P.Hemamalini vs K.Palani Malai

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 01.04.2021

DATE OF DECISION : 03.08.2021

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA AND THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

A.S.No.687 of 2018

P.Hemamalini .. Appellant

-vs-

1. K.Palani Malai 2. Raja alias Senthil Raja

3. City Union Bank rep.by its Branch Manager Jalakandapuram Branch Jalakandapuram, Mettur Taluk Salem District

4. Indian Oil Corporation rep.by its Manager Salem Branch Leigh Bazar Salem 636 002 .. Respondents Memorandum of Grounds of First Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated

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28.03.2018 made in O.S.No.181 of 2011 on the file of the Additional District (Fast Track) Court, Mettur.

For Appellant :: Shri N.Jothi for Mr.N.Manokaran

For Respondents :: Shri.R.Srinivas for Mr.S.Sithirai Anandam for R1 & R2 Mr.R.S.Varadharajan for R3 No appearance for R4

JUDGMENT

T.RAJA, J.

Mrs.P.Hemamalini, the unsuccessful plaintiff has brought this first

appeal, being aggrieved by the judgment and decree dated 28.03.2018

passed in O.S.No.181 of 2011 by the learned Additional District Judge,

Additional District (Fast Track) Court, Mettur.

2. Shri N.Jothi, learned counsel appearing for the appellant/plaintiff

pleaded that the appellant/plaintiff and the second respondent/second

defendant are the daughter and son of the first respondent/first defendant.

The appellant and the respondents 1 & 2 belong to Hindu Undivided

Family, wherein the first respondent is the Kartha and the appellant and the

second respondent are the coparceners and they have been in joint

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possession and enjoyment of the suit properties till date without any metes

and bounds. While so, the appellant/plaintiff got married on 6.6.2008. Even

after the marriage, the appellant was residing in her parents house till

September, 2011. Thereafter, she went and settled down at her matrimonial

house demanding her legitimate share in the suit properties. But the

respondents 1 & 2 have denied to partition the suit properties. Later on the

appellant came to know that the respondents 1 & 2, denying her request for

partition, have created some fake documents by suppressing the legitimate

share of the appellant to the properties, as though a partition had taken place

on 11.5.2001. Further the appellant came to know that in order to deceive

the appellant from getting her legitimate share in the suit properties, the

respondents 1 & 2 gave some portion of the suit properties as security to the

third respondent/City Union Bank and obtained loan for individual purpose.

Again the respondents 1 & 2 have also entered into an agreement with the

fourth respondent/Indian Oil Corporation for running a petrol bunk outlet in

a portion of the suit properties. Therefore, a legal notice was sent to the

respondents 1 & 2 on 13.10.2011 demanding partition and to allot the

legitimate share in the suit properties to the appellant. The respondents 1 &

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2 received the notice on 17.10.2011. Instead of partitioning the suit

properties, the second respondent alone sent a reply notice to the appellant

on 21.10.2011 alleging that the respondents 1 & 2 had already partitioned

the suit properties on 11.5.2001 and the appellant had released her right in

favour of the second respondent on 3.10.2011. Therefore, the suit was filed

in O.S.No.181 of 2011 before the Principal District Court, Salem, which

was transferred to the file of Additional District (Fast Track) Court, Mettur

praying for a judgment and decree directing the defendants 1 & 2 to divide

the suit properties into three equal shares by metes and bounds by taking

into consideration of good and bad soil and allot one such share to the

plaintiff and put her in separate possession, failing which to divide the suit

properties by appointing a Court Commissioner for the purpose of the said

partition and to declare the partition deed created by the defendants 1 & 2

on 11.5.2001 registered as Document No.1597 of 2001 in the

Jalagandapuram Sub Registrar office as null and void and also for a

permanent injunction restraining the defendants, their men, agents, servants

and others from alienating or encumbering the suit properties to anyone

until the partition is finally over.

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3. Replying to the same, the first respondent filed a detailed written

statement taking a stand that the suit was barred by limitation, because the

appellant, after getting married in the year 2008, left for her matrimonial

home; that she was not in joint possession and enjoyment of the suit

properties; that the suit properties had already been partitioned between the

family members of the first respondent in the year 1984 itself and that the

suit properties are not the ancestral properties as alleged by the appellant,

hence, the appellant is not entitled to one third share in the suit properties.

It was further explained in the written statement that in the year 1984 itself

the suit properties were allotted to the first respondent as 'C' schedule

properties through a registered partition deed among the first respondent

and his brothers, hence the suit properties are the absolute properties of the

first respondent. Therefore, it was pleaded that except the first respondent,

nobody has got any right or title over the properties and due to his old age,

the first respondent-Father has given away the other properties by way of

partition on 11.5.2001 in favour of the second respondent-Son and that the

second respondent has been in separate possession and enjoyment of his

share by paying kist to the said properties. Moreover, when the second

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respondent is having every right individually to obtain loan in respect of his

property, he entered into an agreement for running a petrol bunk through

Indian Oil Corporation and these facts are also known to the appellant.

However, after a lapse of ten years, the appellant is seeking a declaratory

relief against the registered partition deed, therefore, the partition suit is

barred by limitation. It was also further pleaded that the appellant was not

entitled to any relief against the respondents 1 & 2.

4. The second respondent also filed his detailed written statement

reiterating the pleadings made by the first respondent.

5. The third respondent-City Union Bank also filed its written

statement stating that the second respondent had obtained loan by pledging

the lands in Survey Nos.162/4 having an extent of 2.10 acre; 163/1 having

an extent of 0.62 cents; 162/7 having an extent of 0.42 cents; 162/8 having

an extent of 0.45 cents and 171/1A having an extent of 0.12 ½ cents at

Dhoramangalam Village. Moreover, the second respondent has also created

an equitable mortgage upon the properties and obtained a loan of Rs.10

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lakhs from the third respondent. Before sanctioning the loan, the documents

submitted by the second respondent were properly scrutinized and then only

the loan was sanctioned by the third respondent bank. The second

respondent has also produced a sworn affidavit dated 3.10.2011 executed by

the appellant in favour of the second respondent. The recital of the said

document would reveal that the appellant has ratified the partition deed

dated 11.5.2001, wherein she has consented that she would not claim any

right over the properties mentioned therein and that she had no objection for

the second respondent getting any loan from the bank based on the above

properties. Therefore, after executing such document, the appellant's claim

is unsustainable and she is estopped from making the claim.

6. The fourth respondent also filed its detailed written statement

stating that the suit was vexatious, because there is no cause of action for

the appellant to file the suit, hence, it is not legally maintainable. It was also

pleaded that the Indian Oil Corporation Limited is a Government of India

company incorporated under Section 617 of the Companies Act, 1956 and

being a public sector enterprise of the Government of India, it is engaged in

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the marketing of petroleum products through retail network. Since the

appellant has approached the Court with tainted and unclean hands, she is

not entitled to any relief.

7. Based on the above pleadings, the trial Court, after framing the

following seven issues,

(i) Whether the suit property is the ancestral property of the first defendant or ancestral and joint family property of plaintiff, defendant 1 and 2?

(ii)Whether the plaintiff, defendant 1 and 2 are in possession and enjoyment of the suit property or not?

(iii)Whether the second defendant fabricated a false forged release deed dated 3.10.2011?

(iv)Whether the plaintiff undervalued the suit property?

(v) Whether the first defendant purchased any portion of suit property from his brother Ponnusamy through a release deed?

(vi)Whether the plaintiff entitled for the relief claimed by her?

(vii)What is the result?,

answering all the issues against the appellant/plaintiff, dismissed the suit

holding that since the suit properties were already partitioned between the

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respondents 1 & 2/defendants 1 & 2 on 11.5.2001 before the Hindu

Succession (Amendment) Act, 2005 (39 of 2005) came into force on

9.9.2005 and that any partition that took place before the Amendment Act

39 of 2005 came into force being valid, there is no legal right for the

appellant/plaintiff to make her claim. Aggrieved thereby, the present first

appeal has been filed.

