The petitioners are seeking to challenge the constitutional validity of the ‘Explanation’ appended to Sub-section (5) of Section 6 of the Hindu Succession (Amendment) Act, 2005, (Act 39 of 2005), namely:

“Explanation: For the purposes of this Section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court”.

The petitioners are also seeking a declaration that the amendment to Section 6 of the Hindu Succession Act, 1956 (Hereinafter referred to as the ‘HS Act’, for brevity) as amended by the Amending Act 39 of 2005, is prospective in nature and it does not have any retrospective applicability.

2. The factual background is as follows :

The petitioners are said to be the defendants in a suit for partition filed by respondents no.2 to 4, herein, in OS no.3/2011, on the file of the Court of the Civil Judge, (Senior Division) Hangal.

3. The parties are referred to by their rank before the trial court, for the sake of convenience.

4. The first petitioner is the widow of deceased defendant no.1, who is said to have died during the pendency of the suit. Petitioner no.2 is defendant no.3 in the suit. Defendants no.4 and 5 are said to be aligned with the plaintiffs in their claim and have not opposed the suit and hence they are not made parties to this petition.

The suit for partition and separate possession filed in respect of the properties described in the suit Schedule, were said to have been held by one Basavanagouda Patil as the sole surviving male member of the family. He is said to have taken Puttalingagouda @ Veeranagouda B. Patil (deceased defendant no.1) in adoption, in the year 1932. Basavanagouda Patil is said to have died in the year 1934. The plaintiffs claim that they and the defendants constitute a co-parcenary and hence the suit.

It is contended that the defendants had divided the suit properties at the instance of defendant no.1 during his lifetime, in the year 1980, as evidenced by the mutation entry effected at Entry no.6669, which is in the Kannada language and the same loosely translated in to English is as follows :      

“FORM NO.12

RECORD OF RIGHTS (MUTATION REGISTER)

That there was a division of the properties in the year 1980 as between the defendants, pursuant to an oral partition and that they have been in separate possession of their respective shares, is said to be admitted in the plaint. In addition, it is stated that the plaintiffs themselves had produced the Record of Rights, with the list of documents, evidencing such partition. However, the case sought to be advanced by the plaintiffs, even in the legal notice issued prior to the suit, was to the effect, that they are coparceners by virtue of Act no.39 of 2005 and since the partition, even if effected, is not evidenced by a registered document, the said partition would have no effect in respect of the share to which the plaintiffs would be entitled to at a partition.

Defendant no.1, in reply to the said notice, is said to have contended that the properties were held by Basavanagouda Patil in his individual name and on his demise, the said defendant n