Mahadevamma and Ors.
1) Whether the plaintiffs prove that the suit schedule properties are their joint family properties?
2) Whether the defendants 1 to 3 prove that the joint family properties were divided between Sannamadaiah and his son Mahadevappa under registered partition deed and Sannamadaiah sold his share in favour of defendants 5 to 7?
3) Whether the defendants 1 to 3 prove that this is a suit for partial partition and therefore not maintainable?
4) Whether the plaintiffs are entitled for the relief sought?
5) What Order or Decree?
1) Whether the Repealing and Amending Act, 2015 (Act No. 17/2015), which repealed the Hindu Succession (Amendment) Act, 2005 to the whole extent, has the effect of repealing amended Section 6 and restoring the old Section 6 of the Hindu Succession Act, and thereby take away the status of co-parcener conferred on the daughters giving them equal right with the sons in the co-parcenary property?
2) Whether the plaintiffs right to a share in the schedule properties is defeated by the alleged partition under an unregistered Partition Deed of the year 2000?
3) Whether the plaintiffs are entitled to a share in the properties covered under Exs. P1 to P4, forming portion of item No. 3 of suit schedule?
4) Whether the plaintiffs’ right to share in the schedule properties is taken away by alleged purchase of site by Sannamadaiah in favour of 3rd plaintiff and gifting of gold, cash and silver jewellery to plaintiffs 1 and 2?
“Section 6. Devolution of interest in co-parcenary property.–When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara co-parcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:
PROVIDED that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation I: For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the co-parcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”
“3. For Section 6 of the principal Act, the following section shall be substituted, namely.–
6. Devolution of interest in co-parcenary property.–(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall,–
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the co-parcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said co-parcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) Where of a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be under this Act and not by survivorship, and the co-parcenary property shall be deemed to have been divided as if a partition had taken place and,–
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation.–For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect–
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.–For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) 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 construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act, must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter these is no need to refer to the amending Act at all. This is the rule in England. It is the law in America. It is the law which the Privy Council applied to India.”
“An amending act is not regarded as an independent statute. The statute in its old form is superseded by the statute in its amended form, the amended section of the statute taking the place of the original section, for all intents and purposes as if the amendment had always been there. The amendment should be considered as if embodied in the whole statute of which it has become a part. Unless a contrary intent is clearly indicated, the amended statute is regarded as if the original statute had been repealed and the whole statute re-enacted with the amendment”.
Section 6A of the General Clauses Act:
“6-A. Repeal of Act making textual amendment in Act or Regulation.–Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal”.
Section 4 of the Repealing and Amending Act, 2015 (Act No. 17/2015):
“The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred to;
and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing;
nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed, recognized or derived by, in or from any enactment hereby repealed;
nor shall the repeal by this Act of any enactment provide or restore any jurisdiction, office, custom, liability, right, title privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force.”
“A statute Law Revision Act does not alter the law, but simply strikes out certain enactments which have become unnecessary. It invariably contains elaborate provisos.”
“Such Acts have no Legislative effect, but are designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending Acts, because having imparted the amendments to the main Acts, those Acts have served their purpose and have no further reason for their existence. At times, inconsistencies are also removed by repealing and amending Acts. The only object of such Acts, which in England are called Statute Law Revision Acts, is legislative spring-cleaning and they are not intended to make any change in the law. Even so, they are guarded by saving clauses drawn with elaborate care,…”.
“Explanation: For the purposes of Section 6, “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a Court.”
(a) The appeal is partly allowed.
(b) The Judgment and Decree of the trial Court is hereby confirmed in all respects except the properties sold under Exs. P1 to P3, which forms part of item No. 3 of the plaint schedule; the plaintiffs are not entitled for any share in the properties sold under Exs. P1 to P3.
(c) No costs.