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....2369;त्रसमा कन्या दशपुत्रान्रवर्धददयन्। यत्फलं लभते मत्यदस्तल्लभ्यं कन्ययैकया॥ Meaning thereby, 'One daughter is equal to ten sons. Whatever phala (merits, good results) a person attains by siring and upbringing ten sons, the same phala is attained by begetting a single daughter'. The statement, however, does not always stand as a true reflection of a daughter's right when it comes to the right of inheritance to her father's property. In the ancient customary law like "Mitakshara Law" daughters are not entitled to any right by birth on the ancestorial property. When the Hindu Succession Act, 1956 was enacted, the position was the same. However, the law underwent a radical change when the Parliament enacted the Hindu Succession (Amendment) Act, 2005. However, in State of Kerala, ....
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....ties are co-ownership properties available for partition? 2. Whether plaintiffs have got any form of right over plaint schedule property? 3. Whether plaintiffs' right if any is lost by adverse possession and ouster? 4. Whether plaintiffs have got any cause of action? 5. Whether plaintiffs are entitled to the reliefs sought? 6. Reliefs and costs?" 3. The trial court, on appreciation of the oral and documentary evidence, found that the Will is genuine and that it was executed by the 1st defendant and, therefore, dismissed the suit. On appeal by the plaintiffs, the first appellate court found that the Will bequeathing the entire extent of the plaint schedule property in favour of the 3rd defendant is not valid, inasmuch as the 1st defendant had only a fractional share over the property, since by the time the Will was executed, the 3rd defendant was born into the family prior to the promulgation of the Kerala Joint Hindu Family System (Abolition) Act, 1975 [Act 30 of 1976]. Accordingly, the first appellate court passed a preliminary decree for partition dividing the plaint B schedule property item Nos.1, 3 and 4 and allotting the plaintif....
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....of 2005, the Central Act, recognizes and re-affirms the said right. It is further pointed out that under Section 4(1) of Act 30 of 1976, a deemed partition is stated to have taken place among the members of a joint Hindu family, and they form as tenants-in-common. However, under Act 39 of 2005, the said method of partition is not recognized. (c) The Division Bench of this Court in WP(C) No.17530/2020 observed that, the impact of the decision of the Supreme Court in Vineeta Sharma v. Rakesh Sharma and Others [(2020) 9 SCC 1] should be independently considered in the context of the changes in law as regards the rights of the daughters concerned and the implications of this decision on the facts and circumstances of each case, and thus the second appeal was de-tagged from the public interest litigation pending before the Division Bench and is now posted before this Court. Therefore, the decision of the Supreme Court in Vineeta Sharma (supra) requires to be elaborately dealt with by this Court to find out as to whether the conflict between Act 30 of 1976 and Act 39 of 2005 could be reconciled and if not, what would be the resultant position. (d) The intention of the P....
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....interpreted in a manner, undoing the effects of Section 4 of the State enactment. There is nothing in the Act 39 of 2005, which gives an indication that the Parliament wanted to unseat the effect of operation of Section 4 of the Act 30 of 1976. Referring to the statement of objects to the Amending Act, it is contended that the Statutory Partition is protected under Section 6(1) of the Act 39 of 2005. (iv) From 1.12.1976 onwards, there is no coparcenary property in the State of Kerala due to the operation of the Act 30 of 1976. (v) Section 6(3) of the Act 39 of 2005 will apply to a coparcenary property governed by Mitakshara law. In the absence of any coparcenary property in the State, Section 6(3) will not apply and that is precisely the reason why the Parliament did not intend to make the aforesaid provision operative in the State of Kerala. (vi) There is no repugnancy between the State enactment and the Central enactment, since the State enactment had received the assent of the President on 10.8.1976. (vii) Going by the terms of Ext A 1 partition deed, the property was allotted to the share of 1st defendant and thus, it partakes the character o....
