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SMT. ROSHAN DALVI, J of Bombay High Court, in Sadashiv Sakharam Patil & Ors vs Chandrakant Gopal Desale & Ors Judgment passed on 6 September, 2011 It is stated "Only on and from 9th September 2005 on which date the Amendment Act 39 of 2005 came into force that the daughter who was then living would become a coparcener."
In the case of Sugalabai Vs. Gundappa A. Maradi & Ors. ILR 2007 KAR 4790 the first three words of the aforesaid section came to be considered and interpreted in paragraph 24. It has been observed that the words "on and from" mean "immediately and after" - the commencement of the Act. It is observed that in other words as soon as the amending Act came into force the daughter of the coparcener becomes, by birth, a coparcener in her own right in the same manner as the son. In that case the change in law came into effect during the pendency of the Appeals. It was held that the changed law applied to pending Appeals and consequently, the said Appeal. Hence the daughter in that case was held to be the coparcener. It was observed that there was nothing in the Act which showed that only those born on and after the commencement of the Act would become coparceners. Hence it was held that even a daughter who was born prior to the amendment Act became a coparcener immediately on and after the Amendment Act.
This is the case where the daughters had already expired prior to the coming into force of the amendment Act and prior to any litigation, her son having filed the suit himself. There is nothing in the Section which shows that it would apply to all females retrospectively including a daughter who had expired prior to the coparcener himself, prior to any litigation and prior to the amendment Act itself. If such a daughter was also to be included the entire population would come to be included and the children and grandchildren of all deceased females would claim their share in the estate of their grandparents and great grandparents through their mother. It would have to be seen whether the legislation is capable of such an absurd interpretation.
The words "on" and "from" show and suggest that on a date prior to the Act coming into force the daughter (female) would not be included as a coparcener. Consequently, all daughters born to coparceners in a Hindu joint family living at the time the Act came into force would become coparcener. Daughters (females) who had expired a day prior thereto, unfortunately, could not, because they would be covered by the law prior to the amendment. If such interpretation is not given the words "on" and "from" "the commencement of the Hindu Succession (Amendment) Act, 2005" would lose their significance all together and would be rendered otiose.
This aspect is essentially decipherable from the proviso to Section 6(1) of the Act cited above. This provision has been specifically enacted to lay down a cutoff date for the daughter of a coparcener to claim her right as a coparcener including her right of partition which is restricted by any disposition or alienation made prior to 20th December 2004. Hence when the Act came into force on 9th September 2004 partition could be claimed by a daughter, if the coparcenery property was not partitioned about nine months prior thereto. This shows that the earlier dispositions and alienations could not be challenged so that whilst the daughter was not a coparcener and certain rights were created they would stand. This is to lend stability to facts and circumstances that may have prevailed in innumerable families having joint family properties prior to the creation of the new right in favour of the daughter. Counsel on behalf of the original Plaintiff sought to show that the proviso has been held to be ultra vires the constitution by the Karnataka High Court which judgment shall be considered presently.
It has been held in the case of Pravat Chandra Pattnaik & Ors. Vs. Sarat Chandra Pattnaik & Anr. AIR 2008 Orissa 133 that the aforesaid Section was enacted for removing the gender discrimination that prevailed leading to oppression and negation of the fundamental right of equality to women and to render social justice by giving them equal status in the Society. The Act came into force from 9th September 2005 and the statutory provisions under Section 6 of Hindu Succession Act, 1956 thereof created a new right. The provisions are not expressly made retrospective by the legislature. The Act is clear and there is no ambiguity. Therefore, words cannot be interpolated. They do not bear more than one meaning. The Act is therefore, prospective. It creates a substantive right in favour of the daughter. The daughter gets a rights of a coparcener from the date when the amended Act came into force. Consequently, the contention that only the daughters who were born after 2005 would be treated as coparceners was not accepted. It specifically clarifies that the daughter gets a right as a coparcener from the year 2005 whenever she may have been born. She can claim a partition of the property which was not partitioned earlier. However, the judgment specifies a rider. That is in view of the proviso to Section 6(1) of the Act.
