Sri D.N. Vasantha Kumar, father of the plaintiff, was the owner of all the suit
schedule properties having acquired the same under the registered partition deed
dated 29.03.1967. He died on 31.12.1984, intestate. He left behind him, his wife
V. Padma the first defendant herein, the plaintiff and second defendant, the
daughters and defendants-3 and 4, sons, as the legal heirs. All the children
after his death have succeeded to his estate. They are all in joint possession
of the suit properties.
The plaintiff is entitled to 1/5th share in all the suit, properties. 'A'
Schedule property is earning a rent of Rs. 1000-00/- currently and the entire
amount is appropriated by the defendants and no share is given to the plaintiff.
Therefore, she is entitled to mesne profits to the extent of 1/5th share from
the income of the said property. When she was not given her legitimate right in
the property, she filed a suit for declaration that she is entitled to 1/5th
share in the suit properties for partition and separate possession of her 1/5th
share in the suit properties and also for mesne profits.
They admit the relationship. They admit the death of their father D.N. Vasanth
Kumar on 31.12.1984 leaving behind the legal heirs as mentioned in the plaint.
They have denied the allegation that the suit properties exclusively belong to
D.N. Vasanth Kumar. They also deny the joint possession.
Analysis Of The Decision Of The Court.
- The main issue before the Karnataka High Court which was not answered by
the Trial Court was whether the amendment of Section 6 of The Hindu
Succession Act under The Hindu Succession Amendment Act, 2005 was
retrospective in nature and if so, then what share does the plaintiff have
in her father's properties?
- The court finally decided the following points:
- The appeal is allowed.
- The judgment and decree of the trial Court is set aside.
- It is declared that the plaintiff is entitled to 6/25th share in the
plaint A, B and E schedule properties.
- Plaintiff is also entitled to mesne profits. It is to be worked
upon by her in the final decree proceedings.
- Parties to bear their own costs.
The court gave this judgment because of the following reasons:
- It was not in dispute that the schedule properties were coparcenary
properties. The kartha of the Joint Hindu Family, D.N. Vasanth Kumar died on
31.12.1984 intestate. There was no partition between him and his sons during his
lifetime. He left behind 2 sons and the two daughters including the plaintiff
apart from the widow. By virtue of the Amendment Act, the plaintiff-the daughter
of a coparcener in a Joint Hindu Family governed by the Mitakshara Law by birth
becomes a co-parcener in her own right in the same manner as the son and have
the same rights in the coparcenary property as she would have had if she had
been a son.
There were 5 coparceners of the Hindu Undivided Family on the date
prior to the date of the death of her father. She acquired the right by birth in
the coparcenary property. Therefore, she would be entitled to equal share in the
coparcenary property, i.e., 1/5th share.
- But, on the date of death of her father, the Amendment Act had not come
into force. Therefore, the unamended Section 6 of the Act was applicable. A notional
partition is to be affected prior to the date of the death of her father in
which event her father, plaintiff, two sons and her would have 1/5th share each.
By virtue of the provision of Section 6 of the unamended Section, the 1/5th
share of Vasanth Kumar does not devolve by survivorship.
It devolves by the
testamentary or intestate succession. Admittedly, he had not made any Will. He
has left behind female heirs. Therefore, in the 1/5th share to be allotted to Vasanth Kumar, the two sons, daughters and wife would be entitled to equal
share, i.e., each one of them would be entitled to 1/5th share in the 1/5th
share of Vasanth Kumar.
As the amended provision has not made any provision for
devolution of interest of a Hindu male dying intestate leaving the female
relative, Section 6 of the General Clauses Act is attracted. The share to
which the first defendant-wife would be entitled to is governed by the unamended
Therefore, she would be entitled to 1/5th share in the 1/5th share of
her husband, i.e., she would be entitled to 1/25th share in the schedule
properties. Similarly, the plaintiff, and her two brothers and sister would be
entitled to 6/24th share each. Therefore, the plaintiff is entitled to 6/25th
share in the plaint A, B and E schedule properties.
- A retrospective law is a law that looks backward or on things that are
past and a retroactive law is one that acts on things that are past. A
statute which operates upon acts and transactions which have not occurred
when the statute takes effect, that is, which regulates the future, is a
prospective statute. On the other hand, a retroactive law is one which takes
away or impairs vested rights acquired under existing laws, or creates new
obligations and imposes new duties, or attaches new disabilities in respect
of transactions already past.
- According to the Court, the substituted Section 6 of The Hindu
Succession Act under The Hindu Succession Amendment Act, 2005 was
retrospective in nature because-: The question whether a statute operates
prospectively or retrospectively is one of the legislative intent.
terms of a statute are clear and unambiguous and it is manifest that the
Legislature intended the Act to operate retrospectively, it must
unquestionably be so construed. If, however, the terms of a statute do not
of themselves make the intention certain or clear, the statute will be
presumed to operate prospectively.
