GIST OF THE HIGH COURT OF KARNATAKA REPORTED IN SEPTEMBER ILR 2009.
HINDU SUCCESSION(AMENDMENT ) ACT, 2005- sec 6(1)9c)-proviso to sec 6(1)©-Right of a daughter of a Co-Parcener property to question any disposition or alienation of co-parcenar property prior to 20-12-2004- HELD, The 2005 Act having come into force with effect from 9/9/2005 if dispositions and alienations between 21/12/2004 and 9/9/2005 can be questioned, by implication, there is no rational basis to restrict the right of daughter when the avowed object of the legislation is to create equal rights as between a daughter and a son of co-parcener. Even if it can be accepted that the apparent object to so restrict the right was in order to prevent litigation and to prevent settled positions from being disturbed. The same analogy ought to apply to suits that are brought by the sons of a co-parcener. The inconvenience and hardship would be no different-FURTHER HELD, if it is to be justified on the ground that any alienations or other disposition has taken place with the legal position, as it stood prior to the amendment, in view and therefore ought be saved, the result is that partition that could otherwise be re-opened to address the claim of a daughter, with little or no legal complication, is denied unreasonably. Similarly an alienation in respect of which the co-parceners can be held to account for, in conferring the daughter her due is also immunized from challenge, to the unjustified disadvantage of the daughter.- The possibility of lapse of time or other intervening circumstances, being such that the determination of the share of a daughter being rendered obscure or beyond redemption on account of any alienation or disposition prior to 20/12/2004-is necessarily a question of fact depending on the circumstances or a given case. There is no justification for the prescripttion of a cut-off date or a blanket ban on a daughter in enabling her to claim her due. Hence the proviso to sec 6(1)© of act 39 of 2005 is irrational and has no nexus with the object of the act and on the other hand would nullify its declared object.
