The Repealing and Amending Act, 2015 does not
disclose any intention on the part of the Parliament to take
away the status of a co-parcener conferred on a daughter
giving equal rights with the son in the co-parcenary property.
Similarly, no such intention can be gathered with regard to
restoration of Section 23 and 24 of the Principal Act which
were repealed by the Hindu Succession (Amendment) Act,
2005. On the contrary, by virtue of the Repealing and
Amending Act, 2015, the amendments made to Hindu
Succession Act in the year 2005, became part of the Act and
the same is given retrospective effect from the day the
Principal Act came into force in the year 1956, as if the said
amended provision was in operation at that time.
28. The main object of a Repealing and Amending Act
is only to strike out the unnecessary Acts and excise dead
matter from the statute book in order to lighten the burden
of ever increasing spate of legislation and to remove
confusion from the public mind. In other words, the
Repealing and Amending Act is enacted not to bring in any
change in law, but to remove enactments which have become
unnecessary. Thus, the Repealing and Amending Act, 2015
only expurgates the Hindu Succession (Amendment) Act,
2005 (Act No.39/2005) along with similar Acts, which had
served the purpose.
29. The repeal of an amending Act, therefore, has no
repercussion on the parent Act which together with the
amendments remains unaffected. The general object of a
repealing and amending Act is stated in Halsbury's Laws of
England, 2nd Edition, Vol. 31, at p.563, thus:
“A statute Law Revision Act does not alter the
law, but simply strikes out certain enactments
which have become unnecessary. It invariably
contains elaborate provisos.”
30. In KHUDA BUX V. MANAGER, CALEDONIAN
PRESS, A.I.R. 1954 CAL. 484 CHAKRAVARTTI, C.J., 29
neatly brings out the purpose and scope of such Acts. The
learned Chief Justice says at p.486 as under : -
Such Acts have no Legislative effect, but are
designed for editorial revision, being intended
only to excise dead matter from the statute book
and to reduce its volume. Mostly, they expurgate
amending Acts, because having imparted the
amendments to the main Acts, those Acts have
served their purpose and have no further reason
for their existence. At times, inconsistencies are
also removed by repealing and amending Acts.
The only object of such Acts, which in England
are called Statute Law Revision Acts, is
legislative spring-cleaning and they are not
intended to make any change in the law. Even so,
they are guarded by saving clauses drawn with
elaborate care,. . .”.
31. This view has been affirmed by the Supreme Court
in the case of JETHANAND BETAB vs THE STATE OF
DELHI [AIR 1960 SC 89]. 30
32. The Repealing and Amending Act, 2015 which
repeals the Hindu Succession Act (Amendment) Act, 2005 in
whole, therefore, does not wipe out the amendment to
Section 6 from the Hindu Succession Act. The existence of
the Hindu Succession (Amendment) Act, 2005 since became
superfluous and did not serve any purpose and might lead
to confusion, the Parliament in its wisdom thought of
repealing the said Amendment Act. It is only a case of
legislative spring-cleaning, and not intended to make any
change in law.
33. The amended Section 6 has already been
substituted in the Hindu Succession Act, 1956 as if it was in
the enactment from its inception. When the amending
provision takes the place of the earlier provision, the object
of the Amendment Act is fulfilled and thereafter the
Amendment Act serves no purpose. Therefore, such an
Amendment Act requires to be repealed and that is what has
been precisely done by Act No.17/2015. Accordingly, Point
No.1 is answered in the negative.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED: 7TH DAY OF SEPTEMBER, 2015
PRESENT:
MR.JUSTICE N.KUMAR
AND
MR.JUSTICE G.NARENDAR
REGULAR FIRST APPEAL No.58/2014
SMT.LOKAMANI
Vs
SMT.MAHADEVAMMA
This regular first appeal is filed by defendants 1 to 3,
challenging the Judgment and Decree passed by the trial
Court decreeing the suit of the plaintiffs for partition and
separate possession of their shares in the suit schedule
properties.
2. For the sake of convenience, the parties are
referred to as they are referred in the original suit.
3. Suit is in respect of four landed properties and one
house property, described in the schedule to the plaint as
item Nos.1, 2, 3, 4 and 5 respectively.
4. The case of the plaintiffs is that they and late
Mahadevappa, the husband of first defendant and father of
defendant Nos.2 to 4 are the children of one Sannamadaiah.
They along with defendants 1 to 4 constitute undivided
Hindu Joint Family owning ancestral agricultural lands and
house property at item Nos.1 to 5 of the suit schedule. The 5
katha of these properties was recorded in the name of their
brother Mahadevappa and he used to share the agricultural
yield from the said properties, during his lifetime with them.
After the demise of Mahadevappa, defendants 1 to 4 failed to
share the crops and refused to accede to their lawful demand
for share in the schedule properties. Further, defendants 1
to 4 trying to alienate the schedule properties as the land
prices escalated. On approaching the revenue authority,
they came to know that their brother Mahadevappa had sold
some extent of land in item No.3 of the suit schedule without
their consent and knowledge. As such, the said Sale Deeds
are illegal and not binding on their interest.
5. After service of summons, defendants 1 to 3 filed
written statement admitting their relationship with the
plaintiffs and that the katha of the schedule properties
stood in the name of Mahadevappa. However, it is their
specific defense that, Sannamadaiah and Mahadevappa did
not share cordial relation and therefore the joint family
properties were divided between them; and the terms of 6
partition was reduced into writing, in the form of
unregistered partition deed. The katha of the schedule
properties continued in Sannamadaiah’s name till his death
and afterwards, Mahadevappa got the khata of the properties
fallen to his share as per the unregistered Partition Deed of
the year 2000. Sy. No.26/2 and some other items of the suit
schedule, that had fallen to Sannamadaiah’s share, was sold
in favour of defendants 5 to 7 during his lifetime. The
plaintiffs, therefore, are not entitled for any share therein.
The suit schedule properties are the properties fallen to the
share of Mahadevappa. After the death of Mahadevappa on
07.11.2005, defendants 1 to 4 being his legal representatives
got the katha of the schedule properties mutated in their
joint names. The suit is not maintainable for non-inclusion
of all the joint family properties.
6. Defendants 4 to 7 have remained exparte.
7. The trial Court on the basis of aforesaid pleadings,
framed the following issues: 7
1) Whether the plaintiffs prove that the suit
schedule properties are their joint family
properties?
2) Whether the defendants 1 to 3 prove that
the joint family properties were divided
between Sannamadaiah and his son
Mahadevappa under registered partition
deed and Sannamadaiah sold his share
in favour of defendants 5 to 7?
3) Whether the defendants 1 to 3 prove that
this is a suit for partial partition and
therefore not maintainable?
4) Whether the plaintiffs are entitled for the
relief sought?
5) What Order or Decree?
8. The plaintiffs in order to substantiate their claim,
examined plaintiffs 1 and 3 as PWs 1 and 2 respectively and
got marked Exs..P1 to 12. P.W.1’s evidence was discarded
as she did not offer herself for cross-examination. However,
defendants neither cross-examined PW2 nor entered the 8
witness box to adduce oral or documentary evidence in
support of their defense.
