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 The Judgement of the one high court is not binding precedent on the other high court but it is persuasive as held by apex court in PRADIP J. MEHTA 2008 case.
The First line of the Ganduri Koteshwaramma case is
THE question that arises in this appeal, by special leave, is: whether the benefits of Hindu Succession (Amendment) Act, 2005 are available to the appellants.
One Chakiri Yanadi Plaintiff filed suit against his father cvs defendant No.1 , brother defendant No.2 and two sister’s defendant No.3 and 4. Father died in 1993 during pendency of suit. Trial court initially allotted 1/3+1/12 in ancestral property to Plaintiff. After 2005 amendment daughter filed application for modification of preliminary decree seeking coparcenary share. She is allotted share equal to that of son by trial court. High court set aside the order holding that 2005 act is not applicable to the case. The apex court restored the trial court modified decree holding that daughter after 2005 is coparcener entitled for equal share as son.
So ratio laid down in the case is, daughter is coparcener by birth after 2005 act and entitled to share irrespective of his father died before 2005 or after 2005.
Once the law laid down by the apex court becomes law of the land and binding on all lower courts Under article 141 and on co-equal benches of the apex court under as a principle of stare decisis. In case of difference it is to be referred to larger bench.
The same has been observed in prakash Phulavati case it is observed that
In M. Prithviraj case the view taken appears to be consistent with what has been said above. It appears that this was a binding precedent before the Bench of the High Court which passed the impugned order but does not appear to have been referred to in the impugned judgment.
So the Ganduri Koteshwaramma case was precedent before the prakash bench but it did not discuss its ratio and wrongly observed that there is no any judgement espousing contrary view what they are taking which is false.
Your have commented upon Ganduri Koteshwaramma has not dealt with succession principle. From the Ist Para of judgement now you have come to know what the court dealt and decided and ratio laid.
As to your comment that daughter married after 1985 or before 1985 is not discussed in Ganduri case.
My comment above may have cleared your doubt. However for clarity,
In Saireddy Vs Narayanreddy case of unmarried daughter who was not allotted share in the preliminary decree passed sought enhancement of share as per Andhra Pradesh amendment act 1985. The apex court applied the amended law to pending case and allotted equal share equal to that of son by modifying the preliminary decree.
Likewise in Ganduri case also daughter is treated as coparcener and allotted equal share to that of son and restored trial court modified decree.
I am unable to make out your doubt about principle of sub silentio to the case on hand and thousand of precedents etc. So not able to reply.
Your comment that father was party to the suit. Means you are thinking that father is alive when the apex court decided the case, is against the facts of the case. Father died in 1993.
As to the word on and from coined in the 2005 act
On and from commencement of 2005 amendment a daughter (whether married or unmarried) is by birth coparcener.
She is not entitled to seek share only in the properties alienated and partitioned before 2005 act as provided in the act except that she is coparcener with all liabilities as son.
You are on wrong premise that on death property vests. In this regard I have given sample three judgements which say that there is no vesting and divesting as to joint family property one among them is full bench judgement. There are number of other judgements to that effect.
As to your comment about Om Prakash Shankar case of Bombay high court, need not be considered as apex court judgements governs over all India.
From the wordings in amended section 6
Daughter is by birth coparcener on and from 2005
Further provided disabling provision which in turn enables daughters to claim share in available (excluding alienated and partitioned properties) as soon as 2005 act came into force.
So all courts after 2005 have to allot daughter equal share as that of son and under two circumstances they are not entitled to share if alienated and if registered partitions effected. Now oral partitions before 2005 act and acted upon before 2005 by entry in ROR are also saved by Bombay high court and upheld by apex court in another case.
As to retrospective effect, it is settled that parliament is empowered to pass substantive law retrospectively by over expression or by implication. The apex court in Ganduri case given benefit of 2005 act to pending matters. There is no retrospective effect in the case but it can be said as observed by Bombay high court full bench retroactive applicable to all pending matters. Object of the act is to be seen as done by Ganduri case.
So there is no any confusion and one sided or pre meditated thinking in my article. Calculated and clear cut and after much articulation have published article. Before publishing the same I have refreshed myself with principles of no vesting and divesting in case of joint family property, Per incuriam, binding precedents, stare decisis, obiter dictum and finally sent the article for publishing.
