[Ms. Vaishali Satish Ganorkar & Anr v. Satish Keshorao Ganorkar & Ors AIR 2012 Bom 101]
The court was considering the effect of amended provision section 6 of the Hindu Succession Act (HSA), 1956. The Court observed that until a coparcener dies and his succession opens and a succession takes place, there is no devolution of interest and hence no daughter of such coparcener to whom an interest in the coparcenary property would devolve would be entitled to be a coparcener or to have the rights or the liabilities in the coparcenary property alongwith the son of such coparcener.
It may be mentioned, therefore, that ipso facto upon the passing of the Amendment Act, all the daughters of a coparcener in a coparcenary or a joint HUF do not become coparceners. The daughters who are born after such dates would certainly be coparceners by virtue of birth, but a daughter who was born prior to the coming into force of the amendment Act, she would be a coparcener only upon a devolution of interest in coparcenary property taking place.
The section is required to be interpreted to see whether a daughter of a coparcener would have an interest in the coparcenery property by virtue of her birth in her own right, prior to the amendment Act having been brought into effect. It may be mentioned that prior to the amendment Act (aside from the State Amendment Act of 1995 which amended Section 29 of the HSA) indeed the daughter was not a coparcener; she had no interest in a coparcenery property. She had, therefore, no interest by virtue of her birth in such property. This she got only “on and from” the commencement of the amendment Act i.e, on and from 9th September 2005. The basis of the right is, therefore, the commencement of the amendment Act. The daughter acquiring an interest as a coparcener under the section was given the interest which is denoted by the future participle “shall”. What the section lays down is that, the daughter of a coparcener shall by birth become a coparcener. It involves no past participle. It involves only the future tense. Consequently, by the legislative amendment contained in the amended Section 6 the daughter shall be a coparcener as much as a son in a coparcenery property. This right as a coparcener would be by birth. This is the natural ingredient of a coparcenery interest since a coparcenery interest is acquired by virtue of birth and from the moment of birth. This acquisition (not devolution) which until the amendment Act was the right and entitlement only of a son in a coparcenary property, was by the amendment conferred also on the daughter by birth. The future tense denoted by the word “shall” shows that the daughters born on and after 9th September 2005 would get that right, entitlement and benefit, together with the liabilities. It may be mentioned that if all the daughters born prior to the amendment were to become coparceners by birth, the word “shall” would be absent and the section would show the past tense denoted by the words “was” or “had been”. The future participle makes the prospectivity of the section clear.
A reading of Section as a whole would, therefore, show that either the devolution of legal rights would accrue by opening of a succession on or after 9th September 2005 in case of daughters born before 9th September 2005 or by birth itself in case of daughters born after 9th September 2005 upon them.
The general scope and purview of the Amendment Act of 2006 is to make all daughters coparceners, so as to devolve upon them the share in coparcenery property along with and as much as all the sons. The remedy that it seeks to apply is to remove gender discrimination in such devolution of interest. Further, it makes every daughter by birth a coparcener. The former law was that the daughter was not by birth a copercener and no interest in a coparcenery devolved upon her by succession, intestate or testamentary. The legislation contemplated that on and from 9th September 2005, the daughter would become a coparcener by birth for the devolution of interest in coparcenery property. The Act of 2006 received the assent of President on 5th September 2005 and was published in the Gazette of India on 6th September 2005. The amended section 6 was to come into effect expressly from 9th September 2005.
In the amended HSA, mere protection is not granted to the daughters; they are given a substantive right to be treated as coparceners upon devolution of interest to them and even otherwise by virtue of their birth. This grant would effect vested rights, as in this case, when alienations and dispositions have been made. Hence, retrospectivity such as to make the Act applicable to all the daughters born even prior to the amendment cannot be granted, when the legislation itself specifies the posterior date from which the Act would come into force unlike the anterior date in the Orissa Tenants Protection Act 1948.
The rights of a daughter such as to effect vested rights would be on a wholly different footing and, therefore, cannot be applied retrospectively
