Hindu succession amendment act, 2005

Student

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

 
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Advocate

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.


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practicing advocate

It is not restrospective effect.  


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

Basavaraj Adv.


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Student

Thank you very much Sir:)

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

Thanks again!

 
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Student

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.

 
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Advocate

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?

 
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Partner

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

 
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Advocate

Dear Mr. Nandgopal,

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

 
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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.

 
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