Two Conflicting Supreme Court Judgements (2/3)

Two Conflicting Supreme Court Judgements

{Analysis of Section 6 of the Hindu Succession (Amendment) Act, 2005 (2/3)}

                                                                                        - By: Nikhil Sukhija

This article analyzes the two conflicting judgments of Hon’ble Supreme Court of India. To better understand the article, it is recommended to refer to my previous article on “Daughter’s Equal Participation in Coparcenary Property: Reason for the Amendment of Section 6 of Hindu Succession Act, 1956.”

Prakash & Ors. v. Phulavati & Ors. (AIR 2016 SC 769)

List of Dates and Events

S.No.	Event	Date
1.	Filing of the Suit	1992
2.	Death of Appellant’s father	18-02-1988

Brief Facts:

• Phulavati (Respondent) filed a suit for partition to the extent of 1/7^th share on the ground that suit property belonged to her father and she is entitled to it by way of Section 6 of Hindu Succession Act, 1956 (“HSA”). On appeal at the High Court she acquired equal share to that of her brothers.

• Prakash (Appellants) contested that HSA, 2005 and Section 6 is not applicable in the case of Phulavati as her father had died before the Amendment came into force.

•  High Court taking the help of the case G. Sekar v. Geetha and Ors. held that the amendment was not applicable on pending proceedings even if it is taken to be prospective provision.

Contentions of Appellants

• Section 6 has no application as her father died on 1988 and was not a coparcener on the date of amendment. Therefore, daughter could not claim to be the daughter of a coparcener.

• On death of her father, notional partition took place and as a result the vested interest of the coparcener could not have been taken away. Supreme Court accepted this contention in view of the case Shyam Sunder v. Ram Kumar, which stated that an amendment dealing with a substantive right is prospective and does not affect the vested rights.

Contentions on behalf of the Respondent

• Amendment being a social legislation should be given retrospective effect.

• Partition prior to 20.12.2004, if not registered shall be ignored.

Held by SC:

• The amendment cannot be given retrospective effect because there is no express mention about it.

• Contention of the respondent that the amendment should be read as retrospective legislation cannot be accepted.

• The object of the enactment of Section 6(5) was not to exclude the partition that took place before 20.12.2004 but to avoid the taking away of the property by fake transactions at the time of introduction of the bill.

• Rights under the amendment are applicable to living daughters of “living coparceners” as on 09.09. 2015 irrespective of their birth.

• Civil Appeal is allowed and the decision of High Court is set aside.

Danamma and Ors. v. Amar and Ors. (AIR 2018 SC 721)

List of Dates and Events

S.no.	Events	Date
1.	Death of Appellant’s father	2001
2.	Filing of the Suit	01-07-2002
3.	Decision of Trial Court	09-08-2007
4.	Decision of High Court	25-01-2012
5.	Filing of Review Petition at High Court	04-03-2012

Brief Facts:

• Gurulingappa Savadi died in 2001 leaving behind 2 sons, 2 daughters and a widow. Appellants are 2 daughters of Gurulingappa Savadi.

• Amar, Son of Gurulingappa’s predeceased son filed a suit for partition by stating that the property was in possession of 2 sons & widow of Gurulingappa.

• Appellants contested the claim in property for the reason that Gurulingappa died after 1950, that is, after the coming of the Act. Therefore, they had a share in the property.

• Trial court held that appellants were not entitled to share in the joint family property.

• High court upheld the decision of Trial Court. A review petition filed by the appellants was also dismissed by the High court.

Issue

• Whether daughter born prior to the enactment of the Act is entitled to the share as coparcener.

• Whether by passing of HSA, 2005, the appellants would become coparcener by birth?

Court’s Observation

• Court also highlighted the controversy with respect to the rights of daughters that are born after 09.09. 2005 with those who were born earlier but alive as on the date of the amendment in the light of decisions of various high courts.

• Court observed that in the case of Prakash & Ors v. Phulavati & Ors it was stated that the rights to daughters conferred under HSA, 2005 is “On & from” the commencement of HSA amendment.

Held:

• Section 6(1) and Section 6(5) excludes the transactions which may have taken place prior to 20.12. 2004.

• Object stated by the court is to avoid fake transactions with respect to the property take place in the light of the bill introduced.

• Rights of amendment are applicable to living daughters of living coparceners as on 09-09-2005

• No doubt that the partition was filed in the year 2002 but Section 6 was amended in 2005 & trial court passed the decree in the year 2007. Thus the rights of the appellants got crystallized in the year 2005.

• Therefore, the share shall devolve upon the appellants in the ratio of 1/5^th each.

• There is an apparent conflict in the above two judgments of the Hon’ble Supreme Court of India. “Why is Danamma and Ors. v. Amar and Ors., a bad precedent” will be articulated in the next article on “Critical analysis of Section 6 of the Hindu Succession (Amendment) Act, 2005”. 

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