| Headnote |
Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 – Interpretation of – Held: Theprovisions contained in substituted s.6 of the Hindu Succession Act,1956 confer status of coparcener on the daughter born before orafter amendment in the same manner as son with same rights andliabilities – The effect of the amendment is that a daughter is madecoparcener, with effect from the date of amendment i.e. 09.09.2005and she can claim partition also, which is a necessary concomitantof the coparcenary – s.6(1) recognises a Joint Hindu familygoverned by Mitakshara law – The coparcenary must exist on09.09.2005 to enable the daughter of a coparcener to enjoy rightsconferred on her – As the right is by birth and not by dint ofinheritance, it is irrelevant that a coparcener whose daughter isconferred with the rights is alive or not – Conferral is not based ondeath of a father or other Coparcener – In case living coparcenerdies after 09.09.2005, inheritance is not by survivorship but byintestate or testamentary succession as provided in substituteds.6(3).Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 and proviso to s.6 as originallyenacted – Held: The statutory fiction of partition created by provisoto s.6 of the Hindu Succession Act, 1956 as originally enacted didnot bring about the actual partition or disruption of coparcenary –The fiction was only for the purpose of ascertaining share ofdeceased coparcener when he was survived by a female heir, ofclass-I as specified in the Schedule to the Act of 1956 or male relativeof such female – The provisions of the substituted s.6 are requiredto be given full effect – Notwithstanding, that a preliminary decreehas been passed the daughters are to be given share in coparcenaryequal to that of a son in pending proceedings for final decree or inan appeal.Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 – Explanation to s.6(5) – Pleaof oral partition – Held: In view of the rigor of provisions ofExplanation to s.6(5) of the Act of 1956, a plea of oral partitioncannot be accepted as the statutory recognised mode of partitioneffected by a deed of partition fully registered under the provisionsof the Registration Act, 1908 or effected by a decree of a Court –However, in exceptional cases where plea of oral partition issupported by public documents and partition is finally evinced inthe same manner as if it had been affected by a decree of a Court,it may be accepted – A plea of partition based on oral evidencealone cannot be accepted and to be rejected outrightly.Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 – Enlargement of daughter’srights – Held: Under the proviso to s.6 before the amendment madein the year 2005 in case a coparcener died leaving behind femalerelative of class-I heir or a male descendant claiming through suchclass-I female heir, the daughter was one of them – s.6, as substituted,presupposes the existence of coparcenary – It is only the case ofthe enlargement of the rights of the daughters – The rights of otherrelatives remain unaffected as prevailed in the proviso to s.6 as itstood before amendment – The classic shastric Hindu Law excludedthe daughter from being coparcener, which injustice has now beendone away with by amending the provisions in consonance with thespirit of the Constitution.Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 – Retroactive application – Held:Though the rights can be claimed, w.e.f. 09.09.2005, the provisionsare of retroactive application; they confer benefits based on theantecedent event, and the Mitakshara coparcenary law shall bedeemed to include a reference to a daughter as a coparcener – Aretroactive statute is the one that does not operate retrospectively –It operates in futuro – However, its operation is based upon thecharacter or status that arose earlier – Characteristic or event whichhappened in the past or requisites which had been drawn fromantecedent events – Under the amended s.6, since the right is givenby birth, that is an antecedent event, and the provisions operateconcerning claiming rights on and from the date of Amendment Act.Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 – Obstructed and unobstructedheritage – Unobstructed heritage takes place by birth, and theobstructed heritage takes place after the death of the owner – It issignificant to note that u/s. 6 by birth, right is given that is calledunobstructed heritage – It is not the obstructed heritage dependingupon the owner’s death – Thus, coparcener father need not be aliveon 09.09.2005, date of substitution of provisions of s.6. |