As to comment about Sheeladevi case not ignoring coparcenary, giving effect to Gurupadappa case the following extract from judgement
“Thus, it was the half share in the property of Babu Ram, which would devolve upon all his heirs and legal representatives as at least one of his sons was born prior to coming into force of the Act.”
Means Baburams son Lal Chand was born before 1956 so he is coparcener and his son sohan lal born after 1956 is not coparcener. In the partition court held half will go to Lal Chand and half to Babu Ram. The half share of Babu Ram is allotted to all his legal heirs under section 8. So son born after 1956 is not given share as coparcener but as legal heir under section 8 giving a go by to notional partition of Gurupadappa Khandappa case.
As regarding Ganduri case not giving effect in Gurupad case
There is no any female heir left behind by CVS defendant No.1 i.e. wife of cvs. When no female relative the succession is among coparceners and share is equal and so no need to resort to notional partition.
Everything will not be stated in judgement but we have to make out from relative field of law applied to the facts.
I have given this reply in detail since allegation is made by you that I am lacking basic facts and premeditated and one sided etc. I think you may now satisfied. You have asked to contact on email but not given email id. Give your email id I will give the detailed notes made before preparation of this article. Such voluminous notes cannot be given in this forum. The article is in brief as more than 60 years judgements are analysed.
My upcoming articles on 1. Amended laws effects pending litigation, 2. Mitakshara coparcenary is unity of ownership and possession, share fluctuating birth and death and no vesting and divesting. 3. Stare decisis/predecent value, 4. per incuriam, 5. obiter dicta, will give detailed basis of this article.
In sheeladevi vs Lal Chand ,Coparcenery is not ignored, but changes in coparcenery are dealt because of proviso to section 6 of HSA 1956 and section 8 of intestate sucession. It is the case of sheeladevi where Guruppad khandappa ratio was given full effect, saying once notional partition occurs, it is irrevocable and final, which Ganduri case didn't. Ganduri's case ignored notional partition of Guruppad and dealt primarily with sai reddy vs Narayan Reddy and Gopal Lal vs Phoolchand.
Coming to interpretation of section 3 notional partition of HSA 2005 and notional partition of Principal act, there is difference. Notional partition of Principal act talks about death of coparcener, where as section 3 of HSA 2005 doesn't require death of coparcener.That means a daughter can file a suit for partition, even if father is alive as similar as son file a partition suit when father is alive in Principal act.Only requirement is father should be alive, which means sucession not opened yet.
I hope you understand atleast now.
Your assumptions looks one sided, Major thing you didn't understand in Ganduri Koteswaramma case, law exclusively dealt with preliminary decree, where you can modify preliminary decree according to change of circumstances as per poolchand vs Gopal Lal and as per change of law according to sai reddy vs Narayan Reddy. Ganduri Koteswaramma never dealt with sucession principle which by operation of law occurs after death of father. This is major error you are not recognising.
Secondly in Ganduri Koteswaramma, there is principle of subsilento where principle of notional partition or statutory partition are not argued. Thousands of precedents with subsilento are immaterial and irrelevant.
Thirdly, in case of Ganduri it was not bought to the point whether daughter's married after 1985 or prior to 1985 according to ap state amendment act.
Fourthly, here father itself a party to the suit, so notional partition cannot happen until final proceedings or final decree . Only preliminary decree is passed in this case, final decree yet to be passed.
Finally rights granted as coparceners for unmarried daughters according to AP act 1985 or Tamil Nadu 89 or karnataka 92 will not effected with this amendment as rights once vested cannot get divested.
Finally you cannot give retrospective effect, to any substantive provision unless there is expressed provision or necessary intendment. Here text itself saying "on and from" , so any other interpretation will be deviance from normal rules of interpretation.
Lastly, extensively and exhaustively HSA act 2005, dealt in Om Prakash Shankar Narayan vs Badrinarayan shankar Narayan from 2014 BOM full bench and it has clearly dealt with both principle act and amended act.
With out knowing these basic facts, you are questioning legal fraternity, simple common sense is all required. You are confused and don't let others get confused with premeditated articles.
You can reach me on my email, if you still don't understand.
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