Hindu Succession (Amendment) Act, 2005 prospective in effect #indianlaws

An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. • The main provision is not retrospective in any manner. • Rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 • 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.

Supreme Court in this recently decided present case clarified the position on daughters’ coparcenary rights by virtue of amended Section 6 vide Hindu Succession (Amendment) Act, 2005. The Court clarified that the amended provision has a prospective effect against the claimed retrospectivity.

The sole question that arose for consideration before the Court was to determine as to whether Hindu Succession (Amendment) Act, 2005 (‘the Amendment Act’) will have retrospective effect? The impugned judgment by the Karnataka High Court had upheld the plea of retrospectivity by holding that the amendment was applicable to pending proceedings even if it is taken to be prospective.

In the instant matter Plaintiff-daughter’s father had died in the year 1988 and partition was claimed vide suit filed in the year 1992. Subsequently, the suit was amended by the daughter in order to avail benefits of the amended provision of Section 6 of the Act vide the Amendment Act, which gave coparcenary rights to the daughter in equal proportion to that of son(s).

The applicability of the amendment act to suit daughter’s claim was opposed on the ground that her father who was a coparcener in the joint hindu family died prior to 9th September, 2005 and in the absence of express provision or implied intention to the contrary, an amendment dealing with a substantive right is prospective, not affecting the vested rights. If such a coparcener had died prior to the commencement of the Amendment Act, succession opens out on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystalised even if partition by metes and bounds does not take place.

On the contrary, it was contended that 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 as interpreted by the High Court in the impugned judgment. A daughter acquired right by birth and even if her father, who was a coparcener, had died prior to coming into force of the amendment, the shares of the parties were required to be redefined.  It was submitted that any partition which may have taken place even prior to 20th December, 2004 was liable to be ignored unless it was by a registered deed of partition or by a decree of the Court.  If no registered partition had taken place, share of the daughter will stand enhanced by virtue of the amendment.

Apex Court decided against the view taken by High Court observing that the text of the amendment itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement of Hindu Succession (Amendment) Act, 2005’.  Section 6(3) talks of death after the amendment for its applicability.  In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law.

Supreme Court negatived the contention that amendment should be read as retrospective being a piece of social legislation. 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 had expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. No other interpretation, as held, would be 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.

The proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced.  Explanation cannot permit reopening of partitions which were valid when effected.

Object of giving finality to transactions prior to 20th December, 2004 was not to make the main provision retrospective in any manner. It was accordingly held 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 to the relevant provision (Section 6).

[Prakash vs. Phulavati]

(SC, 16.10.2015)

Civil Appeal No. 7217 of 2013

And other connected Appeals