ORDER
Anand Byrareddy, J.
1. Thin writ petition is filed seeking to challenge the constitutional validity of the Proviso to Section 6(1)(c) of the Hindu Succession Amendment Act, 2005 (Act 39 of 2005).
2. The background to the petition is ay follows:
The petitioner aged about 36 is the unmarried daughter of One Doddanunaiah Reddy and they are Hindus. The lather, Duddarmaiah Reddy is alive. The petitioner has filed a civil suit in OS.S.3104/2007 before the City Civil Court, Bangalore. The suit is for partition and separate possession of joint family properties. The suit is pending as on dale. The plaintiff has called in question certain sale deeds executed in respect of the suit properties as not binding on her.
Having regard to the Proviso to Section 6(1)(c) of the Hindu Succession Amendment Act under Act 39 of 2005, the trial court was inclined to dismiss the suit as not maintainable. It was at that stage that the present writ petition is filed questioning the constitutional validity of the Proviso to Section 6(1)(c) of Hindu Succession Amendment Act, 2005.
The respondents, namely, the Union of India and the State of Karnataka having been served, and though are represented by Counsel, have not chosen to file statement of objections nor meet the contentions of the Counsel for the petitioner in spile of the matter having been adjourned on several occasions to enable the parties to do so.
3. The Counsel for the petitioner was heard at length.
It is contended that the object of the Hindu Succession Amendment Act, 2005 is to bring equality in the matter of partition of joint family properties among Hindus by treating the daughters as co-parceners, which is aimed at the constitutional goal of equality, without discrimination in the matter of partition, on the basis of sex.
It is contended that the Proviso to Section 6(1) lays down dial notwithstanding the amendment, any disposition, alienation, including any partition, or testamentary disposition of properly which had taken place before the 20th December 2004, would not be affected or invalidated. In other words, any such alienations or disposition prior to 20th December 2004, are saved as against the right of a daughter of a co-parcener. It is urged that the petitioner was entitled to an equal right in the joint family properly under Section 6-A of the Hindu Succession (Karnataka Amendment) Act, 1994 (Act 23 of 1994). The said amendment, which came into effect from 30.7.1994, conferred a right on the petitioner under the Karnataka Amendment which has been taken away by virtue of the Central Amendment (Act 39 of 2005). It is contended that a right which had accrued could not be taken away by substitution of the Karnataka Amendment Act. Further, the Proviso to Section 6(1) of Act 39 of 2005, is not retrospective. There are no reasons assigned in the Statement of Objects and Reasons preceding the Amendment Act 39 of 2005 in providing such a cut-off date. There is no indication as to the consequence of a prior State amendment Act, resulting in rights having accrued to a daughter under the State Amendment Act. The Proviso is arbitrary and unconstitutional, for it discriminates between a son and a daughter, for it is open to a son to question alienations and dispositions prior to the 20th December 2004, whereas a restriction is placed on the daughter's right to question the same.
The Counsel would submit that the restriction placed under the Proviso would also run counter to Section 14 of the Hindu Succession Act, 1956, which if read with die main Section 6, would provide an unlettered right by birth, which cannot be whittled down us the specious reasoning that settled matters ought not to be unsettled when the very same reasoning does not appear to apply to sons in respect of properly.
4. The Counsel for the petitioner would submit that ia a decision of this Court in Sugalabai v. Gundappa A. Maradi and Ors. : ILR 2007 Kar. 4790, it has bum held that Section 6-A(d) of the Karnataka Amendment Act, 1990 is repugnant to the Central Act 39 of 2005, as a result of substitution of Section 6 by a latter Act and it has also been held that all pending matters would necessarily have to be considered in the light of Central Act 39 of 2005.
