2010 Supreme(Kar) 326

High Court of Karnataka
THE HONOURABLE MR. JUSTICE N. KUMAR & THE HONOURABLE MR. JUSTICE A.N. VENUGOPALA GOWDA
N.V. Pushpalatha
Versus
V. Padma & Others
Decided On : 19-03-2010
Regular First Appeal No. 326 of 2004

Headnote:HINDU LAW - Inheritance: [N.Kumar & A.N.Venugopala Gowda,JJ] Held, Prior to the Act of 1956, Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis. The two systems of inheritance which were predominant amongst the Hindus in India are: Mitakshara system and Dayabhaga system. Dayabhaga system prevails in Bengal, Mitakshara system in other parts of India. The difference between the two systems arises from the fact that, while the doctrine of religious efficacy is the guiding principle under Dayabhaga School, there is no such definite guiding principle under Mitakshara School. Sometimes, consanguinity has been regarded as the guiding principle and at other times, religious efficacy. Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of Coparceners, based on birth in the family. No female is a member of the Coparcenary in Mitakshara law. Under the Mitakshara system, joint family property devolves by survivorship within the Coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a Coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint property is recognised. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father’s life time. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers. The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son’s daughter, daughter’s daughter and sister, thereby creating a limited restriction on the rule of survivorship. Another landmark legislation conferring ownership rights on woman was the Hindu Women’s Right to Property Act (XVIII of) 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of Coparcenary but also in the law of partition, alienation of property, inheritance and adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. But, the widow did not become a Coparcener even though she possessed a right akin to a coparcenary interest in the property and was a member of the joint family. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights.

       HINDU SUCCESSION ACT, 1956 - Section 6: [N.Kumar & A.N.Venugopala Gowda,JJ] Applicability concept of severance of status under Hindu Law to Hindu Succession (Amendment Act),2005 - Held, In Section 6 the word ’partition’ has been defined. It is a very narrow definition of partition. As per the said definition a partition means, (1) Partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908), (2) Partition effected by a decree of the Court. Unless the partition is evidenced by a registered document and has come into existence prior to 20th day of December, 2004, the daughter who has now been conferred the status of a Coparcener cannot be denied the right to the Coparcenary property which she has now acquired by birth. Therefore, they made it clear a plea of partition if it is not supported by a registered deed of partition would not defeat the right of a daughter. Further, If a partition is effected by a decree of the Court, thereby meaning a final decree passed by a Court has attained finality, then, the daughter of a Coparcener who has been conferred equal rights in the Coparcenary property under Section 6, would not be entitled to a share in the Coparcenary property as that of the son. Therefore, the concept of partition and severance of the status as under Hindu Law has no application under the Act in view of the definition of partition by way of Explanation to sub-Section (5) of Section 6 of the Act and it is only such partitions which are not affected by the effect of amended Section 6 of the Act.

       HINDU SUCCESSION (AMENDMENT) ACT, 2005 - Section 6: [N. Kumar & A.N. Venugopala Gowda,JJ] Vested right of other female relatives - Held, The amended Section is silent about the rights of other female relatives of a Hindu male dying before the commencement of the amended Act. There is nothing in the amended provision which evinces a contrary intention affecting the operation of the Proviso to the unamended Section 6. The amended Section do not manifest an intention to destroy the rights conferred under the proviso to the amended Section. Sub-Section (3) of the amended provision provides only for devolution of the interest on the death of a Hindu, after the amendment Act. In the case of a male, if he has left behind a female relative, the Proviso to Section 6 applies, as the amended provision makes no provision for such a contingency. Therefore, the unamended Section remains in operation for the period before this repeal. However, while determining the share of the male Hindu who has died before the commencement of the amended Act, i.e. 9.9.2005, who had an interest in a Mitakshara Coparcenary property, if he has left him surviving a female relative, his share is to be determined treating his daughter also as a Coparcener. Thereafter in the notional partition, the share to be allotted to him devolves as per proviso to the unamended Section 6 of the Act. Thus, the vested right accrued to the other female members is not affected by the amendment, as the said vested right is not taken away expressly or by necessary implication by the Parliament. May be the extent of their share may be diminished but it does not amount to taking away the vested right. That is the sacrifice the other female members who are none other than the mother, grandmother, a grand daughter, has to make in favour of a daughter. Therefore, in so far as other female members left behind by a male Coparcener dying before the commencement of the Amendment Act, succession to this property is governed by the unamended Section 6 by virtue of Section 6 of the General Clauses Act.

