When daughter can claim that property is still coparcenary property on date of coming into force of Amendment Act?

It is only where an oral partition or partition by unregistered document is not followed by partition by metes and bounds, evidenced by entries in the public records that a daughter would be in a position to contend that the property still remains coparcenary property on the date of coming into force of the Amendment Act. Thus for the Amended Section 6 to apply, not only the daughter should be alive on the date of commencement of the Amendment Act, but also the property should be coparcenary property on the date of the commencement of the Act i.e. 9 September 2005 or atleast on 20 December 2004, when the Amendment Bill was introduced in Rajya Sabha.

            IN THE HIGH COURT OF BOMBAY

Decided On: 14.08.2014

 Badrinarayan Shankar Bhandari etc. etc.
Vs.

 Ompraskash Shankar Bhandari etc. etc.

 Citation: 2014(5)CTC353, 2014(5)MhLj434,2014(5) ALLMR846 FB

 Learned counsel for the appellants would, however, submit that explanation to Section 6 clearly provides that partition means any partition made by execution of a deed duly registered under the Registration Act, 1908 or a partition effected by a decree of a Court and therefore, if an oral partition had taken place before 20 December 2004, such partition would not be saved either by the proviso to sub-section (1) or sub-section (5) of Section 6.

It is, therefore, submitted that oral partition effected of coparcenary property even if effected in the year 1957, would not be saved and therefore Section 6 must be held to be retrospective with effect from 17 June 1956.

45. Though the argument may prima facie appear to be attractive, it does not recognize the distinction between an oral partition or partition by unregistered document which is not followed by partition by metes and bounds on the one hand and oral partition or partition by unregistered document which was acted upon by physical partition of the properties by metes and bounds and entries made in the public record about such physical partition by entering the names of sharers as individual owner/s in the concerned public record, (such as records of the Municipal Corporation or the Property Registers maintained by the Government) on the other hand. It is only where an oral partition or partition by unregistered document is not followed by partition by metes and bounds, evidenced by entries in the public records that a daughter would be in a position to contend that the property still remains coparcenary property on the date of coming into force of the Amendment Act. Thus for the Amended Section 6 to apply, not only the daughter should be alive on the date of commencement of the Amendment Act, but also the property should be coparcenary property on the date of the commencement of the Act i.e. 9 September 2005 or atleast on 20 December 2004, when the Amendment Bill was introduced in Rajya Sabha.

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