The Counsel for the petitioner would also draw attention to a Division Bench decision in Nanjamma and Anr. v. State of Karnataka and Ors. : 1999 (2) Kar.LJ 109, wherein Clause (d) of Section 6-A of the Hindu Succession (Karnataka Amendment) Act, 1990, was called in question as being unconstitutional and violative of Article 14 of the Constitution. The said Clause having made a classification between married daughters namely, daughters married prior to the commencement of the Amendment Act, were deprived of the right to claim a share in property, as was available to an unmarried daughter or a daughter married after the enforcement of the Act. It was held that the object of excluding the married daughters and the cases of partition already effected from the application of the Act, appears to be reasonable and intended to avoid reopening of the partition, which were effected in the family. And that there was a definite nexus between the classifications made and the object sought to be achieved by providing Clause (d) of Section 6-A of the Act.
The Counsel, however, would submit that the ratio of that decision ought not to feller the entertainment of the present petition as the ground of challenge cannot be said to be identical.
5. The Hindu Succession Act, 1956 dealing with intestate succession among Hindus came into force on 17th June, 1956. This Act brought about changes in the law of succession and gave rights which were hitherto unknown, in relation to a woman's properly. However, it did not interfere with the special rights of those who are members of a Mitakshara co-parcenary except to provide rules for devolution of the interest of a deceased in certain cases. The Act laid down a uniform and comprehensive system of inheritance and applied, inter-alia, to persons governed by Mitakshara and Dayabhaga Schools as also to those in certain parts o southern India who were previously governed by the Murumakkaltayara, Aliyasanlana and Nambudri Systems. The Act applies to any 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 Prarthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; to any oilier person who is not a Muslim, Chiristian, Parsi or Jew by religion as per Section 2. In the case of a testamentary disposition this Act does not apply and (he interest of the deceased is governed by the Indian Succession Act, 1925.
Section 4 of the Act is of importance and gives overriding effect to the provisions of the Act abrogating thereby all the rules of the Law of succession hitherto applicable to Hindus whether by virtue of any text or rule of Hindu law or any custom or usage having the force of laws, in respect of all matters dealt with in the Act. The Act reformed the Hindu personal law and gave a woman greater property rights, allowing her full ownership rights instead of limited rights in the property she inherits under Section 14 with a fresh stock of heirs under Sections 15 and 16 of the Act. The daughters were also granted property rights in their lather's estate. In the matter of succession to the property of a Hindu male dying intestate, the Act lays down a set of general rules in Section 8 to 13.
Before the present amendment Section 6 providing for devolution of interest in properly was as follows:
6. Devolution of Interest in co-parcenary property - When a male Hindi) dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara property, his interest in the property shall devolve by survivorship upon the surviving members of the and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1. - For the purposes of this Section, the interest of a Hindu Mitakshara co-parcener 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.
Explanation 2. - Nothing contained in the proviso to his Section shall he construed as enabling a person who has separated himself from the before the death of a deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
Before the commencement of the Act, codifying the rules of succession, the concept of a Hindu family under Mitakshara School of law was that it was ordinarily joint not only in estate but in religious matters as well, properly, in contradistinction with the absolute or separate properly of any individual co-parcener, devolved upon surviving co-parceners in die family, according to the rule of devolution by survivorship.
Section 6 dealing with the devolution of the interest of a male Hindu in properly and while recognising the rule of devolution by survivorship among the members of the coparcenary, made an exception to the rule in the proviso. According to the proviso, if the deceased had left him surviving a female relative specified in Class I of schedule I, or a male relative specified in that Class who claimed through such female relative, the interest of the deceased in the Mitakshara co-parcenary property devolved by testamentary or intestate succession under the Act and not by survivorship. A co-parcener is enabled under Section 30 to make a testamentary disposition of his undivided interest in the Joint family properly.
The rule of survivorship came into operation only - (i) where the deceased did not leave him surviving a female relative specified in Class I, or a male relative specified in that Class who claims through such female relative, and (ii) when the deceased had not made a testamentary disposition of his undivided share in the co-parcenary properly. The Schedule to the Act read with Section 8 provided the following twelve relations as Class I heirs-son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of pre-deceased daughter; laughter of a pre-deceased daughter, widow of a pre-deceased son; son of pre-deceased son of a pre-deceased son; daughter of pre-deceased son of a pre-deceased son; widow of pre-deceased son of a pre-deceased son.