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...., the 1st defendant and the 3rd defendant take equal right over the property. No appeal is preferred by the defendants against the said finding and, therefore, in a suit for partition, a preliminary decree being declaration of rights as provided under Order-XX Rule-18 of the Code of Civil Procedure, 1908, unless otherwise it is questioned in an appropriate appeal, the contention of the defendants that the testamentary succession has to be upheld, cannot be accepted. It is further contended that going by the decision of the Supreme Court in N.V.Narendranath v. Commissioner of Wealth Tax, Andhra Pradesh [(1969) 1 SCC 748], the Supreme Court has recognized the concept of a single coparcenary and, therefore, the contentions to the contrary are untenable. Submissions of Amicus Curiae 8. Sri.P.B.Krishnan, the learned Senior Counsel as Amicus Curiae, raised the following submissions: (1) Act 30 of 1976 is in direct conflict with the Central Act, in view of an apparent conflict between Sections 3 and 4 of the State Act with that of sub-Sections (1), (3) and (5) of Section 6 of the Act 39 of 2005 (Central Act). (2) Though the State Act is titled as the Kerala Joint H....
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....eral, Sri.S.Renjith, who was required to address this Court on the question as to whether the provisions of the Act 30 of 1976 stands in conflict with the Act 39 of 2005, would contend that both the enactments are intended to operate on different fields altogether. According to the learned Special Government Pleader, Section 4 of the State Act recognizes a deemed partition over the joint family properties in the State of Kerala. However, the parties are further required to execute a registered document in order to get the protection of Sub Section 5 of Section 6 of the Act 39 of 2005. The repugnancy between the Hindu Succession Act, 1956 as it stood then and also the Kerala Joint Hindu Family System (Abolition) Act, 1975 [Act 30 of 1976] was considered by a Full Bench of this Court in Chellamma Kamalamma (supra) and the Full Bench of this Court has categorically held that State Act was framed under Entry-5 "Joint Family" of List-III of the Seventh Schedule of the Constitution of India, whereas the Hindu Succession Act is framed by the Parliament in exercise of the powers under Entry- 5 of List-III. Thus, both the Acts are intended to operate in different fields altogether. In suppo....
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....e 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 had separated himself from the cparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. 12. Explanation-1 to the proviso to Section 6 provides that 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. The proviso makes it clear that on and from the appointed day, the succession will be by interstate and not by survivorship, 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. Thus, the effect of Section 6 as noticed from Explanation-1 to the proviso is tha....
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....er the Central Government took steps to pass the Hindu Succession Act 1956, it could not bring any legislation for the abolition of the Doctrine of Right by Birth. Even after reorganization of the princely states and formation of the State of Kerala, various local laws continue to govern the system of succession among the persons following the joint family system. The State of Kerala decided to put an end to the operation of different local laws governing the succession and decided to introduce changes for a better welfare and progress of the Hindu community. Finding that no manager of a Hindu Undivided Family or Karnavan of a Namboothiri Illom or of a Marumakkathayam Tharavad has full right of alienation and continues to be governed by the dictum of the Judicial Committee of the Privy Council in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree [1856 SCC OnLine PC 7 : (1854-57) 6 Moo IA 393]. The State decided to promulgate Act 30 of 1976, more particularly because of the operation of Section 6 of the Hindu Succession Act, 1956. The Select Committee to which the Kerala Joint Hindu Family System (Abolition) Act Bill, 1973 was referred, had considered the Bill clause by cl....
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....y as respects such property and as if each one of them holding his or her share separately as full owner thereof. Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any of the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed. (2) All members of a Joint Hindu Family, other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day this Act comes Into force, shall, with effect from that day be deemed to hold 1t as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof." Section 4, thus provides for a deemed partition consequent to the promulgation of the Act and makes....
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....ll Bench cannot be said to be laying down as an absolute proposition, to mean that the Act 30 of 1976 is immune to all challenges. In a given case, where a question of repugnancy of the Act 30 of 1976 qua Act 39 of 2005 is raised under Article 254(2) of the Constitution of India, the decision of the Full Bench upholding the constitutional validity is of no consequence, since the repugnancy of the statue is tested based on well-defined constitutional principles. Therefore, this Court is of the considered view that the decision of the Full Bench of this Court in Chellamma Kamalamma (supra) will not deter this Court from considering the repugnancy of the enactment. D. Impact of the Hindu Succession (Amendment) Act, 2005 [Act 39 of 2005] 16. Before proceeding further to answer the question, it is necessary to have an in-depth analysis of the various provisions of the Hindu Succession Act in the year 2005. The substantial changes were brought into Section 6, which is extracted hereunder "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, ....
