Case Analysis |Pushpalatha vs. V. Padma & Ors.

FACTS OF THE CASE

The plaintiff, Pushpalatha N.V., filed an appeal against a decree by the trial court claiming a one-fifth part of the properties in the suit against one-twentieth part held by the trial court in A, B and E schedule properties, as C and D were misplaced under the Land Reforms Act.

It is claimed by the plaintiff that the scheduled properties were acquired by her father, Sri D.N. Vasantha Kumar, under a partition deed (registered) dated 29.03.1967. But on 31.12.1984, the father died intestate. The remaining members were the wife, two daughters and two sons. It is therefore claimed for one-fifth of the share by the plaintiff.

It is contended by the defended that “that the suit property belonged to Hindu Undivided Family for which the Late D.N. Vasanth Kumar was the Kartha and co-parcener, and after him, his two sons will be the other two coparceners, and through his branch as per intestate, they received 1/3^rd of his share in the suit properties, and the other 2/3^rd share in the schedule properties belong to defendants-3 and 4, the other two co-parceners (sons).”

This resulted in the denial by the defendant to give the plaintiff one-fifth share as claimed; however ready to give 1/20^th share as entitled to her by law. The trial court ruled in favour of the defendant with the reasoning that such properties were co-parcenary property; in the event of partition, the wife and the sons would get one-fourth of the share, and such would be further divided equally as to devolve all the LRs of the dead, thereby the plaintiff would receive one-fifth of part of the one-fourth part of her father.

Therefore, she was granted her one-twentieth of the share by the court, and aggrieved by the judgement and decree, the plaintiff appealed. The order was passed on 17.01.2004, after which case an amendment by the Hindu Succession Act, 2005 (Act 39 of 2005) came into force on 09.09.2005.

The amendment gave the daughter the right to be a co-parcener. The question arose of whether the plaintiff will receive a right as a co-parcener as per the Hindu Succession (Amendment) Act, 2005.

ISSUES RAISED

The point that arose to be considered by the court are:

1. What is the right of the daughter of a co-parcener in a Joint Hindu Family governed by Mitakshara Law in co-parcenary property by virtue of the amendment?
2. When is Section 6 not applicable to partitions already affected?
3. What is the right of a married daughter to a co-parcenary property?
4. Whether the amended provision is prospective or retrospective in operation?
5. Whether the amended provision applies to the pending proceedings before the Court?
6. What happens to the vested right under repealed Section 6 of (a) other female members (b) male members?

ISSUE WISE REPLY

Issue 1: What is the right of the daughter of a co-parcener in a Joint Hindu Family governed by Mitakshara Law in co-parcenary property by virtue of the amendment?

On September 9th, 2005, the Hindu Succession (Amendment) Bill 2005 underwent a change, which said that section 6 of the act governs any transfer of the interest of a male Hindu in a coparcenary property. This provision also acknowledges the right of inheritance through the process of survivorship to the coparceners. 

This system of inheriting coparcenary property, in Mitakshara's opinion, prevents women from inheriting ancestral property in the same way that men do, which also contributes towards gender discrimination but will also result in suppression and the denial of their constitutionally assured right to equality.

According to the principles established by “Mahadfolal Kanodia v. Administrator General of West Bengal” and “Commissioner of Income Tax v. Indian Bank Limited”, the Hon’ble SC determined that when there is ambiguity in a statute or other legal provision, it must be clearly established and should only apply retroactively when explicitly stated or by a necessary implication. 

The daughter will be a co-parcener with the sons and will have the same rights as enjoyed by the sons, according to the substituted Section 6. As a result, both parties shall have equal rights and obligations. A daughter automatically inherits the coparcenary property at birth once she gains the coparcener's right.

When the amended statute took effect in 2005, the issue of when the daughter would become right naturally arose. Because this "right is by birth" is expressly mentioned in the verse itself, there is no room for interpretation. From that day until the Amending Act of 2005, the coparcener's daughters were not considered coparceners.

She has had a right to claim the coparcenary property since the day she was born, despite the fact that her status was only formally announced on September 9, 2005. As a result, the parliament altered the section's first few lines to read “on and from the commencement of the Hindu Succession (Amendment) Act. 2005,” removing the existing absurdity. A coparcener's daughter is now considered to be a co-parcener because of the Amendment Act of 2005.

