38.(i) A prospective statute operates forwards from the date of its enactment conferring new rights on parties without reference to any anterior event, status or characteristic;(ii) Retrospective statute, on the other hand, operates backwards, attaches new consequences, though for the future, but to an event that took place before the statute was enacted. It takes away vested rights. Substantive benefits which were already obtained by a party are sought to be taken away because of legislation being given effect to from a date prior to its enactment. The rules of interpretation of statute raise a presumption against such retrospective effect to a legislation. In other words, if the Legislature has not expressly or by necessary implication given effect to a statute from a date prior to its enactment, the Court will not allow retrospective effect being given to a legislation so as to take away the vested rights. Statutes enacted for regulating succession are ordinarily not applicable to successions which had already opened, as otherwise the effect will be to divest the estate from persons in whom it had vested prior to coming into force of the new statutes. (Muhammed Abdus Samad Vs. Qurban Hussain, (1904) ILR 26 Allahabad 119 (129 PC)(iii) There is the intermediate category called "Retroactive Statute" which does not operate backwards and does not take away vested rights. Though it operates forwards, it is brought into operation by a characteristic or status that arose before it was enacted. For example, a provision of an Act brought into force on 1 January 2014, the Act applies to a person who was employed on 1 January 2014 has two elements:
(a) that the person concerned took employment on 1 January 2014 - an event;
(b) that the person referred to was an employee on that day - a characteristic or status which he had acquired before 1 January 2014. Insofar as the Act applies to a person who took employment on 1 January 2014, the Act is prospective. Insofar as the Act applies to a person who had taken employment before 1 January 2014, the Act is retroactive.39. The first celebrated case in the intermediate category is R Vs. Inhabitants of St. Mary, Whitechapel 1848 (2)QB, 120, wherein the Court was called upon to construe Section 2 of the Poor Removal Act, 1846, which provided that "no woman residing in any parish with her husband at the time of his death shall be removed from such parish, for twelve calendar months next after his death, if she so long continues a widow". In that case it was sought to remove a widow within twelve months from the date of the death of her husband who had died prior to the Act came into force; and it was argued that to apply the Act to such a case was to construe it retrospectively. In rejecting the contention, Lord Denman, C.J. made the following oft-quoted observations:"It was said that the operation of the statute was confined to persons who had become widows after the Act was passed, and that the presumption against a retrospective statute being intended supported this construction: but we have before shown that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing."
(Emphasis supplied)While the Indian cases in this category are catalogued in the "Principles of Statutory Interpretation" by Justice G.P. Singh (13th Edition 2012, Chapter 6, Pages 561-567), it is necessary to refer to the leading decision of the Constitution Bench of the Supreme Court in State of Jammu & Kashmir Vs. Triloki Nath Khosa, MANU/SC/0401/1973 : AIR 1974 SC 1 wherein the Court was called upon to examine the challenge to the service rules which after amalgamating different cadres of engineers into one class, prescribed Bachelor's Degree in Engineering as a qualification for promotion, though such qualification was not prescribed for promotion from the cadre of Assistant Engineers before amalgamation of cadres.It was contended that requiring the Assistant Engineers already in service to possess such qualification for promotion amounted to making a retrospective rule. Turning down the challenge, the Supreme Court observed thus:"16. ... ... ... It is wrong to characterize the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned Rules do not recall a promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the Rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have founded on the rock of retroactivity. But such is not the implication of Service Rules nor is it their true description to say that because they affect existing employees they are retrospective. ... ...In the same vein, in Dilip Vs. Mohd. Azizul Haq and another 12, MANU/SC/0181/2000 : AIR 2000 SC 1976, the Supreme Court observed, inter alia, as under :"9. ... ... We must bear in mind that the presumption against retrospective legislation does not necessarily apply to an enactment merely because a part of the requisites for its action is drawn from time antecedent to its passing. The fact that as from a future date tax is charged on a source of income which has been arranged or provided for before the date of the imposition of the tax does not mean that a tax is retrospectively imposed as held in Commrs. of Customs and Excise Vs. Thorn Electrical Industries Ltd. MANU/UKHL/0020/1975 : (1975) 1-WLR-1661......"40. A bare perusal of sub-section (1) of Section 6 would, thus, clearly show that the legislative intent in enacting clause (a) is prospective i.e. daughter born on or after 9 September 2005 will become a coparcener by birth, but the legislative intent in enacting clauses (b) & (c) is retroactive, because rights in the coparcenary property are conferred by clause (b) on the daughter who was already born before the amendment, and who is alive on the date of Amendment coming into force. Hence, if a daughter of a coparcener had died before 9 September 2005, since she would not have acquired any rights in the coparcenary property, her heirs would have no right in the coparcenary property. Since Section 6(1) expressly confers right on daughter only on and with effect from the date of coming into force of the Amendment Act, it is not possible to take the view being canvassed by learned counsel for the appellants that heirs of such a deceased daughter can also claim benefits of the amendment.41. Learned counsel for the appellants would, however, vehemently submit that because the Legislature has provided to ignore partitions other than partitions effected by registered deeds or decrees of the Court, the amendment was intended to be retrospective and would apply even to a daughter who died before 9 September 2005 and ignoring all partitions (other than those effected by registered deeds or decrees of Court), the coparcenary properties which existed on 17 June 1956 will continue to be coparcenary properties in which the daughter of the coparcener or the heirs of the deceased daughter will get rights with effect from 9 September 2005. Reference is also made to the decision of Division Judge of Karnataka High Court in Pushpalatha case, AIR 2010 KAR. 124.42. Two conditions necessary for applicability of Amended Section 6(1) are:(i) The daughter of the coparcener (daughter claiming benefit of amended Section 6 should be alive on the date of amendment coming into force;
(ii) The property in question must be available on the date of the commencement of the Act as coparcenary property.Proviso to Section 6(1) reads as under:-"Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004."43. It is significant to note that amended Bill was introduced in Rajya Sabha on 20 December 2004 and therefore Parliament saved all dispositions or alienations including partition and testamentary disposition of property, which had taken place before introduction of the Bill in Rajya Sabha, but even registered partition deeds and the partitions obtained by decree of Court after 20 December 2004 are not saved. Otherwise some people might have executed such registered partition deeds or obtained collusive decrees of the Court between 20 December 2004 and 8 September 2005 to deprive daughters of their rights in the coparcenary property by removing the property in question from the stock of coparcenary property, thus changing the nature of the property by such device.Similarly, sub-section (5) of Section 6 makes it clear that nothing in amended section shall apply to a partition which was effected before 20 December 2004.44. Learned counsel for the appellants would, however, submit that explanation to Section 6 clearly provides that partition means any partition made by execution of a deed duly registered under the Registration