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N RAMESH. (Advocate Chennai. Formerly Civil Judge. Mobile.09444261613)     08 December 2009

Retrospective legislation & Amendment to Hindu SuccessionAct

Advocate shree in his reply to N.K.Assumi about golden rule of interpretation,  has referred the following passage. 

Hon’ble Supreme Court in the case of Maharaj Chintamani Saran Nath Shahdeo vs. State of Bihar AIR 1999 SC 3609 in para 22-23 observed as follows:

“22. In Garikapatti Veeraya vs. N.Subbiah Choudhury, 1957 SCR 4888: (AIR 1957 SC 540 ), the Chief Justice S.R. Das speaking for the Court observed as follows (at p.553 of AIR):

‘The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.’

Now my question is the amendment to section 6 of Hindu Succession Act is made applicable to pending appeal and second appeal and the cases are being decided based on the amended act.

Whether the "Act" as it was then when the dispute arose or when the suit was filed are not applied to these cases?

One can say that appeal is continuation of suit and hence any change in law is applicable.

Then the rules of retrospective legislation, in the light of above cited paragraph loses its meaning.

How is it to be interpreted then?



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 7 Replies

N RAMESH. (Advocate Chennai. Formerly Civil Judge. Mobile.09444261613)     08 December 2009

// Whether the "Act" as it was then when the dispute arose or when the suit was filed are not applied to these cases?//

Please read it as

Why the original ( unamended ) Act, as it was then,  when the dispute arose or when the suit was filed, was not applied to these cases?.

Also i am referring one more paragraph from Shree's reply.

//As Willes, J.said, retrospective legislation is ‘contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.”//

Anil Agrawal (Retired)     08 December 2009

 In cheque bouncing cases, the imprisonment was for one year. When it was amended to increase to 2 years many cases/appeals were pending. 

Can legislation take retrospective effect here also?

Anish goyal (Advocate)     09 December 2009

Originally posted by :Anil Agrawal
"  In cheque bouncing cases, the imprisonment was for one year. When it was amended to increase to 2 years many cases/appeals were pending. 
Can legislation take retrospective effect here also?
"

sir i think article 20(1) will be barring such an enhancement. Accused must have , if given enhanced punishment, challenged that enhancement. As the act done by them was before the said amendment. And when the did the offence there was less punishment provided.

Anish goyal (Advocate)     09 December 2009

Originally posted by :N RAMESH.
" Advocate shree in his reply to N.K.Assumi about golden rule of interpretation,  has referred the following passage. 
Hon’ble Supreme Court in the case of Maharaj Chintamani Saran Nath Shahdeo vs. State of Bihar AIR 1999 SC 3609 in para 22-23 observed as follows:
“22. In Garikapatti Veeraya vs. N.Subbiah Choudhury, 1957 SCR 4888: (AIR 1957 SC 540 ), the Chief Justice S.R. Das speaking for the Court observed as follows (at p.553 of AIR):
‘The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.’
Now my question is the amendment to section 6 of Hindu Succession Act is made applicable to pending appeal and second appeal and the cases are being decided based on the amended act.
Whether the "Act" as it was then when the dispute arose or when the suit was filed are not applied to these cases?
One can say that appeal is continuation of suit and hence any change in law is applicable.
Then the rules of retrospective legislation, in the light of above cited paragraph loses its meaning.
How is it to be interpreted then?
"

sir whether you could provide any judgement which has used the amended law. Please sir i m waiting. I have got a answer to your question but i want to read the judgement first.

Anil Agrawal (Retired)     09 December 2009

 Both the judgements.


Attached File : 25 25 garikapatti veeraya vs n subbiah choudhury on 1 february 1957.pdf downloaded: 161 times
1 Like

Anil Agrawal (Retired)     09 December 2009

 The other one.


Attached File : 59 59 maharaja chintamani saran nath vs tikait pratap chandra nath sah deo on 14 october 1966.pdf downloaded: 141 times
1 Like

N RAMESH. (Advocate Chennai. Formerly Civil Judge. Mobile.09444261613)     09 December 2009

Anish I'll post the judgements today.


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