on and from the commencement of the act the daughter of a coparcener by birth become coparcener in her own right in the same manner as the son. Birth refers to daughter birth irrespective of before or after 1956. The Judgement delivered thinking that the vested property cannot be divested is wrong. There is no vesting and divesting regarding joint family property it is fluctuating and by birth it diminishes and by death it increases. No body can predict that the members share is. after 2005 act commencement all daughers are coparceners and they are to be allotted equal share as son.
I am finding fault with Prakash case and you are finding fault in Ganduri case, when the Prakash judgement is against basic idea of coparcenary. The bench is thinking that there is no coparcenary after 1956. It means that the 2005 amendment is made for daughters who are born before 1956 and have not died. For minuscule people (i.e. daughters who are born before 1956 and not died) the amendment is brought?.
Parliament has power to amend the substantive law retrospectively as per Full bench judgement of Five Judges of SUPREME COURT OF INDIA Coram :- B. P. SINHA, J. C. SHAH, K. C. DAS GUPTA, K. N. WANCHOO, P. B. GAJENDRAGADKAR JJ. Decided on November 20,1962 in SUDHINDRA THIRTHA SWAMIAR Vs COMMISSIONER FOR HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS,MYSORE.
SUPREME COURT OF INDIA by Coram :- G. S. SINGHVI, K. S. PANICKER RADHAKRISHNAN JJ. Decided on May 10,2011 in PREMA Vs NANJE GOWDA applied the Karnataka Amendment 1994 to HS act to the pending FDP and modified preliminary decree and allotted share to unmarried daughter holding that the amendment is brought to remove inequality as per mandate of the article 14 and 15(1) of the constitution. The same has been observed in Ganduri case.
Another important thing in Ganduri's case is, it never dealt with older section 6, it is prakash case which has dealt both newer and older section 6, with out mentioning and dealing with older section 6, giving judgment on sole reading of newer section 6 is the binding precedent.Object of the act should be first garnered from plain text, not from over expression or overreacting to the object, when it's really not. When there is ambiguity in words or text, then the one that serves the object or object enacted for beneficial persons should be given importance.
Though in sheeladevi case, Coparcenery might not dealt properly i.e person born before 1956 is a coparcener and born after not. But sheeladevi has said that amended provision is prospective and reiterated in sekhar vs geetha. In Ganduri's case with out deciding whether act is retrospective or prospective with proper interpretation of rules of statute, overexpression or overreacting to the object of the act, with out considering older section 6 is the binding precedent.
Object of the act should always be given due importance, it doesn't mean with out mentioning the object of act, it cannot lay down binding precedent. Prakash case exclusively dealt with rules of interpretation of statute which is required to garner intent and object of legislature.When text of amendment itself saying "on and from" clearly indicating prospective nature of the act, there should be no other interpretation than words of text, it should be given plain literal meaning not imaginary judicial intuition or jurisprudence.
Full Bench of three judges in 1995 in MANOHAR JOSHI Vs NITIN BHAURAO PATIL AND ANOTHER held that It is a well settled principle of Interpretation of Statute that wherever a Statute contains stringent provisions they Must be literally and strictly construed so as to Promote the Object of the Act. So judgement which does not deal with object of the act is laying down binding precedent.
General observations made in the context of sentencing jurisprudence will have to be regarded as the view of the Judge/Judges concerned - and not 'law declared by this Court' under Art. 141 of the Constitution: full bench DALBIR SINOH VS. STATE OF PUNJAB apex court. What he decided applying the principle is ratio. Sheeladevi case no body claimed or argued the enchanced share as right as per 2005 amendment. If parties give concession and court decides that is not laying down law. So in sheeldevi the parties had not sought right under 2005 act. The bench did not discuss 2005 amendment and its purpose. Object of the act is to be considered. So Sheeldevi case is not laying down correct law. The bench held father and his son born befoer 1956 are entitled for half each. Half of father is divided among legal heirs as per Gurupad case. It means that court held son born before 1956 is coparcener and son born after 1956 is not coparcener is it right, the case is on wrong premise and cannot be said to be laying binding law. Other benches did not consider the Sheeldevi case they are MAN SINGH Vs Ram Kala 2010 and Y. NAGARAJ Vs JALAJAKSHI 2012.