Act, 1908 or a partition effected by a decree of a Court and therefore, if an oral partition had taken place before 20 December 2004, such partition would not be saved either by the proviso to sub-section (1) or sub-section (5) of Section 6.It is, therefore, submitted that oral partition effected of coparcenary property even if effected in the year 1957, would not be saved and therefore Section 6 must be held to be retrospective with effect from 17 June 1956.45. Though the argument may prima facie appear to be attractive, it does not recognize the distinction between an oral partition or partition by unregistered document which is not followed by partition by metes and bounds on the one hand and oral partition or partition by unregistered document which was acted upon by physical partition of the properties by metes and bounds and entries made in the public record about such physical partition by entering the names of sharers as individual owner/s in the concerned public record, (such as records of the Municipal Corporation or the Property Registers maintained by the Government) on the other hand. It is only where an oral partition or partition by unregistered document is not followed by partition by metes and bounds, evidenced by entries in the public records that a daughter would be in a position to contend that the property still remains coparcenary property on the date of coming into force of the Amendment Act. Thus for the Amended Section 6 to apply, not only the daughter should be alive on the date of commencement of the Amendment Act, but also the property should be coparcenary property on the date of the commencement of the Act i.e. 9 September 2005 or atleast on 20 December 2004, when the Amendment Bill was introduced in Rajya Sabha.46. Learned counsel for the appellants submitted that Section 3 of the Amendment Act 2005 substituted Section 6 of the Principal Act and therefore strong reliance is placed upon the decision of the Supreme Court in Zile Singh vs. State of Haryana & Others, MANU/SC/0876/2004 : AIR 2004 SC 5100 in support of the contention that a substitution results not only in old rule ceasing to exist but also that new rule is brought into existence in place of the earlier rule. It is, therefore, contended that the daughter of the coparcener has equal right in the coparcenary property, as if she had been the son right from June 1956 and not merely from 9 September 2005 when the Amendment Act came into force. It is contended that amended Section 6 would, therefore, cover all coparcenary property except that which was covered by any testamentary dispossession or alienation including any partition, provided such partition was made by the execution of the deed of partition duly registered under the Registration Act 1908 or partition effected by the decree of the Court.47. We have serious doubt about the above contention advanced on behalf of the appellants for more than one reason. In the first place, though Section 3 of the Amendment Act of Hindu Succession (Amendment) Act 2005 has substituted with effect from 9 September 2005, erstwhile Section 6 by the new Section 6, it cannot be said that the new Section 6 relates back to 17 June 1956, when the Principal Act came into force. In fact, sub-section (1) of amended Section 6 opens with the specific words "On and from the commencement of the Hindu Succession (Amendment) Act, 2005".Secondly, sub-section (3) of Section 6 also opens with the words "Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be and not by survivorship ... ...". Amended Section 6 no where provides as to what is to happen to a case where Hindu died before commencement of 2005 Amendment Act. Obviously, Legislature did not intend to leave any vacuum for the period prior to 9 September 2005 when the Amendment Act came into force. Case of a Hindu, who died prior to 9 September 2005 continues to be governed by pre-amended Section 6."
Point I(b) & (c):
As the Full bench did not agree with the reasoning of the Division bench of this court in Pushpalatha's case, the said points were answered thus:
"59. Having carefully gone through the above reasoning and conclusion in Pushpalatha case, AIR 2010 KAR. 124 supra, while we agree that the legislative intent was to protect interest of the third parties who acquired interests in the coparcenary property and also to protect the interest of the scarceness here coparcenary became their separate properties, as already discussed in paragraph 45 hereinabove, it is not possible to agree with the view in Pushpalata case, AIR 2010 KAR. 124 that a daughter of a coparcener born before 9 September 1996 became a coparcener by birth anterior to the amendment. As already indicated earlier, clause (a) of sub-section (1) of amended Section 6 only applies to daughter born on or after the date of commencement of the Amendment Act i.e. born on or after 9 September 2005. It is only by virtue of clauses (b) and (c) of sub-section 1 of Amended Section 6 that the daughters born before 9 September 2005 acquired rights in coparcenary property and acquired the status of scarceness with effect from 9 September 2005. For the reasons already indicated in this judgment, the view taken by the Karnataka High Court in Pushpalata case AIR 2010 KAR. 124 that a daughter of the coparcener gets right in coparcenary property with retrospective effect from 17 June 1956 or from the date of birth prior to 9 September 2005 does not commend to us. As held by us earlier, the provisions of Amended Section 6 are retroactive in operation, and daughter living on 9 September 2005 gets rights in coparcenary property with effect from 9 September 2005."
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Regular First Appeal No. 1326 of 2010
Decided On: 09.06.2015
Vasantha C. Kerur and Ors.
Vs.
B. Basavaraj and Ors.
Vs.
B. Basavaraj and Ors.
Hon'ble Judges/Coram:Anand Byrareddy, J.
1. This appeal is filed by the legal representatives of the plaintiff. The plaintiff is said to have died during the pendency of the suit, in the year 2008.
2. The suit was for partition and separate possession of the properties described in Schedule-'A' and 'B' to the suit. Defendants 1 to 3 were the brothers of the plaintiff and defendants No. 4 & 5 were the sister and sister-in-law, respectively, of the plaintiff. The parties were admittedly governed by the Hindu law.
The genealogy of the family is as under:
The plaintiff's father had died 37 years prior to the suit. The mother of the plaintiff had died 5 years prior to the suit. It was claimed that the suit properties were joint family properties and were acquired out of joint family funds, though some items of the suit properties were shown in the name of the fifth defendant, the wife of the first defendant. The plaintiff is said to have issued a legal notice in the year 2000 claiming partition of the suit properties and to be put in possession of 1/5th share of the same. Since the defendants refused to comply, the suit was instituted.
The defendants No. 1 to 3 and 5 are said to have filed written statement to contend that only items 1 and 2 of Schedule-A and items 3 and 4 of Schedule-B were joint family properties and that the other items were the self acquired properties of the defendants, as detailed therein. Further, it was denied that the plaintiff was entitled to 1/5th share in the suit properties and that she was at best entitled to 1/20th share of three items of the four joint family properties mentioned above. It was contended that she was not entitled to a share in item No. 3 of Schedule B properties.
3. The trial court had framed the following issues on the above pleadings :
"1. Whether the plaintiff proves that all suit schedule properties are joint family properties?
2. Whether the defendants prove that the suit schedule properties item No. 4 and 12 are self-acquired properties of 1st defendant?
3. Whether the defendants prove that the suit schedule item No. 3, 9, 10, 14, 15, 17, 19, 20 and 25 in 'A' schedule properties are self-acquired properties of 2nd defendant?
4. Whether the defendants prove that suit schedule properties item No. 5, 7, 8, 11, 13, 16, 21, 22, 23 and 24 are self-acquired properties of 3rd defendant?
5. Whether defendants prove that suit schedule properties item No. 6 and 18 are self-acquired properties of 5th defendant?
6. Whether the defendants prove that the plaintiff is not entitled for share in item No. 3 of 'B' schedule properties?
7. Whether the defendants prove that as on the date of death of B. Siddalingappa his debts were to the tune of Rs. 25,000/-?
