IMPORTANT POINT
The main legal point established in the judgment is that a partition entered into prior to the cut-off date of 20th December, 2004 would stand valid and unaffected by the subsequent amendment to the Hindu Succession Act, and a suit for partition based on the amended provision would be hopelessly barred by limitation.

JUDGMENT :

The material question came up for consideration is the legal impact of amended provision – Section 6(1) of Hindu Succession Act, 1956 (for short, 'the Act') and the recent decision rendered by a three Judge Bench of Apex Court in Vineeta Sharma v. Rakesh Sharma and Others [(2020) 9 SCC 1] and also whether a deed of partition entered into prior to 20th day of December, 2004 would stand unaffected by the said amendment. It is an appeal by the defeated defendants 1 and 2 against the preliminary decree for partition of property left out by Thampu, the father of both the plaintiff and defendants 1 to 5. At the time when the plaintiff came up with the suit, she was aged 45 years. In other words, no suit was brought up by her within a period of three years after attaining majority either for getting the property partitioned or to set aside the earlier partition entered into by the defendants - Ext.B2 of the year 1968.

2. Before going to the question of limitation, it is necessary to address the impact of amended provision and also its legal effect on the deed of transfer effected prior to the cut off date, 20/12/2004. The amendment to the Hindu Succession Act by substituting Section 6(1) came into force with effect from 09/09/2005. The amended provision, Section 6(1) of the Hindu Succession Act is extracted below for reference:

“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, the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right 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 place before the 20th day of December, 2004.” (emphasis supplied)

3. By virtue of the said amendment of the year 2005, the concept of “coparcenary” was extended to daughter of a coparcenary under the Mitakshara law, but subject to the proviso by which nothing in the subsection (1) of Section 6 of the amended provision of the Act made applicable to the deed of transfer/alienation prior to the cut off date 20/12/2004. The proviso attached says that sub-section (1) of Section 6 (the amended provision) shall affect or invalidate any disposition or alienation including any partition or testamentary disposition, which had taken place before 20th day of December, 2004. The cut off date is 20/12/2004. Every documentation of disposition, alienation including any partition or testamentary succession prior to the cut off date i.e. 20/12/2004 will stand valid and unaffected. A deed of partition cannot be considered as a document of alienation or disposition, but the proviso attached to Section 6(1) of the Act is carefully worded so as to bring a document of partition and testamentary succession under the sweep of “disposition” excluded from the operation of amended provision – Section 6(1) of the Act, if it is prior to the cut off date i.e. 20/12/2004. Necessarily, a partition, which was entered into in the year of 1968 excluding the female succession with respect to a coparcenary property governed by Mitakshara law will stand valid and unaffected by the subsequent amendment and incorporation of Section 6(1) of the Hindu Succession Act. Hence, there cannot be a fresh cause of action for a suit for partition based on the amended provision, Section 6(1) of Hindu Succession Act when the property is subjected to any alienation, disposition inclusive of partition or testamentary succession prior to the cut off date i.e. 2