Writ - praying to declare that explanation to Section 6 of the amendment Act of 39 of 2005, Explanation: for the purpose 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 as unconstitutional and the same is liable to be struck down and etc; -2015 KAR(2015) msklawreports
"(i) Whether Section 6 of the Hindu Succession Act, 1956, as amended by theAmendment Act, 2005 is prospective or retrospective in operation?(ii) Whether Section 6 of the Hindu Succession Act, 1956 as amended by theAmendment Act, 2005 applies to daughters born prior to 17.6.1956?(iii) Whether Section 6 of the Hindu Succession Act, 1956 as amended by theAmendment Act, 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005?(iv) Whether Section 6 of the Hindu Succession Act, 1956 as amended by theAmendment Act, 2005 applies only to daughters born after 9.9.2005?(v) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?"In addressing an argument that the Explanation to Section 6 clearly provides that partition means any partition made by execution of a deed duly registered under the Registration Act, 1908 or a partition effected by a decree of a Court and therefore, if an oral partition had taken place before 20.12.2004, such partition would not be saved either by the proviso to sub-section (1) or sub- section (5) of Section 6. And hence an oral partition effected of coparcenery property even if effected in the year 1957, would not be saved and therefore Section 6 must be held to be retrospective with effect from 17.6.1956, is met thus :
"45. Though the argument may prima facie appear to be attractive, it does not recognize the distinction between an oral partition or partition by unregistered document which is not followed by partition by metes and bounds on the one hand and oral partition or partition by unregistered document which was acted upon by physical partition of the properties by metes and bounds and entries made in the public record about such physical partition by entering the names of sharers as individual owner/s in the concerned public record, (such as records of the Municipal Corporation or the Property Registers maintained by the Government) on the other hand. It is only where an oral partition or partition by unregistered document is not followed by partition by metes and bounds, evidenced by entries in the public records that a daughter would be in a position to contend that the property still remains coparcenary property on the date of coming into force of the Amendment Act."This bench respectfully endorses the said view and hence it is not necessary to address the constitutional validity or otherwise of the provision as sought to be claimed by the petitioners.Further, the second prayer in the writ petition is again fully answered by the Full Bench of the Bombay High Court. Though, this bench is bound by the Division Bench judgment of this court in Pushpalatha. However, the persuasive value and the reasoning of the judgment of a Full Bench of the Bombay High Court with specific reference to Pushpalatha, can hardly be overlooked. In any event, if the petitioners should succeed on the strength of the oral partition set up, the second relief prayed for is not relevant to the petitioners. And as already stated, a Full bench of the Karnataka High Court having been seized of the very question, having deferred the hearing on the issue, pending the decision of the Apex Court on a challenge to the decision in Pushpalatha's case, the same is not addressed, independently.The petition stands disposed of.