8. Whether the suit is bad for non-joinder of necessary parties?
9. Whether the suit is bad for partial partition?
10. Whether the plaintiff has valued the suit property and paid the sufficient court fee?
11. Whether the plaintiff is entitled for one-fifth share?"
The court below had answered the above issues 1, 6 and 10 in the affirmative and decreed that the plaintiff was entitled to 1/20th share in Schedule A properties and items 1, 2 and 4 of Schedule-B properties.
The court below has held that the plaintiff was not entitled to a share in item No. 3 of Schedule - B as it is the residential house of the family and that in terms of Section 23 of the Hindu Succession Act, 1956 (Hereinafter referred to as the 'HS Act', for brevity), she was not entitled to a share in the dwelling house. Though the Section had been deleted by Act No. 39 of 2005, it was held that the deletion was prospective in effect, in the view of the trial court, and that the plaintiff could not claim the benefit of the deletion.
Further, the trial court has held that it is the unamended Section 6 of the HS Act, which would be applicable to the case and the shares of the parties were determined on the basis of a notional partition, on the reasoning that the rights of the parties and the extent of their share stood determined on the death of the propositus, as on 9.8.1961 and hence the provisions of the HS Act, as amended in the year 2005 would not be applicable. It was further held that the plaintiff and her sister were married in the year 1973 and 1977, respectively, and hence would not be entitled to the benefit of the amendment to the HS Act, which came into effect from 9.9.2005. It is this which is challenged by the plaintiff. The defendants have not chosen to file any appeal.
4. The learned counsel for the appellant would contend that the reasoning of the court below that the amended provisions of the HS Act, as amended by Act No. 39 of 2005, with effect from 9.9.2005, is prospective and would not be applicable to the case on hand, runs counter to the law as laid down by a Division bench judgment of this court, in Pushpalatha v. V. Padma, AIR 2010 Kar. 124, that the amended provision would date back to the date on which the 1956 Act came into force, namely, 17.6.1956. Secondly, it is sought to be contended that the judgment having been rendered by the trial court after the deletion of Section 23 of the HS Act, the same not being taken into account, on the fallacious reasoning that the amended provisions cannot be applied to the plaintiff - is clearly untenable and hence seeks that the judgment and decree be modified to direct division of the suit schedule A and B, properties equally as between the plaintiffs on the one hand and defendants 1 to 4, respectively, to 1/5th share, each.
5. The learned counsel for the respondents, on the other hand, would point out that the Division Bench in Pushpalatha's case has held that the HS Act would not apply to a Hindu female born before 17.6.1956 and therefore would contend that since admittedly the plaintiff was born much before that date the reliance on Pushpalatha's case is misconceived and that the same would have no application. The counsel would hence contend that the law as applied by the trial court is justified.
6. The learned counsel for the appellant would however, draw attention to a Full Bench judgment of the Bombay High Court in the case of Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, MANU/MH/1278/2014 : AIR 2014 Bombay 151, wherein the reasoning in Pushpalatha's case on that particular aspect had been considered and has been dissented from and therefore the law as laid down therein - would apply in favour of the plaintiff with greater force and seeks that the appeal be allowed.
7. The learned counsel for the respondents however, would point out that this bench is bound by the decision in Pushpalatha's case and no reliance can be placed on the judgment of the Bombay High Court. In this regard attention is drawn to a decision of the Apex court in Lala Shri Bhagwan v. Ram Chand, MANU/SC/0320/1965 : AIR 1965 SC 1767.
8. The points for consideration in the present appeal, given the above circumstances, are as follows:
I. Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 :
a. - is prospective or retrospective?II. Whether the plaintiff is entitled to 1/5th share in all the suit properties?
b. - applies to daughters born prior to 1956?
c. - applies to daughters born after 17.6.1956 and prior to 9.9.2005?
d. - applies only to daughters born after 9.9.2005?
III. Whether this bench is bound by the judgment in Pushpalatha's case notwithstanding that the same has come in for direct consideration by a Full Bench of another High Court and is dissented from?
If Point I(a) to (d) are answered, it would also be possible to determine point II. Incidentally, Point I(a) to (d) were the very questions that were answered by the Full Bench of the Bombay High Court in Bhadrinarayan Shankar Bhandari's case. The reasoning and the answers therein in the opinion of this bench, are on an accurate and lucid interpretation of the scope and effect of Section 6 of the HS Act, as amended by the Act 39 of 2005.
Point I(a) & (d):
It would be useful to extract Section 6 of the Hindu Succession Act as amended:
"[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;(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(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.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a son;Explanation.--For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the predeceased son or a pre-deceased daughter, as the case may be.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect--Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation.--For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]
In interpreting the above Section, the Full Bench of the Bombay High Court has held thus:
"It needs to be noted that clauses (b) and (c) of sub-section (1) of Section 6 and what follows clause (c) are not circumscribed by clause (a). Therefore, sub-section (1) of Section 6 has to be read as under:- (For convenience, the words "the Hindu Succession (Amendment) Act, 2005" have been referred to as "the Amendment Act").
1(a) On and from the commencement of the Amendment Act, in a Joint Hindu family governed by Mitakshara law, the daughter of coparcener shall by birth become a coparcener in her own right as the son;36. However, learned counsel for respondents would like us to read Amended Section 6(1) as under-
1(b) On and from the commencement of the Amendment Act, in a Joint Hindu Family governed by Mitakshara law, the daughter of coparcener shall have the same rights in the coparcenary property as she would have if she would have been a son;
1(c) On and from the commencement of the Amendment Act, in a Joint Hindu family governed by Mitakshara law, the daughter of coparcener shall be subject to the same liabilities in respect of the said coparcenary property as that of a son;
On and from the commencement of the Amendment Act, in a Joint Hindu family governed by Mitakshara law, any reference to Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener;
(emphasis supplied)
"in a Joint Hindu family governed by Mitakshara law, the daughter of a coparcener, who is born on and from the commencement of the Hindu Succession (Amendment) Act, 2005 shall become a coparcener in her own right in the same manner as the son and shall have the same rights in the coparcenary property as she would have had as a sonand shall be subject to the same liabilities in respect of the coparcenary property as that of a son and any reference to the Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener."37. Since sub-clauses (b), (c) and subsequent part of sub-section (1) are not conditioned or circumscribed by clause (a), a daughter born before the date of commencement of the Amendment Act shall also have the same rights in her father's coparcernary property, (but of course with effect from the date of commencement of the Amendment Act), as she would have if she had been a son.
(emphasis supplied)
Similarly, her liabilities in respect of her father's coparcenary property shall be as that of a son, but only with effect from the date of commencement of the Amendment Act. The view that amended Section 6 would only apply to daughters born after the commencement of the Amendment Act would, therefore, clearly militate against the express language of clauses (b) & (c) and subsequent part of Amended Section 6(1). Unfortunately clause (b) conferring rights in coparcenary property on daughters was not referred to in Vaishali Ganorkar's case, AIR 2012 BOMBAY 101.