9. The trial Court on appreciation of the evidence on
record held that the plaintiffs have proved that the suit
schedule properties are joint family properties; the suit is
maintainable and that it is not a suit for partial partition as
contended by the defendants; the plaintiffs and
Mahadevappa being Class-I heirs of deceased Sannamadiah,
are entitled to equal share in the suit properties as per
Section 8 of the Hindu Succession Act, 1956. Observing so,
the trial Court decreed the suit and granted 3/4th share in
the suit properties to the plaintiffs. Aggrieved by the said
Judgment and Decree, defendants 1 to 3 have preferred this
appeal.
10. Learned counsel for the defendants/appellants
assailing the impugned Judgment and Decree, argued that
the trial Court passed the decree in favour of the plaintiffs
relying on Section 6 of the Hindu Succession (Amendment) 9
Act, 2005. The said provision is now repealed by the
Repealing and Amending Act, 2015 (Act No.17/2015).
Therefore, the status of co-parcener conferred on the
daughter of a coparcener under the amended Act is no more
available to the plaintiffs. The family properties were all
partitioned under an unregistered partition deed in the year
2000, there was no joint family in existence as on the date of
amendment to Section 6 of Hindu Succession Act. Similarly,
there was no co-parcenary property, or joint family property
in existence as on that date. Therefore, the plaintiffs are not
entitled to any share in the plaint schedule properties. It
was argued with regard to item No.3 that, since
Mahadevappa had executed sale Deeds in favour of
defendants 5 to 7, vide Exs.P1 to 3, the plaintiffs are not
entitled to any share in the said properties and the said
aspect has been completely missed by the trial Court.
Further, Sannamadiah during his life-time had purchased a
site in favour of 3rd plaintiff and gave cash, gold and silver
jewellery to plaintiffs 1 and 2 and therefore, the plaintiffs 10
are not entitled to any share in the plaint schedule
properties. Lastly it was urged that the defendants could not
attend the case or contest it, as the grand daughter of the 1st
defendant and daughter of the 4th defendant was suffering
from blood cancer.
11. Per contra, learned counsel for the
plaintiffs/respondents addressed arguments supporting the
impugned Judgment and Decree.
12. In the light of the points urged during arguments,
following points arise for our consideration in this appeal:
1) Whether the Repealing and Amending
Act, 2015 (Act No.17/2015), which
repealed the Hindu Succession
(Amendment) Act, 2005 to the whole
extent, has the effect of repealing
amended Section 6 and restoring the old
Section 6 of the Hindu Succession Act,
and thereby take away the status of coparcener
conferred on the daughters 11
giving them equal right with the sons in
the co-parcenary property?
2) Whether the plaintiffs right to a share in
the schedule properties is defeated by
the alleged partition under an
unregistered Partition Deed of the year
2000?
3) Whether the plaintiffs are entitled to a
share in the properties covered under
Exs.P1 to P4, forming portion of item No.3
of suit schedule?
4) Whether the plaintiffs’ right to share in
the schedule properties is taken away by
alleged purchase of site by
Sannamadaiah in favour of 3rd plaintiff
and gifting of gold, cash and silver
jewellery to plaintiffs 1 and 2?
POINT No. 1:
13. By Act No. 30/1956, the Hindu Succession Act,
1956 was enacted by the Parliament to amend and codify the 12
law relating to intestate succession among Hindus. The said
enactment came into force on 17.6.1956.
14. Section 6 of the Act dealing with devolution of
interest in co-parcenary property, before the amendment,
read as under :
“Section 6. Devolution of interest in coparcenary
property.-
When a male Hindu dies after the commencement
of this Act, having at the time of his death an
interest in a Mitakshara coparcenary property, his
interest in the property shall devolve by
survivorship upon the surviving members of the
coparcenary and not in accordance with this Act:
PROVIDED that, if the deceased had left him
surviving a female relative specified in class I of
the Schedule or a male relative specified in that
class who claims through such female relative,
the interest of the deceased in the Mitakshara
coparcenary property shall devolve by
testamentary or intestate succession, as the case
may be, under this Act and not by survivorship. 13
Explanation I: For the purposes of this 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.
Explanation 2: Nothing contained in the proviso
to this section shall be construed as enabling a
person who has separated himself from the
coparcenary before the death of the deceased or
any of his heirs to claim on intestacy a share in
the interest referred to therein.”
15. The aforesaid provision made it clear that, the
concept of Mitakshara co-parcenary and devolution of
property by survivorship upon the members of the coparcenary
was retained. Thus, the retention of Mistakshara
co-parcenary property without including the females meant
that the females could not inherit ancestral property as their
male counterparts did. The law by excluding the daughter
from participating in the co-parcenary ownership not only
contributed to discrimination on the ground of gender but 14
also led to oppression and negation of her fundamental right
to equality guaranteed by the Constitution.
16. Having regard to the need to render social justice
to women, the States of Andhra Pradesh, Tamil Nadu,
Karnataka and Maharashtra made necessary changes in the
law giving equal right to daughters in Hindu Mitakshara
coparcenary property: In Kerala, the Legislature enacted the
Kerala Joint Hindu Family System (Abolition) Act, 1975.
17. Thereafter, the Parliament proposed to remove the
discrimination as contained in Section 6 of the Hindu
Succession Act, 1956 by giving equal rights to daughters of a
coparcener in the Hindu Mitakshara co-parcenary property,
by enacting the Hindu Succession (Amendment) Act, 2005.
18. Section 6 under the Hindu Succession
(Amendment) Act, 2005 reads as under :
“3. For Section 6 of the principal Act,
the following section shall be substituted,
namely - 15
6. Devolution of interest in coparcenary
property.- (1) On and from the commencement of
the Hindu Succession (Amendment) Act, 2005, in
a Joint Hindu family governed by the
Mitakshara Law, the daughter of a coparcener
shall,-
(a) by birth become a coparcener in her
own right in the same manner as
the son;
(b) have the same rights in the
coparcenary property as she would
have had if she had been a son;
(c) be subject to the same liabilities in
respect of the said coparcenary
property as that of a son,
and any reference to a Hindu Mitakshara
coparcener shall be deemed to include a
reference to a daughter of a coparcener:
Provided that nothing contained in this
sub-section shall affect or invalidate any
disposition or alienation including any partition
or testamentary disposition of property which
had taken place before the 20th day of
December, 2004. 16
(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, as
property capable of being disposed of by her by
testamentary disposition.
(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;
(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 17
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 a
predeceased 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 pre-deceased son or a predeceased
daughter, as the case
may be.
Explanation.- For the purposes of this subsection,
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.
(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 18
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.-
(a) the right of any creditor to proceed
against the son, grandson or greatgrandson,
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
or 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.
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 19
adopted prior to the commencement of the
Hindu Succession (Amendment) Act, 2005.
(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.”
19. It is clear from these wordings that Section 6 of
the Hindu Succession Act, 1956 was substituted by Section
6 of the Hindu Succession (Amendment) Act, 2005. The
effect of substitution of a provision by way of an amendment
is that, the amended provision is written in the place of
earlier provision with pen and ink and automatically the old
Section is wiped out. So, there is no need to refer to the
amending Act at all. The amendment should be considered
as if embodied in the whole statute of which it has become a
part. The statute in its old form is superseded by the statute 20
in the amended form. The amending Section of the statute
takes the place of the original section, for all intent and
purpose as if the amendment had always been there. Though
the Amended Act came into force on 9.9.2005, Section 6 as
amended is deemed to have been there in the statute book
since 17.6.1956 when the Hindu Succession Act came into
force.