       HINDU SUCCESSION (AMENDMENT) ACT, 2005 - Section 6(1): [N.Kumar & A.N.Venugopala Gowda,JJ] Rights created and conferred on the daughter of a Coparcener - Held, The Parliament intended to change the existing law and create and confer such right on a daughter of a Coparcener also. Therefore, they chose to make a declaration signalling the change in the law, as it existed till then and heralding a new era. The intention behind the amendment is to confer such Coparcenary right on the daughter of a Coparcener, which was hitherto not recognised both under the Shastric Hindu Law and the Act. The discrimination sought to be removed was not existing in all Schools of Hindu Law. It was existing only in Mitakshara School. Therefore, amended section makes it clear that the declaration made is confined only to "a Joint Family governed by the Mitakshara law". The equality to be restored was between son and daughter only and not between male and female Hindu. Therefore, the Parliament consciously used the phrase "the daughter of a Coparcener" is the person on whom they are conferring the right and not on any other female relative, who may be a member of Joint Hindu Family. This intention can be gathered from the fact that in the un-amended Section, the provision conferred rights on a "female relative" and not only on a "daughter of a Coparcener". Further, The discrimination sought to be removed in Mitakshara School and is confined to ’a joint family governed by Mitakshara Law. Equality of status and equal rights in Coparcener property to a daughter of a Coparcener and by way amendment two rights are conferred. (a) Equality in Status. The daughter of a Coparcener by birth become a Coparcener in her own right in the same manner as the son. (b) Equal rights in Coparcenary property. The daughter of a Coparcener would have the same rights in the Coparcenary property, as she would have had, if she had been a son. Thus, gender discrimination between the son and daughter is removed, and bringing the law in conformity with the Article 14 and 15 of the Constitution which are fundamental rights.

       HINDU SUCCESSION (AMENDMENT) ACT, 2005 - Section 6(1): [N. Kumar & A.N. Venugopala Gowda,JJ] Declaration and conferment of right in Coparcenary property on the daughter of a Coparcener Interpretation of the Phrase "On and from the commencement of the Hindu Succession (Amendment) Act 2005" - Held, The amendment is introduced by way of substitution. The result is, this amended provision is there in the statute on the day it came into force i.e., 17.6.1956. From that day till the amendment Act came into force on 9.9.2005, the daughter of the Coparcener was not a Coparcener and she became a Coparcener only from 9.9.2005. Though her status was so declared on 9.9.2005, she has been given right in the Coparcenary property from the date of her birth. It would result in absurdity. Therefore, what the Parliament did was to use the phrase, "on and from the commencement of the Hindu Succession (Amendment) Act, 2005", as the opening words of the Section, thus removing the absurdity. Further, If the aforesaid opening words were not there in the amended Section and it is inserted by way of substitution, when the right is given to a daughter by birth, such a right would have accrued to her prior to the date of the passing of the Act in 1956 itself. The intention of the Parliament was not to give her rights in a Coparcenary property prior to the date of the Act as she had only a limited right in the property, whether ancestral or self acquired property of the father. Therefore, on a proper interpretation it follows that when the status of a coparcener is conferred on the daughter on and from the date of the commencement of the Amendment Act, as the right is given to her by birth, she must have born after 17.6.1956, the day on which the Act came into force. It is only under the Act, her limited estate blossomed into an absolute estate, and got equal rights with the son in the property of her father and mother.