in Prakash case Ganduri case is not discussed only mentioned in the list of judgements. It is observed that there is no divergent view what we have taken. Means that the bench of Prakash case was not apprised of the ratio laid down in the Gaduri case and court also not gone through the Ganduri judgement. as per the constitution bench once the law laid by the apex court is law of the land and if any body differs they have to refer to the larger bench and not overrule themselves. In Ganduri case object of the amendment is discussed but in Prakash object of the act is not discussed.
I appreciate your reply, You have quoted in your passage, G Koteswaramma case was not referred or dealt clearly in prakash vs phulavathi as binding precedent of co equal bench, but prakash vs phulavathi referred Ganduri's case and it is as similar as sai reddy vs Narayana reddy and Prema vs Nanje Gowda.But Impugned judgement of Karnataka high court did not dealt with prithviraj vs leelamma which was a binding precedent earlier and even it was ignored earlier in pushpalatha's case of co equal bench.your question of ignoring the earlier decision doesn't arise in prakash vs phulavathi.
Having refered to Ganduri's case, Apex court categorically said that it doesn't dealt with sucession principle, which it should have been done. Coming to case, I knew father died in 1993 during pendency of suit, my reply is notional partition doen't arise when father itself party to suit initially, I mean to say until final decree is passed, when father is party to suit before his death, sucession cannot open in 1993 , but only after final decree is passed, which yet to be passed in this case. In this way Ganduri's case is correct as per Apex where sucession not opened yet. Citation for this Bashyam Anjamma vs Other's 2012 AP high court dealt with Ganduri's case in answering this point.
Eventhough sheeladevi vs Lal Chand case was referred for interpretation of provisions of section 6 and 8 of HSA act.There daughters of Babu lal claimed for benefits of newer amendment act treating them as coparceners, Affirmatively, Apex court rejected the plea keeping the sucession in mind opened prior to amendment setting as binding precedent.
Having said that in Guruppad, shyama and anardevi that notional partition is fictional and given full effect and partition is irrevocable and final, and rights are fully crystallized, it cannot be taken away by giving retrospective effect.
Talking of retroactive effect, Eventhough it is applicable to antecedent events, it doesn't takeaway vested rights, as said clearly in bhadrinarayan vs omprakash bhandari.
Ganduri case was referred for special leave petition, where Ap high court didn't accept modified preliminary decree of trial court, holding that final decree should be in conformity with preliminary decree according to sec 97 of CPC.
In chandrakala vs Anuradha division bench of High court clearly stated that notional partition comes in purview of sub section (5) of section 6 of HSA act 2005.
Coming to state of maharashtra v narayan Rao sham Rao desmukh, case was whether after national partition wife or mother ceases to be joint family member. It is not the case where notional partition is reversible, however daughter after marriage gets separated from HUF of father. Having said that daughter can be joint with father's family in relation to her share as class 1 heir, not to the share of coparcener if father died prior to 2005.
Principle of subsilento is when a point is not argued if it has to be argued. Then a decision given with out considering the point is not authoritative on that point.In ganduri's case with out considering sucession principle, giving daughter coparcenery right with out considering binding precedent in sheeladevi is subsilento in regarding opening of sucession.
Finally according to law of binding precendents, an earlier decision is always the binding precedents of co equal benches. If later decision has referred earlier decision and discussed it, then later decision is binding precedent on earlier. In prakash vs phulavathi Ganduri case was cited and discussed, where as in Ganduri case, earlier binding precedent of sheeladevi was not referred, so it cannot be binding precedent at all.
In prakash Vs Phulavati case it is observed that M.Prithviraj Vs Leelamma of Karnataka high court is binding precedent before Andhra High Court. The Judgement of the one high court is not binding precedent on the other high court but it is persuasive as held by apex court in PRADIP J. MEHTA 2008 case.
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