8. Shri N.Jothi, learned counsel appearing for the appellant has raised

several knotty legal issues of public importance. When the appellant

daughter in this case got married on 6.6.2008, admittedly, the suit properties

being ancestral, she is having equal right as a coparcener along with her

father and brother, the respondents 1 & 2, because Section 29-A was

inserted by the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of

1990) with effect from 25.3.89 conferring equal right on the unmarried

daughter in the ancestral properties, therefore, the appellant daughter is

entitled to get equal share by birth in the suit properties. Hence the partition

said to have taken place on 11.5.2001 under Ex.A1 between the respondents

1 & 2/father & brother is not binding on the appellant, because Section 29A

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of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990)

which came into effect from 25.3.89 has treated the daughters also as

coparceners along with sons, therefore, once the appellant is treated as a

coparcener by birth in the same manner as son, she is entitled to one third

share in the suit properties by virtue of Section 29-A of the State Act which

has been given retrospective effect. Shri Jothi also argued that the State

Legislature in their wisdom thought it fit to treat the daughters as

coparceners along with sons by introducing Section 29-A in the Hindu

Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) with effect

from 25.3.89 subject to two conditions, namely, that the daughter should

have remained unmarried as on 25.3.89 and no partition should have taken

place prior to 25.3.89. This amendment of Tamil Nadu also got the assent of

the President of India, as per Article 254(2) of the Constitution of India.

Whereas the Parliament had enacted a law by substituting the then existing

Section 6 of the Hindu Succession Act, 1956 by way of the Hindu

Succession (Amendment) Act, 2005 (39 of 2005) with effect from 9.9.2005,

subject to a rider that any alienation or partition or testamentary disposition

that had taken place before 20.12.2004 shall not be invalidated. But in the

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case on hand, the appellant having married on 6.6.2008 is entitled to claim

her share under Section 29-A of the Hindu Succession (Tamil Nadu

Amendment) Act, 1989 (1 of 1990). Since the respondents 1 & 2/father &

son have created a false partition deed under Ex.A1 dated 11.5.2001, the

same is not binding on the appellant. In addition thereto, Ex.A1 partition

deed is illegal and also null and void.

9. Drawing our attention to Article 254 of the Constitution of India,

Shri Jothi argued that the provisions of Article 254 are absolutely clear and

unambiguous. As per Article 254, when the provisions of the Central Act

and the State Act in the Concurrent List are fully inconsistent and they are

absolutely irreconcilable, the Central Act will prevail and the State Act will

become void in view of the repugnancy. However, the State law can be

protected by obtaining the assent of the President under Article 254(2). By

virtue of Article 254(2), after obtaining the assent of the President, the State

law will prevail in the State in spite of the provisions of the Central Act.

Such a situation may exist until the Parliament may at any time make a law

adding to, amending, varying or repealing the law so made by the State

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Legislature. But in the case on hand, Shri Jothi pleaded that a comparative

reading of Section 29-A of the Hindu Succession (Tamil Nadu Amendment)

Act, 1989 (1 of 1990) and Section 6 of the Hindu Succession (Amendment)

Act, 2005 (39 of 2005) would not give rise to any inconsistency between the

State Act and the Central Act. Explaining further as to the repugnancy, Shri

Jothi argued that to plead a case of repugnancy under Article 254, twin

requirements must be satisfied. Firstly, there has to be a repugnancy

between the Central and the State Acts. Secondly, the Presidential assent

has to be held as non existent. In an effort to bring the case of repugnancy,

both the legislations must be substantially on the same subject. Placing

reliance on a familiar Constitution Bench judgment of the Apex Court in

M.Karunanidhi v. Union of India, (1979) 3 SCC 431, it has been argued that

to bring the case of repugnancy, three conditions must be satisfied. They are

(i) that there is a clear and direct inconsistency between the Central Act and

the State Act; (ii) that such an inconsistency is absolutely irreconcilable;

(iii) that the inconsistency between the provisions of the two Acts is of such

a nature as to bring the two Acts into direct collision with each other and a

situation is reached where it is impossible to obey the one without

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disobeying the other. Although the Apex Court in the above judgment has

given the triple test, in view of the fact that there is no inconsistency

between the State law and the Central law, the question of repugnancy does

not arise. This has been completely overlooked by the trial Court. Article

254 can apply only when the State law is repugnant to the law enacted by

the Parliament, meaning thereby that the State law cannot co-exist to the

extent which is repugnant to the Central law, it is pleaded.

10. Again explaining further, Shri Jothi submitted that while

determining any question as to whether there exists any conflict, the real test

would be as to whether both the legislations can stand together. Now the

question is whether the State Amendment by inserting Section 29-A is

relatable to Entry 5 in List III. While so, if we apply the rule of pith and

substance, Section 29-A would still be valid, subject to the Parliamentary

enactment by virtue of the proviso to Section 254(2), for which the

statement of objects and reasons may be referred to. When the Constitution

has made a clear distinction between the making of law and the

commencement of a law in view of the plain language used in Article

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254(2), the State Act, namely, Section 29-A shall prevail over Section 6 of

the Central Act, 2005, because Section 29-A has not been declared as

invalid by any Court of law. Referring to the judgment of the Apex Court in

Vineeta Sharma v. Rakesh Sharma and others, (2020) 9 SCC 1 and drawing

our attention to paragraph-81, Shri Jothi argued that when a similar issue

came up for consideration before the Apex Court in Mangammal v.

T.B.Raju, (2018) 15 SCC 662, the Apex Court, while considering Section

29-A made in the State of Tamil Nadu, held that the State Government

enacted the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of

1990) making effective from 25.3.89 adding Section 29-A in the Hindu

Succession Act, 1956 specifically holding that Section 29-A is valid

regarding succession by survivorship. The Apex Court has also held in that

judgment that Section 29-A provided equal rights to daughters in

coparcenary property, therefore, when Section 29-A has been held valid, the

impugned judgment and decree passed by the trial Court are liable to be set

aside with a direction to give one third share of the suit properties to the

appellant/plaintiff.

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11. Again reiterating that Section 29-A of the State Act is valid, Shri

Jothi further argued that when the Central Amendment Act came into force

on 9.9.2005, the Parliament took note of various State Amendments into

consideration for the purpose of amending Section 6 of the Hindu

Succession Act, 1956. While amending Section 6 of the Hindu Succession

Act, Parliament has removed Sections 23 and 24 of the Act in toto, but very

carefully chose not to amend or repeal or vary or amend or delete Section

29-A of the Tamil Nadu Act 1 of 1990. That shows that Section 29-A was

allowed to stay in the field. Therefore, the findings given by the trial Court

that the suit properties were already partitioned on 11.5.2001 between the

respondents 1 & 2 before the Hindu Succession (Amendment) Act came

into force i.e., before 20.12.2004 is unsustainable in law. The proviso to

Article 254(2) naturally curtails the scope of clause (2) of Article 254 by

providing that the Parliament can enact a law with respect to the same

matter in which the State Legislature has made the law, it goes without

saying that the proviso to Article 254(2) enlarges the power of the

Parliament to add, amend, vary or repeal, whereas the Parliament has not

chosen to vary or amend Section 29-A when Section 6 was amended on

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9.9.2005. That shows that the effect and existence of Section 29-A of the

State Act has been well taken note of as recommended by the Law

Commission's report. Again placing reliance on the judgment of the Apex

Court in Vineeta Sharma's case, Shri Jothi argued that more than once a

similar issue of Section 29-A of the Tamil Nadu Act 1 of 1990 came up for

consideration before the Apex Court. When Section 29-A of the Andhra

Pradesh Amendment Act came up for consideration in S.Sai Reddy v.

S.Narayana Reddy, (1991) 3 SCC 647 before the Apex Court as to whether

the benefit of Section 29-A of the State Act can be extended even at the

stage of final decree, the Court was pleased to extend the benefit of the

amended Section 29-A to the pending matters even though the suit was laid

prior to 1986. When the intention of both the State and Central Acts are to

ensure that the daughters are not deprived of their right to obtain the share

on becoming coparceners, making a frivolous defence by fraudulently

creating a sham and nominal partition deed like Ex.A1 in the present case

should be eschewed by this Court, because the appellant cannot be deprived

of her right to equality conferred upon her by Section 29-A of the State Act.

Contending further, Shri Jothi heavily argued that the law makers keeping

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in mind the goal of reaching gender justice constitutionally envisaged to be

achieved, have enacted Section 29-A in the State of Tamil Nadu giving

equal rights to daughters by birth in the coparcenary property as the sons

have, similar to this social reforms, the State of Andhra Pradesh, Karnataka,

Maharashtra and Kerala have made necessary changes in the law giving

equal rights to daughters in Hindu Mitakshara Coparcenary property,

therefore, such a social reforms resulting gender justice required to be

espoused by this Court by reversing the impugned judgment. Therefore the

appellant/plaintiff/daughter cannot be deprived of her right of equality

conferred upon her by Section 29-A of the State Act.

