HINDU SUCCESSION ACT, 1956 - CASE LAW - 2005 Amendment
Prakash v. Phulavati
(All that is required is daughter should be alive and her father should also be alive on the date of the amendment.)
Bench :Adarsh Kumar Goel, J.
- The respondent-plaintiff, Phulavati filed suit for partition and separate possession to the extent of 1/7th share in the suit properties in Schedule ‘A’ to ‘G’ in which the share sought was 1/28th.
- According to the case of the plaintiff, the suit properties were acquired by her late father Yeshwanth Chandrakant Upadhye by inheritance from his adoptive mother Smt. Sunanda Bai. After the death of her father on 18th February, 1988, she acquired the share in the property as claimed.
Whether Hindu Succession (Amendment) Act, 2005 (‘the Amendment Act’) will have retrospective effect?
Contentions raised by Respondent :
- The amendment being piece of social legislation to remove discrimination against women in the light of 174th Report of the Law Commission, the amendment should be read as being retrospective.
- A daughter acquired right by birth and even if her father, who was coparcener, had died prior to coming into force of the amendment, the shares of the parties were required to be redefined.
Contentions raised by Appellant :
- The plaintiff could not claim any share in self acquired property of the members of the joint family and that the claim of the plaintiff had to be dealt with only under Section 6 of the Hindu Succession Act, 1956 as it stood prior to the amendment by Act 39 of 2005.
- Father of the plaintiff died on 18th February, 1988and was thus, not a coparcener on the date of commencement of the Amendment Act. The plaintiff could not claim to be “the daughter of a coparcener” at the time of commencement of the Act which was the necessary condition for claiming the benefit.
- On the death of plaintiff’s father on 18th February, 1988, notional partition took place and shares of the heirs were crystallized which created vested right in the parties. Such vested right could not have been taken away by a subsequent amendment in absence of express provision or necessary intendment to that effect.
Held: 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.