From the day she is born, the right to property is granted. However, because the Act grants both of these rights, it follows that if the co-parcener has a single daughter who is born after the implementation, then she will be entitled to this right and not the daughter born before 17.6.1956, thereby making the provision retroactive in nature.

However, it should be noted that nothing under Section 6(1) shall void or nullify any partition or testamentary disposal of property made before to December 20, 2004, as well as any other disposition of property. In addition to the final resolution of a dispute, disposition refers to a plan or arrangement for getting rid of something or distributing it. 

It can be said that “to alienate is to transfer property from one person to another.” The word Partition is distinct from the word alienation. The former does not cover the latter. As a result, it is clearly stated that partition is a kind of alienation for the purposes of this clause. In law, the word partition has a different meaning, and it says that “When co-owners divide their ownership of land, tenements, and hereditaments, the joint ownership is dissolved, and the parties' respective parts are granted to them in severalty.”

In other words, the girl who has been accorded the status of a co-parcener will be entitled to the same rights as given to a co-parcener if they were a son in a co-parcenary property if the joint Hindu family's property is not disposed of or otherwise alienated. The language of the proviso is clear and straightforward.

Any disposition, alienation, partition, or testamentary disposition of property that is done before December 20, 2004, was intended to be preserved. As a consequence of the substituted Section 6, the daughter of a co-parcener in a Joint Hindu Family covered by Mitakshara Law has been accorded the status of a co-parcener by birth and the same rights to the co-parcenary possessions as if she had been a son.

Issue 2: When is Section 6 not applicable to partitions already affected?

Undivided mitakshara families possess common property without assigning specific shares to any of the members. The parties can split the land by bounds or by meters after defining the parts or taking the decision of staying together.

The parties now retain the property as “tenants-in-common” rather than as joint tenants. A partition is a clear sign that a joint family member intends to live apart from the group and make use of their share in severalty. It can be carried out without a written instrument, but Sec. 17(1) of the IRA, 1908 stipulates that it must be registered. Partition is strictly defined as involving either a recorded deed or a court order.

A daughter who has been conferred coparcener status cannot be denied the right to co-parcenary property acquired by birth unless a registered document evidences the partition. Therefore, it is stated by law that the right to the property of a daughter is not affected unless a partition is registered. If the partition is not, the coparcener’s daughter, with equal rights as that of the son, will have an equal share in the coparcenary property as well, regardless of the partition, as recognized under Hindu law.

The Act provides that if no partition was affected by a court decree on December 20, 2004, the coparcener’s daughter is entitled to the same portion of coparcenary property as the son. Sec. 6 applies to such property.

Therefore, the purpose of the law is to provide the benefit of this provision to the daughter without opposing it through a partition plea or a partition action. The idea of division and severance of status in Hindu Law has no effect under the Act, as only partitions are not impacted by the Act's revised Section 6.

Issue 3: What is the right of a married daughter to a co-parcenary property?

Marriage does not affect a male Hindu's right to succeed or inherit property. However, the right to property of a daughter in a Hindu family is denied as soon as she is married because she is considered a part of her spouse’s HUF.

The Parliament intentionally don’t employ the word "married daughter" in the whole of the provision, indicating legislative non-intent to exclude married daughters from their property rights in a HUF, which the Mitakshara Law governs. Section 6 of the Constitution states that a married daughter's rights under amended Section 6 cannot be interpreted to defeat her rights.

The language and declaration express clearly that “the daughter of a co-parcener shall become a co-parcener in her own right, just as a son would.” This would signify that the right given to the son in the family property will be given to the daughter too, and if the daughter gets married, then this right will not be taken away from her or end in some other manner.

If done so, it would violate the articles of the constitution that speak about discrimination based on sex. It will also discriminate a married and an unmarried daughter.

The Karnataka Legislature passed the Hindu Succession (Karnataka Amendment) Act, 1990, allowing females co-parcenary property rights on par with sons. Despite violating Section 6, the amendment obtained the president's approval.

The claim to coparcenary property that a daughter is given by birth does not falls on a daughter who marries before or after a division, according to Section 6A subparagraph (d). Both married and unmarried daughters were covered in the Act's amendments, which limited the phrase "partition" to registered deeds or court orders.

This law was known as the Hindu Succession (Amendment) Act 2005. The ability of both sections to coexist or endure is still up for debate. A repugnant State law may be repealed or amended by the Union Parliament under Article 254(2), even if it has received the President's assent and is now in effect. If a subsequent law does not explicitly repeal a state law, it becomes void. Parliament's law prevails over the State law, and courts can declare it repugnant if there is direct conflict between the Central and State Legislatures.