12. Shri R.Srinivas, learned counsel appearing for the respondents 1

& 2/defendants 1 & 2, supporting the impugned judgment and decree

passed by the trial Court, urging this Court to dismiss the first appeal,

argued that the sole issue raised in this appeal is whether Section 6 of the

Hindu Succession (Amendment) Act, 2005 (39 of 2005) coming into force

from 9.9.2005 will apply or Section 29-A inserted in Chapter II-A by the

Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) coming

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into force from 25.3.89 will apply, to determine the entitlement of the

appellant regarding her share in the suit properties made in O.S.No.181 of

2011 before the trial Court. Since the Hindu Succession Act has been

enacted by the Indian Parliament relating to Entry 5 in List III Concurrent

List, there is a repugnancy between Section 6 of the Central Act 39 of 2005

and Section 29-A of the Tamil Nadu Amendment Act 1 of 1990 with regard

to the entitlement of a female coparcener. Section 29-A of the State Act

gives right of equality in ancestral property with effect from 25.3.89 with

two conditions, whereas Section 6 of the Central Act gives larger rights

from 9.9.2005 with one condition that no partition should have taken place

on and from 20.12.2004, therefore, as there has been a repugnancy, the

Central legislation will prevail over the State legislation, hence, Section

29-A inserted by the Tamil Nadu Amendment Act 1 of 1990 will become

void. Again pointing out the repugnancy so as to bring the operation of

substituted Section 6 of the Hindu Succession Act valid, it was argued that

Section 6 and Section 29-A broadly produce different results when applied

to the same facts, inasmuch when the appellant/plaintiff got married after

25.3.89 i.e., on 6.6.2008, if the substituted Section 6 of the Central Act is

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applied, the appellant/plaintiff will not be entitled to any share, as a

registered partition deed had taken place on 11.5.2001 under Ex.A1. Since

both Section 6 and Section 29-A produce different results when applied to

the facts and circumstances of the instant case, they are running repugnant

to each other, hence, they cannot go together in the same field. Referring to

the ratio laid down by the Apex Court in Zaverbhai Amaidas v. State of

Bombay, (1955) 1 SCR 799 and in Innoventive Industries Ltd., v. ICICI

Bank, CDJ 2017 SC 1013, he has pleaded that on a question arising from

Article 254(1), whether an Act of Parliament prevails against the law of the

State, if the subject matter of the State Legislation is identical with that of

the earlier Central legislation enacted in the Concurrent List, both cannot

stand together, if there is a repugnancy, as a result the Act of Parliament

prevails against the law of the State. Shri Srinivas has pleaded that when

the Tamil Nadu Amendment Act 1 of 1990 inserting Section 29-A in

Chapter II-A to the Hindu Succession Act came into force on 25.3.89 that

remained in force till 9.9.2005 when the Parliament substituted Section 6 by

the Hindu Succession (Amendment) Act 39 of 2005 on 9.9.2005, the

provisions of Section 29-A being repugnant to Section 6 of the Central Act,

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Section 29-A becomes void, inasmuch as Section 6 will prevail and

occupies the field and therefore anything inconsistent or repugnant to

Section 6 will become void. Shri Srinivas further stated that when the

present suit was filed in November, 2011 in O.S.No.181 of 2011, as the

provisions of the Tamil Nadu Amendment Act 1 of 1990 inserting Section

29-A are repugnant to the substituted Section 6 of the Hindu Succession

(Amendment) Act 39 of 2005 which came into force on 9.9.2005, it is only

Section 6 that will apply to the facts and circumstances of this case.

13. Replying to the contention made by the appellant's counsel that

Section 29-A of the State Act has been held as valid by the Apex Court in

Mangammal v. T.B.Raju, (2018) 15 SCC 662, Shri Srinivas, referring to the

ratio laid down by the Apex Court in Vineeta Sharma's case (2020) 9

SCC 1, pleaded that the three Judge Bench in the said decision, taking into

consideration the State amendments vis-a-vis the grant of coparcenary rights

to daughters effected by the States of Kerala, Andhra Pradesh, Karnataka

etc., finally held that the rights under the amendments are applicable to

living daughters of living coparceners as on 9.9.2005 irrespective of when

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such daughters are born, however, while holding so, the Apex Court also

has made it clear that the disposition or alienation including partition which

may have taken place before 20.12.2004 as per law prior to the said date

will remain unaffected. Again in the said judgment, the Apex Court has held

that any transaction of partition effected therefor will be governed by the

explanation. Therefore, when the Apex Court has clearly applied the

amendment to Section 6 of the Central Act holding that the rights under the

amendments are applicable to the living daughters of living coparceners as

on 9.9.2005 with a further clarification that any disposition or alienation

including partition which may have taken place before 20.12.2004 will

remain unaffected, it goes without saying that the substituted Section 6 of

the Hindu Succession (Amendment) Act 39 of 2005 which came into force

on 9.9.2005 will apply to determine the entitlement of the appellant

regarding her share in the suit properties. While so, the controversy between

Section 29-A and Section 6 was not in issue therein, therefore, the decision

in Mangammal's case is inapplicable to the present case.

14. Again answering the second contention made by the appellant that

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the inserted Section 29-A in Chapter II-A of the Hindu Succession Act by

the Tamil Nadu Amendment Act 1 of 1990 was held valid, refuting the

same, Shri Srinivas argued that the three-Judge Bench of the Apex Court in

Vineeta Sharma's case, in paragraph-139, overruling the views to the

contrary expressed in Prakash v. Phulavati, (2016) 2 SCC 36 and

Mangammal v. T.B.Raju, (2018) 15 SCC 662 and holding the opinion

expressed in Danamma v. Amar, (2018) 3 SCC 343 is partly overruled to the

extent it is contrary to this decision, has categorically held that the

provisions of the substituted Section 6 are required to be given full effect,

notwithstanding that a preliminary decree has been passed, because the

daughters are to be given share in coparcenary property equal to that of a

son in pending proceedings for final decree or in an appeal. Arguing

further, Shri Srinivas stated that when the judgment in Vineeta Sharma's

case has made it clear that Section 6 as substituted with effect from

9.9.2005 will have to be applied even in cases where preliminary decree has

been passed, the judgment in Vineeta Sharma's case fully holds good the

case of these respondents, therefore, Section 6 alone will prevail over

Section 29-A, for the simple reason that the Apex Court has held in the said

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judgment that the substituted Section 6 will apply retroactively Accordingly,

directions have been given to all Courts in India to apply the new

substituted Section 6 of the Hindu Succession (Amendment) Act, 2005 (39

of 2005) even to pending appeal. Therefore, in the present case also, he

pleaded that the substituted Section 6 has to be applied and not the inserted

Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989

(1 of 1990). Lastly meeting the arguments of the appellant that when the

Central Act came into effect from 9.9.2005, the Parliament took note of

various State enactments into consideration for the purpose of Section 6 of

the Hindu Succession Act, 1956 to remove the gender bias, more

importantly, the Parliament removed Sections 23 and 24 from the Hindu

Succession Act, 1956, but carefully chose not to amend or repeal or vary or

amend or delete Section 29-A of the State Act that shows the mind of the

law makers that both Acts can co-exist, therefore, Section 29-A shall be

allowed to exist; Shri Srinivas pressed into service a judgment of the Apex

Court in State of Orissa and another v. M/s M.A.Tulloch & Co., AIR 1964

SC 1284 answering the issue in this regard that the entire theory underlying

implied repeals is that there is no need for the later enactment to state in

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express terms that the earlier enactment has been repealed by using any

particular set of words if the legislative intent to supersede the earlier law is

manifested by the enactment of provisions as to effect such supersession,

hence, Section 29-A is impliedly repealed, resultantly Section 6 of the

Hindu Succession (Amendment) Act, 2005 will govern the present situation

and this legal aspect has been rightly followed by the trial Court, therefore

this appeal shall fail.