Section 6 as it stood then, contemplated the existence of coparcenary properly and more than one co-parcener for the application of the rule of devolution by survivorship. The head note of the Section read 'Devolution of interest in co-parcenary properly'. The language of the main provision to the effect that 'his interest in the properly shall devolve by survivorship upon the surviving members' indicated that the devolution by survivorship is with reference to the deceased coparcener's interest alone this coupled with the notional partition contemplated in Explanation 1 in that Section for the ascertainment of the interest of the deceased co-parcener in a Mitakshara co-parcenary properly indicated that there was no disruption of the entire co-parcenary. It followed that the other co-parceners, would continue to be joint in respect of the other co-parcenary property till a partition was effected.
The Supreme Court in the case of Gurupad v. Heera Bai : AIR 1978 Supreme Court 1239, observed:
In order to ascertain the share of heirs in the property of a deceased it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For by doing that alone one can determine the extent of the claimant's share. Explanation I to Section 6 resorts to the simple, expedient, undoubtedly a fictional partition, that the interest of a Hindu Mitakshara 'shall be deemed to be' the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is, therefore required to be assumed is that a partition had in fact taken place between the deceased and co-parceners immediately before his death. That assumption once made is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the co-parcenary property one cannot go back on that assumption and ascertain the share of the heirs without reference to it.... All the consequences which flow from real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a procedural step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled Just as a share allotted to a in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the co-parcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.
Again in State of Maharashtra v. Narayan Rao : AIR 1985 Supreme Court 716, the Supreme Court carefully considered the decision in Gurupad's case and pointed out that Gurupad's case has to be treated as an authority (only) for the position that when a female member who inherits an interest in joint family properly under Section 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to both the interest she has inherited and the share which would have been notionally allotted to her, as stated in Explanation I to Section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without the volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family properly gels fixed on the dale of the death of a male member under Section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such females.
The above was the position of law as it prevailed till the substitution of Section 6 by the present Section 6 under Act 39 of 2005.
Section 6, as substituted by Act 39 of 2005 is extracted below for ready reference:
6. Devolution of interest in co-parcenary 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 co-parcener shall,-
(a) by birth become co-parcener in her own right in the same manner as the son;
(b) have the same rights in the co-parcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said co-parcenary property as that of a son, and any reference to a Hindu Mitakshara shall be deemed to include a reference to a daughter of a co-parcener:
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 co-parcenary 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 co-parcenary property 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 a pie-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) die share of the pre-deceased child of a pie-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 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-grandson for die 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 hem 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 tins Section shall apply to a 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.
6. In the light of the above the following questions arise for consideration:
a) Whether the proviso to Section 6(1)(e) of the Hindu Succession (Amendment) Act, 2005 is arbitrary and violative of Article 14 of the Constitution of India as it denies an equal right to a daughter of a co-parcener to question any disposition or alienation of co-parcenary property prior to 20.12.2004.vis-a-vis a son.
b) Whether the petitioner, an unmarried daughter, could seek partition of undivided co-parcenary property during the life-lime of her father, notwithstanding the Hindu Succession (Amendment) Art, 2005.
It was canvassed that a right had accrued in favour of the petitioner under the Hindu Succession (Karnataka Amendment) Act, 1994 (23 of 1994) with effect from 30.7.1994 - to an equal share in the co-parcenary property of her family, in terms of Section 6-A thereof. The said Section reads as follows:
6-A. Equal rights to daughter in coparcenary property:
Notwithstanding anything contained in Section 6 of this Act:
(a) in a Joint Hindu Family governed by Mitakshara Law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary 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 liability and disabilities in respect thereto as the son;
(b) at a partition in such a Joint Hindu Family the co-parcenary property shall be so divided as to allot to a daughter die same share as is allocable to a son:
Provided that the share which a predeceased son or a predeceased daughter would have got at die partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:
Provided further that the share allottable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case maybe;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (a) shall be held by her with the incidents of co-parcenary 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;
(d) nothing in Clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.