While considering the question of the
retrospective operation of the statute, the nature of the right affected
must first be considered. All laws which affects substantive rights or
vested rights generally operate prospectively and there is a presumption
against their retrospectivity if they affect vested rights and obligations unless the
legislative intent is clear and compulsive. If an Act provides that as at a past
date the law shall be taken to have been that which is not, that Act is deemed
to be retrospective.
- The Supreme Court in the case of B. Prabhakar Rao, etc. v. State of Andhra
Pradesh, while answering the question, Is it not open to the Court to give
retrospectively to a legislation to which the legislature plainly and expressly
refused to give retrospectively held that while it is a general rule of law
that statutes are not to operate retrospectively, they may so operate by express
enhancement, by necessary implication from, the language implied or where the
statute is explanatory or declaratory or where the statute is passed for the
purpose of protecting the public against some evil or abuse or where the statute
engrafts itself upon existing situations.
Also, In Bhagat Ram Sharma v. Union of
India it is held that it is a matter of legislative practice to provide while
enacting an amending law, that an existing provision shall be deleted, and a new
provision substituted. Such deletion has the effect of repeal of the existing
provision. Such a law may also provide for the introduction of a new provision.
There is no real distinction between repeal and an amendment.
- According to the language used in substituted Section 6 of the Act, the
amendment is retrospective. The first indication is found in Section 3 of
the Amendment Act 39 of 2005. The words used read as follows:
3. Substitution of new section for Section 6.— for section 6 of the
Principal Act, the following section shall be substituted.
In the case of Shyam Sunder v. Ram Kumar was
dealing with the question, whether a substituted provision necessarily means the
amended provisions are retrospective in nature and held that the function of a
declaratory or explanatory Act is to supply an obvious omission or to clear up
doubts as to meaning of the previous Act and such an Act comes into effect from
the date of passing of the previous Act.
- Secondly though the opening words of the section declares that on and
from the commencement of the Hindu Succession (Amendment) Act, 2005, the
daughter of a coparcener in a joint family governed by the Mithakshara is conferred the
status of coparcener, it is expressly stated that she becomes a coparcener by
birth. Conferment of the status is different from conferring the rights in the
coparcenary property. The right to coparcenary property is conferred from the
date of birth, which necessarily means from the date anterior to the date of
conferment of status, and thus the Section is made retroactive.
- This judgment was not entirely correct and has been since corrected and
rightly so in my opinion. The judgment is incorrect in its interpretation of
the question whether the amendment to Section 6 of the Hindu Succession Act,
1956 was prospective or retrospective in its operation.
- Section 6 of the the Hindu Succession (Amendment) Act, 2005 was amended
to give daughters rights as coparceners by birth thereby providing them an
equal share as that of a son in a joint family.
There can be no dispute that
the amended Section 6 is applicable to daughters born after 09/09/05 but the
question that had to be considered was whether this amendment was applicable
- daughters born prior to the amendment but after the HSA came
into force (i.e. prior to 09/09/05 but after 17/06/1956); and
- daughters born prior to the commencement of the HSA (i.e.
prior to 17/06/1956).
- This was answered by the full bench of the Bombay High Court in Shri
Badrinarayan Shankar Bhandari & Ors. Vs. Omprakash Shankar Bhandari. It
was held that the amendment to Section 6 was neither prospective nor
retrospective but 'retroactive' in nature i.e. it operates forward but it is
brought into operation by a characteristic or status that arose before it
Therefore, the right in co-parcenary property will accrue to a daughter only
on 09/09/2005, but as a consequence of an event that occurred prior to
09/09/2005, the event being her birth. Accordingly, all daughters whether
born before or after 1956 or 2005 are entitled to the benefit of the
amendment to Section 6, provided they were alive as on 09/09/2005 (since
that is the day the right accrued).
Therefore, if a daughter had died prior to 09/09/2005, the heirs of such
predeceased daughter cannot retrospectively claim the benefit of the
amendment. Further, any notional partitions done under Section 6 i.e. if any
male Hindu having a right in HUF property had died prior to 09/09/2005 and
his property had devolved as per the pre-amended Section 6, the same would not be
affected by this amendment.
- The reason because of which this judgment is correct is the object of
enacting the amendment and the purpose and intent of the Legislature which
was to foster equality as mandated under Article 14 of the Constitution of
- This overruled Vaishali Satish Ganorkar & Anr. Vs. Satish Keshaorao Ganorkar
& Ors. which had held that the amended Section 6 only applies prospectively
to daughters born after 09/09/05.
