Badrinarayan Shankar Bhandari vs Ompraskash Shankar Bhandari

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Bom) 1620

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MOHIT S. SHAH, M.S.SANKLECHA AND M.S.SONAK, JJ.
Shri Badrinarayan Shankar Bhandari and Ors. - Appellants
versus
Ompraskash Shankar Bhandari - Respondent
SECOND APPEAL NO. 566 OF 2011 WITH CAS/1762/2011 WITH CAS/498/2014 IN SA/566/2011 WITH SECOND APPEAL NO. 25 OF 2013 WITH SECOND APPEAL NO. 846 OF 2003 WITH CAS/1287/2003 IN SA/846/2003 WITH SECOND APPEAL NO. 1096 OF 2012 WITH CAS/2166/2012 IN SA/1096/2012 WITH SECOND APPEAL NO. 132 OF 2009 WITH SECOND APPEAL NO. 240 OF 2011 WITH CAS/21/2012 IN SA/240/2011 WITH SECOND APPEAL NO. 466 OF 2011 WITH SECOND APPEAL NO. 607 OF 2013 WITH CAS/26/2014 IN SA/607/2013 WITH SECOND APPEAL NO. 796 OF 2012 WITH CAS/240/2013 IN SA/796/2012 WITH SECOND APPEAL NO. 641 OF 2013 WITH CAS/1551/2013 IN SA/641/2013 WITH SECOND APPEAL NO. 58 OF 2014 WITH CAS/138/2014 IN SA/58/2014 WITH SECOND APPEAL NO. 147 OF 2014 WITH CAS/353/2014 IN SA/147/2014 WITH SECOND APPEAL NO. 220 OF 2014
Decided on: 14 August 2014

Advocates:
Advocate Appeared:
Mr. A.V. Anturkar, Senior Advocate i/b Mr. S.B.Deshmukh, Advocate for the Appellants.
Mr. G.M.Joshi, Advocate for Respondent nos 1, 4, 5 and 6.
Mr Vithaldas Shankar Bhandari, Respondent no.3 in-person.
Mr.Drupad s. Patil, Advocate for Respondent no.7A to 7E.
Mr. G.S.Godbole i/b Mr. Drupad S. Patil, Advocate for the Appellant.
Mr.P.B.Shah i/b Kayval P. Shah for Respondent Nos 1A to 1C and 2.
Mr. Pramod G. Kathane, Advocate for Respondent nos 4 to 6.
Mr. Vaibhav P. Patankar h/f Mr. S.C.Wakankar, Advocate for the Appellant.
Mr.G.S.Godbole a/w Mr Prashant More, Advocate for respondent nos 1 to 3.
Mr.P.P.Kulkarni, Advocate for the Appellants.
Mr N.J.Patil, Advocate for respondent nos 1 and 9.
Mr R.S.Apte, Senior Advocate i/b Mr Vaibhav P. Patankar, Advocate for the Appellants.
Mr G.S.Godbole a/w Mr Parshant P More a/w Mr Pratap M. Nimbalkar, Advocate for Respondent nos 1 to 3.
Mr. M.M.Mahajan, Advocate for respondent nos 4,5 and 6.
Mr.V.S.Talkute with Mr S.R.Moray, Advocate for the Appellant.
Mr Pankaj Shinde, Advocate for Respondent Nos. 1 to 3.
WITH
Mr. Sandeep S. Salunkhe, Advocate for the Appellants.
Mr Abhijit Kulkarni a/w Mr Manoj Badgujar, Advocate for the Appellant.
Mr Ravindra Pachundkar h/f Mr Dilip Bodake, Advocate for Respondent no.1,2A to 2D, 3 and 4.
Mr. P.J.Pawar, Advocate for the Appellants.
Mr V.S.Tadke i/b Mr. Y.G.Thorat, Advocate for Respondent no.3.
Mr. Vaibhav P. Patankar, Advocate for the Appellant.
Mr S.P.Golekar i/b Mr. T.D.Deshmukh, Advocate for respondent no.1.
Mr G.N.Salunke a/w Mr. N.B.Khaire, Advocate for the Appellants.
Mr. Mahesh Rawool i/b Mr K.P.Shah, Advocate for the Appellants.
Ms Neha Valsangkar, Advocate for respondent nos 1 to 3.
Mr Manoj Saverdekar i/b Mr P.G.Kuthane, Advocate for Respondent nos 4 to 6.

