SC JUDGEMENT ON HSA-12-10-2011

 14. The new Section 6 provides for parity of rights in the

coparcenary property among male and female members of a joint

Hindu family on and from September 9, 2005. The Legislature has

now conferred substantive right in favour of the daughters. According

to the new Section 6, the daughter of a coparcener becomes a

coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the

coparcenary property as she would have been a son is unambiguous

and unequivocal. Thus, on and from September 9, 2005, the daughter

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

she had been a son.

15. The right accrued to a daughter in the property of a joint

Hindu family governed by the Mitakshara Law, by virtue of the 2005

Amendment Act, is absolute, except in the circumstances provided in

the proviso appended to sub-section (1) of Section 6. The excepted

categories to which new Section 6 of the 1956 Act is not applicable

are two, namely, (i) where the disposition or alienation including any

partition has taken place before December 20, 2004; and (ii) where

testamentary disposition of property has been made before

December 20, 2004. Sub- section (5) of Section 6 leaves no room for

doubt as it provides that this Section shall not apply to the partition

which has been effected before December 20, 2004. For the

purposes of new Section 6 it is explained that `partition’ means any

partition made by execution of a deed of partition duly registered

under the Registration Act 1908 or partition effected by a decree of a

court. In light of a clear provision contained in the Explanation

appended to sub-section (5) of Section 6, for determining the nonapplicability of the Section, what is relevant is to find out whether the

partition has been effected before December 20, 2004 by deed of

partition duly registered under the Registration Act, 1908 or by a

decree of a court. In the backdrop of the above legal position with

reference to Section 6 brought in the 1956 Act by the 2005

Amendment Act, the question that we have to answer is as to

whether the preliminary decree passed by the trial court on March 19,

1999 and amended on September 27, 2003 deprives the appellants

of the benefits of 2005 Amendment Act although final decree for

partition has not yet been passed.