This decision has also circumscribed the wider
view propounded by the division bench of the Karnataka High Court in Pushpalatha
N.V. vs. V.Padma which made the amendment applicable only to daughters born
after 1956 but had no additional condition that they have to be alive as on
The Full Bench held that this decision of the Karnataka High Court
was therefore not entirely correct as the amended Section 6 itself states that
it would apply only on and from the commencement of the Hindu Succession Act
(Amendment) Act 2005.
Judicial Decisions On On The Given Issue In Previous Judgments Of Courts
This case involves several topics on which various judicial decisions have been
- A Co-Parcenary is one who shares (equally) with others in inheritance
in the estate of a common ancestor. Otherwise called parceners, are such as have
equal portion in the inheritance of an ancestor, or who come in equality to the
lands of their ancestors. A person to whom an estate descends jointly and who
holds it as an entire estate.
- The Supreme Court in the case of Bhagwan Dayal v. Mst. Reoti Devi,
held that, coparcenary is a creature of Hindu Law and cannot be created by
agreement of parties except in the case of reunion. It is a corporate body
or a family unit. The law also recognizes a branch of the family as a
subordinate corporate body. The said family unit, whether the larger one or
the subordinate one, can acquire, hold and dispose of family property
subject to the limitations laid down by law.
- In the case of Sunil Kumar v. Ram Prakash, it was held that
the coparcenary consists of only those persons who have taken by birth an interest
in the property of the holder and who can enforce a partition whenever they
like. It is a narrower body than joint family. It commences with a common
ancestor and includes a holder of joint property and only those males in his
male line who are not removed from him by more than three degrees.
Co-ParcenarySection 6 And Hindu Joint Family
- The Supreme Court in the case of Gowli Buddanna v. Commissioner of
Income-tax, Mysore, held that a Hindu joint family consists of all persons
lineally descended from a common ancestor, and includes their wives and
unmarried daughters. A Hindu coparcenary is a much narrower body than the joint
family: it includes only those persons who acquire by birth an interest in the
joint or coparcenary property, these being the sons, grandsons, and
great-grandsons of the holder of the joint property for the time being.
Therefore, there may be a joint Hindu family consisting of a single male
member and widows of deceased coparceners.
- The Apex Court in the case of Bhagwati Prasad Sah v. Dulhin Rameshwari
Kuer, held that the general principle undoubtedly is that a Hindu family is
presumed to be joint unless the contrary is proved but where one of the co-parceners
separates himself from the other members of the joint family and has his share
in the joint property partitioned off for him, there is no presumption that the
rest of the co-parceners continued to be joint.
Approach Of Legislature On The Issue
Suggestions For Improvements Of Current Situation On Issue.
Law After 1956 Act And Prior To 2005 Amendment Act:
- Sri Pandit Jawaharlal Nehru, the then Prime Minister of India
expressed his unequivocal commitment to carry out reforms to remove the
disparities and disabilities suffered by Hindu women.
As a consequence, despite
the resistance of the orthodox section of the Hindus, the Hindu Succession Act,
1956 was enacted and came into force on 17th June 1956. It laid down a uniform
and comprehensive system of inheritance and applies to those governed both by
the Mitakshara and the Dayabhaga. Many changes were brought about giving women
greater rights, yet in Section 6 the Mitakshara Coparcenary was retained.
Act of 1956 enacted by the Parliament conferred on women and in particular to a
daughter equal rights as that of the son. The limited ownership rights in the
property conferred under earlier laws blossomed into full ownership in respect
of any property possessed by a female Hindu whether acquired before or after the
commencement of the Act by virtue of Section 14 of the Act.
However, the said
enactment had no application to coparcenary property. Prior to 1956 Act, the
daughter in a Hindu Joint Family governed by Mitakshara law was not considered a
co-parcener. Even after 1956 Act the position continued to be the same. The Act
of 1956 did not deal with devolution of interest in the coparcenary
property. The inequality between a son and a daughter contained in the shastric
and customary Mitakshara law continued to persist.
- Improving their economic condition and social status by giving equal
rights by birth was a long felt social need. Undoubtedly a radical reform of
the Mitakshara law of coparcenary was needed to provide equal distribution of
property not only with respect to the separate or self-acquired property of the
deceased male but also in respect of his undivided interest in the coparcenary
Hindu Succession (Amendment) Act,No. 39 of 2005)
The Hindu Succession (Amendment) Bill, 2005 came into force from 9th September,
2005. Section 6 of the Act deals with devolution of interest of a male Hindu in
coparcenary property and recognises the rule of devolution by survivorship among
the members of the coparcenary. The retention of the Mitakshara coparcenary
property without including the females in it means that the females cannot
inherit in ancestral property as their male counterparts do.
The law by
excluding the daughter from participating in the coparcenary ownership not only
contributes to her discrimination on the ground of gender but also had led to
oppression and negation of her fundamental right of equality guaranteed by the
Constitution having regard to the need to render social justice to women, it is
proposed to remove the discrimination as contained in Section 6 of the Hindu
Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara
coparcenary property as the sons have been given.