15. Heard learned counsel for the parties.

16. The appellant/plaintiff Mrs.P.Hemamalini, Daughter of

Mr.K.Palani Malai, the first respondent/first defendant and sister of Mr.Raja

alias Senthil Raja, the second respondent/second defendant has brought this

appeal aggrieved by the judgment and decree of the trial Court refusing her

prayer. The appellant has filed the suit in O.S.No.181 of 2011 before the

Principal District Court, Salem, which was transferred to the Additional

District (Fast Track) Court, Mettur, to divide the suit properties in three

equal shares, failing which to appoint a Court Commissioner for the said

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purpose of division, to declare the partition deed created by the defendants 1

& 2 dated 11.5.2001 as null and void and to grant permanent injunction

restraining the defendants, their men, agents, servants, executors or

assignees from alienating or encumbering the suit properties to any body

until the partition is finally made. According to the appellant, she got

married on 6.6.2008 and since the Tamil Nadu State Legislature has

introduced Section 29-A in Chapter II-A by the Hindu Succession (Tamil

Nadu Amendment) Act, 1989 (1 of 1990) with effect from 25.3.89

conferring equal rights to daughter in coparcenary property as is allotable to

a son, subject to fulfillment of two conditions that (a) the daughter should

have remained unmarried as on 25.3.89 and (b) no partition should have

taken place prior to 25.3.89, she is entitled to one third share in the ancestral

properties, as per Section 29-A of the Hindu Successsion (Tamil Nadu

Amendment) Act, 1989 (1 of 1990). But the respondents 1 & 2 have

refused to partition the properties on the false ground that the suit properties

were already partitioned by a registered partition deed dated 11.5.2001

under Ex.A1 and the recital of the partition deed would show that the

appellant has ratified the partition deed and consented that she would not

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claim any right in the aforementioned properties. Secondly, when the

marriage of the appellant was solemnized on 6.6.2008, the trial Court,

erroneously accepting the case of the respondents 1 & 2, ought not to have

dismissed the suit, overlooking Section 29-A of the Hindu Successsion

(Tamil Nadu Amendment) Act, 1989 (1 of 1990), holding that the proviso to

Section 6(1) of the Hindu Succession (Amendment) Act, 2005 (39 of 2005)

clearly speaks that any disposition or alienation including partition which

may have taken place before 20.12.2004 would remain unaffected.

17. One of the knotty legal issues involved in this appeal is whether

the substituted Section 6 of the Hindu Succession (Amendment) Act, 2005

(39 of 2005) brought in Chapter-II by the Parliament which came into force

with effect from 9.9.2005 or Section 29-A of the Hindu Succession (Tamil

Nadu Amendment) Act, 1989 (1 of 1990) brought in Chapter II-A by the

State Legislature which came into force with effect from 25.3.89 and

holding the field till 9.9.2005, will apply, to determine the entitlement of the

appellant/plaintiff regarding her one third share in the Hindu coparcenary

properties in O.S.No.181 of 2011 on the file of the Additional District (Fast

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Track) Court, Mettur. The appellant claims that Section 29-A of the Hindu

Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) shall be

applied, without reference to the substituted Section 6 of the Hindu

Succession (Amendment) Act, 2005 (39 of 2005). On the other hand, the

respondents 1 & 2 make a counter claim that only the substituted Section 6

of the Hindu Succession (Amendment) Act, 2005 shall be applied and not

Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989,

on the ground that when there is a repugnancy between these two Acts, the

Act enacted by the Parliament alone shall prevail over the Act enacted by

the State Legislature and that a repugnancy between two statutes would

arise if there is a direct conflict between the two provisions and if the law

made by the Parliament and the law made by the State Legislature occupy

the same field, namely, Concurrent List and clash with each other, the

Parliament Act will prevail over the State Act. In this regard, let us first

examine whether there is any repugnancy between the Section 29-A of the

Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) and the

substituted Section 6 of the Hindu Succession (Amendment) Act, 2005 (39

of 2005) in this case.

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18. Section 29-A of the Hindu Succession (Tamil Nadu Amendment)

Act, 1989 (1 of 1990) came into force with effect from 25.3.89 with two

conditions, namely, daughter should remain unmarried as on 25.3.89 and no

partition should have taken place prior to 25.3.89. The appellant in this case

got married on 6.6.2008, hence she makes her claim under Section 29-A.

Whereas the Parliament in the same subject has enacted a law substituting

Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005)

with effect from 9.9.2005 with one condition that the daughter is entitled to

have equal share in the Hindu coparcenary property like a son only if there

is no disposition or alienation including partition or testamentary

disposition of property had taken place before 20.12.2004. Now it is counter

claimed that the right given by the State Act has been taken away by the

Central Act by virtue of the proviso to Article 254 of the Constitution.

19. Let us now make a comparative analysis of both the provisions,

namely, Section 29-A of the State Act and Section 6 of the Central Act.

Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989

(1 of 1990), which came into force with effect from 25.3.89 is reproduced as

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follows:-

“S.29-A. Equal rights to daughter in coparcenary property. Notwithstanding anything contained in section 6 of this Act,--

(i) in a Joint Hindu Family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter:

Provided further that the share allotable to the pre- deceased child of a predeceased son or of a pre- deceased daughter, if such child had been alive at the

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time of the partition, shall be allotted to the child of such pre-deceased child of the predeceased son or of the pre-deceased daughter, as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary 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 will or other testamentary disposition;

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;

(v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.”

20. A careful reading of the above shows that Section 29-A was

brought in with effect from 25.3.89 with three vital aspects:-

(1) Notwithstanding anything contained in Section 6 of this Act i.e., as

on 25.3.89 (a) daughter of a coparcener shall by birth become a

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coparcener in her own right in the same manner as the son and have

the same rights in the coparcenary property like a son and (b) also

subject to the same liabilities and disabilities in respect thereto as the

son.

(2) A daughter married before the commencement of the Act-25.3.89

cannot claim anything under this Act.

(3) A daughter cannot claim any property if partition had taken place

before 25.3.89.

21. Whereas, Section 6 of the Hindu Succession (Amendment) Act,

2005 (39 of 2005) substituted with effect from 9.9.2005 is also reproduced

as follows:-

“S.6. Devolution of interest in coparcenary 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 coparcenary property as

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she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary 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 coparcenary 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 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 coparcenary property

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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 recognise any right to proceed against a son, grandson or great-

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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

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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.”

22. A careful reading of the above shows the following benefits:

(a) A daughter becomes a coparcener like a son by birth;

(b) she shall have the same equal rights in the coparcenary property like a son;

(c) a daughter is also subject to the same liabilities and disabilities in respect of the coparcenary properties;

(d) any partition taken place prior to 20.12.2004 shall not be affected;

(e) whether the daughter is married or unmarried;

(f) any partition by execution of a deed of partition duly registered;

(g) the Act lays down a uniform and comprehensive system of inheritance all over the country to every Hindu by religion.

23. After a comparative analysis of both the above provisions, if we

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apply Section 29-A by taking the marriage date 25.3.89 and the partition

date 25.3.89, the same will go repugnant to the cut off date 20.12.2004 fixed

by Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005),

because as per Section 29-A of the Hindu Succession (Tamil Nadu

Amendment) Act, 1989 (1 of 1990), if any partition has taken place prior to

25.3.89, such partition shall not be invalidated and any partition taking

place from 26.3.89 will be invalid, whereas when we apply Section 6 of the

Hindu Succession (Amendment) Act, 2005, the partition taking place from

26.3.89 till 20.12.2004 will not be invalidated or affected and they are saved

and protected. This huge repugnancy gives a direct collision with each other

resulting in a situation where it is impossible to obey the one without

disobeying the other. The second repugnancy is this. If a daughter is

married on or before 25.3.89, Section 29-A will disentitle her to have a

share, whereas Section 6 of the Hindu Succession (Amendment) Act, 2005

says that from the commencement of the Act, a daughter of a coparcener in

a joint family shall become a coparcener by birth and the disqualification of

getting married is obliterated, therefore, Section 29-A of the State Act is in

direct conflict with Section 6 of the Central Act 39 of 2005.

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24. Now the tricky question is in view of the above repugnancy,

whether Section 29-A will prevail over Section 6 of the Act or vice-versa.

The answer is clearly given in Article 254 of the Constitution of India that

when a law made by the State Legislature on a subject covered by the

Concurrent List is inconsistent with and repugnant to the previous law made

by Parliament, such law can be protected by obtaining the assent of the

President under Article 254(2). The effect of obtaining the assent of the

President would make the State law to prevail over the Central law in the

State. Such a situation will legally continue until the Parliament makes a

law adding to or amending, varying or repealing the law made by the State

Legislature under the proviso to Article 254(2).

25. When both the Parliament and the State Legislature are entitled to

legislate in the Concurrent List in regard to any of the Entries appearing in

Entry 5 of the List of Seventh Schedule of the Constitution and if there is

any overlapping leading to repugnancy as to which law made by the

Parliament or the State Legislature shall be enforced, in such event, the

question of repugnancy would arise. In this context, it is relevant to refer to

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a decision of the Constitution Bench of the Apex Court in M.Karunanidhi

v.Union of India, (1979) 3 SCC 431, wherein it is held that where there is a

direct collision between the law made by the State and that made by the

Parliament with respect to one of the matters enumerated in the Concurrent

List, then, subject to the provisions of clause (2), the State law would be

void to the extent of the repugnancy. The above judgment shows that

Parliament is empowered to legislate regarding the matters contained in List

I, which is called Union List to the Seventh Schedule and the State

Legislature have no authority to make any law in respect of Entries

contained in List I. Secondly, so far as the Concurrent List is concerned,

both the Parliament and the State Legislature are entitled to legislate in

regard to any of the Entries appearing therein. If there is any repugnancy

between the State law and the Central law, as per Article 254(1), the Central

law will prevail over the State law. So far as List II is concerned, only the

State Legislatures are entitled to legislate on them.