The Central Act, following the Karnataka Amendment, granted the title of a co-parcener to a daughter and granted her the right to property by birth. However, the Central law's definition of partition was too wide, contradicting the State law. As a result, the amended law prevails over the State law, and Section 6-A(d) is repealed, ensuring that married daughters have equal shares in coparcenary properties.

Issue 4: Whether the amended provision is prospective or retrospective in operation?

The law that refers to and sees in the past or looks backward is known as retrospective law, whereas if the law acts on past conditions, then it is known as retroactive law. A prospective statute regulates future actions, while a retrospective law.

The Indian Parliament has plenary legislative powers, and retrospective legislation is one of its incidents. However, there is a restriction on retrospective legislation under Article 20 of the Constitution, which makes each legislation a prima facie perspective until and unless it is made to have the operation retrospective by implication or explicitly.

The Constitution Bench judgment of the Apex Court demonstrates that a vested right can be removed through an amendment by the legislature, either by saving it or by implication. A declaratory law is retrospective in operation, as it aims to supply the omission in the original Act. In this case, the daughters of a co-parcener were not treated as co-parceners or granted co-parcenary property rights by birth.

The amended section is retrospective since it specifies that a declaration of right in favour of a daughter as a co-parcener cannot hinder or render unlawful any disposition or isolation, including division or testamentary disposition of property, made prior to the 20th of December 2004.

The transactions, nevertheless, cannot be reopened if third-party interests have crept in or co-parceners believe the property has become their distinct property after the split.

The amending Act gained the President of India's assent on September 5, 2005, and went into effect on the ninth of September. If the modifications to the Act were to take effect immediately, it wouldn't invalidate any transfer or alienation, including division or testamentary disposition, that occurred before to December 20, 2004.

If the clause had not been included, all dispositions and alienations, including division and testamentary dispositions, would be considered set aside or ruled ineffective for the benefit of the co-parcener's daughter, who was not involved in such transactions.

Issue 5: Whether the amended provision applies to the pending proceedings before the Court?

The Parliament was aware of the increasing number of partition suits throughout the country, which may be pending in trial courts, Appellate Courts, and second Appellate Courts. The amended provisions aim to address the pending litigation by granting equal shares to female members of the family, including daughters, on the death of a co-parcener.

This provision also applies to suits between coparceners, where each member is given equal parts, and for females, members in a joint family cannot be entitled to any share.

The updated laws provide for equal rights for a daughter born with the status of a coparcener, even in litigation between coparceners using an extended definition of coparcenary. If a daughter gets a share of her dad's coparcenary property, she is entitled to an equal share of the coparcenary property as well as the rest of her father's property. However, the joint family properties would not be partitioned until a final decree for partition is issued.

The Parliament used the phrase "partition established by a Court decree" to refer to all outstanding processes. An initial decree declares the parties' rights in partition litigation, and metes and bounds impact the partition in final decree procedures.

Only after the decree becomes final is a coparcener's daughter denied the benefit of the replaced provision. The language of the Parliament is plain and explicit, revealing the Parliament's purpose to make this law retroactive and to provide the advantage of a co-parcener ship by birth on females.

The explanation indicates that a trial or appeals court granting a partition decision is inadequate. The daughter's lawful property rights cannot be revoked until the decree is finalised. As a result, because the partition has not yet been modified by a court decision, the new clause applies to all current procedures.

Issue 6: What happens to the vested right under repealed Section 6 of (a) other female members (b) male members?

• – In the case of female members

Before the modification, Section 6 dealt with transferring a Hindu male’s interest to a Mitakshara property subject to coparcenary following the start of the Act of 1956. Before the change, the proviso to Section 6’s proviso clause specified that, in the event that a Hindu male passed away successive to the implementation of the 1956 Act, his stake in the Mitakshara coparcenary property would proceed through one of the two mentioned successions: testamentary or intestate. Examples of female relations in Class I can be as follows:

1. Mother
2. Daughter
3. Widow
4. Daughter of a predeceased son
5. Widow of a predeceased son
6. Widow of a predeceased son of a predeceased son.

A daughter of a coparcener existing in a Hindu joint Family was given the right of a coparcener under the 2005 Act, which superseded the previous Section 6. The question now arises: If a male Hindu passes away before the implementation of the 2005 Act and the succession opens, what is the entitlement of the male and female relative?

