R KANTHA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition is filed seeking to challenge the constitutional validity of the Proviso to Section 6 (1) (c) of the hindu Succession Amendment Act, 2005 (Act 39 of 2005 ).

(2.) THE background to the petition is as follows : the petitioner aged about 36 is the unmarried daughter of one Doddaramaiah Reddy and they are Hindus. The father, Doddarmaiah reddy is alive. The petitioner has filed a civil suit in OS. S. 3104/2007 before the City Civil court, Bangalore. The suit is for partition and separate possession of joint family properties. The suit is pending as on date. The plaintiff has called in question certain sale deeds executed in respect of the suit properties as not binding on her. Having regard to the Proviso to Section 6 (1) (c) of the Hindu Succession Amendment act under Act 39 of 2005, the trial court was inclined to dismiss the suit as not maintainable. It was at that stage that the present writ petition is filed questioning the constitutional validity of the Proviso to Section 6 (1) (c) of hindu Succession Amendment Act, 2005. The respondents, namely, the Union of India and the State of Karnataka having been served, and though are represented by Counsel, have not chosen to file statement of objections nor meet the contentions of the Counsel for the petitioner in spite of the matter having been adjourned on several occasions to enable the parties to do so.

(3.) THE Counsel for the petitioner was heard at length. It is contended that the object of the Hindu succession Amendment Act, 2005 is to bring equality in the matter of partition of joint family properties among Hindus by treating the daughters as co-parceners, which is aimed at the constitutional goal of equality Without discrimination in the matter of partition, on the basis of sex. It is contended that the Proviso to Section 6 (1) lays down that notwithstanding the amendment, any disposition, alienation, including any partition, or testamentary disposition of property which had taken place before the 20th December 2004. would not be affected or invalidated. In other words, any such alienations or disposition prior to 20th december 2004, are saved as against the right of a daughter of a co-parcener. It is urged that the petitioner was entitled to an equal right in the joint family property under section 6 A of the Hindu Succession (Karnataka Amendment Act, 1956 (Act 23 of 1994 ). The said amendment, which came into effect from 30-7-1994, conferred a right on the petitioner under the Karnataka Amendment which has been taken away by virtue of the Central amendment (Act 39 of 2005 ). It is contended that a right which had accrued could not be taken away by substitution of the Karnataka amendment Act. Further, the Proviso to Section 6 (1) of Act 39 of 2005, is not retrospective. There are no reasons assigned in the statement of Objects and Reasons preceding the Amendment Act 39 of 2005 in providing such a cut-off date. There is no indication as to the consequence of a prior State Amendment Act, resulting in rights having accrued to a daughter under the State Amendment Act. The Proviso is arbitrary and unconstitutional, for it discriminates between a son and a daughter, for it is open to a son to question alienations and dispositions prior to the 26th December 2004, whereas a restriction is placed on the daughter's right to question the same. The Counsel would submit that the restriction placed under the Proviso would also run counter to Section 14 of the Hindu Succession Act, 1956, which if read with the main section 6, would provide an unfettered right by birth, which cannot be whittled down on the specious reasoning that settled matters ought not to be unsettled when the very same reasoning does not appear to apply to sons in respect of property.