Case study on PRAKASH vs. PHULAVATI & ORS (2016) 2 SCC 36

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PRAKASH V. PHULAVATI (2016) 2 SCC 36

Ø In  The Supreme Court of India

Ø Civil Appeal Jurisdiction

Ø PRAKASH & ORS…. APPELLANTS

VERSUS

PHULAVATI & ORS....RESPONDENTS

Ø Adarsh Kumar Goel J and  Anil R. Dave J

Ø Judgement by Adarsh Kumar Goel J

Ø Decided on October 16, 2015

Ø Publication on February 16, 2016

INTRODUCTION

In this case Law on prospective vs. retrospective operation of legislation explained. The Hindu Succession (Amendment Act), 2005 which came into effect on 09.09.2015 and by which daughters in a joint Hindu family, governed by Mitakshara law, were granted statutory right in the coparcenary property (being property not partitioned or alienated) of their fathers applies only if both the father and the daughter are alive on the date of commencement of the Amendment Act.

  FACTS

 In this case the 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.

The Respondent had initially filed a suit before the Additional Civil Judge (Senior Division), Belgaum (“Trial Court”) for partition and separate possession of 1/7^th share in certain properties (“Ancestral Properties”) and 1/28^th 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 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 9^th 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.The Karnataka High Court ruled in favour of Phulavati holding that an amendment would be applicable to pending proceedings, even if such an amendment was prospective in its operation (HC Order). This HC Order was challenged before the SC.

DECISION OF 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 coparcenary 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, 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 affected 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 affected 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.

ISSUES

·       Should Daughters become the coparcener in ancestral property?

·       And were the rights granted to daughters in the coparcenary property retrospective in their application.

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.

JUDGMENT

In its judgment, the SC held that a plain reading of the statute (Amendment Act) itself suggests that a daughter has a right in coparcenary property on and from the commencement of the Amendment Act. The SC held that ‘An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective’. In the instant case there was no express or intended stipulation which would make the Amendment Act retrospective in its application and by virtue of the Amendment Act, right to coparcenary property would be available only to ‘living daughters’ of ‘living coparceners’ on 9 September 2005.

The HC Order was set aside by the SC. The matter was remanded back to the Karnataka High Court for a fresh decision based on the principle of prospective application of the Amendment Act laid down by the SC.