The amended Section does not provide any provision for female relatives, excluding the daughter. The effect of the substituted provision on their rights is unclear/ silent, which warrants for the use of the General Clauses Act 1897.

All sorts of repeals, regardless of whether it is express or implied, whole or partial, repeal simpliciter or repeal accompanied by fresh legislation, are included under the ambit of Section 6 of the General Clauses Act. By preserving rights gained or acquired and obligations incurred during the operation of legislation, the aforementioned provision aims to avert the destruction of a piece of legislation.

Since what is retained by a statute's repeal is a right that has developed under it and not merely the "hope or expectation of" or the opportunity to apply for acquiring a right, the distinction between what is covered by Section 6 provision and what is not is very apparent. Whether or not a right or obligation was acquired by legislation previous to its repeal will depend on how the law is interpreted and the particular facts of the case are perceived. 

General savings of rights gained and obligations sustained under a repealed Act as a consequence of Section 6 are allowed, barring any contrary purpose stated by the repealing Act.

There is a slight likelihood for a contrary purpose in a simple repeal, but when the repeal is coupled with fresh legislation, it is necessary to scrutinise the contents of the newly enacted law to see whether it reveals a different intention that could alter how Section 6 applies.

The repealing Act, not the repealed one, clarifies the opposing purpose to prevent Section 6 from taking effect, consistent with the Act applying. The amendment made on 9.9.2005 intends to calculate the share of a Hindu man who passed away before the amendment's implementation date.

His share is calculated by regarding his daughter as a co-parcener if he left behind a female relative. According to the original Section 6 of the Act, the share is vested in him, pursuant to the notional partition. This indicates that the change has no effect on the vested rights of other female members because neither the Parliament nor the necessity suggests it.

Although the size of their stake may be reduced, the vested right is not removed. The sacrifice required of other female family members for a daughter, such as mothers, grandparents, or granddaughters. The General Clauses Act's Section 6 governs the succession to the property in circumstances when female relatives are left alone by a male co-parcener who passes away prior to the modification.

• - In the case of other male members

A coparcener with respect to a coparcenary property receives a vested interest via birth that vests in them. But because the part of the coparcenary property is not fixed and varies with the births and deaths of co-parceners, the scope of this right is not established at birth.

At a partition, where the share is established, the share to which a co-parcener has the right is established. In a partition case, the court may adjust the portion based on subsequent events, such as births and deaths. Even when the right to a share is vested, the size of that share is not. The share of the other coparceners is established after a coparcener's passing triggers succession.

A vested right is one that cannot be removed by amendment, and so cannot be changed. According to the unamended Section 6, in the event of the death of a male Hindu after the commencement of the Act, his interest in the property subject to Mitakshara coparcenary shall transfer to the surviving members of the coparcenary through survivorship.

The coparcenary's surviving members before the amended Section were all male members and sons. Under the new Section 6, a daughter enjoys the status of a coparcener and would become an integral part of the coparcenary.

The rights that males of the coparcenary get upon the opening of succession before the amended Section are thus impacted, and their share is reduced by the amended Section because it demonstrates an opposing intention, alters the portion of unchanged Section 6, and also gives such daughters the right to property by virtue of their birth.

According to the Parliament, the measure would apply to females born in 1956. Even in instances that are still ongoing, giving the girls this kind of privilege would only result in a reduction in the shares owned by the sons. 

Hence, the argument that a coparcener's vested right, which was gained through the opening of the succession previous to the modified Act, cannot be omitted is thus without merit.

CONCLUSION

As per the substituted Section 6, the daughter will be a co-parcener by virtue of her birth, thereby giving her the same rights as a son. The married daughter will have the same right as that of the unmarried daughter of being the co-parcener.

The amendment will also be applicable to every unresolved suit regarding this matter. As the property that existed were coparcenary properties, and the father died intestate who was the kartha of the family, on 31.12.1984. By virtue of the act, as the act will have retroactive nature will apply, and therefore, the partition will be effectuated as per the Hindu Succession (Amendment) Act of 2005.

As per the amendment act, the daughter will also act as a coparcener in the family and will have the same rights as the son and hence, as per Mitakshara Law, will be a co-parcener.

As there exist five co-parceners (i.e., wife, two sons and two daughters), each will be qualified to receive 1/5^th of the share equally. Thereby, the plaintiff will be entitled to 6/25^th of the share.