TaxTMI 
TaxTMI 
TaxTMI 
2015 (10) TMI 2761
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....or the Respondent : M/s. S.M. Jadhav & Company, Advs., Mr. Rauf Rahim,,Adv., Mr. Sumeet Lall,Adv., Mr. Balaji Srinivasan, Adv., Mr. Mayank Kshirsagar, Adv., Ms. Srishti Govil, Adv., Ms. Vaishnavi Subrahmanyam, Adv., Mr. Tushar Singh, Adv., Mr. Virendra Sharma, Adv., Mr. Manjunath Meled, Adv., Mr. Vijaylaxmi, Adv., Mr. Anil Kumar, Adv., Mr. Somiran Sharma, Adv., Mr. B. Subrahmanya Prasad, Adv., Mr. Anirudh Sanganeria, Adv., Mr. Chinmay Deshpande, Adv., Mr. Amjid Maqbool, Adv., Mr. Shashibhushan P. Adgaonkar, Adv., Mr. T. Mahipal, Adv., Mr. G.N. Reddy, Adv., Mr. Rajinder Mathur, Adv., Mr. Shankar Divate, Adv., Mrs. K. Sarada Devi, Adv., Ms. Garima Prashad, Adv. JUDGMENT ADARSH KUMAR GOEL, J. 1. The only issue which has been raised in this batch of matters is whether Hindu Succession (Amendment) Act, 2005 ('the Amendment Act') will have retrospective effect. In the impugned judgment (reported in AIR 2011 Kar. 78 Phulavati vs. Prakash), plea of restrospectivity has been upheld in favour of the respondents by which the appellants are aggrieved. 2. Connected matters have been entertained in this Court mainly on account of the said legal issue particularly when there are said to b....
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....amendment by Act 39 of 2005. The defendants relied upon a division bench judgment of the High Court in M. Prithviraj vs. Neelamma N ILR 2009 Kar. 3612 laying down that if father of a plaintiff had died prior to commencement of Act 39 of 2005, the amended provision could not apply. It was only the law applicable on the date of opening of succession which was to apply. 8. The High Court framed following question for consideration on this aspect : "(ii) Whether the plaintiff is entitled to a share in terms of Section 6 of the Hindu Succession Act as amended by Act No.39 of 2005?" 9. It was held that the amendment was applicable to pending proceedings even if it is taken to be prospective. The High Court held that : "61. The law in this regard is too well settled in terms of the judgment of the Supreme Court in the case of G. Sekar Vs. Geetha and others reported in (2009) 6 SCC 99. Any development of law inevitably applies to a pending proceeding and in fact it is not even to be taken as a retrospective applicability of the law but only the law as it stands on the day being made applicable. 62. The suit, no doubt, might have been instituted in the year 1992 and eve....
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....im to be "the daughter of a coparcener" at the time of commencement of the Act which was the necessary condition for claiming the benefit. On the death of plaintiff's father on 18th February, 1988, notional partition took place and shares of the heirs were crystallized which created vested right in the parties. Such vested right could not have been taken away by a subsequent amendment in absence of express provision or necessary intendment to that effect. Moreover, the amending provision itself was expressly applicable "on and from" the commencement of the Amendment Act, i.e., 9th September, 2005. The High Court held that even if the provision was prospective, it could certainly apply to pending proceedings as has been held in some decisions of this Court. It is pointed out that the amendment could apply to pending proceedings, only if the amendment was applicable at all. 12. Learned counsel for the respondents would support the view taken by the High Court. 13. We have heard learned counsel for the parties in the present appeal as well as in connected matters for the rival view points which will be noticed hereinafter. 14. The contention raised on behalf of the appellants an....
