Provisions of Amended Section 6 are retroactive in operation, and daughter living on 9 September 2005 gets rights in coparcener property with effect from 9 September 2005 - Retroactive means it applicability not only future cases but it can applicable to pending cases.
Citation
CDJ 2014 BHC 1406
Badrinarayan Shankar Bandari and others vs Omprakash Shankar Bandari and others
Head note
Constitution of India - Article 136, Article 246- Hindu Succession Act, 1956 - Section 6, Section 6(1) and (2)- Hindu Succession (Amendment) Act, 2005 - Section 3, Section 23- Hindu Law of Inheritance Act, 1929 - Hindu Women Right to Property Act 1937 - Registration Act, 1908 - Rights of daughters in coparcener property – amendment of Act - retroactive in operation - Appellants submitted that, Amending Act, 2005 which substituted Section 6 of the act, 1956 is retrospective in operation and applies to all daughters born before 9 September 2005 and also heirs of such daughter who died before 9 September 2005 are permitted under the Act to claim their right in coparcener property through deceased daughter - However, stand of Respondents is that, Section 6 of the act, 1956 has to be read prospectively and it applies only to daughters born on or after effective date provided in the Act, namely 9 September 2005 – appellants filed suit before Single Judge which disagreed with the view of Division Bench in Vaishali S. Ganorkar (supra) which held that amended Section 6 was retrospective in operation, that is applicable from the date of commencement of the Act, 1956 and applies to all daughters of a coparcener who are born either before or after 9 September 2005 or daughters born before or after 17 June 1956 - Hence instant appeal
Issue is - Whether Section 6 of the Act, 1956 (Principal Act) substituted by Section 3 of the Act, 2005 (Amendment Act) is prospective or retrospective in operation and whether preliminary decree passed by trial court and after amendment, deprives appellants of benefits of Act, 2005
Court held - Therefore, it is imperative that daughter who seeks to exercise such a right must herself be alive at the time when Amendment Act, 2005 was brought into force - It would not matter whether daughter concerned is born before 1956 or after 1956 for reason that the Act, 1956 when it came into force applied to all Hindus in the country irrespective of their date of birth - date of birth was not a criterion for application of Act, 1956 - only requirement is that when the Act is being sought to be applied, the person concerned must be in existence/ living – Therefore, court viewed that, provisions of Amended Section 6 are retroactive in operation, and daughter living on 9 September 2005 gets rights in coparcener property with effect from 9 September 2005 – court considered that, it is not a fit case where court should exercise its discretionary jurisdiction under Article 136 of Constitution as fact remains that Section 23 of the Act, 1956 as it stood was to be applicable on the date of institution of suit – so, Respondents may file a new suit and obtain a decree for partition -provisions of amended Section 6(3) do not and cannot infringe upon or curtail or restrict rights of daughters born prior to 9 September 2005 under sub-Sections (1) and (2) of the amended Section 6 of the Act, 1956 – Therefore, Section 6 of the Act, 1956 as amended by Amendment Act, 2005 is retroactive in operation – appeal disposed of.
Para 76, 77
Cases Referred:
Shekhar Vs. Geeta (2009)6-SCC-99) and Sheeladevi Vs. Lal Chand and others (2006)8-SCC-581)
Pushpalatha N. V. v/s. V. Padma (AIR-2010-Karnataka-124)
Karnataka High Court in Pushpalatha case (supra)(AIR-2010-Karnataka-124)
Ganduri Koteshwaramma & Others v/s. Chakari & Others (2011)9-SCC-788)
BengalImmunity Co. Ltd. v/s. State of Bihar (AIR-1955-SC-661)
P.N. Bhagwati in Umed Vs. Raj Singh (1975)1-SCC-76)
Muhammed Abdus Samad Vs. Qurban Hussain)(ILR.26-Allahabad-119(129) P.C.)
R Vs. Inhabitants of St. Mary, White-chapel (1848(2)-QB-120),
State of Jammu & Kashmir Vs. Triloki Nath Khosa (1974)1-SCC-19)
Dilip Vs. Mohd. Azizul Haq and another (2000)3-SCC-607),
Commrs. Of Customs and Excise Vs. Thorn Electrical Industries Ltd. (1975)1- WLR-1661. … ...”
