Whether right of women in Coparcenry property is retrospective? #indianlaws

.A bare perusal of sub-section (1) of Section 6 would clearly show that the legislative intent in enacting clause (a) is prospective i.e. daughter born on or after 9 September 2005 will become a coparcener by birth, but the legislative intent in enacting clauses (b) & (c) is retroactive, because rights in the coparcenary property are conferred by clause (b) on the daughter who was already born before the amendment, and who is alive on the date of Amendment coming into force.

The following questions of law were referred before the full bench of Bombay High Court for its opinion:
(a) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 is prospective or retrospective in operation?
(b) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born prior to 17.6.1956?
(c) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005?
(d) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies only to daughters born after 9.9.2005?
(e) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?

The Division Bench of Bombay High Court in the case of Vaishali S. Ganorkar had held that Section 6 of the Principal Act as substituted by Section 3 of the Amendment Act (amended Section 6) was prospective in operation and it applied to daughters born on or after 9 September 2005. As regards daughters born before 9 September 2005, the Division Bench held that they would get rights in coparcenary property upon death of their father-coparcener on or after 9 September 2005.

The Court first dealt with the questions as to whether Section 6 of the Hindu Succession Act 1956 as amended by the Amendment Act is prospective or retrospective in operation and whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies only to daughters born after 9.9.2005?

It was observed that a statute should be construed on its plain meaning. However, when the plain reading of the provision is not very clear then, in that case, one has to apply an appropriate tool of interpretation to unearth the intent, object and purpose of the enactment. In such cases, particularly, in cases of socio-economic legislations one must apply the Mischief or Purposive Rule of interpretation to find out the true and correct meaning of the statute. A prospective statute operates forwards from the date of its enactment conferring new rights on parties without reference to any anterior event, status or characteristic; Retrospective statute, on the other hand, operates backwards, attaches new consequences, though for the future, but to an event that took place before the statute was enacted. It takes away vested rights. Substantive benefits which were already obtained by a party are sought to be taken away because of legislation being given effect to from a date prior to its enactment. The rules of interpretation of statute raise a presumption against such retrospective effect to a legislation. If the Legislature has not expressly or by necessary implication given effect to a statute from a date prior to its enactment, the Court will not allow retrospective effect being given to legislation so as to take away the vested rights.

A bare perusal of sub-section (1) of Section 6 would clearly show that the legislative intent in enacting clause (a) is prospective i.e. daughter born on or after 9 September 2005 will become a coparcener by birth, but the legislative intent in enacting clauses (b) & (c) is retroactive, because rights in the coparcenary property are conferred by clause (b) on the daughter who was already born before the amendment, and who is alive on the date of Amendment coming into force. Hence, if a daughter of a coparcener had died before 9 September 2005, since she would not have acquired any rights in the coparcenary property; her heirs would have no right in the coparcenary property.

Two conditions necessary for applicability of Amended Section 6(1) are:
(i) The daughter of the coparcener (daughter claiming benefit of amended Section 6) should be alive on the date of amendment coming into force; and
(ii) The property in question must be available on the date of the commencement of the Act as coparcenary property.
Section 6 as amended by the 2005 Amendment Act held to be retroactive in nature meaning thereby the rights under Section 6(1)(b) and (c) and under sub-Rule (2) are available to all daughters living on the date of coming into force of the 2005 Amendment Act i.e. on 9 September 2005, though born prior to 9 September 2005 and as obvious effect, the daughters born on or after 9 September 2005 are entitled to get the benefits of Amended Section 6 of the Act under clause (a) of sub section (1). The heirs of daughters who died before 9 September 2005 do not get the benefits of amended Section 6.

The next set of questions taken up by Court was to determine as to whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, applies to daughters born prior to 17.6.1956 and whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, applies to daughters born after 17.6.1956 and prior to 9.9.2005?

It was held that amendment Act applies to daughters born any time provided the daughters born prior to 9 September 2005 are alive on the date of coming into force of the Amendment Act i.e. on 9 September 2005.
The Court’s final conclusion to the questions referred was as under:

Question (a) – Section 6 of Hindu Succession Act, 1956 as amended by the Amendment Act of 2005 is retroactive in operation. Clause (a) of sub-section (1) of amended Section 6 is prospective in operation; Clauses (b) and (c) and other parts of sub-section (1) as well as sub-section (2) of amended Section 6 are retroactive in operation.

Questions (b), (c) and (d) – Amended Section 6 applies to daughters born prior to 17 June 1956 or thereafter (between 17 June 1956 and 8 September 2005), provided they are alive on 9 September 2005 that is on the date when the Amendment Act of 2005 came into force. Admittedly amended Section 6 applies to daughters born on or after 9 September 2005;

Question (e) – Decision of the Division Bench of the Bombay High Court in Vaishali S. Ganorkar Case is per incuriam the Supreme Court decision in Ganduri Koteshwaramma case.

[Badrinarayan Shankar Bhandari vs. Ompraskash Shankar Bhandari]
(Bombay HC, 14.08.2014)