38.(i) A prospective statute operates forwards from the date of its enactment conferring new rights on parties without reference to any anterior event, status or characteristic;
(ii) Retrospective statute, on the other hand, operates backwards, attaches new consequences, though for the future, but to an event that took place before the statute was enacted. It takes away vested rights. Substantive benefits which were already obtained by a party are sought to be taken away because of legislation being given effect to from a date prior to its enactment. The rules of interpretation of statute raise a presumption against such retrospective effect to a legislation. In other words, if the Legislature has not expressly or by necessary implication given effect to a statute from a date prior to its enactment, the Court will not allow retrospective effect being given to a legislation so as to take away the vested rights. Statutes enacted for regulating succession are ordinarily not applicable to successions which had already opened, as otherwise the effect will be to divest the estate from persons in whom it had vested prior to coming into force of the new statutes. (Muhammed Abdus Samad Vs. Qurban Hussain, (1904) ILR 26 Allahabad 119 (129 PC)
(iii) There is the intermediate category called "Retroactive Statute" which does not operate backwards and does not take away vested rights. Though it operates forwards, it is brought into operation by a characteristic or status that arose before it was enacted. For example, a provision of an Act brought into force on 1 January 2014, the Act applies to a person who was employed on 1 January 2014 has two elements:
(a) that the person concerned took employment on 1 January 2014 - an event;39. The first celebrated case in the intermediate category is R Vs. Inhabitants of St. Mary, Whitechapel 1848 (2)QB, 120, wherein the Court was called upon to construe Section 2 of the Poor Removal Act, 1846, which provided that "no woman residing in any parish with her husband at the time of his death shall be removed from such parish, for twelve calendar months next after his death, if she so long continues a widow". In that case it was sought to remove a widow within twelve months from the date of the death of her husband who had died prior to the Act came into force; and it was argued that to apply the Act to such a case was to construe it retrospectively. In rejecting the contention, Lord Denman, C.J. made the following oft-quoted observations:
(b) that the person referred to was an employee on that day - a characteristic or status which he had acquired before 1 January 2014. Insofar as the Act applies to a person who took employment on 1 January 2014, the Act is prospective. Insofar as the Act applies to a person who had taken employment before 1 January 2014, the Act is retroactive.
"It was said that the operation of the statute was confined to persons who had become widows after the Act was passed, and that the presumption against a retrospective statute being intended supported this construction: but we have before shown that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing."While the Indian cases in this category are catalogued in the "Principles of Statutory Interpretation" by Justice G.P. Singh (13th Edition 2012, Chapter 6, Pages 561-567), it is necessary to refer to the leading decision of the Constitution Bench of the Supreme Court in State of Jammu & Kashmir Vs. Triloki Nath Khosa, MANU/SC/0401/1973 : AIR 1974 SC 1 wherein the Court was called upon to examine the challenge to the service rules which after amalgamating different cadres of engineers into one class, prescribed Bachelor's Degree in Engineering as a qualification for promotion, though such qualification was not prescribed for promotion from the cadre of Assistant Engineers before amalgamation of cadres.
(Emphasis supplied)
It was contended that requiring the Assistant Engineers already in service to possess such qualification for promotion amounted to making a retrospective rule. Turning down the challenge, the Supreme Court observed thus:
"16. ... ... ... It is wrong to characterize the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned Rules do not recall a promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the Rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have founded on the rock of retroactivity. But such is not the implication of Service Rules nor is it their true description to say that because they affect existing employees they are retrospective. ... ...In the same vein, in Dilip Vs. Mohd. Azizul Haq and another 12, MANU/SC/0181/2000 : AIR 2000 SC 1976, the Supreme Court observed, inter alia, as under :
"9. ... ... We must bear in mind that the presumption against retrospective legislation does not necessarily apply to an enactment merely because a part of the requisites for its action is drawn from time antecedent to its passing. The fact that as from a future date tax is charged on a source of income which has been arranged or provided for before the date of the imposition of the tax does not mean that a tax is retrospectively imposed as held in Commrs. of Customs and Excise Vs. Thorn Electrical Industries Ltd. MANU/UKHL/0020/1975 : (1975) 1-WLR-1661......"40. A bare perusal of sub-section (1) of Section 6 would, thus, clearly show that the legislative intent in enacting clause (a) is prospective i.e. daughter born on or after 9 September 2005 will become a coparcener by birth, but the legislative intent in enacting clauses (b) & (c) is retroactive, because rights in the coparcenary property are conferred by clause (b) on the daughter who was already born before the amendment, and who is alive on the date of Amendment coming into force. Hence, if a daughter of a coparcener had died before 9 September 2005, since she would not have acquired any rights in the coparcenary property, her heirs would have no right in the coparcenary property. Since Section 6(1) expressly confers right on daughter only on and with effect from the date of coming into force of the Amendment Act, it is not possible to take the view being canvassed by learned counsel for the appellants that heirs of such a deceased daughter can also claim benefits of the amendment.
41. Learned counsel for the appellants would, however, vehemently submit that because the Legislature has provided to ignore partitions other than partitions effected by registered deeds or decrees of the Court, the amendment was intended to be retrospective and would apply even to a daughter who died before 9 September 2005 and ignoring all partitions (other than those effected by registered deeds or decrees of Court), the coparcenary properties which existed on 17 June 1956 will continue to be coparcenary properties in which the daughter of the coparcener or the heirs of the deceased daughter will get rights with effect from 9 September 2005. Reference is also made to the decision of Division Judge of Karnataka High Court in Pushpalatha case, AIR 2010 KAR. 124.
42. Two conditions necessary for applicability of Amended Section 6(1) are:
(i) The daughter of the coparcener (daughter claiming benefit of amended Section 6 should be alive on the date of amendment coming into force;Proviso to Section 6(1) reads as under:-
(ii) The property in question must be available on the date of the commencement of the Act as coparcenary property.
"Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004."43. It is significant to note that amended Bill was introduced in Rajya Sabha on 20 December 2004 and therefore Parliament saved all dispositions or alienations including partition and testamentary disposition of property, which had taken place before introduction of the Bill in Rajya Sabha, but even registered partition deeds and the partitions obtained by decree of Court after 20 December 2004 are not saved. Otherwise some people might have executed such registered partition deeds or obtained collusive decrees of the Court between 20 December 2004 and 8 September 2005 to deprive daughters of their rights in the coparcenary property by removing the property in question from the stock of coparcenary property, thus changing the nature of the property by such device.
Similarly, sub-section (5) of Section 6 makes it clear that nothing in amended section shall apply to a partition which was effected before 20 December 2004.
44. Learned counsel for the appellants would, however, submit that explanation to Section 6 clearly provides that partition means any partition made by execution of a deed duly registered under the Registration Act, 1908 or a partition effected by a decree of a Court and therefore, if an oral partition had taken place before 20 December 2004, such partition would not be saved either by the proviso to sub-section (1) or sub-section (5) of Section 6.
It is, therefore, submitted that oral partition effected of coparcenary property even if effected in the year 1957, would not be saved and therefore Section 6 must be held to be retrospective with effect from 17 June 1956.
