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Case Analysis of Pushpalatha N. v/s V. Padma

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:
    1. The appeal is allowed.
    2. The judgment and decree of the trial Court is set aside.
    3. It is declared that the plaintiff is entitled to 6/25th share in the plaint A, B and E schedule properties.
    4. Plaintiff is also entitled to mesne profits. It is to be worked upon by her in the final decree proceedings.
    5. 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[1] is attracted. The share to which the first defendant-wife would be entitled to is governed by the unamended Section 6.

    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.

    If the 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[2], 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[3] 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[4] 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 to:
    1. 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
    2. 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[5]. 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 was enacted.

    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 India.
  • This overruled Vaishali Satish Ganorkar & Anr. Vs. Satish Keshaorao Ganorkar & Ors.[6] 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[7] which made the amendment applicable only to daughters born after 1956 but had no additional condition that they have to be alive as on 09/09/2005.

    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 passed.
  • Co-Parcenary:

    • 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[8], 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[9], 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[10], 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[11], 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

  • 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.

      The 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 property.
  • 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[12], has laid down the principles to be applied as under:
    1. 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 implication.
    2. The intention of the legislature has to be gathered from the words used by it, giving them their plain, normal grammatical meaning.
    3. 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.
    4. 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.

Suggestions For Improvements Of Current Situation On Issue.

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.[13] 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.[14] 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.[15]

  • 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.[16]

    Others want to remove the joint family system itself, as in Kerala.[17] 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.[18]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 father.
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 ancestors.

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 legislature itself.

  • Pushpalatha N. v/s V. Padma Air 2010 Kar 124
  1. General Clauses Act, 1897
  2. AIR 1986 SC 210
  3. AIR 1988 SC 740
  4. AIR 2001 SC 2472
  5. (2014) 5 AIR Bom R 791 (FB)
  6. AIR 2012 Bom 101
  7. AIR 2010 Kar 124
  8. AIR 1962 SC 287
  9. (1988) 2 SCC 77
  10. AIR 1966 SC 1523
  11. AIR 1952 SC 72
  12. AIR 1960 SC 936
  13. C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoli, (1996) 8 SCC 525
  14. B. Agarwal, Far From Gender Equality, 20 (2) Lawyer's Collective 16, 17 (2005)
  15. M.P. Jain, Indian Constitutional Law 845-847 (2003)
  16. K. Nagendra, The Concept of Right by Birth and its Changing Dimensions in the Hindu Joint Family Law 8 (2000)
  17. The Kerala Joint Hindu Family (Abolition) Act, 1975
  18. Law Commission Of India, 174th Report on Property Rights of Women: Proposed Reforms under the Hindu Law (2000)

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