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....ive 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 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 great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer ....
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....pect, one needs to understand the circumstances which led to the amendment. The law commission of India in its 174th report noticed that, even after the Hindu Succession Act, 1956 was brought into force, certain States alone recognized the right of a daughter of a coparcener to claim right by birth. However, the States of Kerala and Andhra Pradesh had a different model presented. The background on which the report was framed shows the inequality meted out to daughters since time immemorial of framing of property laws. A woman in Joint Hindu family, consisting of man and woman had a right of sustenance, but the control and ownership of property did not vest in her. The patrilineal system like the Mitakshara School of Hindu Law, a woman was not given a birth right in the family property like son. Quite contrastingly, law commission found that in Dayabhaga School, daughters were given the right by birth. Further down in the report at para 3.3.1. the Law Commission notices the existence of Kerala Joint Family System (Abolition) Act 1975 and noticed that though the Kerala model abolished the Mitakshara coparcenary, it also abolished Marumakkathayam and Aliyasantana and Nambudiri System ....
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....nion of India [(2019) 5 SCC 480] when the supreme Court was called upon to interpret Section 35AA of the Banking Regulation Act 1949, the speech made by the Finance Minister in the Parliament was used to ascertain the intention behind the introduction of the provision. 22. In Mandvi Cooperative Bank Limited Vs Nimesh B Thakore [(2010) 3 SCC 83], the Supreme Court while considering the impact of Section 145 of the Negotiable Instruments Act 1881 relied on to the speech of the finance minister in the parliament to ascertain the true intention behind the introduction of the special provisions relating to trial of cases under Section 145. 23. While answering the motion for consideration of the Hindu Succession Amendment Bill, 2005 tabled before the 14th Lok Sabha on 29.8.2005, the Minister for Law and Justice stated before the Parliament that, though Articles 14 and 15 of the Constitution of India, prohibits discrimination on the ground of gender, the State of Kerala by enacting Act 30 of 1976, has totally abolished the right by birth of males and put an end to the joint family system instead of tinkering with the coparcenary, and by this Bill the Parliament intended to amend Sec....
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....so much so, there can be no question of anyone claiming a right by birth. 27. If this Court, entertains doubt regarding the sustainability of these two decisions, then the judicial propriety demands that the matter be referred before the Larger Bench. But the discussions at bar, has led to certain interesting aspects. The Learned Judges while deciding Ayillalath Arunapriya (supra) and Kali Ammal (supra) formed an opinion that the Joint Family System(Abolition) Act 1975, abolished the Joint Family System in the State of Kerala. But, did the Act actually abolish the joint family system in the State? On a reading of the provisions of Act 30 of 1976, it indicates that there exists no provision under the statue which abolishes the Joint family system in the state. It is true that, the heading and the preamble of the Act shows the object which the Act intended to achieve. Heading prefixed to the sections or entries cannot control the plain word of the provisions. It is not an unusual fact that the heading fails to refer to all the matter which the framers of the section wrote into the text. The heading is but a shorthand reference to the general subject -matter involved. If the langua....
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....eme court in Gurupad Khandappa Magdum Vs Hirabai Khandappa Magdum & ors (1978) 3 SCC 383 wherein it was held that even on a notional partition under Section 6 of the Hindu Succession Act 1956, the joint status of the family is not lost. 33. It follows that, the Act 30 of 1976 though intended to abolish joint family system in the State of Kerala did not actually do so. When Ayillalath Arunapriya (supra) and Kali Ammal (supra) were decided, this court did not notice the binding decisions of the Supreme Court and the decision of bench of co-equal strength or the infirmity noticed by this court in Act 30 of 1976. Resultantly, this court holds that aforesaid decisions cannot be said to lay down the correct principles of law and thus enabling this Court to proceed with the consideration of the core issue in the appeal on merits. F. Impact of the Supreme Court decision in Vineeta Sharma v. Rakesh Sharma and Others [(2020) 9 SCC 1] 34. A public interest litigation in the form of WP(C) No.17350 of 2020 came to be filed before this Court, raising a similar issue as now been raised in this appeal. Finding that the writ petition is pending, this Regular Second Appeal was also tagged w....