Headnote:HINDU SUCCESSION ACT, 1956 - Section 6 (as amended in 2005) - Applicability of. - Amendment Act, 2005 applies to all daughters whether born before or after amendment regarding their rights in coparcenary property.
       HINDU SUCCESSION ACT, 1956 - Section 6 (as amended in 2005) - Applicability of. - Section 6 of Amendment Act, 2005 being prospective in nature, not relates back to date of Principal Act i.e. 17.6.1956.
       HINDU SUCCESSION ACT, 1956 - Section 6 (as amended in 2005) - Effect of. - Since gender discrimination caused by erstwhile Section 6 of Act, 1956 led to its amendment in 2005 hence Amendment Act, 2005 has prospective effect.
       HINDU SUCCESSION ACT, 1956 - Section 6 (as amended in 2005) - Marginal note "Devolution of interest in coparcenary property". - Since marginal note was given to pre-amended Section 6 of Act which only dealt with aspect of devolution however amended Section 6 deals with other aspects also hence contention based on marginal not tenable.
       HINDU SUCCESSION ACT, 1956 - Section 6 (as amended in 2005) - Nature of. - Provision under Section 6(1)(a) of amended Act, 2005 is prospective in nature whereas Section 6(1)(b)(c) and Section 6(2) are retrospective in nature.
       HINDU SUCCESSION ACT, 1956 - Section 6(1) (as amended in 2005) - Effect of. - Even a daughter born before 2005 Amendment, would have equal rights and liabilities with regard to her father’s coparcenary property
       HINDU SUCCESSION ACT, 1956 - Section 6(1), 6(2) and 6(3) (as amended in 2005) - Nature of. - Since Section 6(1), (2) on one hand and Section 6(3) on other hand operate in two different fields hence rights under Section 6(1)(2) of daughters born prior to 9.9.2005 cannot be unfailed by Section 6(3) of Act.
       HINDU SUCCESSION ACT, 1956 - Section 6(1) Proviso, 6(5), 6 Explanation (as amended in 2005) - Rights of daughters. - Where saving of registered partition already taken place therefore oral portions evidenced by entries in public record would also be saved.
       INTERPRETATION OF STATUTES - Retroactive statutes. - A retroactive statute operates forward but brought into operation regarding a characteristic or status which arose before it was enacted.

JUDGMENT –

This Full Bench has been constituted on the reference made by a learned Single Judge of this Court (R.G.Ketkar, J.). This reference became necessary as the learned Judge doubted correctness of the decision rendered by Division Bench of this Court in Vaishali S. Ganorkar & Others v/s. Satish Keshavrao Ganorkar & Others 2012(5)-Bom.C.R.-210 The following questions of law have been referred for our opinion:-

“(a) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 is prospective or retrospective in operation?

(b) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born prior to 17.6.1956?

(c) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005?

(d) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies only to daughters born after 9.9.2005?

(e) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?”

2. The primary issue before the learned Single Judge was whether Section 6 of the Hindu Succession Act, 1956 (the Principal Act) substituted by Section 3 of the Hindu Succession (Amendment) Act, 2005 (the Amendment Act) is prospective or retrospective in operation.

3. Before dealing with the questions of law referred to us, it would be apposite to reproduce the erstwhile Section 6 as appearing in the Principal Act and the amended Section 6 of the Principal Act as substituted by Section 3 of the Amendment Act for the sake of convenience. The pre-amended Section 6 of the Principal Act reads as under:-

“Section 6:- Devolution of interest in 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 with this Act;

Provided that, 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, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1 – For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been alloted 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 has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”

The substituted Section 6 of the Principal Act as amended by the Amendment Act which is in force w.e.f. 9 September 2005 reads as under:-

6. Devolution of interest of 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, the daughter of a coparcener shall,

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken plac

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