IMPORTANT POINT
There can be no discrimination in regard to female heirs.

Mohit S. Shah, C.J.—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 & Others1 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 proper