Second Appeal No. 566 of 2011. Case: Badrinarayan Shankar Bhandari Vs Ompraskash Shankar Bhandari. High Court of Bombay (India)
| Case Number | Second Appeal No. 566 of 2011 |
| Counsel | For Appellant: A.V. Anturkar, Senior Adv. i/b Mr. S.B.Deshmukh, G. S. Godbole i/b Drupad S. Patil , Vaibhav P Patankar h/f S. C. Wakankar, P. P. Kulkarni, R. S. Apte, Senior Adv., i/b V. S. Talkute with S. R. Moray, Sandeep S. Salunkhe,Abhijit Kulkarni a/w Manoj Badgujar, P. J. Pawar, G. N. Salunke a/w N. B. Khaire, Mahesh Rawool i/b K. P. Shah... |
| Judges | Mohit S. Shah, C.J. and M. S. Sanklecha , J. and M. S. Sonak , J. |
| Issue | Hindu Succession Act (30 of 1956) - Section 6 |
| Citation | AIR 2014 BOM 151 |
| Judgement Date | August 14, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
Mohit S. Shah, C.J.
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This Full Bench has been constituted on the reference made by a learned Single Judge of this Court (R.G.Ketkar, J.). This reference became necessary as the learned Judge doubted correctness of the decision rendered by Division Bench of this Court in Vaishali S. Ganorkar and Others v. Satish Keshavrao Ganorkar and others 2012 (5) Bom CR 210: (AIR 2012 Bom 101). The following questions of law have been referred for our 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 incuriam of Gandori Koteshwaramma and others?
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The primary issue before the learned Single Judge was whether Section 6 of the Hindu Succession Act, 1956 (the Principal Act) substituted by Section 3 of the Hindu Succession (Amendment) Act, 2005 (the Amendment Act) is prospective or retrospective in operation.
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Before dealing with the questions of law referred to us, it would be apposite to reproduce the erstwhile Section 6 as appearing in the Principal Act and the amended Section 6 of the Principal Act as substituted by Section 3 of the Amendment Act for the sake of convenience. The pre-amended Section 6 of the Principal Act reads as under:-
"Section 6:- Devolution of interest in coparcenary property - when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act;
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1 - For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been alloted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2 - Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
The substituted Section 6 of the Principal Act as amended by the Amendment Act which is in force w.e.f. 9 September, 2005 reads as under:-
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Devolution of interest of coparcenary property.-
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. -For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004."
Explanation.- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.
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The Division Bench of this Court in Vaishali S. Ganorkar, 2012 (5) Bom CR 210: (AIR 2012 Bom 101) (supra) 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 9th September, 2005. As regards daughters born before 9th September, 2005, the Division Bench held that they would get rights in coparcenary property upon death of their father-coparcener on or after 9th September, 2005.
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The learned Single Judge in his order dated 9th June, 2014 while disagreeing with the view of the Division Bench held that amended Section 6 was retrospective in operation, that is applicable w.e.f. 17th June, 1956 i.e. the date of commencement of the Principal Act and applies to all daughters of a coparcener who are born either before or after 9th September, 2005 or daughters born before or after 17th June, 1956. The learned Single Judge held that a daughter by birth becomes a coparcener in a Hindu coparcenary in her own right in the same manner as a son, having the same rights in the coparcenary property as she would have had if she had been a son and subject to the same liabilities in respect of the said coparcenary property as that of a son in terms of sub-section (1) of the amended Section 6.
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In order to properly appreciate the questions referred to us for opinion, it may be necessary to contextualize the same by briefly referring to the basis of decision of the Division Bench in Vaishali S. Ganorkar, 2012 (5) Bom.C.R. 210: (AIR 2012 Bom 101) (supra). Reasons why learned Single Judge in his order dated 9 June, 2014 is in disagreement with the above view would be referred to later as many of them are also adopted as submissions.
The decision of the Division Bench in Vaishali S. Ganorkar, 2012 (5) Bom. C.R. 210: (AIR 2012 Bom 101) (supra) arose in the following facts:-
(A) The Appellants therein were daughters of Respondent No.1(father). The father had taken a loan from the bank and mortgaged the property to the bank in the year 2008. (para 23 of the judgment) On failure to repay the loan, the bank initiated recovery proceeding under the Securitization Act. The daughters then filed a suit, claiming to be entitled to 2/3rd of the property as their share in the coparcenary property. It was daughters' case that the property which had been mortgaged by the father was a Hindu Undivided Family (HUF) property as it was purchased from the nucleus of the joint family property. The Single Judge refused to give ad-interim reliefs...
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