"But if the same was effected earlier i.e., prior to 20th December, 2004 the same should not be reopened."
It is, therefore, that it is rightly contended on behalf of the Defendants in the suit that Sakharam's succession opened on 4th October 1995 on that date his daughters Muktabai and/or Narmadabai were not coparceners. His coparcenery property would devolve by survivorship to his only son Sadashiv. The devolution of interest in the coparcenery property as specified in the sub- title/heading of Section 6 would take place only to the son. The words in the sub-title "devolution of interest" also therefore, show that for an interest to devolve upon a person that person must be alive. No devolution of interest in coparcenery property can take place upon a deceased coparcener. On the date of the death of Sakharam his daughters were not even coparceners; they were not even alive. No devolution of interest upon them could take place.
In the case of Sheela Devi & Ors. Vs. Lal Chand & Anr. (2006) 8 SCC 581 the Court considered the estate of one Babu Ram who died in the year 1989. He was one of the 5 sons of Tulsi Ram and one of the members of the coparcenery property. He left behind two sons and three daughters. Babu Ram had inherited 1/5th share of the property of his father and 1/20th share through another brother who had died intestate without issues. The succession between the two brothers and their descendants was in issue. The applicability of the Section 6 of the Hindu Succession Act of 1956 was under consideration. Though that is a different matter, observation in paragraph 21 of the judgment relates to the new Act of 2005. It was inter alia observed that the succession was opened in 1989 and hence the provisions of the amendment Act 2005 would have no application. Thereupon Section 6(1) of the old Act of 1956 which related to succession on the death of a coparcener in the event the heirs were only male descendants came to be considered.
My attention has been drawn by Counsel on behalf of the original Plaintiff to the judgment in the case of G. Sekar Vs. Geetha & Ors. (2009) 6 SCC 99 to show that this aspect has been negated in the later judgment of the Supreme Court. Paragraph 49 of the judgment extracts the case of Sheela Devi and the entire paragraph 21 thereof. It is observed that in the case of Sheela Devi the amendment Act had no application as the succession has opened prior to 1989 and hence that contention came to be negatived to consider and interpret the vesting of the right of the coparcener under the old Act. It is, therefore, entirely erroneous to contend upon reading the word "negatived" that the contention that upon the succession opening in 1989 the amendment would have no application was negatived without reading the entire paragraph 49 as a whole. It may be clarified that in the case of Sheela Devi upon the applicability of Section 6 of the old Act, the contention with regard to the applicability of the new Act was negatived and the old Section was considered. Consequently, the fact that succession did open in 1989 when Babu Ram died which did not make the new Act applicable was accepted. We would do well to read the two judgments together.
We are concerned with only the aspect of the applicability of the amendment Act on the date the succession opened. Since it was held that the new Act would not apply when succession opened prior to the date on which it came into force - in that case in 1989 - the Court considered Section 6 of the earlier Act.
In fact the observation in paragraph 8 of the judgment in the case of Miss. R. Kantha, d/o Doddarmaiah Reddy Vs. Union of India & Anr. AIR 2010 Karnataka 27 to which also my attention has been drawn by Counsel on behalf of the original Plaintiff would be material. It runs thus: "It follows, therefore, that the provisions of the Act can be enforced when the right to succession opens and not before. The petitioner's father is said to be alive and hence her right to succession as a co-parcener has not opened." In that case the Plaintiff/Petitioner applied for partition of the coparcenery property whilst her father was alive under Section 6 of the new Act of 2005 upon the premise that she, as a coparcener, was entitled to all the rights of coparcener including partition. Her father was alive at that time. It was held that Section 6 of the new Act of 2005 was the law relating to intestate succession which regulates the succession of properties of all Hindus by its heading itself which speaks of "devolution" of interest. It was held that "Devolve" means to pass from a person dying to a person living. Hence, the right of a daughter to be treated like a son should be construed only with regard to the share that "devolves" on her when her right to succession opens having regard to the scope and ambit of the Act itself. Hence the judgment in the case of Ms. R. Kanta shows the restrictive operation of Section 6 as applying to devolution of interest upon the death of coparcener only.