45. Though the argument may prima facie appear to be attractive, it does not recognize the distinction between an oral partition or partition by unregistered document which is not followed by partition by metes and bounds on the one hand and oral partition or partition by unregistered document which was acted upon by physical partition of the properties by metes and bounds and entries made in the public record about such physical partition by entering the names of sharers as individual owner/s in the concerned public record, (such as records of the Municipal Corporation or the Property Registers maintained by the Government) on the other hand. It is only where an oral partition or partition by unregistered document is not followed by partition by metes and bounds, evidenced by entries in the public records that a daughter would be in a position to contend that the property still remains coparcenary property on the date of coming into force of the Amendment Act. Thus for the Amended Section 6 to apply, not only the daughter should be alive on the date of commencement of the Amendment Act, but also the property should be coparcenary property on the date of the commencement of the Act i.e. 9 September 2005 or atleast on 20 December 2004, when the Amendment Bill was introduced in Rajya Sabha.
46. Learned counsel for the appellants submitted that Section 3 of the Amendment Act 2005 substituted Section 6 of the Principal Act and therefore strong reliance is placed upon the decision of the Supreme Court in Zile Singh vs. State of Haryana & Others, MANU/SC/0876/2004 : AIR 2004 SC 5100 in support of the contention that a substitution results not only in old rule ceasing to exist but also that new rule is brought into existence in place of the earlier rule. It is, therefore, contended that the daughter of the coparcener has equal right in the coparcenary property, as if she had been the son right from June 1956 and not merely from 9 September 2005 when the Amendment Act came into force. It is contended that amended Section 6 would, therefore, cover all coparcenary property except that which was covered by any testamentary dispossession or alienation including any partition, provided such partition was made by the execution of the deed of partition duly registered under the Registration Act 1908 or partition effected by the decree of the Court.
47. We have serious doubt about the above contention advanced on behalf of the appellants for more than one reason. In the first place, though Section 3 of the Amendment Act of Hindu Succession (Amendment) Act 2005 has substituted with effect from 9 September 2005, erstwhile Section 6 by the new Section 6, it cannot be said that the new Section 6 relates back to 17 June 1956, when the Principal Act came into force. In fact, sub-section (1) of amended Section 6 opens with the specific words "On and from the commencement of the Hindu Succession (Amendment) Act, 2005".
Secondly, sub-section (3) of Section 6 also opens with the words "Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be and not by survivorship ... ...". Amended Section 6 no where provides as to what is to happen to a case where Hindu died before commencement of 2005 Amendment Act. Obviously, Legislature did not intend to leave any vacuum for the period prior to 9 September 2005 when the Amendment Act came into force. Case of a Hindu, who died prior to 9 September 2005 continues to be governed by pre-amended Section 6."
Point I(b) & (c):
As the Full bench did not agree with the reasoning of the Division bench of this court in Pushpalatha's case, the said points were answered thus:
"59. Having carefully gone through the above reasoning and conclusion in Pushpalatha case, AIR 2010 KAR. 124 supra, while we agree that the legislative intent was to protect interest of the third parties who acquired interests in the coparcenary property and also to protect the interest of the scarceness here coparcenary became their separate properties, as already discussed in paragraph 45 hereinabove, it is not possible to agree with the view in Pushpalata case, AIR 2010 KAR. 124 that a daughter of a coparcener born before 9 September 1996 became a coparcener by birth anterior to the amendment. As already indicated earlier, clause (a) of sub-section (1) of amended Section 6 only applies to daughter born on or after the date of commencement of the Amendment Act i.e. born on or after 9 September 2005. It is only by virtue of clauses (b) and (c) of sub-section 1 of Amended Section 6 that the daughters born before 9 September 2005 acquired rights in coparcenary property and acquired the status of scarceness with effect from 9 September 2005. For the reasons already indicated in this judgment, the view taken by the Karnataka High Court in Pushpalata case AIR 2010 KAR. 124 that a daughter of the coparcener gets right in coparcenary property with retrospective effect from 17 June 1956 or from the date of birth prior to 9 September 2005 does not commend to us. As held by us earlier, the provisions of Amended Section 6 are retroactive in operation, and daughter living on 9 September 2005 gets rights in coparcenary property with effect from 9 September 2005."
In so far as the question whether the plaintiff was entitled to a share in the dwelling house is concerned, the legal position is settled by the Apex court in the case of G. Shekar v. Geetha, MANU/SC/0581/2009 : AIR 2009 SC 2649, thus:
"71. After referring to the Report of the Law Commission and the Statement of Objects and Reasons of the Amendment Act of 2005, the Supreme Court made the following observations in paras 25, 26, 40 & 55:-
25. It is, therefore, evident that the Parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act but also conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act.
26. Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparcenary property is concerned has been sought to be removed, we fail to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto.
40. It is merely a disabling provision. Such a right could be enforced if a cause of action therefore arose subsequently. A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring in nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably can betaken away by operation of the statute and/or by removing the disablement clause.
Adopting the above reasoning, Point II would have to be answered in the affirmative. The plaintiff is entitled to a 1/5th share in all the suit properties.
Point III:
It is necessary to notice the reasoning of the Division bench of this court in Pushpalatha's case in juxta position with the reasoning of the Full bench of the Bombay High Court to discern the difference in approach and the reasoning in addressing the scope and effect of Section 6 of the Hindu Succession Act, 1956, as amended by Act 39 of 2005.
The points for consideration framed by the Division Bench in Pushpalatha's case were answered thus:
Point No. 1
"What is the right of the daughter of a coparcener in a Joint Hindu Family governed by Mitakshara Law in coparcenary property by virtue of the amendment?"
xxx"54. The Apex Court in the case of ERAMMA vs. VEERUPANA [MANU/SC/0365/1965 : AIR 1966 SC 1879] had an occasion to consider whether the Act is prospective or retrospective in operation. After analysing the various provisions of the Act it was held that, there is nothing in the language of Section 8 to suggest that it has retrospective operation. The words "The property of a male Hindu dying intestate" and the words "shall devolve" occurring in the section make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the Hindu Succession Act.
55. Again after referring to Section 6 of the Act, it was held that, it is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. Accordingly, they held that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act, Section 8 of the Act will have no application.
56. Therefore, it follows that the Act when it was enacted, the legislature had no intention of conferring rights which are conferred for the first time on a female relative of a coparcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of Section 6 also it cannot be made retrospective in the sense applicable to the daughters born before the Act came into force. In the Act before amendment the daughter of a coparcener was not conferred the status of a coparcener. Such a status is conferred only by the Amendment Act in 2005. After conferring such status, right to coparcenary property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth should be after the Act came into force, i.e., 17.6.1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a coparcener who was born prior to 17.6.1956. Therefore, in this context also the opening words of the amending section assumes importance. The status of a coparcener is conferred on a daughter of a coparcener on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. But, both these rights are conferred under the Act and, therefore, it necessarily follows the daughter of a coparcener who is born after the Act came into force alone will be entitled to a right in the coparcenary property and not a daughter who was born prior to 17.6.1956.