20. The Constitution Bench of the Apex Court in the
case of SHAMRAO V. PARULEKAR & OTHERS Vs.
DISTRICT MAGISTRATE THANA, BOMBAY AND OTHERS,
reported in AIR 1952 SC 324, dealing with the scope of the
substitution of a provision by way of amendment, has held
as under:
“The construction of an Act which has been
amended is now governed by technical rules and
we must first be clear regarding the proper
canons of construction. The rule is that when a
subsequent Act amends an earlier one in such a
way as to incorporate itself, or a part of itself,
into the earlier, then the earlier Act, must 21
thereafter be read and construed (except where
that would lead to a repugnancy, in consistency
or absurdity) as if the altered words had been
written into the earlier Act with pen and ink and
the old words scored out so that thereafter these
is no need to refer to the amending Act at all.
This is the rule in England. It is the law in
America. It is the law which the Privy Council
applied to India.”
21. In the case of SHA CHUNNILAL SOHANRAJ – VST.GURUSHANTAPPA,
1972(1) Mys. L. J 327, a Division
Bench of this Court held as under:
“An amending act is not regarded as an
independent statute. The statute in its old form
is superseded by the statute in its amended
form, the amended section of the statute taking
the place of the original section, for all intents
and purposes as if the amendment had always
been there. The amendment should be
considered as if embodied in the whole statute of
which it has become a part. Unless a contrary
intent is clearly indicated, the amended statute
is regarded as if the original statute had been 22
repealed and the whole statute re-enacted with
the amendment”.
Therefore, by such amendment, the amending Act has
become a part of the original Act. By virtue of the
amendment by way of substitution, the said provisions are
given retrospective effect. On the basis of the said
amendment, the daughters who were denied right in the coparcenary
property earlier have initiated proceedings in the
Court. The pending proceedings are also to be decided in the
light of the amended provision.
22. Section 23 of the Principal Act provided for rights
of female heir to seek partition in respect of a dwelling house
wholly occupied by a joint family only when the male heirs
choose to divide their respective shares therein. To remove
the said disability, Section 23 was omitted by the Hindu
Succession (Amendment) Act, 2005. Similarly, Section 24 of
the Principal Act which disentitled female Hindu to succeed
to the property of male Hindu if she has re-remarried on the
day the succession opened, was also omitted by the Hindu 23
Succession (Amendment) Act, 2005. Under Section 30, the
word ‘disposed of by him’ was substituted by the words
“disposed of by him or by her” since the right was conferred
on a daughter in the co-parcenery property.
23. By amendment to Hindu Succession Act in the
above terms, the Parliament has removed the inequality
between a son and a daughter, a discrimination on the
ground of gender, nearly 50 years after the Constitution
came into force. Thus, the fundamental right of equality
guaranteed by the Constitution is restored and a historical
wrong has been rectified.
24. Nearly, 10 years after coming into force of Hindu
Succession (Amendment) Act, 2005 the Parliament enacted
The Repealing and Amending Act, 2015 (Act No.17/2015) on
13.5.2015, to repeal certain enactments and to amend
certain other enactments. Section 2 of the Act No.17/2015
specifies the Acts which are repealed and the extent of repeal
in the First Schedule; at Sl.No.39 thereof is the Hindu 24
Succession (Amendment) Act, 2005 showing that the whole
of the Amendment Act is repealed.
25. The argument of the counsel for the appellants is
that, the Act No.17/2015 has repealed the whole of the
Hindu Succession (Amendment) Act, 2005 and it has the
effect of repealing amended Section 6 and reviving Section
6 of the Principal Act. Thus the status of a co-parcener
conferred on the daughter of a coparcener who is governed
by the Mitakshara law is taken away and she ceases to be
co-parcener. As such a daughter is not entitled to equal
share in the co-parcenary property along with a son who is a
co-parcener.
26. In order to appreciate and understand the effect of
repealing and amending Act, it is necessary to consider
Section 6A of the General Clauses Act, 1897 and Section 4 of
the Repealing and Amending Act, 2015. The said provisions
are extracted here below for convenience sake. 25
Section 6A of the General Clauses Act:
“6-A. Repeal of Act making textual
amendment in Act or Regulation. - Where any
Central Act or Regulation made after the
commencement of this Act repeals any enactment
by which the text of any Central Act or Regulation
was amended by the express omission, insertion
or substitution of any matter, then, unless a
different intention appears, the repeal shall not
affect the continuance of any such amendment
made by the enactment so repealed and in
operation at the time of such repeal”.
Section 4 of the Repealing and Amending Act, 2015
(Act No. 17/2015):
“The repeal by this Act of any enactment
shall not affect any Act in which such
enactment has been applied, incorporated or
referred to;
and this Act shall not affect the validity,
invalidity, effect or consequences of anything
already done or suffered, or any right, title,
obligation or liability already acquired,
accrued or incurred, or any remedy or 26
proceeding in respect thereof, or any release or
discharge of or from any debt, penalty,
obligation, liability, claim or demand, or any
indemnity already granted, or the proof of any
past act or thing;
nor shall this Act affect any principle or
rule of law, or established jurisdiction, form or
course of pleading, practice or procedure, or
existing usage, custom, privilege, restriction,
exemption, office or appointment,
nothwithstanding that the same respectively
may have been in any manner affirmed,
recognized or derived by, in or from any
enactment hereby repealed;
nor shall the repeal by this Act of any
enactment provide or restore any jurisdiction,
office, custom, liability, right, title privilege,
restriction, exemption, usage, practice,
procedure or other matter or thing not now
existing or in force.”
A plain reading of Section 6A of the General Clauses Act
makes it clear that unless a different intention appears, the
repeal shall not affect the continuance of any such
amendment made by the enactment so repealed and in
operation at the time of such repeal.
27. The Repealing and Amending Act, 2015 does not
disclose any intention on the part of the Parliament to take
away the status of a co-parcener conferred on a daughter
giving equal rights with the son in the co-parcenary property.
Similarly, no such intention can be gathered with regard to
restoration of Section 23 and 24 of the Principal Act which
were repealed by the Hindu Succession (Amendment) Act,
2005. On the contrary, by virtue of the Repealing and
Amending Act, 2015, the amendments made to Hindu
Succession Act in the year 2005, became part of the Act and
the same is given retrospective effect from the day the
Principal Act came into force in the year 1956, as if the said
amended provision was in operation at that time.
28. The main object of a Repealing and Amending Act
is only to strike out the unnecessary Acts and excise dead
matter from the statute book in order to lighten the burden 28
of ever increasing spate of legislation and to remove
confusion from the public mind. In other words, the
Repealing and Amending Act is enacted not to bring in any
change in law, but to remove enactments which have become
unnecessary. Thus, the Repealing and Amending Act, 2015
only expurgates the Hindu Succession (Amendment) Act,
2005 (Act No.39/2005) along with similar Acts, which had
served the purpose.