It is sought to be pointed out there was no fetter under the said provision for an unmarried daughter to question any prior disposition or alienation of co-parcenary property. This right is taken away under the proviso to Section 6(1)(c) of Act 39 of 2005 and therefore it is claimed that such an accrued right ought to be held to subsist.
This contention cannot be sustained for the following reasons:
The Karnataka Amendment Act came into effect from 30.7.1994 whereas the Central Amendment Act came into effect from 9.9.2005 and the latter prevails over the former in terms of Article 254(1) of the Constitution of India which enunciates the normal rule that in the event of a conflict between a Union and a State Law, in the concurrent field the former prevails over the latter - no matter that the Union Law is later in time - the Union Law will prevail and the State Law shall, to the extent of such repugnancy be void. This is subject to the exception engrailed under Clause (2) of Article 254 of the Constitution of India.
Further, the petitioner has filed the suit for partition in the year 2007 when the 2005 Act had come into force and could no longer draw sustenance from the Karnataka Amendment Act. The position would not be any different even in a pending suit filed prior to the coming into force of the 2005 Act and on the basis of the Karnataka Amendment Act.
7. The next contention canvassed that there is no basis, under the proviso to Section 6(1)(c) of the 2005 Act, to restrict the right of a daughter of a co-parcener from calling in question any disposition or alienation of the co-parcenary properly prior to 20.12.2004.
From an examination of the Statement of Objects and Reasons to the Amendment Act and even from the contents of the 174th Report of the Law Commission of India and Annexures thereto the rational basis on which the said restriction is placed is not apparent. Annexure-H to the Report which is styled as 'Analysis of the Questionnaire of Law Commission', there is reference to the following question and responses thereof;
7. From what period should the Act (when passed) be applicable?
21 respondents did not reply; 10 favoured choice part (a) that is to give retrospective effect from 10 to 15 years prior to the passing of the Act, IS for part (b) for providing protection to buyers of properly in good faith; 12 respondents were in favour of part (c) for not affecting the vested rights and 11 opted for part (a) of Q. 8.
In Annexure III to the Report entitled 'Working Paper on Co-parcenary Rights to Daughters under the Hindu Law', there is the following discussion which is the closest in proximity, to the aspect under consideration, that the legislative intent and its object touches upon:
However, the State Amendments to the HSA have given rise to various questions which need to be answered before a uniform law is brought for all the States. First, the Amendment has excluded the right of a daughter from the co-parcenary property, who was married prior to the commencement of tine amending Act. The provision is similar in all the Acts and the Karnataka provision is set out as under:
6.(d) Nothing in Clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1994.
The reasons for exclusion of the already married daughter appear to be sociological and the fact that dowry might have been given at the time of marriage. This dowry might in some cases have included immovable and movable property apart from jewellery. But there may be many cases where nothing has been given and there does not appear to be any cogent reason for discriminating between a married and an unmarried daughter. Excluding a daughter married before the date of commencement of the Amending Acts is wrong in our opinion as all daughters must be treated equally, and at par with sons. By denying a married daughter equal fights in co-parcenary property, a large number of females are getting left out of the benefit.
A recent Supreme Court decision in Savita Samvedi v. Union of India lends support to the view that a distinction between a married and an unmarried daughter will be unconstitutional. The Supreme Court held that the circular in fettering the choice of a retiring employee to nominate a married daughter is 'wholly unfair, unreasonable and gender biased' and liable to be struck down under Article 14 of the Constitution. Referring to the distinction drawn by the circular between a married and unmarried daughter, Punchhi, J. observed:
The eligibility of a married daughter must be placed at a par with an unmarried daughter (for she too must have been once in the State) so as to claim the benefit....
