ASHOK GANGADHAR SHEDGE Vs. RAMESH GANGADHAR SHEDGE

JUDGEMENT

(1.) Heard Mr. A.V.Anturkar, Mr. R.S.Apte, learned senior counsel, Mr. G.S.Godbole, Mr. Vaibhav Patankar, Mr. P.P.Kulkarni, Mr. G.N.Salunkhe, Mr. V.S.Talkute, Mr. Sandeep Salunkhe, Mr. Abhijit Kulkarni, learned counsel for the appellants in all Appeals and Mr. P.B.Shah, Mr. Pramod Kathane, Mr. T.D.Deshmukh, Mr. N.J.Patil, Mr. N.B.Khaire, Mr. Pratap M. Nimbalkar, Mr. M.M.Mahajan, Mr. Pankaj Shinde, Mr. G.M.Joshi, Mr. Ravindra Pachundkar, Mr. S.C.Wakankar, learned counsel for the respondents in all Appeals and Mr. Vithaldas S. Bhandari, respondent no.3 in-person in S.A.No.566 of 2011, at length.

(2.) The question whether Section 6 of the Hindu Succession Act, 1956 (for short 'Principal Act') as amended by the Hindu Succession (Amendment) Act, 2005 (for short 'Amendment Act') is prospective or retrospective in operation, falls for consideration. Some of the learned counsel submitted that the said section is retrospective in operation while other learned counsel submitted that it is prospective in operation.

(3.) Mr. Anturkar submitted that the decision rendered by the Division Bench of this Court in the case of Vaishali Satish Ganorkar and Ors Vs. Satish Keshavrao Ganorkar and Ors, 2012 5 BCR 210 requires to be referred to a larger Bench as the said decision does not lay down correct Law. He submitted that the decision of this Court in the case of Vaishali Ganorkar cannot be said to be per incurium of the judgment delivered by the Apex Court in Ganduri Koteshwaramma and Ors Vs. Chakari Yanadi and Anr., 2011 9 SCC 788. The issue involved in Ganduri Koteshwaramma is entirely different from the issue involved in Vaishali Ganorkar. The issue in Ganduri Koteshwaramma was that after the preliminary decree was passed and before passing of the final decree, if any supervening circumstance has taken place (such as variation of the share necessitated on account of death of any coparcener, or on birth of any coparcener, or on account of the change in the law) then whether without requiring, the party who would be benefited by such change to file the appeal against the preliminary decree, can it be said that while passing the final decree cognizance is required to be taken, of such changes and consequentially whether there has to be variation in the shares allotted or is it necessary that an appeal has to be filed and without filing of the appeal no cognizance can be taken of such changes. As against this, the issue involved in Vaishali Ganorkar was that in case of a daughter, who is born before 9th Sept 2005 whether if her father, is alive on and after 9th September 2005 and therefore the succession has not opened, can it be said that until the succession opens on account of the demise of her father, no right in the coparcenary property devolved upon her .