       HINDU SUCCESSION (AMENDMENT) ACT, 2005 - Section 6 (1) :[N.Kumar & A.N.Venugopala Gowda,JJ] Status of the daughter of a Coparcener born prior to 17.6.1956 and after 17.6.1956 - Benefit of the Amended Act to the daughter of a Coparcener born prior to 17.6.1956 and after 17.6.1956 - Held, When the Act was enacted, the legislature had no intention of conferring rights which are conferred for the first time on a female relative of a coparcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of Section 6 also it cannot be made retrospective in the sense applicable to the daughters born before the Act came into force. In the Act before amendment the daughter of a Coparcener was not conferred the status of a Coparcener. Such a status is conferred only by the Amendment Act in 2005. After conferring such status, right to Coparcenary property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth should be after the Act came into force, i.e., 17.6.1956. There was no intent in either under the unamended Act or the Act after amendment to confer any such right on a daughter of a Coparcener who was born prior to 17.6.1956. Therefore, in this context also the opening words of the amending Section assumes importance. The status of a coparcener is conferred on a daughter of a Coparcener on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. But, both these rights are conferred under the Act and, therefore, it necessarily follows the daughter of a Coparcener who is born after the Act came in to force alone will be entitled to a right in the Coparcenary property and not a daughter who was born prior to 17.6.1956. Further, By virtue of the substituted provision what the Parliament intends to do is first to declare that, on and from the commencement of this Amendment Act in a Joint Hindu family governed by the Mitakshara law, the daughter of a Coparcener shall by birth become a Coparcener in her own right in the same manner as the son and have the same rights in the Coparcenary property as she would have had if she had been a son. Therefore, the Mitakshara law in respect of Coparcenary property and Coparcenary consisting of only male members came to an end. By such a declaration the Parliament declared that from the date of the amendment shastric and customary law of Coparcenary governed by Mitakshara School is no more applicable and it cease to exist. Thus, by virtue of the aforesaid provision, a right is conferred on a daughter of a Coparcener for the first time. The said right is conferred by birth. Therefore, though such a right was declared in the year 2005, the declaration that the said right as a Coparcener enures to her benefit by birth makes the said provision retro active.

       HINDU SUCCESSION (AMENDMENT) ACT, 2005 - Section 6(1): [N.Kumar & A.N.Venugopala Gowda,JJ] Right of a married daughter under - Whether a married daughter is a Coparcener? Held, The language employed and the declaration made in Section 6 makes the legislative intent explicit and clear, i.e., the daughter of a Coparcener shall by birth become a Coparcener in her own right in the same manner as the son and have the same rights in the Coparcenary property as she would have it if she had been a son. It means whatever right the son possesses in a Coparcenary property as she would have if she had been a son. It means whatever right the son possesses in a coparcenary property is sought to be conferred on the daughter. The son would not lose his right in a Coparcenary property because of his marriage. It is that right which is conferred on the daughter and, therefore, when by birth son acquires an interest in Coparcenary property and retains the same, notwithstanding his marriage, the daughter is also conferred the same right, it means she acquires a right by birth in the Coparcenary property and she continues to hold the said right notwithstanding her marriage. The daughter’s marriage will not put an end to the right of the daughter to a Coparcenary property which she acquired by birth. Therefore, a married daughter is also a Coparcener and is entitled to equal share with the son in the Coparcenary properties and her marriage in no way affects her right to equal share in the Coparcenary property. Even after marriage she continues to have the same right which she had before marriage, as her right to Coparcenary property flows from her birth as that of the son. To find out what is the right of a daughter in a Coparcenary property, one has to find out what is the right of the son. Whatever rights the son has in the Coparcenary property, by virtue of the amendment the daughter also has such right. That is the object behind the legislation i.e., to achieve equality in the right of inheritance.

       HINDU SUCCESSION (AMENDMENT) ACT, 2005 - Section 6(1): [N.Kumar & A.N.Venugopala Gowda,JJ] Retrospective Operation -Held, The question whether a statute operates prospectively or retrospectively is one of the legislative intent. If the terms of a statute are clear and unambiguous and it is manifest that the Legislature intended the Act to operate retrospectively, it must unquestionably be so construed. If, however, the terms of a statute do not of themselves make the intention certain or clear, the statute will be presumed to operate prospectively. While considering the question of the retrospective operation of the statute, the nature of the right affected must first be considered. All laws which affects substantive rights or vested rights generally operate prospectively and there is a presumption against their retrospectively if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Though the opening words of the section declares that "on and from the commencement of the Hindu Succession (Amendment) Act, 2005, the daughter of a Coparcener in a joint family governed by the Mithakshara is conferred the status of Coparcener, it is expressly stated that she becomes a Coparcener by birth. Conferment of the status is different from conferring the rights in the Coparcenary property. The right to Coparcenary property is conferred from the date of birth, which necessarily means from the date anterior to the date of conferment of status, and thus the Section is made retro active. By such express words the amended section is made retrospective. Though the provision is made retrospective, if third party interests have crept in or even the Coparceners on the assumption that it has become their separate property after the partition by way of registered partition deed or effected by a decree of the Court has made improvements or alienated the properties or parted with property by testamentary disposition, those transactions cannot be reopened. It is clear that, declaration of right of the daughter of a Coparcener and conferment of right by birth shall not affect or invalidate any "disposition" ort "alienation" including any partition or testamentary disposition of property, which have taken place before the 20th day of December, 2004.