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....law of unobstructed heritage has been given a concrete shape under the provisions of Section 6(1)(a) and 6(1)(b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in Section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5). 64. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary m....
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....urvivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of "living coparcener", as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted Section 6, the expression 'daughter of a living coparcener' has not been used. Right is given under Section 6 (1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in Section 6 (1)(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in Section 6 (1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of Section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part. xxx xxx xxx 109. The Cabinet note made on 29.7.2005 with respect to 'partition' is quoted hereunder: "5.2 In this connecti....
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....t have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defense is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to section 6(5). It has to....
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....h same rights and liabilities. (ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20^th day of December, 2004. (iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005. (iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. (v) In view of the rigor of provisions of Explanation to Section ....
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....eta Sharma (Supra) held that Act 39 of 2005 is retroactive, it renders the decision of the court in Kali Ammal (supra) and Ayillalath Arunapriya (supra) ineffective, thus eroding its precedential value. G. Repugnancy under Article 254(1) of the Constitution of India 37. Under the scheme of our Constitution, the Central Government and State Government are given separate powers to legislate on different subject. However, under List III of Seventh Schedule, the Central Government and State Government gets power to legislate on the subjects given. There may be occasions where both Central and State Government legislate on the same subject thus giving rise to a conflict. This conflict is often resolved by application of Article 254 of the Constitution of India. 38. Article 254 of the Constitution of India reads as under: "254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated i....
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..... Article 254 of the Constitution makes provision first, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is 'repugnant' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in clause (1), clause (2) engrafts an exception viz. that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act, will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State....
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....pe and effect of its provisions. Incidental and superficial encroachments are to be disregarded." 43. A three bench of the Supreme Court in Vijay Kumar Sharma VS State of Karnataka [(1990) 2 SCC 562] was called upon to decide whether there is any conflict between Karnataka Contract Carriage (Acquisition)Act 1976 and Motor Vehicles Act, 1988. In Para 53 of the Judgement, it was held as follows : Para 53. The aforesaid review of the authorities makes it clear that whenever repugnancy between the State and Central legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for determining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e. the pith and substance of the two legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire field covered by the ot....
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.... direct conflict exists, the Central legislation will prevail. In this case, different perspective is presented by both sides on the question of repugnancy of Act 30 of 1976 qua Act 39 of 2005. While the Learned Counsel for the appellant and Learned Amicus Curiae submits that Act 30 of 1976 is in direct conflict with Act 39 of 2005, the Learned Senior Counsel for respondent submits that both the enactment intends to operate on different fields and hence no case of repugnancy is made out. 47. The trust of argument of the learned Senior Counsel for respondents is based on the decision of the Full Bench of this court in Chellamma (supra). The full bench held that the State enactment is under the head 'joint family', whereas the Central enactment comes under the head 'wills, intestacy, and succession. It is beyond doubt that, both the enactments come under List III. Entry 5 deals with the following subject. "Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.' 48. O....
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....Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. 3. It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section. 4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on "Property Rights of Women: Proposed Reform under the Hindu Law". 5. The Bill seeks to achieve the above objects. NEW DELHI, The 16th December, 2004" Read along with the 174th report of the Law Commission, the Statement of objects of the amending act, the speech rendered by the Minister of Law in the parliament, and the entire text of the amendment, it becomes imperativ....
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.... and as if each one of them holding his or her share separately as full owner thereof. Section 4 : Joint tenancy to be replaced by tenancy in common. (1) All members of an undivided Hindu Family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall, With effect from that day, be deemed to hold it as tenants-in-common as If a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them holding his or her share separately as full owner thereof. 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 sh....
