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Richa Sharma (Student)     23 October 2011

Hindu succession amendment act, 2005

Whether or not Hindu succession amendment act, 2005 has retrospective effect ?



 18 Replies

R.Ramachandran (Advocate)     23 October 2011

Except to the extent that it extends the equal coparcenary right to a daughter born into a family right from her birth (naturally it will have retrospective effect), the Amendment Act, 2005 is not retrospective in nature for the following reasons:

1. The opening sentence of Section 6 states "On and fromthe commencementof the Hindu Succession (Amendment) Act, 2005."  In fact the Act came into force only with effect from 9.9.2005.

2. It has attended condition viz., it will have no application in case where any disposition or alienation including any partition or testamentary disposition of property had taken place before 20.12.2004.

3. Thus, to get the benefit as per the amended Act, the following conditions need to be satisfied cumulatively: (i) she should have been born into the family; (ii) the undivided coparcenary property must exist on 20.12.2004; (iii) partition of the property ought not to have taken place prior to 20.12.2004.

If any one of the above three conditions fail, then the benefit under the amended Act will not be available.

1 Like

adv. rajeev ( rajoo ) (practicing advocate)     23 October 2011

It is not restrospective effect.  

1 Like

basavaraj shiromani (Advocate)     23 October 2011

It has got retroactive effect. The amended act gives rights from the amended act itself.

Basavaraj Adv.

1 Like

Richa Sharma (Student)     24 October 2011

Thank you very much Sir:)

The "3 reasons " helped me a lot to draft my pleadings in an appropriate manner.

Thanks again!

Richa Sharma (Student)     24 October 2011

The father of a joint hindu mitakshara family died in 1955 leaving all movable and immovable-ancestral and self earned property intestate. Later on his wife died in 2004. Then just after her death, Dispute arore between the married sister and her 2 brothers. Later on they settled dispute by entering into the Family Arrangement .

Now after that Hindu Succession (Amendment) Act,2005 was passed, the the sister in pursuance of this ac, filed a suit for partition and claimed separate possession of her in the Joint family paroperty left by her father and other properties brought from the original funds.

Now my question is , if we are arguing from the sister side, can we raise the following point on the question that, Whether or not Hindu succession (amendment) act, 2005 has retrospective efect or not?-

Ans - That  Amendind act has retrospective effect because partition of property is not yet done.

As only family arrangement was done and not any partition of property.

R.Ramachandran (Advocate)     24 October 2011

Dear Ms. Richa,

You say you are a Student.  The issue you have projected here, is it a 'Moot problem' or a real life problem?

Nandgopal (Partner)     24 October 2011

Hello, 

The matter is setteled law in view of judgement of the Karnataka High Court and now affirmed by the supreme court, that the right of a a daughter exists in partations that are subsquent to the amending Act of 2005. Any division that was recognised by law as it stood prior to 2005 is valid and the alienations cannot be challanged.  The other rider is that the right of a woman to succeded to the ansestral property is that she should have been born subsquentely to the 1956 act.  These are the two limitation that exists in law.

I am not sure that the views expressed have taken not of the recent two judgements.

Regards,

Nandgopal

R.Ramachandran (Advocate)     24 October 2011

Dear Mr. Nandgopal,

Which decision of the Karnataka High Court that you are referring to?  Can you please give the citation.

basavaraj shiromani (Advocate)     25 October 2011

R.Ramachandran.

I think Mr. Nandgopal have referred the Karnataka HC decision RFA No: 326/2004 dt: 19-3-2009 Puspalata N.VV/s Padma and others published in ILR 2010 Kar at page 1484.

 

Accordingly to this citation- a daugher must have been born after the act came in to force i.e, 17-6-1956  to become a co parcener and the amended 2005 act will not confer any rights on the daughter of a co parcener who was born prior to 17-6-1956.  In my opinion this observation is not correct. However a Leave Petition is pending befor the SC under No: 18744/2004 tagged with 3805/2008  by passing interim relief that not to sign on the final decree.

 

Basavarajshiromani Advocate.


(Guest)

 

Hi Richa,

Well the HSA 2005 has left more questions than it should have answered. There is ambiguity, whether it has retrospective application or not, as various High Courts have taken contrary views in its interpretation. The Apex court is yet to make decisive comment in this regard.

Coming to your point, I believe that the new act should not be applicable to your case as succession had already taken place in 1955 i.e. prior to the coming into force of HSA 1956.

Abhishek Tiwari, Advocate & Legal Consultant


(Guest)

 

Originally posted by :Abhishek Tiwari
"
 

Hi Richa,

Well the HSA 2005 has left more questions than it should have answered. There is ambiguity, whether it has retrospective application or not, as various High Courts have taken contrary views in its interpretation. The Apex court is yet to make decisive comment in this regad.

Abhishek Tiwari, Advocate & Legal Consultant
"

anil aggarwala (Engineer)     28 March 2012

Can I have the General in which the decision of the supreme court is there for the effective date for the Hindu succession act 2005 . 

anil aggarwala (Engineer)     28 March 2012

 

Except to the extent that it extends the equal coparcenary right to a daughter born into a family right from her birth (naturally it will have retrospective effect), the Amendment Act, 2005 is not retrospective in nature for the following reasons:

1. The opening sentence of Section 6 states "On and fromthe commencementof the Hindu Succession (Amendment) Act, 2005."  In fact the Act came into force only with effect from 9.9.2005.

2. It has attended condition viz., it will have no application in case where any disposition or alienation including any partition or testamentary disposition of property had taken place before 20.12.2004.

3. Thus, to get the benefit as per the amended Act, the following conditions need to be satisfied cumulatively: (i) she should have been born into the family; (ii) the undivided coparcenary property must exist on 20.12.2004; (iii) partition of the property ought not to have taken place prior to 20.12.2004.

If any one of the above three conditions fail, then the benefit under the amended Act will not be available.  Where can I find the authenticity of the above  Order no. or case no. some reference  to quote it in the Court of law

anil aggarwala (Engineer)     28 March 2012

In case of Fathers death before 20th Dec 2004 the daughters do not get the right in the property.Father had written a will and had partitioned the property equally among the 2 brothers and gave the possession. Now Looking for Supreme court decision on the same which was taken in Oct 2011. I am looking for the amandment , caseno. /orderno. some reference to be quoted in the court of law . Is there a general for such amendments. I am looking for the same . Can some help me for the same Thanks !


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