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....as interpreted by the High Court in the impugned judgment. A daughter acquired right by birth and even if her father, who was a coparcener, had died prior to coming into force of the amendment, the shares of the parties were required to be redefined. It was submitted that any partition which may have taken place even prior to 20th December, 2004 was liable to be ignored unless it was by a registered deed of partition or by a decree of the Court. If no registered partition had taken place, share of the daughter will stand enhanced by virtue of the amendment. 16. We have given due consideration to the rival submissions. We may refer to the provision of Section 6 of the Hindu Succession Act as it stood prior to the 2005 Amendment and as amended : Section 6 of the Hindu Succession Act Section 6 on and from the commencement of the Hindu Succession (Amendment) Act, 2005 6. Devolution of interest of 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....
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....oint 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 such predeceased 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 pre-deceased son or a pre-deceased daughter, as the case may be. 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....
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....effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained. 18. Contention of the respondents that the Amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20th December, 2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect th....
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....endment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question. 23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation. 24. On above interpretation, Civil Appeal No.7217 of 2013 is allowed. The order of the High Court is set aside. The matter is remanded to the High Court for a fresh decision in accordance with law. All other matters may be listed for hearing separately for consideration on 24th November, 2015. 25. The view which we have taken above is consistent wi....
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....ra case (supra) which deals with a presumption about the nature of a joint family property and burden of proof being on the person claiming such property to be separate. The said decision only lays down a rule of evidence. 25.6. In S. Sai Reddy case (supra), the question for consideration was whether even after a preliminary decree is passed determining the shares in partition, such shares could be varied on account of intervening events at the time of passing of the final decree. In the said case, partition suit was filed by a son against his father in which a preliminary decree was passed determining share of the parties. Before final decree could be passed, there was an amendment in the Hindu Succession Act (vide A.P. Amendment Act, 1986) allowing share to the unmarried daughters. Accordingly, the unmarried daughters applied to the court for their shares which plea was upheld. The said judgment does not deal with the issue involved in the present matter. It was not a case where the coparcener whose daughter claimed right was not alive on the date of the commencement of the Act nor a case where shares of the parties stood already crystalised by operation of law to which the ame....
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....s to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the Second son, Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956." Full Bench judgment of Bombay High Court in Badrinarayan Shankar Bhandari Vs. Ompraskash Shankar Bhandari AIR 2014, BOM 151. paras 40-57 also appears to be consistent with the view taken hereinabove. 26.1. In Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum (1978) 3 SCC 383, paras 6,11 and 13 , Shyama Devi vs. Manju Shukla (1994) 6 SCC 342, para 7 and Anar Devi vs. Parmeshwari Devi (2006) 8 SCC 656, paras 10,11 cases this Court interpreted the Explanation 1 to Section 6 (prior to 2005 Amendment) of the Hindu Succession Act. It was held that the deeming provision referring to partition of the property immediately before the death of the coparcener was to be given due and full effect in view of settled principle of interpretation of a provision incorporating a deeming fiction. In Shyama Devi and Anar Devi cases, same view was followed. 26.2. In Vaishali Satish Ganorkar vs. Satish Keshaorao Ganorkar AIR 2012, BOM 101, p....
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....ervation that the issue involved state policy to be dealt with by the legislature. This Court referred to the observations of Sahai, J. in Sarla Mudgal vs. Union of India (1995) 3 SCC 635 that a climate was required to be built for a uniform civil code. Reference was also made to observations in Madhu Kishwar vs. State of Bihar (1996 (5) SCC 125 to the effect that the court could at best advise and focus attention to the problem instead of playing an activist role. It was observed that challenge to the Muslim Women (Protection of Rights on Divorce) Act, 1986 was pending before the Constitution Bench and there was no reason to multiply proceedings on such an issue. 28. It is pointed out that the matter needs consideration by this Court as the issue relates not merely to a policy matter but to fundamental rights of women under Articles 14, 15 and 21 and international conventions and covenants. One of the reasons for the court having not gone into the matter was pendency of an issue before the Constitution Bench which has since been decided by this Court in Danial Latifi vs. Union of India (2001) 7 SCC 740. The Constitution Bench did not address the said issue but the Court held tha....