I am quite impressed up-on your reply on various quarries on H S Act-1956 . Sir I am been stuck-up on some basic question of interpretation of HSA Amended Act 2005:-
Short History is under :-
1 .Mr.B inherited property from his father Mr. : A,who lived in State:Gujarat, died in the
year 1953,leaving behind Son:A,widow and three daughters.
2. Mr.B,died in the year 1982,leaving behind three sons,five daughters and Widow :C.e.g. in all 4 Coparcernoe and 5 of daughter as legal hers of Class-I from 1/5 share of father :: e.g. 1/9 to each of them.There was no partition/Will during life time of Mr.B.
3. Widow C died during the dependency of suite there by Daughter was entitled
in all 1/8 share from and our of father\'s 1/5 and mother\'s 1/5 shares as class -I heir works our 1/8 share== 5 % stage.
4.On 09-09-2005,Principle Act 1956 was amended,Specifically Section 6::\'DAUGHTER ELIGIBLE TO DECLARER AS COPARCENOR AT PAR WITH SON\'
5. Trial court dismissed the suit on August-2009 held \" Daughter not being Coparcerner can not file suit for partition. However Trial court held that during the life time of Mr.B there was no partition of HUF property. There for plaintiff Daughter would get her 1/8 shares from 1/5 share of father and mother ==1/20 th==5 % of total suit property,as and when partition take place by Son-Coparcerners. Trial court was nice enough to Suspend Effect of Va-canting Stay order-prevailing during last 18 years suit period,for granting time to Preferred Appeal.
6.During course of Appeal proceeding we had advance citation of AIR 2010 Kart 124,besides few others.Point No:4 of said order confirmed Retroactive,effect by Substitution Sec-6 in Principal Act 1956,giving right Daughter,being Coparcerner,described in para 92 to 103,confirming right of Daughter by BIRTH. Similarly effect on Pending Proceeding is clearly elaborate in Para:104 to 108.way the language it speaks and intent to Remove Gender Discriminatory between Son and Daughter,suggested by Law Commission,and there for Parliament had provided right by BIRTH TO DAUGHTER. There by Trial Court had misinterpretation Applicability of Am-mend Law-operation from 09-09-05,though Suit was dismissed in August-2009,after 5 years from commencement of am-mended Act.
5. It appears to me that:.Appellate court is of view that in present case, the benefit of Amended Act 2005 can not be passed on Daughter because SHE IS BORN BEFORE 1956,commencement on dt:19-06-1956!(year of HSA ACT-1956). in view of point elaborated in said citation pare 56. There by at present i feel that Appeal itself is liable to dismiss-not sustainable in Lew,or does not devolve any merit even for stay application ,as per stand of Appealt Court .Sir, in present appeal, if Daughter is born before 1956 HSA Act-1956.is she avail any right from amended act 2005,by substitution of Section-6 ?
Sir,I shall be highly oblige if you are nice enough to throw some light on correct legal position. If you can pointed out any Citation/Authority(related to right of daughter born before 1956,partition opened in 1982 and dismissal by Trial court in the year 2009 ?) it would be excellent.
Thanking You in Advance,Sir, and look forward you detailed reply/comment soon.
........... .. HIMANSHU THAKER Mobile:098202 64375-098984 22613
It is on behalf of my Mother,being Daughter of Mr; B
Date : 19-06-2011