CASE STUDY-

[Prakash Vs Phulwati, 2015]

[FAMILY LAW-II]

SUBMITTED TO: SUBMITTED BY:

Abilasha Sisodia Ma’am Mehavsh
BALLB {Hons.} Sec. B
Roll No: 18041020130
Subject Code:
BALB202
INTRODUCTION:

In the case of Prakash & Ors. v Phulawati & Ors.[1], the Supreme Civil Appeal
No.7217 of 2013 Court has dealt with the question of retrospective application
of Section 6 (1) of the Hindu Succession Amendment Act, 2005 (“Amendment
Act”), which grants equal rights to sons and daughters of a coparcener, in his
share of ancestral property.

In 2005, the amendment was passed along the lines of various state amendments
and the Law Commission Report. This had the effect of overriding the state
amendments.[27] After the amendment the fundamental principles of the Hindu
coparcenary were challenged. Daughters were made a part of the coparcenary
and were granted the same rights over the coparcenary property as their male
counterparts. Further, earlier daughters were barred from
becoming kartas because they were not a part of the coparcenary. [29] However,
by the application of the amended § 6 they can now act as kartas. The
Parliament also proceeded to obliviate the distinction between a married and an
unmarried daughter.[30] This was path-breaking blow to institutionalized
patriarchy as it made women economically independent. However, problems
still persist regarding concepts like reunification which are governed by
uncodified Hindu law.

In light of the principles of equality enshrined in the constitution, the act tried to
alleviate the position of women by giving them a share in father’s separate
property. Daughters were introduced as class I heirs and this enabled the
daughters to get a certain share out of their father’s property through the
concept of a notional partition.[12]
The Concept of Hindu Coparcenary

Traditional Hindu Coparcenary consisted of four generations of male members

in a family, starting from the oldest surviving member.[6] The undivided
coparcenary property belonged to all the members of the coparcenary where
each coparcener held a share by birth, and thus it devolved by the rule of
survivorship.[7] Such an arrangement left the female relatives of the deceased
without any protection as the property rights were vested solely in men who
were a part of the coparcenary.[8] The exclusion of women was a result of the
notion that women lacked the potency to perform religious obligations, such as
providing offerings to ancestors and performing funeral rituals.[9] Thus,
traditional laws of succession were ridden with gender bias and hindered any
possibility of equality for women.
Facts of the Case

The Respondent (as per the Supreme Court case) had initially filed a suit before
the Additional Civil Judge (Senior Division), Belgaum (“Trial Court”) for
partition and separate possession of 1/7th share in certain properties
(“Ancestral Properties”) and 1/28th share in a different property. The
Ancestral Properties were inherited by the Respondent’s father. The Respondent
claimed that, after the death of her father on 18 February 1988, the Respondent
acquired the Ancestral Properties. The Appellant (as per the Supreme Court
case) contested that Respondent could claim only the self acquired property of
her deceased father, and not his ancestral property. The suit was filed in the year
1992 and the Amendment Act was made effective from 9th September 2005.
The Respondent, during the pendency of the suit amended her plaint to claim
her share as per the Amendment Act. The Trial Court partly allowed the suit.
Aggrieved by the decision of the Trial Court, the Respondent approached the
High Court.

Decision of the High Court

The Respondent filed an appeal before the High Court stating that she had
become a coparcener as per Section 6 (1) of the Amendment Act and hence she
was entitled to inherit coparcenery property equal to her brothers, apart from her
individual right over certain properties. The Appellants contested that the
Respondent’s father died before the commencement of the Amendment Act
hence the amended provisions cannot apply to the present case.

The High Court allowed the appeal of the Respondent. The High Court placed
reliance on the judgment delivered in the case of G. Sekar v. Geetha and
Others[2], wherein the Supreme Court held that any development in the law will
inevitably apply to a pending proceeding. This does not mean that the law will
be applicable retrospectively. It only means that the law has to be interpreted as
it stands on that day. Although Respondent’s father died in the year 1988 and
the suit was initiated in the year 1992, the suit is pending the Amendment Act.
Hence the provision of the Amendment Act will be applicable to the present
case.
The High Court also analyzed the application of section 6 (5) of the
Amendment Act in the context of a notional partition held between the parties
happened.