SMT. ROSHAN DALVI, J of Bombay High Court, in Sadashiv Sakharam Patil & Ors vs Chandrakant Gopal Desale & Ors Judgment passed on 6 September, 2011 It is stated "Only on and from 9th September 2005 on which date the Amendment Act 39 of 2005 came into force that the daughter who was then living would become a coparcener."
In the case of Sugalabai Vs. Gundappa A. Maradi & Ors. ILR 2007 KAR 4790 the first three words of the aforesaid section came to be considered and interpreted in paragraph 24. It has been observed that the words "on and from" mean "immediately and after" - the commencement of the Act. It is observed that in other words as soon as the amending Act came into force the daughter of the coparcener becomes, by birth, a coparcener in her own right in the same manner as the son. In that case the change in law came into effect during the pendency of the Appeals. It was held that the changed law applied to pending Appeals and consequently, the said Appeal. Hence the daughter in that case was held to be the coparcener. It was observed that there was nothing in the Act which showed that only those born on and after the commencement of the Act would become coparceners. Hence it was held that even a daughter who was born prior to the amendment Act became a coparcener immediately on and after the Amendment Act.
This is the case where the daughters had already expired prior to the coming into force of the amendment Act and prior to any litigation, her son having filed the suit himself. There is nothing in the Section which shows that it would apply to all females retrospectively including a daughter who had expired prior to the coparcener himself, prior to any litigation and prior to the amendment Act itself. If such a daughter was also to be included the entire population would come to be included and the children and grandchildren of all deceased females would claim their share in the estate of their grandparents and great grandparents through their mother. It would have to be seen whether the legislation is capable of such an absurd interpretation.
The words "on" and "from" show and suggest that on a date prior to the Act coming into force the daughter (female) would not be included as a coparcener. Consequently, all daughters born to coparceners in a Hindu joint family living at the time the Act came into force would become coparcener. Daughters (females) who had expired a day prior thereto, unfortunately, could not, because they would be covered by the law prior to the amendment. If such interpretation is not given the words "on" and "from" "the commencement of the Hindu Succession (Amendment) Act, 2005" would lose their significance all together and would be rendered otiose.
This aspect is essentially decipherable from the proviso to Section 6(1) of the Act cited above. This provision has been specifically enacted to lay down a cutoff date for the daughter of a coparcener to claim her right as a coparcener including her right of partition which is restricted by any disposition or alienation made prior to 20th December 2004. Hence when the Act came into force on 9th September 2004 partition could be claimed by a daughter, if the coparcenery property was not partitioned about nine months prior thereto. This shows that the earlier dispositions and alienations could not be challenged so that whilst the daughter was not a coparcener and certain rights were created they would stand. This is to lend stability to facts and circumstances that may have prevailed in innumerable families having joint family properties prior to the creation of the new right in favour of the daughter. Counsel on behalf of the original Plaintiff sought to show that the proviso has been held to be ultra vires the constitution by the Karnataka High Court which judgment shall be considered presently.
It has been held in the case of Pravat Chandra Pattnaik & Ors. Vs. Sarat Chandra Pattnaik & Anr. AIR 2008 Orissa 133 that the aforesaid Section was enacted for removing the gender discrimination that prevailed leading to oppression and negation of the fundamental right of equality to women and to render social justice by giving them equal status in the Society. The Act came into force from 9th September 2005 and the statutory provisions under Section 6 of Hindu Succession Act, 1956 thereof created a new right. The provisions are not expressly made retrospective by the legislature. The Act is clear and there is no ambiguity. Therefore, words cannot be interpolated. They do not bear more than one meaning. The Act is therefore, prospective. It creates a substantive right in favour of the daughter. The daughter gets a rights of a coparcener from the date when the amended Act came into force. Consequently, the contention that only the daughters who were born after 2005 would be treated as coparceners was not accepted. It specifically clarifies that the daughter gets a right as a coparcener from the year 2005 whenever she may have been born. She can claim a partition of the property which was not partitioned earlier. However, the judgment specifies a rider. That is in view of the proviso to Section 6(1) of the Act.