26. When we look at the scheme of the Constitution, the distribution

of legislative powers between the Parliament and the State Legislatures is

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scientifically made with equal distribution of legislative power.

26.1. Firstly, in List I to the Seventh Schedule, Parliament alone is

empowered to legislate, hence the State Legislatures have no authority to

make any law in respect of Entries contained in List I.

26.2. Secondly, so far as List II is concerned, the State Legislatures

alone are competent to legislate on them and only under certain conditions,

Parliament can do so.

26.3. Thirdly, so far as the Concurrent List is concerned, both the

Parliament and the State Legislatures are entitled to legislate in regard to

any of the Entries appearing therein, but that is subject to the conditions laid

down by Article 254(1).

26.4. From the above three Lists, repugnancy may occur from the

following circumstances. For example, if there is repugnancy between the

Central Act and the State Act arising only from the Concurrent List, by

virtue of Article 254(1), the Central Act will prevail and the State Act will

become void in view of the repugnancy.

26.5. If any law is made by the State Legislature in the Concurrent

List and the assent of the President is obtained so far as the State Act is

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concerned, it will prevail in the State and will overrule the Central Act in its

applicability to the State only. It is more important that such a state of

affairs will exist only until the Parliament may at any time make a law by

adding to or amending or varying or repealing the law made by the State

legislatures under the proviso to Article 254(2). It is also equally important

that even if the subsequent law made by the State Government clashes with

Central Act, Parliament need not expressly state that it repeals, alters or

amends the State law made under Article 254(2), because the subsequent

law made by the Parliament will prevail and the provisions of the State law

which are inconsistent/repugnant to the law made by the Parliament will to

the extent of such repugnancy be void. With this background of legal

position, let us go to the case on hand.

27. Shri Srinivas, learned counsel appearing for the respondents 1 &

2 argued that there is no necessity for the subsequent law of the Parliament

to state that the State enactment is repealed, as there is a legal fiction

embedded in Article 254, which says that when the State law becomes

repugnant to the Central law, it automatically becomes void, therefore, there

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is no need for the new Union law to specifically repeal the State law. In

support of his submissions, he has relied upon the judgment of the Apex

Court in Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752. The

Apex Court while reading Section 107(2) of the Government of India Act

and also referring to the power of the Dominion Legislature, Canada, in

relation to that of the Provincial Legislature, similar to that under Section

107(2) of the Government of India Act, observed as follows:-

“7. This is, in substance, a reproduction of section 107(2) of the Government of India Act, the concluding portion thereof being incorporated in a proviso with further additions. Discussing the nature of the power of the Dominion Legislature, Canada, in relation to that of the Provincial Legislature, in a situation similar to that under section 107(2) of the Government of India Act, it was observed by Lord Watson in “Attorney-General for Ontario v. Attornery-General for the Dominion”, 1896 AC 348(A), that though a law enacted by the Parliament of Canada and within its competence would override Provincial legislation covering the same field, the Dominion Parliament had no authority conferred upon it under the Constitution to enact a statute

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repealing directly any Provincial statute. That would appear to have been the position under section 107(2) of the Government of India Act with reference to the subjects mentioned in the Concurrent List.

Now, by the proviso to Article 254(2), the Constitution has enlarged the powers of Parliament, and under that proviso, Parliament can do what the Central Legislature could not under section 107(2) of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the State, when it relates to a matter mentioned in the Concurrent List. The position then is that under the Constitution Parliament can, acting under the proviso to Article 254, repeal a State law. But where it does not expressly do so, even then, the State law will be void under that provision if it conflicts with a later "law with respect to the same matter" that may be enacted by Parliament.” (emphasis applied)

28. The Apex Court in M/s Innoventive Industries Ltd., v. ICICI Bank

and another, CDJ 2017 SC 1013, has clearly picturized how the legal

position around the world is settled in regard to repugnancy arising between

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the State law and the Parliamentary law, as follows:-

“38....the Commonwealth of Australia Constitution Act of 1900, also enacted by the British Parliament, has a scheme by which Parliament, in Section 51, has power to make laws with respect to 39 stated matters. Under Section 52, Parliament, subject to the Constitution, has exclusive power to make laws only qua three subjects set out therein.

Section 109 of the Australian Constitution reads as under:

“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” B.N.Rau, J of the Calcutta High Court, delivering the judgment in

G.P.Stewart v. B.K.Roy Choudhury, AIR 1939 Cal 628, while considering

the meaning of 'repugnancy', after discussing the various authorities which

laid down the test of repugnancy in Australia, Canada and England,

concluded thus:-

“The principle deducible from the English cases, as from the Canadian cases, seems therefore to be the

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same as that enunciated by Isaacs, J. in the Australian 44 hour case (37 C.L.R. 466) if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law.” (emphasis supplied)

29. Doctrine of Pith and Substance: Coming to the doctrine of pith

and substance, the Constitution of India has demarcated the boundary

between the Centre and the States by way of the Seventh Schedule, which

specifies the subject matters by dividing the power to make laws between

them. List I or the Union List contains matters where the Centre has the

power to make laws viz., Defence, Foreign Affairs, Currency etc.

List II or the State List contains the subjects where the State has the

power to make laws viz., Public Order, Health, Sanitation etc.

List III or the Concurrent List contains subjects where both the Centre

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and the States have powers to legislate viz., Education, Forest,

Administration, Justice etc.

30. In spite of the limitation given, often conflict arises between the

State Law and the Central Law. When they are encroaching upon the sphere

of the other, to deal with the said conflict, the Courts in India have

developed a few Doctrines and the Doctrine of Pith and Substance is one

amongst them. This doctrine was evolved by the Privy Council, when it

determines the appeals from Canada or Australia involving the question of

legislative competence of the Centre or the States in those federations. Later

on this doctrine came to be established in India, not only to find out whether

the Parliament encroaches into the domain of State Legislature and vice-

versa, but also employed to resolve the inconsistencies between the laws

made by the Centre and the State Legislature. According to this doctrine,

the law in question must be looked into as an organic hold and not as a mere

collection of sections for determining the true nature and character of the

impugned law. For applying this doctrine, one must have regard (a) to the

enactment as a whole; (b) to its main objects and (c) to the scope and effect

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of this provision.

31. Taking support from the above doctrine, Shri Jothi argued that

when several Entries in List III to the Seventh Schedule are legislative

heads, it is quite likely that they may go overlapping. When such a situation

arises, the issue may be resolved by applying the doctrine of pith and

substance giving regard to the main object, the scope and effect of the

provision and the extant of the Act.

32. In the light of the above, we have to look at the law as a whole

and in substance whether it falls within the object of the Act. Coming to the

object of substituting Section 6 of the Hindu Succession Act, 1956 is

concerned, the statement of objects and reasons for introduction of the Bill

is relevant, which reads thus:-

“Statement of Objects and Reasons.--The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which

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were till then unknown in relation to women’s property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

2.Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by

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survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do.

The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

3. It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a

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dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on “Property Rights of Women: Proposed Reform under the Hindu Law”.

5. The Bill seeks to achieve the above objects.

NEW DELHI

16.12.2004.” (emphasis supplied)

33. The above statement of objects and reasons clearly states that the

Act lays down a uniform and comprehensive system of inheritance and

applies, inter alia, to persons governed by the Mitakshara and Dayabhaga

schools and also to those governed previously by the Murumakkattayam,

Aliyasantana and Nambudri laws, making it further clear that the Act

applies to every person who is a Hindu by religion in any of its forms or

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developments including a Virashaiva, a Lingayat or a follower of the

Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain

or Sikh by religion; or to any other person who is not a Muslim, Christian,

Parsi or Jew by religion. The statement of objects further states that when

the States of Andhra Pradesh, Tamil Nadu, Karnataka, Kerala and

Maharashtra have made necessary changes in the law giving equal right to

daughters in Hindu Mitakshara coparcenary property to remove the

discrimination as contained, the substituted Section 6 in the Hindu

Succession Act, 1956 is sought to be brought in. Since the Apex Court in

Vineeta Sharma's case, (2020) 9 SCC 1 has clearly held that this legislation

is retroactive, it has to be applied after 9.9.2005 to all women to claim a

share in the coparcenary property and even in pending proceedings. As

rightly held by the Apex Court in Prakash v. Phulavati, (2016) 2 SCC 36

holding clearly that the living daughters of living coparceners as on

9.9.2005 would be entitled to claim an equal share in the coparcenary

property like a son if there was no registered partition taken place before

20.12.2004, the fundamental right of equality guaranteed by the

Constitution has been given to women. When the intention of the lawmaker

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is very clear to bring a uniform law on property rights of women bringing a

huge reform in Hindu Law throughout India giving a share in coparcenary

property to women, whether married or unmarried, Section 6 of the Hindu

Succession (Amendment) Act, 2005 brought into force with effect from

9.9.2005 by Act 39 of 2005 will prevail over Section 29-A of the Hindu

Succession (Tamil Nadu Amendment) Act, 1989 which came into force

with effect from 25.3.89 by Tamil Nadu Act 1 of 1990.