29. The repeal of an amending Act, therefore, has no
repercussion on the parent Act which together with the
amendments remains unaffected. The general object of a
repealing and amending Act is stated in Halsbury's Laws of
England, 2nd Edition, Vol. 31, at p.563, thus:
“A statute Law Revision Act does not alter the
law, but simply strikes out certain enactments
which have become unnecessary. It invariably
contains elaborate provisos.”
30. In KHUDA BUX V. MANAGER, CALEDONIAN
PRESS, A.I.R. 1954 CAL. 484 CHAKRAVARTTI, C.J., 29
neatly brings out the purpose and scope of such Acts. The
learned Chief Justice says at p.486 as under : -
Such Acts have no Legislative effect, but are
designed for editorial revision, being intended
only to excise dead matter from the statute book
and to reduce its volume. Mostly, they expurgate
amending Acts, because having imparted the
amendments to the main Acts, those Acts have
served their purpose and have no further reason
for their existence. At times, inconsistencies are
also removed by repealing and amending Acts.
The only object of such Acts, which in England
are called Statute Law Revision Acts, is
legislative spring-cleaning and they are not
intended to make any change in the law. Even so,
they are guarded by saving clauses drawn with
elaborate care,. . .”.
31. This view has been affirmed by the Supreme Court
in the case of JETHANAND BETAB vs THE STATE OF
DELHI [AIR 1960 SC 89]. 30
32. The Repealing and Amending Act, 2015 which
repeals the Hindu Succession Act (Amendment) Act, 2005 in
whole, therefore, does not wipe out the amendment to
Section 6 from the Hindu Succession Act. The existence of
the Hindu Succession (Amendment) Act, 2005 since became
superfluous and did not serve any purpose and might lead
to confusion, the Parliament in its wisdom thought of
repealing the said Amendment Act. It is only a case of
legislative spring-cleaning, and not intended to make any
change in law.
33. The amended Section 6 has already been
substituted in the Hindu Succession Act, 1956 as if it was in
the enactment from its inception. When the amending
provision takes the place of the earlier provision, the object
of the Amendment Act is fulfilled and thereafter the
Amendment Act serves no purpose. Therefore, such an
Amendment Act requires to be repealed and that is what has
been precisely done by Act No.17/2015. Accordingly, Point
No.1 is answered in the negative. 31
POINT No.2:
34. It is undisputed that the plaint schedule
properties were ancestral properties of the parties and stood
in the name of plaintiffs’ father Sannamadaiah. By Act No.39
of 2005, Section 6 of the Hindu Succession Act, 1956 came
to be amended, conferring on the daughters of a coparcener
the status of co-parcener giving equal right in the
coparcenary property along with the son.
35. Explanation to sub-Section (5) of Section 6 of the
Hindu Succession Act, 1956 categorically declares that
nothing contained in Section 6 applies to a partition, which
has been effected before 20th day of December 2004. In
other words, if a partition had taken place in the family
before 20th December 2004, by virtue of the amendment, a
daughter cannot claim share in the co-parcenary property.
36. Explanation to sub-Section (5) explains the
meaning of partition for the purpose of Section 6 as below: 32
“Explanation: For the purposes of
Section 6, “partition” means any partition
made by execution of a deed of partition duly
registered under the Registration Act, 1908 or
partition effected by a decree of a Court.”
Thus oral partition, palu-patti, unregistered Partition Deed
are excluded from the purview of the word “partition” used in
Section 6. It is only the partition effected by way of a
registered Deed prior to 20th December 2004, which debars a
daughter from staking an equal share with a son in a coparcenary
property.
37. In the case on hand, admittedly there is no
registered Partition Deed between Sannamadaiah and
Mahadevappa, evidencing the alleged partition that took
place in the year 2000. Even if there was a partition, oral or
by an unregistered Partition Deed of the year 2000 as
contended by the defendants, it cannot be treated as
partition for the purpose of Section 6 and the rights of the 33
daughters to claim an equal share as coparceners along with
Sannamadaih’s son Mahadevappa remains unaffected.
38. We do not find any substance in the argument of
the appellants that there was a partition in the year 2000
and in the said partition, the schedule properties had fallen
to the share of Mahadevappa. The trial Court is fully justified
in rejecting the contention of the defendants and holding
that the plaintiffs are entitled to equal share with the son of
Sannamadaiah in the schedule properties, which are
admittedly co-parcenary properties. Therefore, point No.2 is
answered in the negative.
POINT NO.3:
39. The proviso to sub-Section (1) of Section 6 of the
Hindu Succession Act after conferring the status of a coparcener
on a daughter, categorically provides that nothing
contained in sub-Section (1) shall affect or invalidate any
disposition or alienation including any partition or 34
testamentary disposition of property which had taken place
before the 20th Day of December, 2004.
40. The plaintiffs themselves have produced Exs.P1 to
3, certified copies of the Sale Deeds dated 8.2.2002 executed
in favour of defendants 5 to 7 in respect of a portion of item
No.3 of the plaint schedule. However, Ex.P4, the certified
copy of the sale deed dated 25.2.2009 came into existence
subsequent to 20th December 2004, as such the said sale is
not saved by proviso to sub-section (1) of Section 6 of the
Hindu Succession Act. Therefore, the Court below has rightly
ignored the said sale deed and granted a share to the
plaintiffs in respect of the property covered under Ex.P4.
41. By virtue of Exs.P1 to P3 which are registered
documents, the properties sold thereunder had gone out of
the joint family as on the day Section 6 was substituted.
Therefore, the plaintiffs who acquired right to claim a share
with their brother Mahadevappa as coparceners because of 35
amended Section 6, are not entitled to any share or interest
in the said property.
42. Unfortunately, the trial Court without properly
appreciating this legal position, proceeded on the
assumption that the defendants 4 to 7 have not contested
the matter; the said sale was not for legal necessity and
benefit of estate and therefore contended that the plaintiffs
have a right in the said properties. In view of Section 6
proviso sub-Section (1), the question of legal necessity and
benefit of estate should not have gone into by the trial Court.
This is not a case where an alienation is challenged on those
grounds and therefore, the Judgment and Decree of the trial
Court to this extent requires to be set aside. Therefore, point
No.3 is answered partly in the affirmative holding that the
plaintiffs are entitled to a share only in the property sold
under Ex.P4 and not the one sold under Exs.P1 to P3. 36
POINT No.4:
43. Learned counsel for the appellants argued that
Sannamadaiah purchased a site in the name of the third
plaintiff and gave gold and silver jewellery as well as cash to
the first and second plaintiffs and therefore plaintiffs cannot
claim any share in the suit properties. Admittedly, the
defendants have not stepped into the witness-box to
substantiate their contention, nor is there any plea in the
written statement to that effect. Even assuming that
Sannamadaiah had purchased a site in the name of third
plaintiff and given jewellary and cash to other plaintiffs, the
same cannot take away their legal right as daughters to
claim a share in the co-parcenary properties by virtue of
Section 6 read with Section 8 of Hindu Succession Act.
Point No.4 is therefore answered in the negative.
44. In the result, we pass the following : -
O R D E R
(a) The appeal is partly allowed. 37
(b) The Judgment and Decree of the trial Court is
hereby confirmed in all respects except the properties
sold under Exs.P1 to P3, which forms part of item No.3
of the plaint schedule; the plaintiffs are not entitled for
any share in the properties sold under Exs.P1 to P3.