57. Thus, by virtue of the substituted provision what the Parliament intends to do is first to declare that, on and from the commencement of this Amendment Act in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son. Therefore, the Mitakshara law in respect of coparcenary property and coparcenary consisting of only male members came to an end. By such a declaration the Parliament declared that from the date of the amendment shastric and customary law of coparcenary governed by Mitakshara school is no more applicable and it cease to exist. Thus, by virtue of the aforesaid provision, a right is conferred on a daughter of a coparcener for the first time. The said right is conferred by birth. Therefore, though such a right was declared in the year 2005, the declaration that the said right as a coparcener ensures to her benefit by birth makes the said provision retro active. Though on the date of the birth she did not have such right because of the law governing on that day by amendment the law, such a right is conferred on her from the date of the Act of 1956. A historical blunder depriving an equal right in spite of the constitutional mandate is now remedied and the lawful right to which the daughter was entitled by virtue of the constitution is restored to her from the date of her birth. This, the Parliament has done by using the express words that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son.
58. After so declaring that the daughter of the coparcener shall by birth become a coparcener and have the same rights in the coparcenary property, the Parliament had in its mind the fall out of such declaration on the bona fide transactions entered into between the coparceners and the third parties for nearly four decades after coming into force of the Act, where coparcenary property was kept out of the purview of the Act. Therefore, they added a proviso to exclude certain transactions from the purview of the main Section."
The above reasoning would require one to ignore the opening words of amended Section 6, namely, "On and from the commencement of the Amendment Act.....". (with effect from 9.9.2005). In paragraphs 35 to 42 of Badrinarayan's case, the Full Bench has interpreted the amended Section 6 - which is certainly in consonance with the tenor and language of the amended Section.
POINT No. 2
"When Section 6 is not applicable to partitions already effected?"
XXX"71. According to the true notion of an undivided mitakshara family, no individual member of that family whilst it remains undivided, can predicate of the joint property, he-that particular member - has a certain definite share, one-third or one-fourth. Partition, according to that law, consists in a numerical division of the property; in other words, it consists in defining the shares of the coparcerners in the joint property. Once the shares are defined, whether by an agreement between the parties, or otherwise, the partition is complete. After the shares are so defined, the parties may divide the property by metes and bounds or they may continue to live together and enjoy the property in common as before. The property ceases to be joint and immediately the shares are defined and henceforth the parties hold the property as tenants-in-common. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right. From the time of such disruption, each member holds his aliquot share as tenant-in-common irrespective of whether there is actual division of the properties by metes and bounds. It is established law that actual physical division or partition by metes and bounds is not an essential ingredient for the purpose of effecting severance of status. That is really a formality in the process of partition. Partition is a severance of joint status, and as such it is a matter of individual violation. All that is necessary, therefore, to constitute a partition is a definite and unequivocal indication of his intention by a member of joint family to separate himself from the family and enjoy his share in severalty. A partition may be effected without any instrument in writing. An instrument of partition in respect of immovable property of the value of rupees 100 and upwards requires registration under Section 17(1) of the Indian Registration Act, 1908. An unregistered deed of partition is not admissible to prove the contents or the shares allotted. However, if it merely acknowledges a prior partition it is admissible. An unregistered memorandum of partition can be relied on for collateral purpose of proving intention to separate. But an agreement which by itself does not create any right or interest in immovable property but only a right to obtain an instrument on partition does not require registration. However, a memorandum of family settlement being not a partition deed does not require registration. Partition does not, however, amount to a transfer of property as partition means that the totality of the property of the family in which all the coparceners jointly had subsisting title would be transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively.
72. The institution of suit for partition by a member of a joint family as an unequivocal intimation of his intention to separate, and there consequently is a severance of his joint status from the date when it is instituted. A decree may be necessary for working out the results of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether the obtains a consequential judgment or not. A suit must in substance be a suit for partition with a desire on the part of the plaintiff to hold his share in severalty without being subject to the obligation of the joint status.
73. These concepts of partition as well understood in Hindu Law has no application, while interpreting amended Section 6 of the Act. The legislature has defined 'partition' for the purpose of Section, which alone is to be taken into consideration while interpreting Section 6 of the Act.
PARTITION UNDER SECTION 6 OF THE ACT
74. In Section 6 the word 'partition' has been defined. It is a very narrow definition of partition. As per the said definition a partition means,
(1)Partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908).Unless the partition is evidenced by a registered document and has come into existence prior to 20th day of December 2004, the daughter who has now been conferred the status of a coparcener cannot be denied the right to the coparcenary property which she has now acquired by birth. This provision became necessitated because when the Tamil Nadu legislature introduced amendment in the year 1994 conferring right on a daughter, the status of a coparcener and made it clear that such a right is not available to a daughter in the joint family, if already partition has taken place, in order to deprive the legitimate share of a daughter spurious documents came into existence to defeat the operation of the amendment. This experience weighed with the Parliament while enacting this provision. Therefore, they made it clear a plea of partition if it is not supported by a registered deed of partition would not defeat the right of a daughter. Oral partitions, memorandum of partitions, agreements, which can be fabricated, concocted, after this Amendment Act came into force by antedating them and thus depriving the daughter of her legitimate right, had to be prevented. Therefore, in that background it is made clear that unless a partition is by a registered instrument, the daughter's right to the property is not taken away. In other words, if the partition is not evidenced by a registered document, then, the daughter of a coparcener who has been conferred equal right in coparcenary property with that of the son would be entitled to a share in the coparcenary property as that of the son notwithstanding the fact that there was a partition of the coparcenary property as recognised under Hindu law vis-à-vis, the law of partition.
(2) Partition effected by a decree of the Court.
75. The second mode recognized as per the definition of partition is, partition "effected by a decree of a Court". The word decree is defined under the Civil Procedure Code 1908. The definition reads as under:
" "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-76. It is a formal expression of an adjudication which so far as the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. A decree may be preliminary or final. In a partition suit, in a preliminary decree the Court declares the rights of the parties to the property in dispute. In other words, the shares to which each members of a joint family in the said joint family property or coparcenary property is declared. The said decree is appealable. When a trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit, and when the appellate decree affirms, modifies or reverses the decree on the merits, the trial Court decree is said in law to merge in the appellate decree, and it is the appellate decree which rules. However, what the Court does in a preliminary decree is only a declaration of shares. It does not effect a partition. A partition is effected when a final decree is passed giving effect to the shares declared in the preliminary decree by allotting specific share to the members of the family in the joint family property or the ancestral property or in both. Again, a final decree passed in a suit for partition is appealable. Therefore, the decree passed by the trial Court merges with the appellate decree and it is the final decree passed by the appellate Court which effects a partition. Therefore, it is the final decree of partition which has attained finality by which a partition is effected by a decree of Court. If a partition is effected by a decree of the Court, thereby meaning a final decree passed by a Court has attained finality, then, the daughter of a coparcener who has been conferred equal rights in the coparcenary property under Section 6, would not be entitled to a share in the coparcenary property as that of the son. In this regard it is useful to refer to the two decisions of the Supreme Court on the point.
