The Hon’ble Supreme Court has recently passed a judgment in respect of whether the amendment of 2005 to the Hindu Succession Act (“The Amendment Act”) is prospective or retrospective. It has passed the said judgment in a bunch of Petitions on 16^th October 2015. The Judgment is passed by the Bench of Justice Anil R. Dave and Justice Adarsh Kumar Goel. The Bench only decided the aforesaid legal issue and left it to all the other Courts to decide all other aspects in the light of this judgment.

“Connected matters have been entertained in this Court mainly on account of the said legal issue particularly when there are said to be differing views of High Courts which makes it necessary that the issue is decided by this Court. It is not necessary to go into the facts of the individual case or the correctness of the findings recorded by the courts below on various other issues. It was made clear during the hearing that after deciding the legal issue, all other aspects may be decided separately in the light of the judgment of this Court.”

The Hon’ble Supreme Court, in the said judgment held as under:

“Rights under the amendment are applicable to living daughters of living  coparceners as on 9^th  September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20^th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.”

Thus, for a daughter to claim share in the coparcenary property, both she and her father should be alive on the date of the said amendment. The Hon’ble Supreme Court while coming to this conclusion observed as under:

“If such a coparcener had died prior to the commencement of the Amendment Act, succession opens out on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystalised even if partition by metes and bounds does not take place. It was pointed out that apparently conflicting provision in Explanation to Section 6(5) and the said Section was required to be given harmonious construction with the main provision. The explanation could not be read in conflict with the main provision. Main provision of Section 6(1) confers right of coparcener on a daughter only from commencement of the Act and not for any period prior to that. The proviso to Section 6(1) also applies only where the main provision of Section 6(5) applies. Since Section 6(5) applies to partition effected after 20th December, 2004, the said proviso and the Explanation also applies only when Section 6(1) applies”

The Hon’ble Supreme Court also considered the judgment of the Bombay High Court in Vaishali Satish Ganorkar vs. Satish Keshaorao Ganorkar[1]. The Hon’ble Court held as under:

“In Vaishali Satish Ganorkar vs. Satish Keshaorao Ganorkar, the Bombay High Court held that the amendment will not apply unless the daughter is born after the 2005 Amendment, but on this aspect a different view has been taken in the later larger Bench judgment. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment.”

The Hon’ble Supreme Court also considered the Full Bench judgment of the Hon’ble Bombay High Court in Badrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari[2] and held as under:

“Full Bench judgment of Bombay High Court in Badrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari also appears to be consistent with the view taken hereinabove.”

To conclude in a nutshell, as to whether the Hindu Succession (Amendment) Act, 2005, will have a retrospective or prospective effect, the Hon’ble Supreme Court has held that all that is required is that daughter should be alive and her father should also be alive on the date of the amendment.

[1] AIR 2012, BOM 101

[2] AIR 2014, BOM 151

Dominic Braganza, Partner

Abhay Nevagi & Associates, Pune