(c) No costs.
Print Page
disclose any intention on the part of the Parliament to take
away the status of a co-parcener conferred on a daughter
giving equal rights with the son in the co-parcenary property.
Similarly, no such intention can be gathered with regard to
restoration of Section 23 and 24 of the Principal Act which
were repealed by the Hindu Succession (Amendment) Act,
2005. On the contrary, by virtue of the Repealing and
Amending Act, 2015, the amendments made to Hindu
Succession Act in the year 2005, became part of the Act and
the same is given retrospective effect from the day the
Principal Act came into force in the year 1956, as if the said
amended provision was in operation at that time.
28. The main object of a Repealing and Amending Act
is only to strike out the unnecessary Acts and excise dead
matter from the statute book in order to lighten the burden
of ever increasing spate of legislation and to remove
confusion from the public mind. In other words, the
Repealing and Amending Act is enacted not to bring in any
change in law, but to remove enactments which have become
unnecessary. Thus, the Repealing and Amending Act, 2015
only expurgates the Hindu Succession (Amendment) Act,
2005 (Act No.39/2005) along with similar Acts, which had
served the purpose.
29. The repeal of an amending Act, therefore, has no
repercussion on the parent Act which together with the
amendments remains unaffected. The general object of a
repealing and amending Act is stated in Halsbury's Laws of
England, 2nd Edition, Vol. 31, at p.563, thus:
“A statute Law Revision Act does not alter the
law, but simply strikes out certain enactments
which have become unnecessary. It invariably
contains elaborate provisos.”
30. In KHUDA BUX V. MANAGER, CALEDONIAN
PRESS, A.I.R. 1954 CAL. 484 CHAKRAVARTTI, C.J., 29
neatly brings out the purpose and scope of such Acts. The
learned Chief Justice says at p.486 as under : -
Such Acts have no Legislative effect, but are
designed for editorial revision, being intended
only to excise dead matter from the statute book
and to reduce its volume. Mostly, they expurgate
amending Acts, because having imparted the
amendments to the main Acts, those Acts have
served their purpose and have no further reason
for their existence. At times, inconsistencies are
also removed by repealing and amending Acts.
The only object of such Acts, which in England
are called Statute Law Revision Acts, is
legislative spring-cleaning and they are not
intended to make any change in the law. Even so,
they are guarded by saving clauses drawn with
elaborate care,. . .”.
31. This view has been affirmed by the Supreme Court
in the case of JETHANAND BETAB vs THE STATE OF
DELHI [AIR 1960 SC 89]. 30
32. The Repealing and Amending Act, 2015 which
repeals the Hindu Succession Act (Amendment) Act, 2005 in
whole, therefore, does not wipe out the amendment to
Section 6 from the Hindu Succession Act. The existence of
the Hindu Succession (Amendment) Act, 2005 since became
superfluous and did not serve any purpose and might lead
to confusion, the Parliament in its wisdom thought of
repealing the said Amendment Act. It is only a case of
legislative spring-cleaning, and not intended to make any
change in law.
33. The amended Section 6 has already been
substituted in the Hindu Succession Act, 1956 as if it was in
the enactment from its inception. When the amending
provision takes the place of the earlier provision, the object
of the Amendment Act is fulfilled and thereafter the
Amendment Act serves no purpose. Therefore, such an
Amendment Act requires to be repealed and that is what has
been precisely done by Act No.17/2015. Accordingly, Point
No.1 is answered in the negative.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED: 7TH DAY OF SEPTEMBER, 2015
PRESENT:
MR.JUSTICE N.KUMAR
AND
MR.JUSTICE G.NARENDAR
REGULAR FIRST APPEAL No.58/2014
SMT.LOKAMANI
Vs
SMT.MAHADEVAMMA
This regular first appeal is filed by defendants 1 to 3,
challenging the Judgment and Decree passed by the trial
Court decreeing the suit of the plaintiffs for partition and
separate possession of their shares in the suit schedule
properties.
2. For the sake of convenience, the parties are
referred to as they are referred in the original suit.
3. Suit is in respect of four landed properties and one
house property, described in the schedule to the plaint as
item Nos.1, 2, 3, 4 and 5 respectively.
4. The case of the plaintiffs is that they and late
Mahadevappa, the husband of first defendant and father of
defendant Nos.2 to 4 are the children of one Sannamadaiah.
They along with defendants 1 to 4 constitute undivided
Hindu Joint Family owning ancestral agricultural lands and
house property at item Nos.1 to 5 of the suit schedule. The 5
katha of these properties was recorded in the name of their
brother Mahadevappa and he used to share the agricultural
yield from the said properties, during his lifetime with them.
After the demise of Mahadevappa, defendants 1 to 4 failed to
share the crops and refused to accede to their lawful demand
for share in the schedule properties. Further, defendants 1
to 4 trying to alienate the schedule properties as the land
prices escalated. On approaching the revenue authority,
they came to know that their brother Mahadevappa had sold
some extent of land in item No.3 of the suit schedule without
their consent and knowledge. As such, the said Sale Deeds
are illegal and not binding on their interest.
5. After service of summons, defendants 1 to 3 filed
written statement admitting their relationship with the
plaintiffs and that the katha of the schedule properties
stood in the name of Mahadevappa. However, it is their
specific defense that, Sannamadaiah and Mahadevappa did
not share cordial relation and therefore the joint family
properties were divided between them; and the terms of 6
partition was reduced into writing, in the form of
unregistered partition deed. The katha of the schedule
properties continued in Sannamadaiah’s name till his death
and afterwards, Mahadevappa got the khata of the properties
fallen to his share as per the unregistered Partition Deed of
the year 2000. Sy. No.26/2 and some other items of the suit
schedule, that had fallen to Sannamadaiah’s share, was sold
in favour of defendants 5 to 7 during his lifetime. The
plaintiffs, therefore, are not entitled for any share therein.
The suit schedule properties are the properties fallen to the
share of Mahadevappa. After the death of Mahadevappa on
07.11.2005, defendants 1 to 4 being his legal representatives
got the katha of the schedule properties mutated in their
joint names. The suit is not maintainable for non-inclusion
of all the joint family properties.
6. Defendants 4 to 7 have remained exparte.
7. The trial Court on the basis of aforesaid pleadings,
framed the following issues: 7
1) Whether the plaintiffs prove that the suit
schedule properties are their joint family
properties?
2) Whether the defendants 1 to 3 prove that
the joint family properties were divided
between Sannamadaiah and his son
Mahadevappa under registered partition
deed and Sannamadaiah sold his share
in favour of defendants 5 to 7?
3) Whether the defendants 1 to 3 prove that
this is a suit for partial partition and
therefore not maintainable?
4) Whether the plaintiffs are entitled for the
relief sought?
5) What Order or Decree?
8. The plaintiffs in order to substantiate their claim,
examined plaintiffs 1 and 3 as PWs 1 and 2 respectively and
got marked Exs..P1 to 12. P.W.1’s evidence was discarded
as she did not offer herself for cross-examination. However,
defendants neither cross-examined PW2 nor entered the 8
witness box to adduce oral or documentary evidence in
support of their defense.