34. Again the applicability of the doctrine of pith and substance in the

matters of Concurrent List came up for consideration before the Apex Court

in Vijay Kumar Sharma v. State of Karnataka, (1990) 2 SCC 562, wherein

the Apex Court held that the Doctrine of Pith and Substance is applicable

even to the matters in the Concurrent List in which both the Central and

State legislature have the power to legislate. But, when there is an

irreconcilable conflict between the two legislations, the Central Legislation

will prevail. The Apex Court further held as follows:-

“63. The Court has to examine in each case whether both the legislations or the relevant provisions therein occupy the same field with

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respect to one of the matters enumerated in the Concurrent List and whether there exists repugnance between the two laws. The emphasis laid by Article 254 is “with respect to that matter”. Clause (1) of Article 254 posits as a rule that in case of repugnancy or inconsistency between the State law and the Union law relating to the same matter in the Concurrent List occupying the same field, the Union law shall prevail and the State law will fail to the extent of the repugnancy or inconsistency whether the Union law is prior or later in point of time to the State law. To this general rule, an exception has been engrafted in clause (2) thereof, viz., provided the State law is reserved for consideration of the President and it has received his assent, and then it will prevail in that State notwithstanding its repugnancy or inconsistency with the Union law. This exception again is to be read subject to the proviso to clause (2) thereof, which empowers the Parliament to make law afresh or repeal or amend, modify or vary the repugnant State law which will become void even though it received President's assent. In short, clause (1) lays down a general rule; clause

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(2) is an exception to clause (1) and proviso qualifies that exception. The premise is that the law made by the Parliament is paramount and Union and State law must relate to the same subject matter in the Concurrent List. It is, thus, made clear that the Parliament can always, whether prior or subsequent to State law, make a law occupied by the State law. An absurd or an incongruous or irreconcilable result would emerge if two inconsistent laws or particular provisions in a statute, each of equal validity, could co-exist and operate in the same territory.” (emphasis supplied) The above judgment tells us that if the State law is found repugnant

to Central Act, the State Act will give way for the Central Act.

35. Can we save Section 29-A by applying Doctrine of Eclipse: An

eclipse situation is a situation which is temporary in nature. It means that a

superior Legislature, because of some reason, is given certain power which

it does not possess and for a brief period, and when that time is over, by

virtue of the doctrine of eclipse, the State Law that was eclipsed by the

operation of Central Act will come back to operation. That is called the

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doctrine of eclipse. For example, under Article 250, lets imagine an

emergency is declared either internally or externally, Parliament can

legislate on any subject and during the emergency, such Parliamentary Act

will have force and after the emergency is over, the State Law will come

back to force and will have full operation. Useful reference can be had from

one of our old judgments in Keshavan Madhava Menon v. State of Bombay,

AIR 1951 SC 128. Similarly, under Article 249, the Rajya Sabha can by

two-third of the members of the House present and voting that for a period

of one year, a particular subject in the State list can be availed of by the

Parliament. Accordingly, if the Parliament enacts any law, Article 251 says

that for the duration that parliamentary law is made, the State law will stand

eclipsed. However, after that one year period, the parliamentary law goes

out of the statute book and the State law will come back to force. But, this

eclipse theory cannot be applied to our case as Section 6 of the Hindu

Succession Act with more benefits than Section 29-A, will determine the

rights of parties all over the Country without any interruption.

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36. Our High Court Position: The Hon'ble Division Bench of our

High Court had an occasion to consider the effect of the provisions of the

Central Act, namely, Act 39 of 2005, in the case of Vijayalakshmi.P v.

P.Susheela and others, 2012 (5) LW 378, and clearly held that the Hindu

Succession (Amendment) Act 39 of 2005 is prospective in operation and if

the father had died prior to the coming into force of the said Act, i.e., on

9.9.2005, the benefit of the provisions of the said Act would not be

available to a daughter to claim equal share as that of a son. This has been

followed by Brother Justice M.Duraisamy in a reported decision in

Pugazhenthi and another v. Sundari Ammal and others, 2013 (2) CTC 160

and also by Justice P.R.Shivakumar in a reported decision in

Kamalakannan and others v. Kasthuri and another, 2013 (4) LW 193. These views were reiterated by the Apex Court in Prakash v. Phulavati,

(2016) 2 SCC 36. However, the Apex Court in two of its judgments in

Ganduri Kotteeswaramma v. Chakiri Yanadi, (2011) 9 SCC 788 and in

Prema v. Nanje Gowda, (2011) 6 SCC 462 has held that the provisions of

the 2005 Act are retrospective in operation. In Ganduri's case, the Apex

Court has held that the new Section 6 provides for parity of rights in the

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coparcenary property among male and female members of a joint Hindu

family on and from 9.9.2005. Thus, on and from 9.9.2005, the daughter is

entitled to a share in the ancestral property by birth and is a coparcener as if

she had been a son.

37. Again Justice A.Selvam, while considering a second appeal, in a

reported decision in Mariyammal and another v. Subbuthai and others,

2013 (4) LW 360, without even resorting to the proviso to Article 254(2) of

the Constitution of India, has held that Section 29-A of the Act 1 of 1990

would prevail in Tamil Nadu even after the introduction of the Act 39 of

2005 by the Union Government. Since the learned single Judge has omitted

to consider the proviso to Article 254(2) of the Constitution of India, we are

afraid that the said dictum may not be correct.

38. However, when there was a cleavage of opinion on the

retrospectivity of the amending Acts 1 of 1990 and 39 of 2005, a three-

Judge Bench of the Hon'ble Apex Court in Vineeta Sharma v. Rakesh

Sharma and others, (2020) 9 SCC 1, putting a quietus to the issue, has

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categorically held that the rights under the substituted Section 6 can be

claimed by daughter born prior to the amendment with effect from the date

of amendment (9.9.2005) with the saving of past transactions as provided in

the proviso to Section 6(1) read with Section 6(5) of the Hindu Succession

Act with two important findings that (a) notwithstanding that a preliminary

decree has been passed, the daughters are to be given share in coparcenary

property equal to that of a son in pending proceedings for final decree or in

an appeal and (b) that the plea of partition based on oral evidence cannot be

accepted and to be rejected outrightly.

39. Yet, it is apt to refer to a judgment of the three-Judge Bench of

the Hon'ble Apex Court in Pt.Rishikesh and another v. Salma Begum,

(1995) 4 SCC 718, wherein it has been held that if the Parliament enacts a

law on the same subject subsequent to the State law which has received the

assent of the President, rendering the State law repugnant to the Central

legislation, the State law would become void to the extent of inconsistency

and this could be rectified by the State concerned by re-enacting the law and

obtaining Presidential assent for the re-enacted law. The relevant portion of

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the judgment reads thus:-

“15. Clause (2) of Article 254 is an exception to Clause (1). If law made by the State Legislature is reserved for consideration and receives assent of the President though the State law is inconsistent with the Central Act, the law made by the Legislature of the State prevails over the Central Law and operates in that State as valid law. If Parliament amends the law, after the amendment made by the State Legislature has received the assent of the President, the earlier amendment made by the State legislature, if found inconsistent with the Central amended Law, both Central law and the State law cannot coexist without colliding with each other. Repugnancy thereby arises and to the extent of the repugnancy the State law becomes void under Article 254(1) unless the State Legislature again makes law reserved for the consideration of the President and received the assent of the President....”

40. If we apply the above principle in the present case, after Section 6

of the Hindu Succession (Amendment) Act, 2005 was brought in, since the

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State has not re-enacted the law and has not once again obtained the

Presidential assent for the re-enacted law, Section 6 of the Hindu

Succession (Amendment) Act, 2005 would alone prevail.

