The Hon’ble Supreme Court decided on
the matter whether Hindu Succession (Amendment) Act, 2005 will have
retrospective effect. The Hon’ble Court held that an amended of a substantive
provision is always prospective.
The following are most important declarations
from the decision of the Hon’ble Supreme Court in Prakash Vs Phulavath, which affect the right of a daughter in respect of the property:
1. The rights under the amendment are applicable
to living daughters of living coparceners as on 9th September, 2005
irrespective of when such daughters are born.
2. Partitions effected before 20th
December, 2004 remain unaffected. The partition means a partition made by
registered deed or effected by decree of a Court. In any case statutory notational
partition remains valid and effective.
3. An amendment of a substantive provision is
always prospective unless either expressly or by necessary intendment it is
retrospective.
4. Birth of the daughter after the amendment is
not necessary, all that is required is that daughter should be alive and her
father also is alive on the date of the amendment.
5. If the father had died prior to the
commencement of the amendment (here, father self earned property died intestate)
the amendment provision will not apply.
Prepared
by: S. Hemanth
Advocate
at Hemanth
& Associates