9. The trial Court on appreciation of the evidence on
record held that the plaintiffs have proved that the suit
schedule properties are joint family properties; the suit is
maintainable and that it is not a suit for partial partition as
contended by the defendants; the plaintiffs and
Mahadevappa being Class-I heirs of deceased Sannamadiah,
are entitled to equal share in the suit properties as per
Section 8 of the Hindu Succession Act, 1956. Observing so,
the trial Court decreed the suit and granted 3/4th share in
the suit properties to the plaintiffs. Aggrieved by the said
Judgment and Decree, defendants 1 to 3 have preferred this
appeal.
10. Learned counsel for the defendants/appellants
assailing the impugned Judgment and Decree, argued that
the trial Court passed the decree in favour of the plaintiffs
relying on Section 6 of the Hindu Succession (Amendment) 9
Act, 2005. The said provision is now repealed by the
Repealing and Amending Act, 2015 (Act No.17/2015).
Therefore, the status of co-parcener conferred on the
daughter of a coparcener under the amended Act is no more
available to the plaintiffs. The family properties were all
partitioned under an unregistered partition deed in the year
2000, there was no joint family in existence as on the date of
amendment to Section 6 of Hindu Succession Act. Similarly,
there was no co-parcenary property, or joint family property
in existence as on that date. Therefore, the plaintiffs are not
entitled to any share in the plaint schedule properties. It
was argued with regard to item No.3 that, since
Mahadevappa had executed sale Deeds in favour of
defendants 5 to 7, vide Exs.P1 to 3, the plaintiffs are not
entitled to any share in the said properties and the said
aspect has been completely missed by the trial Court.
Further, Sannamadiah during his life-time had purchased a
site in favour of 3rd plaintiff and gave cash, gold and silver
jewellery to plaintiffs 1 and 2 and therefore, the plaintiffs 10
are not entitled to any share in the plaint schedule
properties. Lastly it was urged that the defendants could not
attend the case or contest it, as the grand daughter of the 1st
defendant and daughter of the 4th defendant was suffering
from blood cancer.
11. Per contra, learned counsel for the
plaintiffs/respondents addressed arguments supporting the
impugned Judgment and Decree.
12. In the light of the points urged during arguments,
following points arise for our consideration in this appeal:
1) Whether the Repealing and Amending
Act, 2015 (Act No.17/2015), which
repealed the Hindu Succession
(Amendment) Act, 2005 to the whole
extent, has the effect of repealing
amended Section 6 and restoring the old
Section 6 of the Hindu Succession Act,
and thereby take away the status of coparcener
conferred on the daughters 11
giving them equal right with the sons in
the co-parcenary property?
2) Whether the plaintiffs right to a share in
the schedule properties is defeated by
the alleged partition under an
unregistered Partition Deed of the year
2000?
3) Whether the plaintiffs are entitled to a
share in the properties covered under
Exs.P1 to P4, forming portion of item No.3
of suit schedule?
4) Whether the plaintiffs’ right to share in
the schedule properties is taken away by
alleged purchase of site by
Sannamadaiah in favour of 3rd plaintiff
and gifting of gold, cash and silver
jewellery to plaintiffs 1 and 2?
POINT No. 1:
13. By Act No. 30/1956, the Hindu Succession Act,
1956 was enacted by the Parliament to amend and codify the 12
law relating to intestate succession among Hindus. The said
enactment came into force on 17.6.1956.
14. Section 6 of the Act dealing with devolution of
interest in co-parcenary property, before the amendment,
read as under :
“Section 6. Devolution of interest in coparcenary
property.-
When a male Hindu dies after the commencement
of this Act, having at the time of his death an
interest in a Mitakshara coparcenary property, his
interest in the property shall devolve by
survivorship upon the surviving members of the
coparcenary and not in accordance with this Act:
PROVIDED that, if the deceased had left him
surviving a female relative specified in class I of
the Schedule or a male relative specified in that
class who claims through such female relative,
the interest of the deceased in the Mitakshara
coparcenary property shall devolve by
testamentary or intestate succession, as the case
may be, under this Act and not by survivorship. 13
Explanation I: For the purposes of this 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.
Explanation 2: Nothing contained in the proviso
to this section shall be construed as enabling a
person who has separated himself from the
coparcenary before the death of the deceased or
any of his heirs to claim on intestacy a share in
the interest referred to therein.”
15. The aforesaid provision made it clear that, the
concept of Mitakshara co-parcenary and devolution of
property by survivorship upon the members of the coparcenary
was retained. Thus, the retention of Mistakshara
co-parcenary property without including the females meant
that the females could not inherit ancestral property as their
male counterparts did. The law by excluding the daughter
from participating in the co-parcenary ownership not only
contributed to discrimination on the ground of gender but 14
also led to oppression and negation of her fundamental right
to equality guaranteed by the Constitution.
16. Having regard to the need to render social justice
to women, the States of Andhra Pradesh, Tamil Nadu,
Karnataka and Maharashtra made necessary changes in the
law giving equal right to daughters in Hindu Mitakshara
coparcenary property: In Kerala, the Legislature enacted the
Kerala Joint Hindu Family System (Abolition) Act, 1975.
17. Thereafter, the Parliament proposed to remove the
discrimination as contained in Section 6 of the Hindu
Succession Act, 1956 by giving equal rights to daughters of a
coparcener in the Hindu Mitakshara co-parcenary property,
by enacting the Hindu Succession (Amendment) Act, 2005.
18. Section 6 under the Hindu Succession
(Amendment) Act, 2005 reads as under :
“3. For Section 6 of the principal Act,
the following section shall be substituted,
namely - 15
6. Devolution of interest in coparcenary
property.- (1) On and from the commencement of
the Hindu Succession (Amendment) Act, 2005, in
a Joint Hindu family governed by the
Mitakshara Law, the daughter of a coparcener
shall,-
(a) by birth become a coparcener in her
own right in the same manner as
the son;
(b) have the same rights in the
coparcenary property as she would
have had if she had been a son;
(c) be subject to the same liabilities in
respect of the said coparcenary
property as that of a son,
and any reference to a Hindu Mitakshara
coparcener shall be deemed to include a
reference to a daughter of a coparcener:
Provided that nothing contained in this
sub-section shall affect or invalidate any
disposition or alienation including any partition
or testamentary disposition of property which
had taken place before the 20th day of
December, 2004. 16
(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, as
property capable of being disposed of by her by
testamentary disposition.
(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;
(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 17
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 a
predeceased 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 pre-deceased son or a predeceased
daughter, as the case
may be.
Explanation.- For the purposes of this subsection,
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.
(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 18
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.-
(a) the right of any creditor to proceed
against the son, grandson or greatgrandson,
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
or 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.
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 19
adopted prior to the commencement of the
Hindu Succession (Amendment) Act, 2005.
(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.”
19. It is clear from these wordings that Section 6 of
the Hindu Succession Act, 1956 was substituted by Section
6 of the Hindu Succession (Amendment) Act, 2005. The
effect of substitution of a provision by way of an amendment
is that, the amended provision is written in the place of
earlier provision with pen and ink and automatically the old
Section is wiped out. So, there is no need to refer to the
amending Act at all. The amendment should be considered
as if embodied in the whole statute of which it has become a
part. The statute in its old form is superseded by the statute 20
in the amended form. The amending Section of the statute
takes the place of the original section, for all intent and
purpose as if the amendment had always been there. Though
the Amended Act came into force on 9.9.2005, Section 6 as
amended is deemed to have been there in the statute book
since 17.6.1956 when the Hindu Succession Act came into
force.
20. The Constitution Bench of the Apex Court in the
case of SHAMRAO V. PARULEKAR & OTHERS Vs.
DISTRICT MAGISTRATE THANA, BOMBAY AND OTHERS,
reported in AIR 1952 SC 324, dealing with the scope of the
substitution of a provision by way of amendment, has held
as under:
“The construction of an Act which has been
amended is now governed by technical rules and
we must first be clear regarding the proper
canons of construction. The rule is that when a
subsequent Act amends an earlier one in such a
way as to incorporate itself, or a part of itself,
into the earlier, then the earlier Act, must 21
thereafter be read and construed (except where
that would lead to a repugnancy, in consistency
or absurdity) as if the altered words had been
written into the earlier Act with pen and ink and
the old words scored out so that thereafter these
is no need to refer to the amending Act at all.
This is the rule in England. It is the law in
America. It is the law which the Privy Council
applied to India.”
21. In the case of SHA CHUNNILAL SOHANRAJ – VST.GURUSHANTAPPA,
1972(1) Mys. L. J 327, a Division
Bench of this Court held as under:
“An amending act is not regarded as an
independent statute. The statute in its old form
is superseded by the statute in its amended
form, the amended section of the statute taking
the place of the original section, for all intents
and purposes as if the amendment had always
been there. The amendment should be
considered as if embodied in the whole statute of
which it has become a part. Unless a contrary
intent is clearly indicated, the amended statute
is regarded as if the original statute had been 22
repealed and the whole statute re-enacted with
the amendment”.
Therefore, by such amendment, the amending Act has
become a part of the original Act. By virtue of the
amendment by way of substitution, the said provisions are
given retrospective effect. On the basis of the said
amendment, the daughters who were denied right in the coparcenary
property earlier have initiated proceedings in the
Court. The pending proceedings are also to be decided in the
light of the amended provision.
22. Section 23 of the Principal Act provided for rights
of female heir to seek partition in respect of a dwelling house
wholly occupied by a joint family only when the male heirs
choose to divide their respective shares therein. To remove
the said disability, Section 23 was omitted by the Hindu
Succession (Amendment) Act, 2005. Similarly, Section 24 of
the Principal Act which disentitled female Hindu to succeed
to the property of male Hindu if she has re-remarried on the
day the succession opened, was also omitted by the Hindu 23
Succession (Amendment) Act, 2005. Under Section 30, the
word ‘disposed of by him’ was substituted by the words
“disposed of by him or by her” since the right was conferred
on a daughter in the co-parcenery property.
23. By amendment to Hindu Succession Act in the
above terms, the Parliament has removed the inequality
between a son and a daughter, a discrimination on the
ground of gender, nearly 50 years after the Constitution
came into force. Thus, the fundamental right of equality
guaranteed by the Constitution is restored and a historical
wrong has been rectified.
24. Nearly, 10 years after coming into force of Hindu
Succession (Amendment) Act, 2005 the Parliament enacted
The Repealing and Amending Act, 2015 (Act No.17/2015) on
13.5.2015, to repeal certain enactments and to amend
certain other enactments. Section 2 of the Act No.17/2015
specifies the Acts which are repealed and the extent of repeal
in the First Schedule; at Sl.No.39 thereof is the Hindu 24
Succession (Amendment) Act, 2005 showing that the whole
of the Amendment Act is repealed.
25. The argument of the counsel for the appellants is
that, the Act No.17/2015 has repealed the whole of the
Hindu Succession (Amendment) Act, 2005 and it has the
effect of repealing amended Section 6 and reviving Section
6 of the Principal Act. Thus the status of a co-parcener
conferred on the daughter of a coparcener who is governed
by the Mitakshara law is taken away and she ceases to be
co-parcener. As such a daughter is not entitled to equal
share in the co-parcenary property along with a son who is a
co-parcener.
26. In order to appreciate and understand the effect of
repealing and amending Act, it is necessary to consider
Section 6A of the General Clauses Act, 1897 and Section 4 of
the Repealing and Amending Act, 2015. The said provisions
are extracted here below for convenience sake. 25
Section 6A of the General Clauses Act:
“6-A. Repeal of Act making textual
amendment in Act or Regulation. - Where any
Central Act or Regulation made after the
commencement of this Act repeals any enactment
by which the text of any Central Act or Regulation
was amended by the express omission, insertion
or substitution of any matter, then, unless a
different intention appears, the repeal shall not
affect the continuance of any such amendment
made by the enactment so repealed and in
operation at the time of such repeal”.
Section 4 of the Repealing and Amending Act, 2015
(Act No. 17/2015):
“The repeal by this Act of any enactment
shall not affect any Act in which such
enactment has been applied, incorporated or
referred to;
and this Act shall not affect the validity,
invalidity, effect or consequences of anything
already done or suffered, or any right, title,
obligation or liability already acquired,
accrued or incurred, or any remedy or 26
proceeding in respect thereof, or any release or
discharge of or from any debt, penalty,
obligation, liability, claim or demand, or any
indemnity already granted, or the proof of any
past act or thing;
nor shall this Act affect any principle or
rule of law, or established jurisdiction, form or
course of pleading, practice or procedure, or
existing usage, custom, privilege, restriction,
exemption, office or appointment,
nothwithstanding that the same respectively
may have been in any manner affirmed,
recognized or derived by, in or from any
enactment hereby repealed;
nor shall the repeal by this Act of any
enactment provide or restore any jurisdiction,
office, custom, liability, right, title privilege,
restriction, exemption, usage, practice,
procedure or other matter or thing not now
existing or in force.”
A plain reading of Section 6A of the General Clauses Act
makes it clear that unless a different intention appears, the
repeal shall not affect the continuance of any such
amendment made by the enactment so repealed and in
operation at the time of such repeal.
27. The Repealing and Amending Act, 2015 does not
disclose any intention on the part of the Parliament to take
away the status of a co-parcener conferred on a daughter
giving equal rights with the son in the co-parcenary property.
Similarly, no such intention can be gathered with regard to
restoration of Section 23 and 24 of the Principal Act which
were repealed by the Hindu Succession (Amendment) Act,
2005. On the contrary, by virtue of the Repealing and
Amending Act, 2015, the amendments made to Hindu
Succession Act in the year 2005, became part of the Act and
the same is given retrospective effect from the day the
Principal Act came into force in the year 1956, as if the said
amended provision was in operation at that time.
28. The main object of a Repealing and Amending Act
is only to strike out the unnecessary Acts and excise dead
matter from the statute book in order to lighten the burden 28
of ever increasing spate of legislation and to remove
confusion from the public mind. In other words, the
Repealing and Amending Act is enacted not to bring in any
change in law, but to remove enactments which have become
unnecessary. Thus, the Repealing and Amending Act, 2015
only expurgates the Hindu Succession (Amendment) Act,
2005 (Act No.39/2005) along with similar Acts, which had
served the purpose.