41. Very interestingly, after going into various provisions of the

Constitution of India, the Hon'ble Apex Court, in a seminal judgment in

G.Mohan Rao and others v. State of Tamil Nadu and others, 2021 SCC

Online SC 440, has laid down the law that if the Parliament amends the law,

after the amendment made by the State Legislature has received the assent

of the President, the earlier amendment made by the State Legislature, if

found inconsistent with the Central amended law, both the Central law and

the State Law cannot coexist without colliding with each other. Repugnancy

thereby arises and to the extent of the repugnancy, the State law becomes

void under Article 254(1), unless the State Legislature again makes law

reserved for the consideration of the President and receives the assent of the

President. The relevant paragraphs of the judgment read thus:-

46. Having understood the material basis of the High Court judgment and basic essence of the concept of repugnancy in light of Article 254, the

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fundamental question now is whether the 2019 Act qualifies as sufficient compliance of Article 254(2). For, Article 254(2) is the only mode of revival as per the High Court judgment.

47. Article 254(2) is produced again for ready reference thus:

“254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States. — (1) … (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:”

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(emphasis supplied)

48. The basic ingredients for the application of Article 254(2) can be noted thus:

(i) A law made by the legislature of the State (the 2019 Act in this case);

(ii) Such law is made on a subject falling in the concurrent list (Entry-42 of the Concurrent List in this case);

(iii) Such law is repugnant to the provisions of an earlier/existing law made by the Parliament (the 2013 Act in this case); and

(iv) The State law is reserved for the assent of the President and has received the same.

49. Upon fulfilment of the above conditions, such State law would prevail in the State despite there being a law made by the Parliament on the same subject and despite being repugnant thereto. The most peculiar feature of Article 254(2) is the recognition of existence of repugnancy between the law made by the Parliament and State law and rendering that repugnancy inconsequential upon procurement of Presidential assent. In this case, the

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State legislature duly passed the 2019 Act (State law) on a subject of the concurrent list in the presence of a law made by the Parliament (2013 Act) and obtained the assent of the President to the same on 02.12.2019 after duly placing the State law before the President and duly stating the reason for reserving it for his assent. A priori, we hold that this is in compliance of Article 254(2).

50. This understanding of Article 254(2) is well settled and reference can be usefully made to the following paragraph of Pt.Rishikesh 40:

“15. Clause (2) of Article 254 is an exception to clause (1). If law made by the State Legislature is reserved for consideration and receives assent of the President though the State law is inconsistent with the Central Act, the law made by the Legislature of the State prevails over the Central law and operates in that State as valid law. If Parliament amends the law, after the amendment made by the State Legislature has received the assent of

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the President, the earlier amendment made by the State Legislature, if found inconsistent with the Central amended law, both Central law and the State Law cannot coexist without colliding with each other. Repugnancy thereby arises and to the extent of the repugnancy the State law becomes void under Article 254(1) unless the State Legislature again makes law reserved for the consideration of the President and receives the assent of the President. Full Bench of the High Court held that since U.P. Act 57 of 1976 received the assent of the President on 30-12-1976, while the Central Act was assented on 9-9-1976, the U.P. Act made by the State Legislature, later in point of time it is a valid law.” (emphasis supplied) By virtue of the above ruling of the Apex Court, in the present case, after

the Parliament had brought in the amended Section 6, which goes

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inconsistent with Section 29-A of the State amendment, the State

Legislature have not made the law reserved for the consideration of the

President and not received the assent of the President until now, therefore,

this is not in compliance of Article 254(2). In similar circumstances, a

Constitution Bench of the Hon'ble Apex Court in Chebrolu Leela Prasad

Rao and others v. State of A.P. & others, 2020 SCC Online SC 383, while

dealing with the repugnancy between the notification issued by the

President and the order passed by the Governor, has held that the

Presidential order will prevail over the order issued by the Governor.

42. Supremacy of the Parliamentary Legislation: Article 11 says that

only Parliament alone can regulate the rights of citizenship by law, that

means that the State cannot have that power. Article 13(2) directs the States

that they shall not make any law which takes away or abridges the rights

conferred by Part III of the Constitution and if they do so, they shall be

void. Articles 249, 250, 251 of the Constitution consistently state that the

State law will stand repealed when the Parliamentary law comes to occupy

the field. Article 245, while demarcating the legislative powers between the

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Parliament and the States, says that Parliament may make laws for the

whole or any part of the territory of India and the Legislature of a State may

make laws for the whole or any part of the State. Article 245(2) says that

Parliament may make laws that would operate even outside India.

43. Article 246 deals with the residuary power, which says that all

matters that are not enumerated in List II and List III can be dealt with by

the Parliament, that would show that the Parliament stands taller than the

State. Similarly, Article 249 says that the Rajya Sabha, by two-thirds of

the members present and voting, can pass a resolution with respect to a

particular subject in the State List, which shall be valid for a period of one

year, during that period the State Law will stand eclipsed and after the

period of one year, the State Law will be revived.

44. By virtue of Article 250, if Emergency is declared internally or

externally, Parliament can legislate on any subject including Police,

therefore, the same position of eclipse occurs so far as such Parliamentary

law is concerned. Moving to Article 251, this Article also says that

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nothing in Articles 249 and 250 shall restrict the power of the Legislature

of a State to make any law wherein it has power to make, but if any

provision of a law made by the Legislature of a State is repugnant to

any provision of a law made by Parliament, the law made by Parliament,

shall prevail and the law made by the Legislature of the State shall to the

extent of the repugnancy be inoperative. Again this shows that the

Parliament stands on a higher footing than the State. All the Articles

mentioned above clearly show that nowhere the State Legislature or the

State law is taller than the Central law, more particularly, when there is an

actual clash between these two legislations, the State must give way.

Therefore, looking at the case of the appellant from various angles, Section

6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) which

came into effect from 9.9.2005, as per the settled legal position in India,

will prevail over Section 29-A of the Hindu Succession (Tamil Nadu

Amendment) Act, 1989 (1 of 1990).

45. Yet another argument of Shri Jothi that the amendment brought

under Section 29-A of the Hindu Succession Act, 1956 in the States of

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Andhra Pradesh, Karnataka, Kerala, Maharashtra and particularly in the

State of Tamil Nadu were taken as a guiding force for enacting Section 6 to

remove gender bias and moreover, the Parliament had voluntarily removed

Sections 23 & 24 from the Hindu Succession Act, 1956, therefore,

cautiously the law makers chose not to amend, repeal or vary Section 29-A

of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, are not

sustainable in law, for the following reasons.

46. First of all, let us examine what is the legal status in the State of

Karnataka. In Danamma's case, (2018) 3 SCC 343, the Apex Court, after

considering the historical analysis of Hindu law and the concept of joint

Hindu family, held that an unobstructed heritage takes place by birth while

the obstructed heritage takes place after the death of the owner. Under

Section 6, rights are given by birth which is an unobstructed heritage,

independent of the owner's death, therefore, the coparcenary father need not

be alive on the date of substitution of Section 6. Again the Apex Court has

held that the provisions of Section 6 are retroactive in nature and not

retrospective, as even though the right of coparcener accrues to the daughter

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by birth. Therefore, in Danamma's case, Gurulingappa Savadi being the

head of Hindu joint family died in 2001, hence, in 2002, his grandson

brought a suit to partition the family property on the ground that

Mr.Savadi's widow and two sons were co-owners of the property upon

Mr.Savadi's death. This Karnataka case does not deal with the repugnancy

part of Section 29-A of the Karnataka Act and Section 6 of the Hindu

Succession (Amendment) Act, 2005. Moreover, the suit for partition was

filed in the year 2002. During the pendency of the suit, the aforementioned

amendment came into force. As the partition decree was awarded by the

trial Court only in the year 2007, the rights of the parties became

crystallized in the year 2005, hence, the issue should have been considered

by the lower Court. It was pleaded that though Mr.Gurulingappa Savadi

was the head of the Hindu joint family, after his death in the year 2001, in

the year 2002, his grandson filed a suit for partition alleging that only

Mr.Savadi's widow and two sons were co-owners of the property upon

Mr.Savadi's death. The suit further asserted that Mr.Savadi's two married

daughters were not entitled to any share in the property, since they were

born prior to the Hindu Succession Act, hence, they could not be treated as

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coparceners. The trial Court agreed that the daughters had no right to a

partition of the family property and rejected their contention. With the

passage of the Hindu Succession (Amendment) Act, 2005 that the daughters

are entitled to an equal share in the property, the daughters appealed. The

Apex Court, on 1st February, 2018, reversing the lower Court's ruling, held

that Section 6 of the Hindu Succession (Amendment) Act, 2005, which

came into force with effect from 9.9.2005, settled the matter in favour of the

appellants. This decision clarifies the legal position that the daughters now

have the same right as sons with respect to commonly owned property

partitioned after the amendment of the Act regardless of when they were

born, but not under the State Act. In that case also, the repugnancy

between Section 29-A and Section 6 was never raised.

