CASE 1: PRAKASH & ORS. v/s PHULAVATI & ORS. [SC 2015(11) 643]


‘Law on equal right for daughters in ancestral properties is prospective’

The respondent-plaintiff, Phulavati filed a suit before Additional Civil Judge, Belgaum for partition and separate possession to the extent of 1/7th share in the suit properties in Schedule ‘A’ to ‘G’ except a particular property mentioned in Schedule ‘A’ 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. SunandaBai. After the death of her father on February 18th, 1988, she acquired the share in the property as claimed.

The suit was contested mainly with the plea that the plaintiff could claim share only in the self-acquired property of her deceased father and not in the entire property.

The Trial court partly decreed the suit to the extent of 1/28th share in certain properties on the basis of notional partition on the death of her father and in some of the items of property, no share was given, while 1/7th share was given in some other properties.

The respondent-plaintiff preferred first appeal before the High Court with the grievance that the plaintiff became coparcener under the Amendment Act 39 of 2005 and was entitled to inherit the coparcenary property equal to her brothers, apart from contentions based on individual claims in certain items of property.

The stand of the defendants-appellants was that 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. However, the HC held that the amendment was applicable to pending proceedings even if it is taken to be prospective.

The SC further held that in the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. A Requirement of partition being registered can have no application to the statutory notional partition on the opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.

In a verdict that can have a cascading effect on matters related to partition of ancestral properties with regard to equal right for daughters, the Supreme Court has declared that the coparcener rights are applicable to “living daughters of living coparceners as on September 9, 2005, irrespective of when such daughters are born.”

The amendments of 2005 gave equal right to daughters in coparcener properties by removing the discrimination that existed in the original enactment, the Hindu Succession Act, 1956 against Hindu women on rights over ancestral properties.

Also, the Supreme Court declared that the provisions of the Hindu Succession (Amendment) Act, 2005, are applicable “prospectively” [on and from September 9, 2005, when the Act came into force], and not with “retrospective” effect as held by some High Courts in the country.

“In view of the 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,” the Supreme Court said.

In the present amendment Act of 2005, the apex court said, “There is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect.”

“We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of amendment,” the apex court said.