- Interpretation of the Amendment:
The Apex Court in the case of Mahadfolal Kanodia v. Administrator General
of West Bengal, has laid down the principles to be applied as under:
- Statutory provisions which create or take away substantive rights are
ordinarily prospective. They can be retrospective if made so expressly or by
necessary implication and the retrospective operation must be limited only
to the extent to which it has been so made either expressly or by necessary
- The intention of the legislature has to be gathered from the words used
by it, giving them their plain, normal grammatical meaning.
- If any provision of a legislation, the purpose of which is to benefit a
particular class of persons is ambiguous so that it is capable of two
meanings, the meaning which preserves the benefits should be adopted.
- If the strict grammatical interpretation gives rise to an absurdity or
inconsistency, such interpretation should be discarded and an interpretation
which will give effect to the purpose will be put on the words, if
necessary, even by modification of the language used.
The 2005 Amendment itself is an improvement to the situation that presented but
it has certain criticisms.
- First, if a partial partition with respect to some coparceners had been
effected before the commencement of the new provision, their share would
remain intact. On the other hand, those who remained undivided would suffer
a reduction of share with the entry of the daughter in the coparcenary. This
is a valid criticism but it seems unavoidable.
- Second, it has been repeatedly argued that where wives do not get a
share on partition, if daughters are made coparceners, the shares of the
former would further diminish. This is because with the introduction of the
daughter as a coparcener, the father's share, and therefore the quantum
available for the purposes of notional partition, reduces.
- Thirdly, the share of the deceased's mother would also depend on the
State to which she belongs. Other female Class I heirs will also get a
diminished portion. It has been contended that justice cannot be secured
for one category of women at the expense of another. Further, the goal of
uniformity in law is impaired.
- Most of the critics of the new provision want to abolish the concept of
right by birth itself. However, their solutions proceed along two
trajectories some want to retain the concept of joint family but replace the Mitakshara system with the Dayabhaga one.
Others want to remove the joint
family system itself, as in Kerala. The latter solution was considered and
rejected by the Law Commission on some very valid grounds. It was realised that
if the joint family system, as it then stood with only male coparceners was
abolished, then all the male coparceners would hold the property as
tenants-in-common and women would not get anything more than what they were then
entitled to.In Kerala, this problem would not have arisen because under the
Marumakkattayam law that prevailed there even daughters were coparceners.
Accordingly, the Law Commission recommended making daughters coparceners.
- The amendment of S. 6 in 2005 was a significant step in the recognition
of the property rights of women. It is submitted that the retention of the
concept of right by birth with the inclusion of daughters as coparceners is
more conducive to the protection of their interests than the abolition of
the joint family system itself. Henceforth, they would be protected against
the consequences of testamentary disposition of the coparcenary property by the
However, the amendment is not a holistic one. It does not take into account the
consequences of making daughters coparceners in terms of the other provisions of
the Hindu Succession Act. For instance, under S. 15 the husband and his heirs
would be entitled to inherit property to which they should not be equitably
entitled. Moreover, under S. 22 they would even get a preferential right to
acquire any interest sought to be transferred by a co-heir.
It is submitted that there is a need to amend these provisions so as to bring
them into consonance with the spirit of the original sections, which were mainly
intended to prevent an outsider from acquiring an interest in family property.
Further, S. 6 is not very well drafted. For instance, on a plain reading of the
section it cannot be conclusively determined whether the children of the
daughter would also acquire a right by birth in the property of their maternal
It remains to be seen how the courts will interpret these provisions
whether they will adopt a purposive interpretation in keeping with the object of
the amendment, or a more literal version. However there is a limit to judicial
interpretation. To rectify the anomalies, steps need to be taken by the
- Pushpalatha N. v/s V. Padma Air 2010 Kar 124
- General Clauses Act, 1897
- AIR 1986 SC 210
- AIR 1988 SC 740
- AIR 2001 SC 2472
- (2014) 5 AIR Bom R 791 (FB)
- AIR 2012 Bom 101
- AIR 2010 Kar 124
- AIR 1962 SC 287
- (1988) 2 SCC 77
- AIR 1966 SC 1523
- AIR 1952 SC 72
- AIR 1960 SC 936
- C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami
Thirukoli, (1996) 8 SCC 525
- B. Agarwal, Far From Gender Equality, 20 (2) Lawyer's Collective 16, 17
- M.P. Jain, Indian Constitutional Law 845-847 (2003)
- K. Nagendra, The Concept of Right by Birth and its Changing Dimensions
in the Hindu Joint Family Law 8 (2000)
- The Kerala Joint Hindu Family (Abolition) Act, 1975
- Law Commission Of India, 174th Report on Property Rights of Women:
Proposed Reforms under the Hindu Law (2000)