Case Note & Summary
This matter came before a Full Bench of the Bombay High Court upon a reference by a learned Single Judge (R.G. Ketkar, J.) who doubted the correctness of a Division Bench decision in Vaishali S. Ganorkar v. Satish Keshavrao Ganorkar. The dispute in the second appeals involved the interpretation of Section 6 of the Hindu Succession Act, 1956 as substituted by Section 3 of the Hindu Succession (Amendment) Act, 2005. The primary issue was whether the amended Section 6, which grants daughters coparcenary rights by birth in a Mitakshara joint family, operates prospectively or retrospectively, and to which categories of daughters it applies. The Division Bench had held that the amendment is prospective and benefits only daughters born on or after 9 September 2005, while daughters born earlier may acquire rights only upon the death of their father-coparcener on or after that date. The learned Single Judge, disagreeing, observed that the amendment is retrospective and applies to all daughters irrespective of when they were born, effective from the commencement of the principal Act on 17 June 1956. The Full Bench was called upon to answer five specific questions of law referred: (a) whether the amended Section 6 is prospective or retrospective; (b) whether it applies to daughters born prior to 17 June 1956; (c) whether it applies to daughters born after 17 June 1956 and prior to 9 September 2005; (d) whether it applies only to daughters born after 9 September 2005; and (e) whether the Division Bench in Vaishali Ganorkar is per incuriam of Gandori Koteshwaramma and others. The judgment excerpt provided only contains the reference order and the pre-amended and amended texts of Section 6, along with the initial framing of the reference. No submissions, reasoning, or final decision of the Full Bench are included in the available text.
Headnote
A) Hindu Law — Coparcenary Rights — Amendment of Section 6 — Hindu Succession Act, 1956, Section 6; Hindu Succession (Amendment) Act, 2005, Section 3 — Full Bench constituted to resolve conflicting views on whether amended Section 6 is prospective or retrospective — Single Judge took view that it is retrospective, applying from 17.6.1956 to all daughters, while Division Bench in Vaishali Ganorkar held it prospective and applicable only to daughters born on or after 9.9.2005, with limited exception for daughters born before but father dying after that date — Held, reference required to settle the law (Paras 1-6).
Issue of Consideration
Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 is prospective or retrospective in operation; whether it applies to daughters born prior to 17.6.1956, between 17.6.1956 and 9.9.2005, or only after 9.9.2005; and whether the Division Bench decision in Vaishali S. Ganorkar v. Satish Keshavrao Ganorkar is per incuriam of Gandori Koteshwaramma and others.
Final Decision
Not mentioned (judgment excerpt does not include final determination)
Law Points
- Retrospectivity of Section 6 of Hindu Succession Act
- 1956 as amended by Act 39 of 2005
- Coparcenary rights of daughters by birth
- Interpretation of 'on and from the commencement'
- Devolution of coparcenary property
- Effect of amendment on daughters born before 9.9.2005
- Pious obligation
- Partition before 20-12-2004
- Prospective v. retrospective operation
- Mitakshara coparcenary
- Explanation to Section 6
Case Details
2014 LawText (BOM) (08) 87
Second Appeal No. 566 of 2011 with CAS/1762/2011 with CAS/498/2014 in SA/566/2011
Mohit S. Shah, Chief Justice, M.S. Sanklecha, M.S. Sonak
Mr. A.V. Anturkar, Senior Advocate for Appellants; Mr. G.M. Joshi for Respondent nos.1,4,5,6
Shri Badrinarayan Shankar Bhandari and Ors.
Ompraskash Shankar Bhandari
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Nature of Litigation
Second appeals arising from disputes over coparcenary property rights of daughters under the Hindu Succession Act, 1956 as amended in 2005
Remedy Sought
Interpretation of amended Section 6 as to its temporal application and scope of benefits to daughters
Filing Reason
Conflicting views between a Division Bench and a Single Judge on whether the amendment is prospective or retrospective required a Full Bench reference
Previous Decisions
Division Bench in Vaishali S. Ganorkar v. Satish Keshavrao Ganorkar held amended Section 6 prospective and applicable only to daughters born on or after 9.9.2005; Single Judge (R.G. Ketkar, J.) took view that it is retrospective from 17.6.1956 and applies to all daughters irrespective of birth date
Issues
(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?
Judgment Excerpts
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 & Others v/s. Satish Keshavrao Ganorkar & Others.
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? ...
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.
Section 6: 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; ...
Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
In order to properly appreciate the questions referred to us for opinion, it may be necessary to contextuali...
Procedural History
References made by a learned Single Judge (R.G. Ketkar, J.) to a Full Bench of the Bombay High Court due to doubt over the correctness of a Division Bench decision in Vaishali S. Ganorkar v. Satish Keshavrao Ganorkar. The reference raised five questions of law regarding the prospective or retrospective operation of the amended Section 6 of the Hindu Succession Act, 1956. Multiple second appeals involving similar issues were tagged together.
Acts & Sections
- Hindu Succession Act, 1956: 6 (pre-amended), 6 (amended), Explanation 1, Explanation 2
- Hindu Succession (Amendment) Act, 2005: 3
- Registration Act, 1908:
