation Act and leaving open the case of coparcenary interest has observed the nucleus of the HUF funds and has granted ad-interim relief only upon the deposit of Rs.1.50 crores within 6 weeks of the date of the order and in default allowed respondent No.2 bank to initiate steps including the sale of the suit flat as permissible in law. We may mention, as has been argued before us, that the provisions of the Securitisation Act are irrelevant to be considered by us for grant of relief sought by the appellants claiming 2/3rd interest in the suit properties. The law as it stands upon the admitted facts show no such rights. Hence the appellants' appeal itself is dismissed. The grant of ad-interim relief is refused.
55. The appellants apply for stay of this order. The stay is granted for further period of 4 weeks upon the same condition put by the learned
single Judge in the impugned order directing the appellants to deposit in this Court Rs.1.50 crores within 4 weeks from today.
CHIEF JUSTICE
ROSHAN DALVI, J.
No comments:
Post a Comment