CHANDRAN Vs. MEENAKUMARI

JUDGEMENT

(1.) The material question came up for consideration is the legal impact of amended provision Sec. 6(1) of Hindu Succession Act, 1956 (for short, 'the Act') and the recent decision rendered by a three Judge Bench of Apex Court in Vineeta Sharma v. Rakesh Sharma and Others [(2020) 9 SCC 1] and also whether a deed of partition entered into prior to 20th day of December, 2004 would stand unaffected by the said amendment. It is an appeal by the defeated defendants 1 and 2 against the preliminary decree for partition of property left out by Thampu, the father of both the plaintiff and defendants 1 to 5. At the time when the plaintiff came up with the suit, she was aged 45 years. In other words, no suit was brought up by her within a period of three years after attaining majority either for getting the property partitioned or to set aside the earlier partition entered into by the defendants - Ext.B2 of the year 1968.

(2.) Before going to the question of limitation, it is necessary to address the impact of amended provision and also its legal effect on the deed of transfer effected prior to the cut off date, 20/12/2004. The amendment to the Hindu Succession Act by substituting Sec. 6(1) came into force with effect from 09/09/2005. The amended provision, Sec. 6(1) of the Hindu Succession Act is extracted below for reference:

(3.) By virtue of the said amendment of the year 2005, the concept of "coparcenary" was extended to daughter of a coparcenary under the Mitakshara law, but subject to the proviso by which nothing in the subsec. (1) of Sec. 6 of the amended provision of the Act made applicable to the deed of transfer/alienation prior to the cut off date 20/12/2004. The proviso attached says that sub-sec. (1) of Sec. 6 (the amended provision) shall affect or invalidate any disposition or alienation including any partition or testamentary disposition, which had taken place before 20th day of December, 2004. The cut off date is 20/12/2004. Every documentation of disposition, alienation including any partition or testamentary succession prior to the cut off date i.e. 20/12/2004 will stand valid and unaffected. A deed of partition cannot be considered as a document of alienation or disposition, but the proviso attached to Sec. 6(1) of the Act is carefully worded so as to bring a document of partition and testamentary succession under the sweep of "disposition" excluded from the operation of amended provision Sec. 6(1) of the Act, if it is prior to the cut off date i.e. 20/12/2004. Necessarily, a partition, which was entered into in the year of 1968 excluding the female succession with respect to a coparcenary property governed by Mitakshara law will stand valid and unaffected by the subsequent amendment and incorporation of Sec. 6(1) of the Hindu Succession Act. Hence, there cannot be a fresh cause of action for a suit for partition based on the amended provision, Sec. 6(1) of Hindu Succession Act when the property is subjected to any alienation, disposition inclusive of partition or testamentary succession prior to the cut off date i.e. 20/12/2004. The decision rendered by the Apex Court in Vineeta Sharma's case (supra) is pertaining to the question of retrospective application of the amended and substituted provisions, Ss. 6(1), 6(3) and 6(5) of the Act and not pertaining to the proviso attached to the amended provision, though the question of oral partition and unregistered partition deeds excluded from the definition of "partition" used in the explanation to the amended Sec. 6(5) of the Act, was incidently taken up and considered to address the issue involved in the lis.