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.
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.
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