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....tion duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court. 50. Thus, the repugnancy in the present case arises out of the very operation of Section 3. The State Act prevents any person from claiming right by birth. But the Central legislation enables a daughter to claim such a right. Section 4 enables the members of the joint family to take respective shares of the family as tenants in common, thereby indicating that there is a deemed partition. Sub-Section (3) of Section 6 gives a clear indication as regards the intention of the Parliament to continue with the joint family system. The State enactment though recognizes a statutory deemed partition; the Central enactment refuses to recognize any form of partition other than through a registered document or through a final decree passed by the court. Even if the finer nuances as to whether a statutory abrogation of a joint family property takes place by virtue of Section 4 or not is left as such, the moment the operation of Section 3 of the State Act is pitted against Section 6(1) of the Central legislation, there arises an irreconcilable conflict and that the collusion between....
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....s to whether a subsequent amendment to the State legislation, which had earlier received a presidential assent, would render the Act immune to the repugnancy under Article 254 of the Constitution of India was considered by the Supreme Court in Annamma K.A. v. Secretary, Cochin Co-operative Hospital Society Ltd. [(2018) 2 SCC 729]. The Supreme Court considered the question as to whether the Kerala Co-operative Societies Act [1 of 2002] would prevail over the provisions of the Industrial Disputes Act. Paragraph Nos.59, 60 and 61 of the said decision read as under : "59. That apart, the amending KCS Act (1 of 2000) having received the Assent of the Governor did not bring about any inconsistency or repugnancy with the provisions of the ID Act. In any event, in the absence of the Assent of the President to the amending KCS Act 1/2000, even if any inconsistency or repugnancy exists between the provisions of the KCS Act and the ID Act, it is the ID Act which will prevail over the KCS Act by virtue of Article 254(1) of the Constitution but not vice-a-versa. 60. The law in relation to Article 254 of the Constitution and how it is applied in a particular case is fairly well....
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....ict with the Hindu Succession (Amendment) Act 2005. Whether there can be a single coparcener 55. The question assumes significance, in view of the argument of the learned Senior Counsel, Sri.Shyam Padman, that once Ext.A1 partition deed has been executed between the members of the tharavad and the 1st defendant received his share and that he becomes the absolute owner of the property and that there is no concept of single coparcener in the Hindu law, the claim of the plaintiffs has to be nonsuited. This argument, at first blush, appears to be appealing, but has its own infirmities. 56. In N.V.Narendranath v. Commissioner of Wealth Tax, Andhra Pradesh [(1969) 1 SCC 748], the Supreme Court quoting the views of the judicial committee in Attorney General for Ceylon v. A.R.Arunachalam Chettiar [1957 AC 540] held as follows : xxx xxx xxx ......"The Judicial Committee observed at page 543 of the Report "...........though it may be correct to speak of him as the owner', yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality; it is su....
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....) 9 SCC 419], the Supreme Court had an occasion to consider the effect of the partition of an ancestral property. The Supreme Court held that though the property received as share in a family partition would be considered as a separate property qua the relatives of the sharer, as soon as he marries and the moment a son is born, the property becomes a coparcenary property, and the son would acquire an interest in that property. The impact of the Act 39 of 2005 was also incidentally considered by the Supreme Court. Para 11 of the decision reads as under : "11. ....In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births....
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....learned counsel for the appellants is that the applicability of amendment in Section 6 and the deletion of Section 4(2) from the 1956 Act would have retrospective effect, which is also of no help to the appellants. Once we are holding that succession in the present case with respect to the property in question is governed by the 1954 Act, any amendment even if it has a retrospective effect in the 1956 Act will have no bearing or impact on the provisions of succession governed by the 1954 Act. Moreover, this Court in the judgment of Vineeta Sharma has given retrospective application only to Section 6 of the 1956 Act as amended in 2005. There is no declaration regarding deletion of Section 4(2) being retrospective. This argument, therefore, also fails." However, this Court is afraid that the said contention runs contrary to the stand taken by the State before this Court. In the light of the specific submissions made by the learned Special Government Pleader, this Court is of the view that the argument of the respondents against repugnancy must be rejected. For the reasons recorded, this Court has clearly depicted the manner under which the repugnancy exists in this case. Conclu....