47. In Mangammal's case, (2018) 15 SCC 662 also, the repugnancy

between Section 29-A and Section 6 was not in issue. When a suit in

O.S.No.202 of 2003 praying for partition and separate possession of the

suit properties was instituted, the trial Court, in its judgment dated

28.9.2004, dismissed the suit holding that they are not entitled to any

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partition. The appeal filed to the District Judge, Udhagamandalam was also

dismissed vide judgment dated 14.12.2005 upholding the decision of the

trial Court. Feeling aggrieved, the appellants preferred second appeal being

No.780 of 2006 before this Court. The learned single Judge vide judgment

dated 18.9.2006 dismissed the appeal at the admission stage itself.

Consequently, the matter went up to the Supreme Court by Special Leave.

The Apex Court held that any property inherited upto four generations of

male lineage from the father, father's father or father's father's father, i.e.,

father, grandfather etc., is termed as an ancestral property. In other words,

the property inherited from mother, grandmother, uncle and even brother is

not an ancestral property. In ancestral property, the right of property

accrues to the coparcener by birth. The State of Tamil Nadu, in order to

give legal position to the families in ancestral property, have enacted the

Hindu Succession (Tamil Nadu Amendment) Act, 1989, which came into

force with effect from 25.3.89, by adding Section 29-A. It was held that

Mangammal got married in the year 1981 and Indira got married in or about

in 1984, namely, prior to the commencement of the 1989 amendment.

Therefore, in view of clause (iv) of Section 29-A of the Hindu Succession

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(Tamil Nadu Amendment) Act, 1989, the appellants could not institute the

suit for partition and separate possession at first instance, as they were not

the coparceners. Moreover, while dealing with Section 29-A of the Act

where the Legislature has used the words “ the daughter of a coparcener”, it

was held that both the coparcener as well as the daughter should be alive to

reap the benefit of this provision at the time of commencement of 1989, i.e.,

only living daughters of living coparceners would be entitled to claim a

share in the ancestral property. Here also, repugnancy between these two

provisions was not the lis.

48. Coming to the State of Andhra Pradesh, in the case of S.Sai

Reddy v. Narayana Reddy (1991) 3 SCC 647, all the Courts have dealt with

only the rights conferred under Section 29-A of the State Act and did not

deal with the repugnancy against Section 6 of the Hindu Succession

(Amendment) Act, 2005. The trial Court's judgment was dated 24.8.89. The

High Court's judgment was on 2.2.90 and the Supreme Court, confirming

the High Court's judgment on 18.1.91, had no occasion to deal with Section

6 of the Hindu Succession (Amendment) Act, 2005 in that case, because

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with effect from 9.9.2005. Therefore, this case is also not applicable. When

no other High Court or the Supreme Court has ever held that the State

Amendment of Section 29-A would prevail over Section 6 of the Hindu

Succession (Amendment) Act, 2005 and on the other hand, in the State of

Karnataka, in the case of Danamma and in the case of Vineeta Sharma, the

Supreme Court has applied Section 6 of the Hindu Succession

(Amendment) Act, 2005, it goes without saying that Section 29-A of the

State Amendment has to give way to Section 6 of the Central Act.

49. Further, Article 254(1) of the Constitution says that when there is

a direct collision between the law made by the State and that made by the

Parliament with respect to one of the matters enumerated in the Concurrent

List, then, subject to the provisions of clause (2), the State law would be

void to the extent of the repugnancy. As per Article 254(2), if any law is

made by the State Legislature in the Concurrent List and the assent of the

President is obtained, the State law would prevail in the State and will

overrule the Central Act. However, the proviso to Article 254(2) makes it

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clear that such a state of affairs will exist only until the Parliament may at

any time make a law by adding to or amending or varying or repealing the

law made by the State Legislatures. Since the Constitution Bench of the

Supreme Court in State of Orissa and another v. M/s M.A.Tulloch & Co.,

AIR 1964 SC 1284 has settled the issue, repelling Shri Jothi's contention

that as the Parliament has not added or amended or varied or repealed the

law made by the State Legislature under Section 29-A, Section 29-A would

prevail over the Central Act and answering clearly that there is no need for

the later enactment to state in express terms that an earlier enactment has

been repealed by using any particular set of words or form of drafting, it

goes without saying that every later enactment supersedes an earlier one.

50. Doctrine of Harmonious Construction: To make both the

provisions to co-exist in the State, it is a cardinal rule of construction that

when there are two provisions of the same law conflicting with each other,

then both of them cannot stand together, they should possibly be so

interpreted that effect can be given to both and that construction which

renders either of them inoperative and useless should not be adopted except

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as a last resort.

50.1. For example, in one Hindu family, if there are two daughters

and if one daughter Ms.Lakshmi remained unmarried on 25.3.89 and that

there was no dispossession or alienation of any property till 25.3.89, then

the Ms.Lakshmi gets equal share like a son by virtue of Section 29-A. If the

other daughter remained married on 25.3.89, she will not get equal share

like a son by birth, when we apply Section 29-A of the Tamil Nadu

Amendment Act, whereas if we apply Section 6, both daughters, no matter

whether they are married or unmarried, will get equal share by mere birth, if

there is no partition taken place before 20.12.2004.

50.2. Again another illustration also will say that the Harmonious

Rule will have no help. In a Hindu family, there are two sons viz., Mr.Balaji

and Mr.Tirupathi. Now lets presume that Mr.Balaji marries Ms.Lakshmi

hailing from a Hindu family in Tamil Nadu after 26.3.89, if she remained

unmarried on 25.3.89 and no alienation has taken place till 25.3.89, she will

get a share in the ancestral property, by virtue of Section 29-A of the Hindu

Succession (Tamil Nadu Amendment) Act. Whereas if she remained

married on 25.3.89, she will lose, again if there is any partition taken place

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on 25.3.89, she will lose. Whereas in the same family, another son

Mr.Tirupathi marries Ms.Sonia, a Hindu woman from Punjab, she will get a

share in the family ancestral property, by virtue of Section 6, no matter

whether she remained married on 25.3.89 or not. Besides, if there is any

partition taken place on 25.3.89 or not also, she will get a share under

Section 6 of the Hindu Succession (Amendment) Act, 2005, as it says that a

daughter by birth gets her right. In addition thereto, unlike unregistered

partition in Section 29-A, there shall be a registered partition under Section

6. The above illustrations clearly shows that in one Hindu family, if

Mrs.Lakshmi had to lose her coparcenary right of share in ancestral property

on account of her marriage on 25.3.89, which is a legal bar imposed by

Section 29-A, such disqualification is not imposed by Section 6. Secondly,

Section 29-A approved unregistered partition, whereas Section 6 recognizes

only registered partition. Thirdly, Section 6 lays down a uniform and

comprehensive system of inheritance all over the country to every Hindu by

religion.

50.3. Therefore, the above illustration vividly shows that the

argument of Shri Jothi whether both legislations can be allowed to co-exist

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clearly suffers a legal infirmity, even if we apply the Doctrine of

Harmonious Construction. Hence, even if the State Government makes law

reserved for consideration of the President, such a State Law may not

receive the assent of the President in view of the incurable repugnancy

illustrated as above.

51. Conclusions: Finally, in the light of the above settled legal

position, if we apply Section 29-A of the Hindu Succession (Tamil Nadu

Amendment) Act, 1989 (1 of 1990), Hindu women in the State of Tamil

Nadu would be facing inequality with regard to inheriting rights of

coparcenary property, more importantly, the judgment of the three-Judge

Bench of the Apex Court in Vineeta Sharma's case ruling that the

provisions of the substituted Section 6 of the Hindu Succession

(Amendment) Act, 2005 are required to be given full effect, also has a

binding force, therefore, the appellant/plaintiff Mrs.P.Hemamalini will not

be entitled to a share in the suit properties, as the registered partition

between the respondents 1 & 2 has been effected before the cut-off date

20.12.2004 i.e., on 11.5.2001 i.e., before the Hindu Succession

(Amendment) Act came into force. Hence, we hold that the trial Court has

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rightly dismissed the suit. Accordingly, confirming the impugned judgment

and decree, the first appeal fails and it is dismissed. However, there is no

order as to costs.

Speaking order (T.R.,J.) (G.C.S., J.) Index : yes 03.08.2021

ss

To

1. The Additional District Judge (Fast Track Court) Mettur

2. The Branch Manager City Union Bank Jalakandapuram Branch Jalakandapuram, Mettur Taluk Salem District

3. The Manager Indian Oil Corporation Ltd., Salem Branch Leigh Bazar Salem 636 002

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T.RAJA, J. and G.CHANDRASEKHARAN, J.

ss

Judgment in A.S.No.687 of 2018

03.08.2021

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