       HINDU SUCCESSION (AMENDMENT) ACT, 2005 - Section 6(1): [N. Kumar & A.N. Venugopala Gowda,JJ] Effect of amendment on pending proceedings - Held, It is well understood in suits of partition, first there should be a preliminary decree, declaring the rights of the parties, thereafter in terms of the declaration of the preliminary decree in final decree proceedings the partition is effected by metes and bounds. Therefore, only in the case of a partition effected by a decree of court, when it attains finality, a daughter of a Coparcener is deprived of the benefit of the substituted provision. Therefore, this substituted provision applies to the pending proceedings in the Trial Court, the Appellate Court, the Second Appellate Court where the preliminary decree or a final decree is challenged. The language employed by the Parliament is clear, unambiguous and it also clearly demonstrates the intention of the Parliament to make this provision retrospective and give the benefit of the right of a Coparcener which devolves by birth on daughters. The explanation makes it clear that mere passing of a decree for partition whether by the Trial Court or by the Appellate Courts is not enough. Till a partition is effected by a decree of a Court, thereby meaning till the decree for partition attained finality, the daughter cannot be deprived of her legitimate right in the said property. Therefore, the substituted/amended Section applies to all pending proceedings as the partition is not yet effected by a decree of the Court.

       HINDU SUCCESSION (AMENDMENT) ACT, 2005 - Section 6(1) Proviso: [N.Kumar & A.N.Venugopala Gowda,JJ] Effect of disposition of property which had taken place before the 20th day of December, 2004 - Hrlf, In the light of the words used in the Proviso to sub-Section (1) of Section 6 it is clear, the substituted Section has no application and it shall not affect or invalidate any disposition or alienation or partition or testamentary disposition which has taken place before the 20th day of December, 2004. In other words, if there is no disposition or alienation of a property belonging to a Joint Hindu Family, the daughter who is conferred the status of a Coparcener by virtue of which she gets a right by birth is entitled to the same rights in the Coparcenary property in the same manner as the son. The language employed in the Proviso is unambiguous and clear. The intention was to save disposition, alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. Sub-Section (2) of Section 6 further declares that 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 the Act, or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

       HINDU SUCCESSION (AMENDMENT) ACT, 2005 - Section 6(1) Proviso: [N.Kumar & A.N.Venugopala Gowda,JJ] Effect of disposition of property which had taken place before the 20th day of December, 2004 - Hrlf, In the light of the words used in the Proviso to sub-Section (1) of Section 6 it is clear, the substituted Section has no application and it shall not affect or invalidate any disposition or alienation or partition or testamentary disposition which has taken place before the 20th day of December, 2004. In other words, if there is no disposition or alienation of a property belonging to a Joint Hindu Family, the daughter who is conferred the status of a Coparcener by virtue of which she gets a right by birth is entitled to the same rights in the Coparcenary property in the same manner as the son. The language employed in the Proviso is unambiguous and clear. The intention was to save disposition, alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. Sub-Section (2) of Section 6 further declares that 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 the Act, or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. Pushpalatha N.V. vs V. Padma & ors. [RFA No. 326/2004., DD 19.3.2009]. ILR 2010 (2) Kar 1484: 2010 (3) AIR Kar R 225: 2010 (2) KCCR 1239: 2010 (3) KLJ 549: AIR 2010 Kar 124 (DB)

       HINDU SUCCESSION (AMENDMENT) ACT, 2005 - Section 6 (3): [N.Kumar & A.N.Venugopala Gowda,JJ] Succession of property after the commencement of the Hindu Succession Act, 2005 - Whether the concept of survivorship still survives? - Held, Sub-Section (3) of Section 6 deals with succession of property after the commencement of the Hindu Succession Act, 2005, i.e., form 09.09.2005. Sub-Section (3) of the amended Section 6 provides that, 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, Therefore, with the passing of the Amendment Act, 2005, the concept of survivorship is given a go by once and for all.