Section 6 (5) of the Amendment Act reads as follows:

“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.”
The above section states that, if the partition was effected by a registered
partition deed or a decree of the court which had attained finality prior to 20
December 2004, the Amendment Act will not be applicable. In the present case,
partition was not effected by either a registered partition deed or decree of the
court. It was a notional partition. Hence, Section 6 (5) of the Amendment Act
will not be applicable.

Decision of the Supreme Court

Aggrieved by the judgment of the High Court, an appeal was filed by the
Appellants before the Supreme Court. The Supreme Court accepted the
contention of the Appellant that the present case was a case of notional partition
and was governed by the Principal Act. As per the notional partition, shares in
the Ancestral Properties were already allotted to the heirs under the Hindu
Succession Act, 1956 (“Principal Act”). The said rights cannot be taken away
by a subsequent amendment to the Principal Act. The Amendment Act is
applicable only from 9 September 2005. Hence, the present case cannot be
governed by the Amendment Act.
The Supreme Court also rejected the contention of the Respondent that the
Amendment Act was a social legislation and hence, it should be applied
retrospectively. The Supreme Court held that even though the Amendment Act
is a social legislation, it cannot be applied retrospectively, unless intended by
the legislature and expressly provided under such legislation.

The Respondent had claimed that a daughter acquired right to all her father’s
property by birth, irrespective of the date of his death, whether it is prior to the
commencement of the Amendment Act or afterwards. The Supreme Court
rejected this contention stating that legislature has expressly made the
Amendment Act applicable from 9 September 2005 and only if the death of the
coparcener in question is after the said date, the provisions of the Amendment
Act will be applicable. Hence, there is no scope for any other interpretation in
view of express language of the Amendment Act.

Hence, the appeal of the Appellant was allowed.

Issues :
The only issue which has been raised in this batch of
matters is whether Hindu Succession (Amendment) Act,
2005 (‘the Amendment Act’) will have retrospective
effect. 
In the impugned judgment (reported in AIR 2011 Kar. 78 Phulavati vs.
Prakash), plea of restrospectivity has been upheld in favour of the respondents
by which the appellants are aggrieved.

In the present case the suit for partition and for inheritance was filed in the year
1992 by the daughter of the deceased.[32] During the pendency of this suit, the
amendment of 2005 was enacted and the plaintiff amended her plait to be able
to benefit from this amendment.

The trial court however, did not decree a share in the ancestral property in her
favour. In appeal, the High Court reversed this decision and held the
amendment act would be applicable to the present case, even though the
respondent’s father had passed away before the enactment. While interpreting §
6(5) of the amendment act, it held that it only bars applicability of the
amendment act to cases where partition has been effected before the stipulated
date.[33] However, this bar will not be attracted in the present case because there
was no deed of partition but only a notional partition that had taken place.

The defendants in the present case appealed to the Supreme Court and
contended that the plaintiff respondent was entitled to the separate property of
her father, but was not entitled to the ancestral property.[34] According to them,
the plain wording of the amended provision made it clear that the provision
would apply to “daughter of a coparcener” during the commencement of the act.
[35]
 However, since the coparcener had died before the amendment in the present
case, the daughter would not able to claim benefit of the amendment. Against
this it was contended that the amendment was a social legislation and should be
given retrospective effect barring for partitions that have been effected by a
decree of court or those done by a registered deed.[36]

The court held that the amendment act can only be effective if the death of the
father occurs after the date of enactment. In absence of any express provisions,
it was held that the act cannot be applied retrospectively, even if it is a social
legislation. Thus, the amended shall only apply to “living daughters of living
coparceners” at the time of enactment and the transactions prior shall remain
unaffected.[37]
The issue that has been elaborately dealt in the present case pertains to the rights of women as coparceners has always been a very dynamic
aspect of the Hindu Succession Act, 1956[xvi]. The rights have been changed gradually in a manner to be gradually recognizing the rights of the
female counterparts and conferring them the status of coparceners and their right to a share in property.