"But if the same was effected earlier i.e., prior to 20th December, 2004 the same should not be reopened."
It is, therefore, that it is rightly contended on behalf of the Defendants in the suit that Sakharam's succession opened on 4th October 1995 on that date his daughters Muktabai and/or Narmadabai were not coparceners. His coparcenery property would devolve by survivorship to his only son Sadashiv. The devolution of interest in the coparcenery property as specified in the sub- title/heading of Section 6 would take place only to the son. The words in the sub-title "devolution of interest" also therefore, show that for an interest to devolve upon a person that person must be alive. No devolution of interest in coparcenery property can take place upon a deceased coparcener. On the date of the death of Sakharam his daughters were not even coparceners; they were not even alive. No devolution of interest upon them could take place.
In the case of Sheela Devi & Ors. Vs. Lal Chand & Anr. (2006) 8 SCC 581 the Court considered the estate of one Babu Ram who died in the year 1989. He was one of the 5 sons of Tulsi Ram and one of the members of the coparcenery property. He left behind two sons and three daughters. Babu Ram had inherited 1/5th share of the property of his father and 1/20th share through another brother who had died intestate without issues. The succession between the two brothers and their descendants was in issue. The applicability of the Section 6 of the Hindu Succession Act of 1956 was under consideration. Though that is a different matter, observation in paragraph 21 of the judgment relates to the new Act of 2005. It was inter alia observed that the succession was opened in 1989 and hence the provisions of the amendment Act 2005 would have no application. Thereupon Section 6(1) of the old Act of 1956 which related to succession on the death of a coparcener in the event the heirs were only male descendants came to be considered.
My attention has been drawn by Counsel on behalf of the original Plaintiff to the judgment in the case of G. Sekar Vs. Geetha & Ors. (2009) 6 SCC 99 to show that this aspect has been negated in the later judgment of the Supreme Court. Paragraph 49 of the judgment extracts the case of Sheela Devi and the entire paragraph 21 thereof. It is observed that in the case of Sheela Devi the amendment Act had no application as the succession has opened prior to 1989 and hence that contention came to be negatived to consider and interpret the vesting of the right of the coparcener under the old Act. It is, therefore, entirely erroneous to contend upon reading the word "negatived" that the contention that upon the succession opening in 1989 the amendment would have no application was negatived without reading the entire paragraph 49 as a whole. It may be clarified that in the case of Sheela Devi upon the applicability of Section 6 of the old Act, the contention with regard to the applicability of the new Act was negatived and the old Section was considered. Consequently, the fact that succession did open in 1989 when Babu Ram died which did not make the new Act applicable was accepted. We would do well to read the two judgments together.
We are concerned with only the aspect of the applicability of the amendment Act on the date the succession opened. Since it was held that the new Act would not apply when succession opened prior to the date on which it came into force - in that case in 1989 - the Court considered Section 6 of the earlier Act.
In fact the observation in paragraph 8 of the judgment in the case of Miss. R. Kantha, d/o Doddarmaiah Reddy Vs. Union of India & Anr. AIR 2010 Karnataka 27 to which also my attention has been drawn by Counsel on behalf of the original Plaintiff would be material. It runs thus: "It follows, therefore, that the provisions of the Act can be enforced when the right to succession opens and not before. The petitioner's father is said to be alive and hence her right to succession as a co-parcener has not opened." In that case the Plaintiff/Petitioner applied for partition of the coparcenery property whilst her father was alive under Section 6 of the new Act of 2005 upon the premise that she, as a coparcener, was entitled to all the rights of coparcener including partition. Her father was alive at that time. It was held that Section 6 of the new Act of 2005 was the law relating to intestate succession which regulates the succession of properties of all Hindus by its heading itself which speaks of "devolution" of interest. It was held that "Devolve" means to pass from a person dying to a person living. Hence, the right of a daughter to be treated like a son should be construed only with regard to the share that "devolves" on her when her right to succession opens having regard to the scope and ambit of the Act itself. Hence the judgment in the case of Ms. R. Kanta shows the restrictive operation of Section 6 as applying to devolution of interest upon the death of coparcener only.
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