29. The repeal of an amending Act, therefore, has no
repercussion on the parent Act which together with the
amendments remains unaffected. The general object of a
repealing and amending Act is stated in Halsbury's Laws of
England, 2nd Edition, Vol. 31, at p.563, thus:
“A statute Law Revision Act does not alter the
law, but simply strikes out certain enactments
which have become unnecessary. It invariably
contains elaborate provisos.”
30. In KHUDA BUX V. MANAGER, CALEDONIAN
PRESS, A.I.R. 1954 CAL. 484 CHAKRAVARTTI, C.J., 29
neatly brings out the purpose and scope of such Acts. The
learned Chief Justice says at p.486 as under : -
Such Acts have no Legislative effect, but are
designed for editorial revision, being intended
only to excise dead matter from the statute book
and to reduce its volume. Mostly, they expurgate
amending Acts, because having imparted the
amendments to the main Acts, those Acts have
served their purpose and have no further reason
for their existence. At times, inconsistencies are
also removed by repealing and amending Acts.
The only object of such Acts, which in England
are called Statute Law Revision Acts, is
legislative spring-cleaning and they are not
intended to make any change in the law. Even so,
they are guarded by saving clauses drawn with
elaborate care,. . .”.
31. This view has been affirmed by the Supreme Court
in the case of JETHANAND BETAB vs THE STATE OF
DELHI [AIR 1960 SC 89]. 30
32. The Repealing and Amending Act, 2015 which
repeals the Hindu Succession Act (Amendment) Act, 2005 in
whole, therefore, does not wipe out the amendment to
Section 6 from the Hindu Succession Act. The existence of
the Hindu Succession (Amendment) Act, 2005 since became
superfluous and did not serve any purpose and might lead
to confusion, the Parliament in its wisdom thought of
repealing the said Amendment Act. It is only a case of
legislative spring-cleaning, and not intended to make any
change in law.
33. The amended Section 6 has already been
substituted in the Hindu Succession Act, 1956 as if it was in
the enactment from its inception. When the amending
provision takes the place of the earlier provision, the object
of the Amendment Act is fulfilled and thereafter the
Amendment Act serves no purpose. Therefore, such an
Amendment Act requires to be repealed and that is what has
been precisely done by Act No.17/2015. Accordingly, Point
No.1 is answered in the negative. 31
POINT No.2:
34. It is undisputed that the plaint schedule
properties were ancestral properties of the parties and stood
in the name of plaintiffs’ father Sannamadaiah. By Act No.39
of 2005, Section 6 of the Hindu Succession Act, 1956 came
to be amended, conferring on the daughters of a coparcener
the status of co-parcener giving equal right in the
coparcenary property along with the son.
35. Explanation to sub-Section (5) of Section 6 of the
Hindu Succession Act, 1956 categorically declares that
nothing contained in Section 6 applies to a partition, which
has been effected before 20th day of December 2004. In
other words, if a partition had taken place in the family
before 20th December 2004, by virtue of the amendment, a
daughter cannot claim share in the co-parcenary property.
36. Explanation to sub-Section (5) explains the
meaning of partition for the purpose of Section 6 as below: 32
“Explanation: For the purposes of
Section 6, “partition” means any partition
made by execution of a deed of partition duly
registered under the Registration Act, 1908 or
partition effected by a decree of a Court.”
Thus oral partition, palu-patti, unregistered Partition Deed
are excluded from the purview of the word “partition” used in
Section 6. It is only the partition effected by way of a
registered Deed prior to 20th December 2004, which debars a
daughter from staking an equal share with a son in a coparcenary
property.
37. In the case on hand, admittedly there is no
registered Partition Deed between Sannamadaiah and
Mahadevappa, evidencing the alleged partition that took
place in the year 2000. Even if there was a partition, oral or
by an unregistered Partition Deed of the year 2000 as
contended by the defendants, it cannot be treated as
partition for the purpose of Section 6 and the rights of the 33
daughters to claim an equal share as coparceners along with
Sannamadaih’s son Mahadevappa remains unaffected.
38. We do not find any substance in the argument of
the appellants that there was a partition in the year 2000
and in the said partition, the schedule properties had fallen
to the share of Mahadevappa. The trial Court is fully justified
in rejecting the contention of the defendants and holding
that the plaintiffs are entitled to equal share with the son of
Sannamadaiah in the schedule properties, which are
admittedly co-parcenary properties. Therefore, point No.2 is
answered in the negative.
POINT NO.3:
39. The proviso to sub-Section (1) of Section 6 of the
Hindu Succession Act after conferring the status of a coparcener
on a daughter, categorically provides that nothing
contained in sub-Section (1) shall affect or invalidate any
disposition or alienation including any partition or 34
testamentary disposition of property which had taken place
before the 20th Day of December, 2004.
40. The plaintiffs themselves have produced Exs.P1 to
3, certified copies of the Sale Deeds dated 8.2.2002 executed
in favour of defendants 5 to 7 in respect of a portion of item
No.3 of the plaint schedule. However, Ex.P4, the certified
copy of the sale deed dated 25.2.2009 came into existence
subsequent to 20th December 2004, as such the said sale is
not saved by proviso to sub-section (1) of Section 6 of the
Hindu Succession Act. Therefore, the Court below has rightly
ignored the said sale deed and granted a share to the
plaintiffs in respect of the property covered under Ex.P4.
41. By virtue of Exs.P1 to P3 which are registered
documents, the properties sold thereunder had gone out of
the joint family as on the day Section 6 was substituted.
Therefore, the plaintiffs who acquired right to claim a share
with their brother Mahadevappa as coparceners because of 35
amended Section 6, are not entitled to any share or interest
in the said property.
42. Unfortunately, the trial Court without properly
appreciating this legal position, proceeded on the
assumption that the defendants 4 to 7 have not contested
the matter; the said sale was not for legal necessity and
benefit of estate and therefore contended that the plaintiffs
have a right in the said properties. In view of Section 6
proviso sub-Section (1), the question of legal necessity and
benefit of estate should not have gone into by the trial Court.
This is not a case where an alienation is challenged on those
grounds and therefore, the Judgment and Decree of the trial
Court to this extent requires to be set aside. Therefore, point
No.3 is answered partly in the affirmative holding that the
plaintiffs are entitled to a share only in the property sold
under Ex.P4 and not the one sold under Exs.P1 to P3. 36
POINT No.4:
43. Learned counsel for the appellants argued that
Sannamadaiah purchased a site in the name of the third
plaintiff and gave gold and silver jewellery as well as cash to
the first and second plaintiffs and therefore plaintiffs cannot
claim any share in the suit properties. Admittedly, the
defendants have not stepped into the witness-box to
substantiate their contention, nor is there any plea in the
written statement to that effect. Even assuming that
Sannamadaiah had purchased a site in the name of third
plaintiff and given jewellary and cash to other plaintiffs, the
same cannot take away their legal right as daughters to
claim a share in the co-parcenary properties by virtue of
Section 6 read with Section 8 of Hindu Succession Act.
Point No.4 is therefore answered in the negative.
44. In the result, we pass the following : -
O R D E R
(a) The appeal is partly allowed. 37
(b) The Judgment and Decree of the trial Court is
hereby confirmed in all respects except the properties
sold under Exs.P1 to P3, which forms part of item No.3
of the plaint schedule; the plaintiffs are not entitled for
any share in the properties sold under Exs.P1 to P3.
(c) No costs.
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