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order or dismissal for default."
PHOOLCHAND AND ANOTHER V. GOPAL LAL, MANU/SC/0284/1967 : AIR (1967) SC 1470:
"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that if may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specifically in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights: if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed in a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decree are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible - and obviously this is so because the High Courts have differed on the question - we would prefer the view taken by the High Courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree particularly in a partition such due to deaths of some of the parties. Where there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We therefore hold that in the circumstances of this case it was open to the Court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial Court in the present case and therefore the preliminary decree already passed was mended, the decision amounted to a decree and was liable to appeal. We therefore agree with the view taken by the High Court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided for decision amounts to a decree. We should however like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant.S. SAI REDDY vs. S. NARAYANA REDDY AND OTHERS. [MANU/SC/0788/1991 : (1991) 3 SCC 647]:
"7. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines share does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullity the beneficial effect of the legislation depriving a vast section of women of its benefits."77. Therefore, it is clear that if on the date, i.e., 20th December, 2004, there is no partition effected by decree of the court thereby meaning a final decree for partition has not reached finality, then, the daughter of a coparcener is entitled to equal share in the coparcenary property as that of a son and Section 6 is applicable to such property. The legislative intention is clear. They wanted to give the benefit of this section to a daughter. Such a right, they did not wanted it to be defeated by mere plea of partition as well understood under Hindu law or merely because a suit for partition is filed or a decree for partition has already been passed by a trial Court. On those grounds they did not want to deny the daughter her legitimate share in the coparcenary property which ought to have been granted to her on the day the Act came into force namely 17th June 1956.
78. A registered partition deed could not be prepared, antedated and registered after the coming into force of the Act, Similarly a final decree for partition cannot be created or manipulated, just to deny the daughters their legitimate share in the coparcenary property, and a partition by registered instrument and a final decree for partition that attained finality would reflect the bona fide conduct of the parties in the normal circumstances. They did not want those transactions to be affected by the substituted Section 6 of the Act. Therefore a partition effected in the aforesaid two manner before 20th December 2004 were kept away from the purview of Section 6. Except those two circumstances, whatever may be the course of conduct of the parties, the daughter of a coparcener was conferred a right in such property equal to that of a son.
79. Therefore, the concept of partition and severance of the status as under Hindu Law has no application under the Act in view of the definition of partition by way of Explanation to sub-section (5) of Section 6 of the Act and it is only such partitions which are not affected by the effect of amended Section 6 of the Act."
The above reasoning is again negated and squarely met in Paragraphs 41 to 48 of Badrinarayan's case.
POINT No. 3
"What is the right of a married daughter in a coparcenary property?"
XXX"90. Therefore, when the Parliamentary legislation which was subsequent to the Karnataka Amendment conferred the status of a coparcener on the daughter of a coparcener and gave right by birth in the coparcenary property and did not exclude the married daughters from such status and right expressly or by necessary implication, the Central Act to that extent is repugnant to the State law. Similarly, the word partition used in the State Law is too wide and the Central law defines the word partition and giving it a narrow meaning for the purpose of Section 6. Again the said definition runs repugnant to the State law. As the amended law is passed by the Parliament it prevails over the State law and the law passed by the State stands impliedly repealed to the extent of repugnancy. As such, the married daughter cannot be deprived of her right to a share in the coparcenary property by birth. With the passing of the Amendment Act Section 6-A(d) stands repealed. Married daughter is entitled to equal share with the son in the coparcenary properties.
91. Therefore, a married daughter is also a coparcener and is entitled to equal share with the son in the coparcenary properties and her marriage in no way affects her right to equal share in the coparcenary property. Even after marriage she continues to have the same right which she had before marriage, as her right to coparcenary property flows from her birth as that of the son. To find out what is the right of a daughter in a coparcenary property, find out what is the right of the son. Whatever rights the son has in the coparcenary property, by virtue of the amendment the daughter also has such right. That is the object behind the legislation i.e., to achieve equality in the right of inheritance."
The right of the married daughter in the coparcenary property however, does not relate back to the date of introduction of the Principal Act, by virtue of the amendment. Two conditions necessary for applicability of Amended Section 6(1) are:
(i) The daughter of the coparcener (daughter claiming the 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.
The supporting reasons for the above propositions are as already discussed in Badrinarayan's case.
Point No. 4:
"Whether the amended provision is prospective or retrospective in operation?"
xxx"101. Therefore, it is clear from the aforesaid Constitution Bench judgment of the Apex Court, a vested right can be taken away by way of an amendment by the legislature by expressly saying so or by implication. Secondly, a declaratory law is retrospective in operation because the object of such declaratory law is to supply the omission. In the instant case, in 1956 when the Act was passed, the daughters of a coparcener was not treated as coparcener nor any right in the coparcenary property by birth was conferred on her. Now, by a declaration such a right is sought to be conferred. It is done by way of substitution. In other words, the legislative intent is to supply the omission in the original Act. The parliament has not kept any one in doubt about their intention. The effect is the Act as enacted in 1956 is to be read and construed as if the altered words/new section had been written into the earlier Act with the pen and ink and the old Section/Words scored out, so that thereafter there is no need to refer to the amending Act at all. The constitutional validity of the substituted section is not under challenge. On the contrary the substituted section is in conformity with the constitutional provision. The effect is old Section 6 is superseded by the new Section 6, the amended section taking the place of the original section, for all intents and purposes as if the amendment had always been there. This is the way the parliament has expressly made its intention clear to the effect the amendment is retrospective.
102. Secondly though the opening words of the section declares that "on and from the commencement of the Hindu Succession (Amendment) Act, 2005, the daughter of a coparcener in a joint family governed by the Mithakshara is conferred the status of coparcener, it is expressly stated that she becomes a coparcener by birth. Conferment of the status is different from conferring the rights in the coparcenary property. The right to coparcenary property is conferred from the date of birth, which necessarily means from the date anterior to the date of conferment of status, and thus the Section is made retro active. By such express words the amended section is made retrospective.