Zile Singh vs State Of Haryana & Others (2004)8-SCC-1)
Secretary of State for Social Security Vs. Tunnicliffe (1991)2-ALL ER-712) :
L' Office Cherifien Vs. Yamashita Limited (1994)1-ALL ER-20)
Dilawar Balu Karane Vs. State of Maharashtra (2002)2-SCC-135)
Union of India Vs. National Federation of Blind (2013)10-SCC-772))
(O'Shea Vs. O'Shea and Parnell *1890)15-P.D. 59 at 64 (C.A.)).
R. Vs. Warner (Ward) 1 Keb. 66, 1 Lev. 8),
Comparative Citations:
2014 (3) KLT 49 (SN) (C.No.61), 2014 (5) CTC 353, 2014 (3) MWN(Civil) 225, 2014 (5) MAH.L.J 434, 2014 AIR(Bom) 151, 2014 (5) ALL MR 846, 2014 (5) AIR(Bom) R 791, 2014 (5) BCR 481, 2015 (2) KantLJ 7,
Issue is - Whether Section 6 of the Act, 1956 (Principal Act) substituted by Section 3 of the Act, 2005 (Amendment Act) is prospective or retrospective in operation and whether preliminary decree passed by trial court and after amendment, deprives appellants of benefits of Act, 2005
Court held - Therefore, it is imperative that daughter who seeks to exercise such a right must herself be alive at the time when Amendment Act, 2005 was brought into force - It would not matter whether daughter concerned is born before 1956 or after 1956 for reason that the Act, 1956 when it came into force applied to all Hindus in the country irrespective of their date of birth - date of birth was not a criterion for application of Act, 1956 - only requirement is that when the Act is being sought to be applied, the person concerned must be in existence/ living – Therefore, court viewed that, provisions of Amended Section 6 are retroactive in operation, and daughter living on 9 September 2005 gets rights in coparcener property with effect from 9 September 2005 – court considered that, it is not a fit case where court should exercise its discretionary jurisdiction under Article 136 of Constitution as fact remains that Section 23 of the Act, 1956 as it stood was to be applicable on the date of institution of suit – so, Respondents may file a new suit and obtain a decree for partition -provisions of amended Section 6(3) do not and cannot infringe upon or curtail or restrict rights of daughters born prior to 9 September 2005 under sub-Sections (1) and (2) of the amended Section 6 of the Act, 1956 – Therefore, Section 6 of the Act, 1956 as amended by Amendment Act, 2005 is retroactive in operation – appeal disposed of.
Para 76, 77
Cases Referred:
Shekhar Vs. Geeta (2009)6-SCC-99) and Sheeladevi Vs. Lal Chand and others (2006)8-SCC-581)
Pushpalatha N. V. v/s. V. Padma (AIR-2010-Karnataka-124)
Karnataka High Court in Pushpalatha case (supra)(AIR-2010-Karnataka-124)
Ganduri Koteshwaramma & Others v/s. Chakari & Others (2011)9-SCC-788)
BengalImmunity Co. Ltd. v/s. State of Bihar (AIR-1955-SC-661)
P.N. Bhagwati in Umed Vs. Raj Singh (1975)1-SCC-76)
Muhammed Abdus Samad Vs. Qurban Hussain)(ILR.26-Allahabad-119(129) P.C.)
R Vs. Inhabitants of St. Mary, White-chapel (1848(2)-QB-120),
State of Jammu & Kashmir Vs. Triloki Nath Khosa (1974)1-SCC-19)
Dilip Vs. Mohd. Azizul Haq and another (2000)3-SCC-607),
Commrs. Of Customs and Excise Vs. Thorn Electrical Industries Ltd. (1975)1- WLR-1661. … ...”
Zile Singh vs State Of Haryana & Others (2004)8-SCC-1)
Secretary of State for Social Security Vs. Tunnicliffe (1991)2-ALL ER-712) :
L' Office Cherifien Vs. Yamashita Limited (1994)1-ALL ER-20)
Dilawar Balu Karane Vs. State of Maharashtra (2002)2-SCC-135)
Union of India Vs. National Federation of Blind (2013)10-SCC-772))
(O'Shea Vs. O'Shea and Parnell *1890)15-P.D. 59 at 64 (C.A.)).
R. Vs. Warner (Ward) 1 Keb. 66, 1 Lev. 8),
Comparative Citations:
2014 (3) KLT 49 (SN) (C.No.61), 2014 (5) CTC 353, 2014 (3) MWN(Civil) 225, 2014 (5) MAH.L.J 434, 2014 AIR(Bom) 151, 2014 (5) ALL MR 846, 2014 (5) AIR(Bom) R 791, 2014 (5) BCR 481, 2015 (2) KantLJ 7,
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