FAMILY LAW-II ASSIGNMENT (LW 4011)

SUBMITTED BY: SUBMITTED TO: SHARTHAK

MISHRA MS. SWATI MOHAPATRA
1783098 BA “B”

A CRITICAL EXAMINATION OF PRAKASH V. PHULVATI

CASE AND THE SUBSEQUENT DEVELOPMENTS

INTRODUCTION

In the case of Prakash & Ors. V Phulvati & Ors1, 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. 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 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

1
AIR 2011 KAR 78.
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 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.

ISSUES INVOLVED
The court had to decide whether:-

1. The amendment is applicable even if the Respondent’s father had died after
the act came into existence?

2. The Amendment Act can be applied to the partition effectuated without the
decree of court?

3. The Amendment Act can be applied retrospectively?

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
The High Court held that as the partition was not effectuated by the partition deed or
any sort of court’s order, it would be deemed to be recognized as a notional partition
and hence the Section 6(5) of the Amendment Act cannot be applied to the present
case.

The Supreme Court differentiated between the application of the Act in the present
case by the High Court and application of the Act retrospectively in general. The
Supreme Court reversed the High Court’s Decision.

CRITICAL ANALYSIS

The two-judge bench The High Court of Karnataka, which included Justices D.V.
Shylendra Kumar and N. Anand, in this case delivered the judgement in the favour of
the Respondents in the Supreme Court case. As per the facts are considered, the
partition that happened after the death of the Respondent’s father, was merely a
notional partition and it did not happen subsequent to any decree of a court or any
such legal procedure. However, the Petitioners contested the claim in the High Court
saying that the Amendment Act cannot be applied because the death of the father
happened before the commencement of the act, which lead to the partition. Here, the
Bench had to decide upon two separate issues:

 Can the Act be applied to the case, which has been pending since before the
commencement of the Act?
 If Section 6(5) of the Amendment Act be applied to the notional partition,
done before the Act came into existence?

Regarding the first issue, the Bench analyses the judgement delivered by the Supreme
Court in the case of, G. Sekar v. Geetha and Ors 2. Here, the apex court clarifies that
any Amendment or development that will be made in law will be applicable to the
cases, which were in the pendency during the procedure of amendments in the law.
The court also differentiated between this concept of applicability and retrospective
applicability. This decision was rendered based on the judgement of the case S.L
Srinivasa Jute Twine Mills (P) Ltd v. Union of India 3, which was not considered in

2
(2009) 78 AIC 138 (SC)
3
2006 SCC (L&S) 440
the context of the factual situation, but for the judgement in itself, where it was
decided that the right of existing parties during the commencement of an act would
not be taken away. Based on this legal discourse, the High Court made it very clear
that as the case was pending during the commencement of the Act, the will be applied
to the present case, while keeping the difference drawn between such application and
the retrospective application, intact.

The High Court while dealing with the self-acquired property, after examining several
facts and proofs, found out that property was indeed self-acquired and there was no
contribution done by the members of the joint family.

While citing a Supreme Court judgement in the case of P.S Sairam v. P.S Rama Rao 4,
if there is no funding that law that, that firm will not be a part of that joint family
property. In the same case, it was also mentioned that if an individual member of the
joint family used a part of joint family property to run any business, which also
includes his personal earnings and investments, then in such circumstances it would
not be liable for the partition. As this was not the case in the present case, the property
was considered as self-acquired property and not part of other ancestral properties.

The High Court unequivocally ruled that if a member of a joint family develops his
own business by investing his money and skills, in such case, no other member of the
joint family or the joint family as a whole would have any right on such self-acquired
property or any another property acquired by that individual by the income from such
self-acquired property, or any another property acquired by that individual by the
income from such self-acquired property. But the court, in evaluating other properties,
which the Respondent claimed to be self-acquired, stated that there was no ‘special
skills’ applied or there was no source of income for the Respondent’s father, hence his
ancestors invested in that business. Hence, that part of the property is considered as
ancestral property.

Whereas about the second issue, it is completely based on the Amendment Act, 2005.
Section 6(5) of the Act says that this Act would not be applicable to the partitions
effectuated before 20th of December 2004. Hence, the Appellants contested saying
that as the partition was done before this particular date, the act will not be applicable.
But the act explicitly says that the word “partition” means a partition effectuated by

4
ILR 2004 KAR 1353
the deed registered under the Registration Act, 1908 or made by the decree or order
passed by the court5. In the present case, the partition was not made based on any sort
of legal order or under the Registration Act. It was just a nominal partition, not in
accordance with any legal order.

The High Court bench criticized the Trial Court judgement saying that the learned
Judge had framed and entertained many irrelevant issues, though the parties amended
their written statements several times, the consideration of all those pleadings made
without any proof, were completely “unnecessary” and because of considering all the
pleadings made in the trial, there was a delay in the judgement.

Aggrieved by the High Court’s decision, the Appellants appealed to The Supreme
Court. Here, the contention was made on the basis on the date of the death of the
Respondent’s father. The Appellants claimed that the death happened and the father
seized to be a coparcener in the property before the act came into place, meaning that
he was no more a coparcener in the family when the Act came into existence. Hence,
the Respondent cannot claim to be “daughter of a ‘coparcener’,” as such. Therefore,
when she is not even the daughter of a coparcener, there would be no question of
applying the Act in her case. They also claimed that notional partition has been taken
place, heirs were given exclusive rights and those rights cannot be denied by the
subsequent amendment, which did not have anything mentioned expressly about the
retrospective application. The Act can be applicable to the pending proceedings only
if the case is eligible to get the act applied.

After analysing the contentions from the parties, the Apex Court referred to the
judgement of the case Shyam Sunder v. Ram Kumar 6, where it was held that unless
the statute expressly states the applicability can be retrospective, it is implied that the
intention of the statute is to apply it prospectively. The Act expressly provides that the
applicability will not be made for the partitions effectuated before the 20th of
December 2004. The court also considered the definition of the “partition” given in
the act and agreed with the High Court’s interpretation of partition in the present case.
The Supreme Court interpreted the Act as applicable for the living daughters of living
coparceners as on September 9th, 2005, regardless of when those daughters are born7.
5
§ 6(5), Hindu Succession Amendment Act, 2005.
6
(2001) 8SCC 24
7
Daughter’s Right in Property-SC says Daughters have Same Right as Sons, https://www.vakilno1.com/legal-
Stating the above said reasons, the Apex Court had set aside the High Court’s
judgement. The court rejected the contention of the Respondent that as the
Amendment Act is progressive legislation, it has to be applied retrospectively, saying
that even for social legislations, the express mention of retrospective application is
necessary. The summary of the whole judgement can be done in one line saying that
the Amendment can be applied to the daughters, whose father was living coparcener
as of 9th of September 2005, regardless of when the daughters are born8. However, in
this case, the Respondent in the first place is not considered a coparcener as her father
was not living coparcener as on the date of commencement of the judgement. Relying
on the above-mentioned reasons, the Supreme Court allowed the Appellant’s appeal.

news/daughter-right-coparcenary-property-sc.html

8
Continuance of confusion: Section 6 of the Hindu Succession Act Bar & Bench,
https://barandbench.com/confusion-section-6-hindu-succession-act