The preamble to tine Amending Acts indicates the objective as the removal of discrimination against daughters inherent in the mitakshara co-parcenary and the eradication of the baneful system of dowry by positive measures thus ameliorating the condition of women in the human society, This is only a subsidiary or collateral objective and it cannot be said that the classification drawn by the Amending Acts bears a rational relationship to the objective sought to be achieved.
Thus Clause (d) of Section 6A of the Karnataka Act and Clause (iv) of 29A of the other three Acts should be deleted and the main object of the Acts should be only to remove discrimination inherent in Mitakshara co-parcenary against daughters both married and unmarried.
There is no indication apart from the above, the basis or the object to make the Amendment Act prospective with effect from 9.9.2005 - while providing that nothing contained in Sub-section (1) to Section 6 would affect or invalidate any disposition or alienation which had taken place before 20.12.2004. Therefore, 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 a daughter when the avowed object of the legislation is to create equal rights as between a daughter and a son of a 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 arc brought by the sons of a co-parcener. The inconvenience and hardship would be no different.
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 to be saved, the result is that a partition that could otherwise be reopened 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 lime 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 of given case. There is no justification for the prescription of a cutoff date or a blanket ban on a daughter in enabling her to claim her due.
Hence, the provisio to Section 6(1)(c) 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.
8. The next issue for consideration is incidental to the bove. The petitioner claims a right to seek partition of co-parcenary property under Section 6 of the Hindu Succession Act, 1956 (as amended by Act 39 of 2005). The said Act is a law relating to intestate succession and regulates succession to properties of all Hindus. The only provision under the Act, which provides for testamentary succession also is Section 30. Under that Section a Hindu is permitted to dispose of any of his or her property by will or other testamentary disposition. It follows therefore, that the provisions of the Act can be enforced when the right to succession opens and not before. The petitioner's father is a said to be alive and hence her right to succession as a Co-parcener has not opened. The heading of Section 6 itself would indicate that it concerns the interest in co-parcenary property that would 'devolve' on the daughter. 'Devolve' means to pass from a person dying to a person living.
The scope and ambit of Section 6 declaring that on and from the commencement of Act 39 of 2005 - the daughter of a coparcener in a Joint Hindu Family shall by birth become a coparcener as the son and have the same rights and liabilities as a son, can only be construed for deciding the share that devolves on her when her right to succession opens, having regard to the scope and ambit of the Act itself.
An implied exception that may be construed in avoiding the Section from being rendered nugatory is in a circumstance where on and from the commencement of Act 39 of 2005, at a partition amongst co-parceners the daughter's right to a share by way of succession, as a co-parcener as recognised under Section 6(1) of the Act, being kept in view, she ought to be given her share.
Yet another exception would be, as in the present case on hand, when the share of the daughter was in respect of property that was alienated prior to coming into force of Act 39 of 2005 and before 20.12.2004. There is no impediment in the daughter being enabled to question the alienations and the denial of her right to a share of the proceeds, even if the rights of bona-fide third-party purchasers of the properties are not to be disturbed.
The above exceptions are in no manner to be taken as the only circumstances that would enable a daughter to seek her share of the co-parcenary property even during the life-lime of her father. It may be possible to multiply instances.
9. The avowed object of the law makers in having enacted Act 39 of 2005 is negated by the serious lacunae and ambiguity in the legislation as observed by several learned authors and jurists. A few of those observations are compiled in an article by Parminder Kaur Kahlon.
See: 'The Hindu Succession Act and status of the Females - an Overview': Nyayadeep,
The Official Journal of NALSA Volume IX Issue No. 4 P.99
In the result, the writ petition is allowed. The proviso to Section 6(1)(c) of the Hindu Succession Amendment Act (Act 39/2005) insofar as it pertains to saving of any dispositions or alienations prior to 20th December, 2004 is violative of Article 14 and 16 of the Constitution of India and bears no rational nexus to the object of the Amendment Act.