An important question of law came up before the full Bench of the Bombay High Court comprising of Hon’ble Chief Justice Mohit Shah, Justice M. S Sanklecha and Justice M.S Sonak by way of reference to determine as to whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 is prospective or retrospective in operation?
Other questions referred before the full bench for adjudication were as under:
• Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born prior to 17.6.1956?
• Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005?
• Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies only to daughters born after 9.9.2005?
• Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?”
The primary question to be determined was the period since when amendment made in the year 2005 to the Hindu Succession Act, 1956 (Act) can be stated to be effective in reference to Section 6 of the Act, which provides for devolution of interest in coparcenary property. Section 6 was amended by the Amendment Act of 2005 which came into force with effect from 9th September 2005.
Background
The division Bench of Bombay High Court in the case of Vaishali S. Ganorkar v/s. Satish Keshavrao Ganorkar & Others,held that Section 6 of the Hindu Succession Act as substituted by Section 3 of the Amendment Act (amended Section 6) was prospective in operation and it applied to daughters born on or after 9th September 2005. It was further held by the Division Bench that daughters would get rights in coparcenary property upon death of their father-coparcener on or after 9th September 2005. Prior to the enactment of the Hindu Succession (Amendment) Act, 2005, Hindu Succession Act, 1956, Act did not provide any rights to daughters in respect of partition of property or the right to demand partition or claim shares in the coparcenary property.
The Learned Single Judge of the Bombay High Court vide impugned judgment held otherwise, whereby disagreeing with the view taken by Division Bench in Vaishali S. Ganorkar’s case holding amended Section 6 was retrospective in operation, that is applicable w.e.f. 17th June 1956 i.e. the date of commencement of the Principal Act and applies to all daughters of a coparcener who are born either before or after 9 September 2005 or daughters born before or after 17 June 1956. The learned Single Judge held that a daughter by birth becomes a coparcener in a Hindu coparcenary in her own right in the same manner as a son, having the same rights in the coparcenary property as she would have had if she had been a son and subject to the same liabilities in respect of the said coparcenary property as that of a son in terms of sub-section (1) of the amended Section 6.
In the above circumstances, the questions as above were referred before the Full Bench for its adjudication.
Discussion
The Court held that a statute should be construed on its plain meaning and when the plain reading of the provision is not very clear, one has to apply an appropriate tool of interpretation to unearth the intent, object and purpose of the enactment. What needs to apply is the Mischief or Purposive Rule of interpretation to find out the true and correct meaning of the statute.
The Principal Act as enacted did not provide any rights to the daughters in respect of the partition of the property or any rights to demand partition of the property or even claim a share in the coparcenary property. The only right of the daughter would be to get a share in the father's share in the coparcenary property and the same would arise only on the death of her ancestor -coparcener. This led to gender discrimination and daughters were left out from enjoying the coparcenary property being violative of Articles 14 and 15 of the Constitution of India which provide for equal rights to all citizens and a mandate not to be discriminated on account of religion, caste, sex or birth.
Realizing the dichotomy and gender discrimination being sanctioned by the law, Law Commission of India undertook the study of the provisions of Hindu Law with regard to the laws of inheritance and particularly, with regard to rights of daughters.
The Law Commission in its 174th Report recommended that the daughter of a coparcener should be given equal right as that of a son by virtue of her birth in the joint Hindu family based whereupon a Bill was introduced.
Bare perusal of sub-section (1) of Section 6 clearly shows that the legislative intent in enacting clause (a) is prospective i.e. daughter born on or after 9 September 2005 will become a coparcener by birth, but the legislative intent in enacting clauses (b) & (c) was retroactive, because rights in the coparcenary property are conferred by clause (b) on the daughter who was already born before the amendment, and who is alive on the date of Amendment coming into force. Hence, if a daughter of a coparcener had died before 9th September 2005, since she would not have acquired any rights in the coparcenary property, her heirs would have no right in the coparcenary property. Since Section 6(1) expressly confers right on daughter only on and with effect from the date of coming into force of the Amendment Act, it was held as not possible to take the view that heirs of such a deceased daughter can also claim benefits of the amendment.
Two conditions necessary for applicability of Amended Section 6(1) are: (i) The daughter of the coparcener (daughter claiming benefit of amended Section 6) should be alive on the date of amendment coming into force; (ii) The property in question must be available on the date of the commencement of the Act as coparcenary property;
Conclusion
It was held that Section 6 as amended by the 2005 Amendment Act is retroactive in nature meaning thereby the rights under Section 6(1)(b) and (c) and under sub-Rule (2) are available to all daughters living on the date of coming into force of the 2005 Amendment Act i.e. on 9th September 2005, though born prior to 9 September 2005. Obviously, the daughters born on or after 9 September 2005 are entitled to get the benefits of Amended Section 6 of the Act under clause (a) of sub section (1). In other words, the heirs of daughters who died before 9th September 2005 do not get the benefits of amended Section 6.
It was held that amendment Act applies to daughters born any time provided the daughters born prior to 9 September
2005 are alive on the date of coming into force of the Amendment Act i.e. on 9 September 2005.
It was further held that the Amended Section 6 applies to daughters born prior to 17 June 1956 or thereafter (between 17 June 1956 and 8 September 2005), provided they are alive on 9 September 2005 that is on the date when the Amendment Act of 2005 came into force and accordingly Decision of the Division Bench of the Bombay High Court in Vaishali S. Ganorkar was held to be per incurium the Supreme Court decision in Ganduri Koteshwaramma case
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