103. Thirdly, the proviso to section 6(1) makes the intention of the parliament manifestly clear. The Parliament has expressly stated in the proviso to sub-section (1) of Section 6-the substituted provision that the declaration of right in favour of a daughter as a coparcener though it takes effect by birth, i.e., anterior to the amendment, the same would not 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. The way this proviso is expressed makes it clear the substituted provision is retrospective in operation. By substitution it is made clear that this provision is there in the principal Act from 1956 itself. But, as the amendment came into force only in 2005, the question would arise that what should happen to the transactions between 1956 and 2005. It is in this context the Parliament has expressly stated though the right by birth is given from 1956, if the dispositions, alienations including partitions, testamentary dispositions which had taken place subsequent to 1956 and before 20th December 2004 those transactions are not affected. This conferment of right by birth would not invalidate any of the aforesaid disposition of property. Therefore, the intention is clear. Though this provision is made retrospective, if third party interests have crept in or even the coparceners on the assumption that it has become their separate property after the partition by way of registered partition deed or effected by a decree of the Court has made improvements or alienated the properties or parted with property by testamentary disposition, those transactions cannot be reopened. It is clear that, declaration of right of the daughter of a coparcener and conferment of right by birth shall not affect or invalidate any "disposition" or "alienation" including any partition or testamentary disposition of property, which have taken place before the 20th day of December 2004. The amendment Act received the assent of the President of India on 5th September, 2005, and came into force from 9th September, 2005. If the amendment Act is prospective in operation the amended law would not in any way invalidate any disposition, or alienation including any partition or testamentary disposition which had taken place before 20th December 2004. Then the entire proviso would have been redundant. If the proviso had not been introduced, all the dispositions, alienations including partition and testamentary dispositions would have to be set aside or declared not effecting the interest of the daughter of the coparcener who was not a party to such transactions. It is because the legislative intent was to give retrospective effect to the amended provision. Being conscious of the fall out of the retrospective operation of this amended provision, the legislature stepped in and introduced a proviso to protect the interest of third party who have acquired interest in those properties. This is yet another clear manifestation of the intention of the legislature in making this provision retrospective. Therefore, the substituted provision is retrospective in operation as is expressly declared so in the Section itself. It is not prospective."
This point stands covered in the discussion relevant to the previous points in Badrinarayan's case.
Point No. 5
"Whether the amended provision applies to the pending proceedings before the Court?"
xxx
"108. In this background the explanation makes it clear mere passing of a decree for partition whether by the trial Court or by the appellate Courts is not enough. Till a partition is effected by a decree of a Court, thereby meaning till the decree for partition attained finality, the daughter cannot be deprived of her legitimate right in the said property. Therefore, the substituted/amended Section applies to all pending proceedings as the partition is not yet effected by a decree of the Court."
Point 6
"What happens to the vested right under repealed Section 6 of (a) other female members (b) male members?"xxx"113. The amended Section is silent about the rights of other female relatives of a Hindu male dying before the commencement of the amended Act. There is nothing in the amended provision which evinces a contrary intention affecting the operation of the proviso to the unamended Section 6. The amended Section do not manifest an intention to destroy the rights conferred under the proviso to the amended Section. Sub-section (3) of the amended provision provides only for devolution of the interest on the death of a Hindu, after the amendment Act. In the case of a male, if he has left behind a female relative, the proviso to Section 6 applies, as the amended provision makes no provision for such a contingency. Therefore, the unamended Section remains in operation for the period before this repeal.114. However, while determining the share of the male Hindu who has died before the commencement of the amended Act, i.e. 9.9.2005, who had an interest in a Mitakshara coparcenary property, if he has left him surviving a female relative, his share is to be determined treating his daughter also as a coparcener. Thereafter in the notional partition, the share to be allotted to him devolves as per proviso to the unamended Section 6 of the Act. Thus, the vested right accrued to the other female members is not affected by the amendment, as the said vested right is not taken away expressly or by necessary implication by the Parliament. May be the extent of their share may be diminished but it does not amount to taking away the vested right. That is the sacrifice the other female members who are none other than the mother, grandmother, a grand daughter, has to make in favour of a daughter.
115. Therefore, in so far as other female members left behind by a male coparcener dying before the commencement of the Amendment Act, succession to this property is governed by the unamended Section 6 by virtue of Section 6 of the General Clauses Act.xxxx"121. Under the unamended Section 6 when a male Hindu dies after the commencement of the Act, his interest in the Mitakshara coparcenary property devolve by survivorship upon the surviving members of the coparcenary. Prior to the amended Section surviving members of the coparcenary included only male members and sons. By the amended Section 6, a daughter is conferred the status of a coparcener and she would become a member of the coparcenary. To that extent the amended Section is inconsistent with the unamended Section 6. Therefore, the amended Section as it evinces contrary intention effecting the portion of unamended Section 6 and also confers on such daughters, the right to property by birth, the rights which accrue to the male members of the coparcener on the succession being open prior to the amended Section is affected, their share get reduced.122. The Parliament wanted to give the benefit of the law to the daughters from 1956 itself. By giving such a right to the daughters even in pending matters all that happens is the shares of the sons would get reduced. But, the vested right which they acquired by birth is not extinguished. It is a curative legislation. This right ought to have been given to the daughters in the year 1956 itself when daughters were given the constitutional right of equality. The legislature has the power to take away such vested right by enacting a law and making its intention clear expressly or by necessary implication. By enacting the amended Section the legislative intent is clear. Not only the law is made retrospective but also affects such vested right of a male coparcener. Therefore, the contention that the vested right of a coparcener which had accrued by the opening of the succession prior to the amended Act cannot be taken away, is without any substance."
The conclusion drawn is not correct for reasons stated in Badrinarayan's case.
This bench is fully conscious that a single judge bench is bound to follow the opinion expressed on a point of law by a Division bench of the same High Court. It is also the settled legal position that a judge of one High Court is not bound to follow any judgment even of a larger bench of another High Court, which may have taken a view contrary to that expressed by a division bench of the single judge's High Court.
In Lala Shri Bhagwan vs. Ram Chand's Case, cited by the learned counsel for the respondent, the Apex Court was concerned with a case where a single judge had not followed a judgment of a Division bench of his High Court.
Even in a case where a Full Bench of another High Court directly addresses the judgment and reasoning of the Division Bench, by which the single judge of the other High Court is said to be bound, and if it is seen that the Division Bench may have been entirely wrong in its conclusions when read in the light of the reasoning afforded by a Full Bench of the High Court, it would appear the single judge is yet required to direct the matter to be placed before the Chief Justice of his High Court to be referred to a larger Bench for consideration of the correctness or otherwise of such Division Bench judgment. This is for the obvious reason that even if the single judge is inclined to follow and apply the law as laid down by a Full Bench judgment of another High Court, the judgment rendered by him, does not overrule the Division Bench judgment and the same would continue to hold the field, in so far as that High Court is concerned.
Secondly, this very bench had, on an earlier occasion, in a second appeal in RSA 1686/2008 (Parvathamma and others vs. Rajamma and others), found that there was a different opinion expressed by another Division Bench in the case of M. Prithviraj vs. Leelamma N., MANU/KA/7554/2007 : 2008 (4) KCCR 2333, contrary to the view expressed by the Division Bench in Pushpalatha's case and the same had been referred by the Honourable Chief Justice to a larger bench for consideration, at the instance of this bench. That remains pending. Hence it would be appropriate if the present matter is also referred to the larger bench (which may have to be reconstituted, since one of the learned judges comprising the larger bench has retired on attaining the age of superannuation, recently). It would now appear that both the Division Bench judgments, namely, Pushpalatha and Prithviraj, supra, would be found to be fallacious, if the Bombay judgment is to be accepted as laying down the correct law.
Hence, this matter be placed before the Hon. Chief Justice, to be referred to a larger bench for consideration of the correctness of the judgments of this court in Pushpalatha and M. Prithviraj, supra, in the light of the judgment in Badrinarayan.
No comments:
Post a Comment