What will be effect of Hindu succession amendment Act 2005 on prior partition?
should be read as retrospective being a piece of social
legislation cannot be accepted. Even a social legislation
cannot be given retrospective effect unless so provided for
or so intended by the legislature. In the present case, the
legislature has expressly made the Amendment applicable
on and from its commencement and only if death of the
coparcener in question is after the Amendment. Thus, no
other interpretation is possible in view of express language
of the statute. The proviso keeping dispositions or
alienations or partitions prior to 20th December, 2004
unaffected can also not lead to the inference that the
daughter could be a coparcener prior to the
commencement of the Act. The proviso only means that
the transactions not covered thereby will not affect the
extent of coparcenary property which may be available
when the main provision is applicable. Similarly,
Explanation has to be read harmoniously with the
substantive provision of Section 6(5) by being limited to a
transaction of partition effected after 20th December,
2004. Notional partition, by its very nature, is not covered
either under proviso or under sub-section 5 or under the
Explanation.
Accordingly, we hold that the rights under the
amendment are applicable to living daughters of living
coparceners as on 9th September, 2005 irrespective of
when such daughters are born. Disposition or alienation
including partitions which may have taken place before
20th December, 2004 as per law applicable prior to the said
date will remain unaffected. Any transaction of partition
effected thereafter will be governed by the Explanation.
24. On above interpretation, Civil Appeal No.7217 of
2013 is allowed. The order of the High Court is set aside.
The matter is remanded to the High Court for a fresh
decision in accordance with law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7217 OF 2013
PRAKASH & ORS. …APPELLANTS
VERSUS
PHULAVATI & ORS. ...RESPONDENTS
WITH
SLP (C) NOS.21814 OF 2008,
Citation;(2016) 2 SC36,2016(1)BomCR419,
2016(1)MhLJ1(SC),
https://www.lawweb.in/2016/02/what-will-be-effect-of-hindu-succession.html