The Hon’ble Supreme Court of India in the case of V. Tulasamma & Ors. versus V. Sesha Reddi stipulated the scope of Sec 14(1) & (2) and
her right to property was identified through her right to be maintained.[xvii]

The landmark judgment of the Commissioner of Wealth Tax v. Chander Sen, dealt with issue pertaining to the status of the share of the
property after partition whether it amounts to coparcenary party or changes to self -acquired property.[xviii]

The Court after the co-joint reading of Sections 4,6 and 8 of HSA, 1956 and an analysis of the given issue held that it amounts to self-acquired
property after the statutory interpretation.[xix] The Supreme Court in the case of Income Tax v. G. S. Mills dealt with the capability of women
being given the position of Karta in a family and with respect to the issue at hand held that women could be made the Karta of the family.[xx]

The Apex Court while dealing with the issue in Sheela Devi v. Lal Chand held that the Hindu Succession Act, 1956 would be at a higher pedestal
as compared to the Hindu Law and the former shall prevail in case of any disputes as the Act was enacted in order to confer right of property to
the female heirs.[xxi]

In the case of Anar Devi and others v. Parmeshwari Devi and others, it was stipulated that for the determination of the undivided interest of the
coparcener the same shall be dealt by the procedure of succession in the manner of notional partition.[xxii]

The Court to determine the above decision had relied on the judgment of  Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum which
dealt with the intricacies of notional partition.[xxiii] The judgment stipulated to assume a partition to be taking place before the death of the
coparcener for the determination of the undivided interest.

With respect to the Hindu Succession (Amendment) Act, 2005 the High Court of Bombay in the case of Vaishali Satish Ganorkar v. Satish
Keshaorao Ganorkar stated that the amended act shall apply only to daughters born after the year of the amendment i.e. 2005.[xxiv]

In the case of Badrinarayan Shankar Bhandari v. Om Prakash Shankar Bhandari, it has been categorically stated that the Clause (a) of sub-
section (1) of Section 6 would have prospective effect and on the other hand other parts of sub-section (1) and sub-section (2) of Sec 6 would
have retrospective application. [xxvi]

Furthermore, the court stated that the amended Section applies to daughters born prior to June 17, 1956 or ones alive on the date of the
enactment of the amended act of 2005. The above dictum has also been upheld by the High Courts of Orissa, Karnataka and Delhi. The above
controversy was settled by the Hon’ble Supreme Court in the case of Prakash and Ors. v. Phulavati and Ors.[xxvii]

In Prakash’s case the Hon’ble Supreme Court referred to the Act itself which clearly stipulated that all the rights that have been conferred by the
said amendment on the female coparceners have been done on and from the commencement of the Hindu Succession (Amendment) Act, 2005.
Moreover, the court stated that the language used by the statute leave no scope for interpretation as they are extremely unambiguous.

It has been held by the Supreme Court in the case of Shyam Sunder v. Ram Kumar that any amendment brought to the Substantive provision of
any act, it always has a prospective effect unless explicitly stated or by necessary implication otherwise. [xxviii] In the present case, no such
provisions as to giving the amendment retrospective affect has been given and thus it will clearly have prospective effect only and the court held
the findings of the High Court to be untenable.

Furthermore, while dealing with the major principle which was relied upon to pass the judgment in favor of the appellants, the court relied on the
case of Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr.[xxix]

In this case, it was held that a preliminary decree cannot abrogate the rights of daughters in the coparcenary property as the finality of a partition
is achieved only by a final decree.

Approach of the legislature on the issue

Despite the Constitution of India being enshrined with the Right to Equality as a Fundamental Right, the Laws governing India for a very long time
have suffered gross biasness on numerous grounds like gender, caste etc. The arena of right to property has been greatly effected by this
biasness, this can be concluded after referring to the authoritative treatise of Mulla:
Conclusion: