ORDER The petitioners are seeking to challenge the constitutional validity of the ‘Explanation’ appended to Sub-section (5) of Section 6 of the Hindu Succession (Amendment) Act, 2005, (Act 39 of 2005), namely: “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”. The petitioners are also seeking a declaration that the amendment to Section 6 of the Hindu Succession Act, 1956 (Hereinafter referred to as the ‘HS Act’, for brevity) as amended by the Amending Act 39 of 2005, is prospective in nature and it does not have any retrospective applicability. 2. The factual background is as follows : The petitioners are said to be the defendants in a suit for partition filed by respondents no.2 to 4, herein, in OS no.3/2011, on the file of the Court of the Civil Judge, (Senior Division) Hangal. 3. The parties are referred to by their rank before the trial court, for the sake of convenience. 4. The first petitioner is the widow of deceased defendant no.1, who is said to have died during the pendency of the suit. Petitioner no.2 is defendant no.3 in the suit. Defendants no.4 and 5 are said to be aligned with the plaintiffs in their claim and have not opposed the suit and hence they are not made parties to this petition. The suit for partition and separate possession filed in respect of the properties described in the suit Schedule, were said to have been held by one Basavanagouda Patil as the sole surviving male member of the family. He is said to have taken Puttalingagouda @ Veeranagouda B. Patil (deceased defendant no.1) in adoption, in the year 1932. Basavanagouda Patil is said to have died in the year 1934. The plaintiffs claim that they and the defendants constitute a co-parcenary and hence the suit. It is contended that the defendants had divided the suit properties at the instance of defendant no.1 during his lifetime, in the year 1980, as evidenced by the mutation entry effected at Entry no.6669, which is in the Kannada language and the same loosely translated in to English is as follows : “FORM NO.12 RECORD OF RIGHTS (MUTATION REGISTER) Sl. No. of Entry Nature of Right Survey and Sub-division Nos. No. of Entry Nature of Right Survey and Sub-division Nos. affected Initials or remarks by testing officers 6669 Report dated 14.10.1980 1. Puttalinganagouda @ Veeranagouda Patil 2. Fakiragouda, 3. Doddabasavanagouda 4. Buddivantappagouda, S/o Puttalinganagouda @ Veeranagouda in respect of their lands in R.S. No. 531/2, 571/1, 585/1, 532/2, 648/1, 6-22, had sought to record as follows: 631/2 -2 acre 19 gunta 571/1 - 4 acre 10 gunta 585/1 -4 acre 2 gunta Earlier, the above lands were in the name of Puttalinganagouda and it is now recorded in the name of Buddivantappa Puttalinganagouda Patil. 531/2 571/1 585/1 532/2 648/1 (5) That there was a division of the properties in the year 1980 as between the defendants, pursuant to an oral partition and that they have been in separate possession of their respective shares, is said to be admitted in the plaint. In addition, it is stated that the plaintiffs themselves had produced the Record of Rights, with the list of documents, evidencing such partition. However, the case sought to be advanced by the plaintiffs, even in the legal notice issued prior to the suit, was to the effect, that they are coparceners by virtue of Act no.39 of 2005 and since the partition, even if effected, is not evidenced by a registered document, the said partition would have no effect in respect of the share to which the plaintiffs would be entitled to at a partition. Defendant no.1, in reply to the said notice, is said to have contended that the properties were held by Basavanagouda Patil in his individual name and on his demise, the said defendant no.1, as his son got the properties by devolution and hence was well within his right to divide the property between himself and his sons. The third defendant is said to have filed an application under Order VII Rule 11(b) and (d) of the Code of Civil Procedure, 1908, urging the very primary defence set up namely, that there was an oral partition of the year 1980 that had been acted upon and hence there was no cause of action for the suit, as the amendment vide Act no.39 of 2005, was only prospective and did not afford any right to the plaintiffs to seek partition on the ground that the earlier partition did not bind them. That application is said to have been allowed after a long drawn out contest. That application is said to have been allowed after a long drawn out contest. In an appeal before this court, in RFA 4172/2012, the order of the trial court has been set aside and the matter has been remitted to the trial court for a fresh consideration on merits. The suit is said to be pending. 5. The learned Senior Advocate, Shri S.S. Nagananad, appearing for the counsel for the petitioner, contends as follows : That the object in substituting Section 6 of the Hindu Succession Act, 1956, by Act no.39 of 2005, was to address the discrimination that was inherent in the Section as it stood before the amendment, whereby the females did not inherit ancestral property as their male counterparts did. By virtue of the amendment, the daughters were conferred the status of coparceners so as to ensure that a share in coparcenery property devolves on them along with and as much as all sons. That on and from September 9, 2005, the daughter would become a coparcener by birth for the devolution of interest in coparcenery property. Whether this conferment of status on the daughters would affect vested rights of the male members, pursuant to a partition, that has been acted upon – 25 years prior to the new legislation, is not left in doubt, as the amended Section provides the amendment shall not 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. The anomaly, however, according to Shri Naganand, lies in the restricted meaning attributed to ‘partition’ as meaning only a partition made by execution of a deed of partition duly registered under the Registration Act, 1908, or a partition effected by a decree of a court. The complete exclusion of an oral partition or a family arrangement – which are legally accepted and possibly the most prevalent modes of division of property known to Hindu law, results in a serious lacuna with far reaching consequences. It is contended that the apex court in Deo Chand v. Shivram, (1969)3 SCC 330 , has held that documents which affirm an oral partition, do not require registration. And so also in Kale and Others v. Director of Consolidation and Others, 1976(3) SCC 119 , it is held that a family arrangement may even be oral and is not compulsorily registrable. And so also in Kale and Others v. Director of Consolidation and Others, 1976(3) SCC 119 , it is held that a family arrangement may even be oral and is not compulsorily registrable. It is contended that it is well established by a catena of decisions as to the manner in which the validity of an oral partition is to be proved and could be accepted by Courts of law. It is hence contended that when an oral partition is a well recognized mode of partition, its exclusion from the definition of partition in the ‘Explanation’, appended to sub-section (5) of Section 6 of the HS Act, is unreasonable and arbitrary. It is urged that persons, whose rights have accrued by virtue of a registered partition deed or a court decree and those whose rights flow from an oral partition, stand on the same footing and form the same class. Such classification suffers from the vice of negating accrued rights and is hence violative of Article 14 of the Constitution of India. Reliance is placed on a large number of authorities to substantiate that the classification that has resulted by virtue of the above mischief would render the provision unconstitutional. Shri Naganand would further contend that the above said hiatus requiring a suitable amendment to the restricted definition of ‘partition’, as contained in Section 6 of the HS Act, has come to the attention of the Law Commission of India and on a comprehensive view of the established principles of law and being aware of the reality as to the manner in which people arrange their affairs, has recommended, in its 208th Report as under : “3.1 Oral partition or family arrangement is an extremely valuable power whereby the peace, happiness and welfare of a family are secured and litigation is avoided. It is specifically helpful in the case of illiterate members of a family or who have no means to bear expenditure of legal process/advice etc. 3.2 By the 2005 amendment in the Hindu Succession Act, oral partition and family arrangement which had been effected prior to the enactment would be set at naught. It is specifically helpful in the case of illiterate members of a family or who have no means to bear expenditure of legal process/advice etc. 3.2 By the 2005 amendment in the Hindu Succession Act, oral partition and family arrangement which had been effected prior to the enactment would be set at naught. Hence, the Commission proposes a suitable amendment in the Explanation to Section 6 of the Hindu Succession Act, 1956 to include oral partition and family arrangement in the definition of “partition”.” In so far as the prayer for a declaration that Section 6 of the HS Act being prospective in nature, is concerned, much reliance is placed on a decision of the Bombay High Court in Vaishali Sathish Ganorkar v. Satish Keshorao Ganorkar, AIR 2012 Bombay 101. This is in the light of the fact that though there is a Division bench decision of this court in the case of Pushpalatha N.V. v. Padma, ILR 2010 KAR. 1484, that the amendment to Section 6 of the HS Act, would be with retrospective effect, it was noticed that the decision in G. Sekhar v. Geetha, AIR 2009 SC 2649 , was not brought to the attention of the Division Bench, of this court, wherein there is a contrary opinion expressed. It was also noticed that there was a Division Bench decision of this court, in M. Prithviraj v. Leelamma N., 2008(4) KCCR 2333 , wherein it was also opined that the amendment is with prospective effect. This having been noticed by a single judge of this court (the undersigned), the question as to which of the opinions was to be followed was referred to a larger bench. The Full bench has then found that the decision in Pushpalatha’s case was challenged before the Apex court and is pending consideration in case no.SLP (Civil) No.18744/2010. The Full Bench of the Karnataka High Court, has merely adjourned the reference indefinitely, awaiting the decision of the Apex court, as per order dated 17.1.2014. Therefore, it is for this bench to address the question with reference to other decided cases. 6. Statement of Objections are filed by the respondents 2 to 4. There is a purported analysis of the background in which the amendment to Section 6 of the HS Act, was brought about. Therefore, it is for this bench to address the question with reference to other decided cases. 6. Statement of Objections are filed by the respondents 2 to 4. There is a purported analysis of the background in which the amendment to Section 6 of the HS Act, was brought about. Attention is drawn to a recent decision of a Full Bench decision of the Bombay High Court in the case of Shri Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, Second Appeal 566/2011 decided on 14.8.2014, along with several other appeals, wherein the Hon.Chief Justice, Mohith S. Shah, who was one of the judges, who sat on the Division bench which decided -Vaishali Satish Ganorkar, supra, and Justice Shah, who also adorned the Full bench, has expressly declared that the view taken in Vaishali was incorrect, in view of certain aspects having been overlooked. The Full Bench of the Bombay High Court has now provided a more comprehensive opinion. It is then contended on behalf of the respondents, that the Explanation provides that for the purposes of Section 6 of the Amended Act, “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or a partition effected by a decree of a Court. If this is declared as unconstitutional, as claimed by the petitioners, the very purpose of the amendment would be defeated. A restriction being already provided under the proviso to Section 6(1)(c) to the effect, that nothing contained in the 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. It is contended that it is plain from a perusal of the petition that the petitioners, or the defendants in the suit, have repeatedly claimed that there was an oral partition in the family amongst the male members in the year 1980 itself. However, after receipt of a legal notice dated 17.9.2010, the first defendant had proceeded to relinquish all his rights in the suit schedule properties by the execution and registration of a deed in favour of defendants no.2 to 4 on 4.11.2010, before the Sub-Registrar of Hangal, Haveri District. However, after receipt of a legal notice dated 17.9.2010, the first defendant had proceeded to relinquish all his rights in the suit schedule properties by the execution and registration of a deed in favour of defendants no.2 to 4 on 4.11.2010, before the Sub-Registrar of Hangal, Haveri District. The petitioners, on the one hand, assert that the suit schedule properties were partitioned among the male members of the family in the year 1980 itself, but on the other hand, they contend that defendant no.1 had relinquished all his rights in regard to the suit schedule properties on 4.11.2010 by way of a registered document. If the properties were partitioned in the year 1980 itself and accordingly mutation entries were effected in favour of the respective defendants, it is unlikely that defendant No.1 was in a position to relinquish his rights over the suit schedule properties on 4.11.2010. The propensity of the petitioners shows that there was no partition at all in the year 1980 and therefore, the relinquishment deed dated 4.11.2010 came to be executed. 7. Be that as it may, since there is much light thrown on the ambit and scope of the amendment to Section 6 of the HS Act, up to the date of the judgment rendered on 14.8.2014, including the view expressed as to the correctness or otherwise of the decision of a Division Bench of this court in Pushpalatha, the opinion expressed by the Full Bench of the Bombay High Court assumes much significance in formulating any particular view in the present case on hand, even with respect to the first question as to how the restricted definition of ‘partition’ is to be construed. Therefore, it is useful to have a closer look at the view expressed in Shri Badrinarayan Shankar Bhandari’s case. The salient features and the view expressed in that judgment are paraphrased hereunder. The Full Bench of the Bombay High court was constituted on the reference made by a learned single judge of that court, who had doubted the correctness of the decision in Vaishali S. Ganorkar’s case, supra. The following questions had been referred for opinion: “(i) Whether Section 6 of the Hindu Succession Act, 1956, as amended by the Amendment Act, 2005 is prospective or retrospective in operation? The following questions had been referred for opinion: “(i) Whether Section 6 of the Hindu Succession Act, 1956, as amended by the Amendment Act, 2005 is prospective or retrospective in operation? (ii) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born prior to 17.6.1956? (iii) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005? (iv) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies only to daughters born after 9.9.2005? (v) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?” The primary issue before the learned single judge of the Bombay High Court, was whether the amended Section 6 of the HS Act, was prospective or retrospective. In Vaishali ‘s case, it was held that Section 6 of the HS Act as amended, was prospective in operation and it applied to daughters born on or after 9.9.2005. As regards daughters born before 9.9.2005, it was held that they would get rights in coparcenary property upon the death of their father – coparcener on or after 9.9.2005. The learned single judge had disagreed with that view, by his order dated 9.6.2014, and had held that the amended Section 6 was retrospective in operation, that it was applicable – with effect from – 17th June 1956, i.e. the date of commencement of the HS Act and that it applied to all daughters of a coparcener, who are born either before or after 9.9.2005 or daughters born before or after 17.6.1956. The learned single judge had held that a daughter by birth becomes a coparcener in a Hindu coparcenery in her own right in the same manner as a son, having the same rights in the coparcenery property as she would have had if she had been a son and subject to the same liabilities in respect of the said coparcenery property as that of a son in terms of sub-section (1) of the amended Section 6. The facts in Vaishali’s case were that the appellants therein were daughters of respondent no.1 (father). The father had taken a loan from the bank and mortgaged the property to the bank in the year 2008. The facts in Vaishali’s case were that the appellants therein were daughters of respondent no.1 (father). The father had taken a loan from the bank and mortgaged the property to the bank in the year 2008. On failure to repay the loan, the bank initiated recovery proceeding under the Securitisation and Reconstruction of Financial Assets and enforcement of Security Interest Act, 2002. The daughters then filed a suit, claiming to be entitled to 2/3rd of the property as their share in the coparcenary property. It was the daughter’s case that the property, which had been mortgaged by the father was a Hindu Undivided Family (HUF) property as it was purchased from the nucleus of the joint family property. The Single Judge refused to grant ad-interim reliefs to the appellants. In appeal, the Division Bench was concerned with the issue whether the appellant is entitled to a share in the property as a coparcener in the HUF property and if so, with effect from what date. On the above facts, the Division bench had held : (i) that on an analysis of Section 6, and while placing reliance on the marginal note to Section 6, viz:- “Devolution of Interest in coparcenery property” took a view that the right of a daughter only arises upon devolution, i.e. on the death of the ancestral coparcener. The rights of a daughter got crystallized in respect of coparcenery property only upon the death of an ancestor -coparcener. On finding that the coparcener, father of the appellants therein, was alive, it was held that the suit was premature. This was on the reasoning that succession had not opened. It was held that with the amendment to the HS Act, the daughters did not, ipso facto, become coparceners. A daughter born after 9.9.2005 became a coparcener by birth, but a daughter born prior to 9.9.2005 became a coparcener only upon the death of her ancestral coparcener. On that reasoning, the contention that the Amendment Act was retrospective and applied to daughters born prior to 9.9.2005, was negatived. (ii) The Division bench had also referred to the grammar of the language found in the amended Section 6 of the HS Act, and concluded that the Section conferred rights in the future and did not affect past transactions. On that reasoning, the contention that the Amendment Act was retrospective and applied to daughters born prior to 9.9.2005, was negatived. (ii) The Division bench had also referred to the grammar of the language found in the amended Section 6 of the HS Act, and concluded that the Section conferred rights in the future and did not affect past transactions. In particular, reliance was placed on the following to indicate that it is prospective: “(a) Section 6(1) itself commenced with “On and from the commencement of the Hindu Succession (Amendment) Act 2005”; (b) The later part of Section 6(1) which provides that “the daughter of a coparcener shall,” would refer to the future. Section 6(1)(a) using the words ‘by birth become’; Section 6(1)(c) states that a daughter shall be subject to the same liabilities of a son; AND The first proviso to Section 6(1) providing that no alienation or disposition or partition of any property which has taken place before 20th December 2004 shall be affected by virtue of Section 6(1) of the Principal Act.” (iii) It was observed that a statute is not retrospective, unless it expressly stated to be so. And that the words in the amended Section 6(1), “on and from” would itself indicate that it is prospective in nature. For otherwise, the said words, “on and from”, would be rendered otiose. It was on the above reasoning that it was concluded in Vaishali’s case that a daughter born on and after 9.9.2005 would be entitled to coparcenery property right by birth while a daughter born prior to 9.9.2005 would be entitled to coparcenery property only on succession i.e. on the death of an ancestral coparcener to whose interest the daughter succeeds. Reliance was also placed on the decisions of the apex court in G. Shekar v. Geeta, (2009)6 SCC 99 and Sheeladevi v. Lal Chand, (2006)8 SCC 581 , where in it was held that the amendment Act of 2005 is prospective and would have no application where succession opened prior to the Amendment Act of 2005 coming into force. Reliance was also placed on the decisions of the apex court in G. Shekar v. Geeta, (2009)6 SCC 99 and Sheeladevi v. Lal Chand, (2006)8 SCC 581 , where in it was held that the amendment Act of 2005 is prospective and would have no application where succession opened prior to the Amendment Act of 2005 coming into force. The division bench in Vaishali, had disagreed with the decision of a division bench of the High Court of Karnataka in Pushpalatha N.V. v. V.Padma, AIR 2010 Karnataka 124, where in it was held that the Section is retrospective and would apply to all daughters who are born after 17.6.1956 and no matter whether succession had opened or not. This was on the basis of the Mischief Theory of interpretation. It was on the above reasoning that the division bench in Vaishali’s case had held that the appellant therein, was not entitled to 2/3rd interest in the suit property as the amended Section 6 was not retrospective in operation. An appeal filed against the judgment of the Division bench in Vaishali’s case was dismissed by the Apex court by an order dated 27.2.2012, in SLP (C) No.6118 of 2012, thus : “Dismissed. However, the question of law is kept open”. Hence, the apex court has not finally determined the question of law. In the meanwhile, in several appeals before a learned single judge of the Bombay High Court, it was uniformly contended that the decision in Vaishali’s case was rendered per incuriam, in the Division bench not having noticed the decision of the Apex court in Ganduri Koteshwaramma v. Chakari, (2011) 9 SCC 788 , as it was not cited before it. The learned single judge had then in his detailed order concluded thus: “(I) Section 6 of the Principal Act was substituted by Section 6 of the Amendment Act. In view thereof, for all intents and purposes, amended Section 6 is there from 17.06.1956, being the date of commencement of the Principal Act. The learned single judge had then in his detailed order concluded thus: “(I) Section 6 of the Principal Act was substituted by Section 6 of the Amendment Act. In view thereof, for all intents and purposes, amended Section 6 is there from 17.06.1956, being the date of commencement of the Principal Act. II) The daughter of a coparcener who is born before or after 17.6.1956 has by birth become a coparcener in her own right in the same manner as a son in terms of clause (a) and has the same rights in the coparcenary property as she would have had if she had been a son in terms of clause (b) and is subject to the same liabilities in respect of the said coparcenary property as that of a son in terms of clause (c) of sub-section (1) of amended Section 6. III) the rights under clauses (a) and (b) and liabilities under clause (c) of sub-section (1) of amended Section 6 are recognized for the first time on and from 09.09.2005, being the date of commencement of the Amendment Act. IV) Even if the daughter of a coparcener has by birth become coparcener in her own right in the same manner as a son in terms of clause (a) and as also she has the same rights in the coparcenary property as she would have had if she had been a son in terms of clause (b), the same shall not affect or invalidate any disposition or alienation including any partition which is duly registered under the Registration Act, 1908 or effected by decree of a Court or testamentary disposition of property which had taken place before the 20th day of December 2004. V) The decision of the Division Bench in the case of Vaishali Ganorkar is not per incurium of Gandori Koteshwaramma and others.” It was on that note that the questions of law, noted earlier, were referred to the Full Bench. V) The decision of the Division Bench in the case of Vaishali Ganorkar is not per incurium of Gandori Koteshwaramma and others.” It was on that note that the questions of law, noted earlier, were referred to the Full Bench. On a consideration of the rival contentions and the history and development of Hindu law as well as the Law Commission Report, the Report of the Standing Committee of Parliament and the Statement of Objects and Reasons of the Bill introduced in Parliament, with the purpose of finding the true intent of the Parliament in amending Section 6 of the HS Act, the Full Bench has proceeded to address the questions of law thus : “i) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, is prospective or retrospective in operation. ii) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies only to daughters born after 9.9.2005?” The above questions have been considered together. While graciously acknowledging that while the questions of law were argued in Vaishali’s case -the legislative history as well as the Statement of Objects and Reasons for the Amendment Act were not brought to the notice of the Division Bench and further that the decision of the Apex court in Ganduri’s case, supra, was also not cited, but on the other hand, the Bench had been persuaded to follow the principle laid down by the Apex court in G.Shekar’s case, supra. It was candidly observed by the Hon.Chief Justice Mohit S. Shah, who was a party to the decision in Vaishali’s case – as well, that the principle enunciated therein was erroneous and that it must be corrected. And in the highest traditions of the judiciary, has emulated Justice P.N. Bhagwati, who in a similar situation, in the case of Umed v. Raj Singh, (1975)1 SCC 76 , had observed thus : “Since I was a party to the decision in Mohd. Yunus Saleem Vs. Shivkumar Shastri (supra), which is now being overturned by us, I think I must explain why we take a different view from the one taken in that decision. The point decided in that case has been elaborately discussed before us and we find on a fuller argument that the view taken by the Court in that case was erroneous and needs to be corrected. The point decided in that case has been elaborately discussed before us and we find on a fuller argument that the view taken by the Court in that case was erroneous and needs to be corrected. To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce Vs. Delameter: A Judge ought to be – wise enough to know that he is fallible, and therefore ever ready to learn; great and honest enough to discard all mere pride of opinion, and follow truth wherever it may lead; and courageous enough to acknowledge his errors.” It was held that historically as well as in law as it existed prior to the HS Act, the Hindu woman was part of the joint Hindu family, but she had no right to the joint property. The property in such case would pass to the coparcener, who could only be a male, by survivorship and any birth or death of a male would reduce or increase the share of the surviving coparceners in the coparcenery property. The rights of a coparcener were transmitted only by survivorship That the HS Act made a conscious departure from the Shastric or Customary law, but only in two respects : i) Section 30 gave a right to a Hindu coparcener to make testamentary disposition of his property including his share in the coparcenery property. ii) Section 6 of the Principal Act as enunciated in 1956 provided for property passing in the absence of a female heir, in Class I of the Schedule, by survivorship -upon the death of the coparcener. However, if the coparcener had any female relative such as a widow, a daughter or a grand daughter, specified in Class – I of the Schedule, then the interest of such deceased coparcener would not pass by way of survivorship but would pass by succession as provided under the HS Act. However, the HS Act did not provide any rights to the daughters in respect of the partition of the property or any rights to demand partition of the property or even claim a share in the coparcenery property. However, the HS Act did not provide any rights to the daughters in respect of the partition of the property or any rights to demand partition of the property or even claim a share in the coparcenery property. The only right of the daughter would be to get a share in the father’s share in the coparcenery property and the same would arise only on the death of her ancestor coparcener. The gender discrimination and the dichotomy being apparent, the Law Commission in its 174th Report had recommended that the daughter of a coparcener should be given a equal right as that of a son by virtue of her birth in the join Hindu family. It is noticed by the Full bench, that the Bill introduced in Parliament on the basis of the recommendation of the Law Commission, provided in the proposed Section 6(5) that the amended Section shall have prospective effect i.e., the amendment shall not apply to a partition effected before the commencement of the Amendment Act. It also provided that it shall not apply to a daughter married before the commencement of the Amendment Act. However, the Act when passed did not have any provision curtailing the rights of a daughter married before coming into force of the Amendment Act. Further, the observations in the report of the Standing Committee left no room for doubt that the Parliament was against – ‘a whole generation of women, contemporary to the passage of the enactment losing out all their property rights, which would be the consequence of holding that the Amendment Act confers coparcenery rights only on daughters born after the Amendment Act coming into force. Hence, the Full Bench opined that the view in Vaishali’s case, that a daughter born prior to the amendment would get rights in her father’s coparcenery property only on the death of the father, would not only postpone conferment of valuable property rights to crores of daughters, who may all lose everything upon the father and other coparceners disposing of the coparcenery property during the lifetime of the father. Therefore, it was concluded that, the legislature did not and could not have intended to confer equal rights in the coparcenery property only upon daughters to be born after coming into force of the Amendment Act. Therefore, it was concluded that, the legislature did not and could not have intended to confer equal rights in the coparcenery property only upon daughters to be born after coming into force of the Amendment Act. The analysis of Section 6(1) of the HS Act –post amendment can be better appreciated with reference to the text thereof : “6(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 coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son, (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. 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.” The Full bench noted that clauses (b) and (c) of sub-section (1) of Section 6 and what follows clause (c) are not circumscribed by clause (a). 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.” The Full bench noted that clauses (b) and (c) of sub-section (1) of Section 6 and what follows clause (c) are not circumscribed by clause (a). Therefore, in the opinion of the Full Bench, sub-section (1) of Section 6 was to be read as under : “1(a) On and from the commencement of the Amendment Act, in a Joint Hindu family governed by Mitakshara law, the daughter of coparcener shall by birth become a coparcener in her own right as the son; 1(b) On and from the commencement of the Amendment Act, in a Joint Hindu Family governed by Mitakshara law, the daughter of coparcener shall have the same rights in the coparcenary property as she would have if she would have been a son; 1(c) On and from the commencement of the Amendment Act, in a Joint Hindu family governed by Mitakshara law, the daughter of coparcener shall be subject to the same liabilities in respect of the said coparcenary property as that of a son; On and from the commencement of the Amendment Act, in a Joint Hindu family governed by Mitakshara law, any reference to Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener;” It was explained that Since sub clauses (b), (c) and subsequent part of sub-section (1) are not conditioned or circumscribed by clause (a), a daughter born before the date of commencement of the Amendment Act shall also have the same rights in her father’s coparcernary property, (but of course with effect form the date of commencement of the Amendment Act), as she would have if she had been a son. Similarly her liabilities in respect of her father’s coparcenary property shall be as that of a son, but only with effect from the date of commencement of the Amendment Act. The view that amended Section 6 would only apply to daughters born after the commencement of the Amendment Act would, therefore, clearly militate against the express language of clauses (b) and (c) and subsequent part of Amended Section 6(1). Unfortunately clause (b) conferring rights in coparcenary property on daughters was not referred to in Vaishali Ganorkar’s case, AIR 2012 Bom.101. The view that amended Section 6 would only apply to daughters born after the commencement of the Amendment Act would, therefore, clearly militate against the express language of clauses (b) and (c) and subsequent part of Amended Section 6(1). Unfortunately clause (b) conferring rights in coparcenary property on daughters was not referred to in Vaishali Ganorkar’s case, AIR 2012 Bom.101. The difference between a Prospective, a Retrospective and a Retroactive Statute is briefly explained thus : “38. (i) A prospective statute operates forwards from the date of its enactment conferring new rights on parties without reference to any anterior event, status or characteristic; (ii) Retrospective statute, on the other hand, operates backwards, attaches new consequences, though for the future, but to an event that took place before the statute was enacted. It takes away vested rights. Substantive benefits which were already obtained by a party are sought to be taken away because of legislation being given effect to from a date prior to its enactment. The rules of interpretation of statute raise a presumption against such retrospective effect to a legislation. In other words, if the Legislature has not expressly or by necessary implication given effect to a statute from a date prior to its enactment, the Court will not allow retrospective effect being given to a legislation so as to take away the vested rights. Statutes enacted for regulating succession are ordinarily not applicable to successions which had already opened, as otherwise the effect will be to divest the estate from persons in whom it had vested prior to coming into force of the new statutes. (Muhammed Abdus Samad Vs. Qurban Hussain, ILR 26 All.119(129) PC) (iii) There is the intermediate category called “Retroactive Statute” which does not operate backwards and does not take away vested rights. Though it operates forwards, it is brought into operation by a characteristic or status that arose before it was enacted. For example, a provision of an Act brought into force on 1st January 2014, the Act applies to a person who was employed on 1 January 2014 has two elements : (a) that the person concerned took employment on 1 January 2014 – an event; (b) that the person referred to was an employee on that day – a characteristic or status which he had acquired before 1 January 2014. Insofar as the Act applies to a person who took employment on 1 January 2014, the Act is prospective. Insofar as the Act applies to a person who had taken employment before 1 January 2014, the Act is retroactive. 39. The first celebrated case in the intermediate category is R Vs. Inhabitants of St.Mary, Whitechapel10, wherein the Court was called upon to construe Section 2 of the Poor Removal Act, 1846, which provided that “no woman residing in any parish with her husband at the time of his death shall be removed from such parish, for twelve calendar months next after his death, if she so long continues a widow”. In that case it was sought to remove a widow within twelve months from the date of the death of her husband who had died prior to the Act came into force; and it was argued that to apply the Act to such a case was to construe it retrospectively. In rejecting the contention, Lord Denman, C.J. made the following of quoted observations : “It was said that the operation of the statute was confined to persons who had become widows after the Act was passed, and that the presumption against a retrospective statute being intended supported this construction : but we have before shown that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing.” (Emphasis supplied) While the Indian cases in this category are catalogued in the “Principles of Statutory Interpretation” by Justice G.P. Singh (13th Edition 2012, Chapter 6, Pages 561-567), it is necessary to refer to the leading decision of the Constitution Bench of the Supreme Court in State of Jammu & Kashmir Vs. Triloki Nath Khosa, (1974)1 SCC 19 wherein the Court was called upon to examine the challenge to the service rules which after amalgamating different cadres of engineers into one class, prescribed Bachelor's Degree in Engineering as a qualification for promotion, though such qualification was not prescribed for promotion from the cadre of Assistant Engineers before amalgamation of cadres. It was contended that requiring the Assistant Engineers already in service to possess such qualification for promotion amounted to making a retrospective rule. It was contended that requiring the Assistant Engineers already in service to possess such qualification for promotion amounted to making a retrospective rule. Turning down the challenge, the Supreme Court observed thus : “16. … … … It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned Rules do not recall a promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the Rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have founded on the rock of retroactivity. But such is not the implication of Service Rules nor is it their true description to say that because they affect existing employees they are retrospective...” In the same vein, in Dilip Vs. Mohd. Azizul Haq and another, (2002)3 SCC 607, the Supreme Court observed, inter alia, as under : “9. … … We must bear in mind that the presumption against retrospective legislation does not necessarily apply to an enactment merely because a part of the requisites for its action is drawn from time antecedent to its passing. The fact that as from a future date tax is charged on a source of income which has been arranged or provided for before the date of the imposition of the tax does not mean that a tax is retrospectively imposed as held in Commrs. Of Customs and Excise Vs. Thorn Electrical Industries Ltd. (1975)1-WLR-1661….” With due regard to the above principles, a view is taken that Section 6(1)(a) is prospective while clauses (b) and (c) are retroactive , thus: “40. Of Customs and Excise Vs. Thorn Electrical Industries Ltd. (1975)1-WLR-1661….” With due regard to the above principles, a view is taken that Section 6(1)(a) is prospective while clauses (b) and (c) are retroactive , thus: “40. A bare perusal of sub-section (1) of Section 6 would, thus, clearly show that the legislative intent in enacting clause (a) is prospective i.e. daughter born on or after 9 September 2005 will become a coparcener by birth, but the legislative intent in enacting clauses (b) & (c) is retroactive, because rights in the coparcenary property are conferred by clause (b) on the daughter who was already born before the amendment, and who is alive on the date of Amendment coming into force. Hence, if a daughter of a coparcener had died before 9 September 2005, since she would not have acquired any rights in the coparcenary property, her heirs would have no right in the coparcenary property. Since Section 6(1) expressly confers right on daughter only on and with effect from the date of coming into force of the Amendment Act, it is not possible to take the view being canvassed by learned counsel for the appellants that heirs of such a deceased daughter can also claim benefits of the amendment.” The argument as to the intention of the legislature being apparent, in the Section being intended to be retrospective – by reference to the circumstance that partitions other than partitions effected by registered deeds or decrees of the Court, and that the amendment would apply even to a daughter who died before 9-9-2005 and ignoring all partitions (other than those effected by registered deeds or decrees of court), the coparcenery properties which existed on 17.6.1956 will continue to be coparcenery properties in which the daughter of the coparcener or the heirs of the deceased daughter of the coparcener or the heirs of the deceased daughter will get rights with effect from 9.9.2005, particularly as laid down in Pushpalatha’s case, by the High Court of Karnataka, is dealt with thus : “42. Two conditions necessary for applicability of Amended Section 6(1) are: (i) The daughter of the coparcener (daughter claiming benefit of amended Section 6) should be alive on the date of amendment coming into force; (ii) The property in question must be available on the date of the commencement of the Act as coparcenary property. Two conditions necessary for applicability of Amended Section 6(1) are: (i) The daughter of the coparcener (daughter claiming benefit of amended Section 6) should be alive on the date of amendment coming into force; (ii) The property in question must be available on the date of the commencement of the Act as coparcenary property. Proviso to Section 6(1) reads as under:- “Provided that nothing contained in this subsection 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.” 43. It is significant to note that amended Bill was introduced in Rajya Sabha on 20 December 2004 and therefore Parliament saved all dispositions or alienations including partition and testamentary disposition of property, which had taken place before introduction of the Bill in Rajya Sabha, but even registered partition deeds and the partitions obtained by decree of Court after 20 December 2004 are not saved. Otherwise some people might have executed such registered partition deeds or obtained collusive decrees of the Court between 20 December 2004 and 8 September 2005 to deprive daughters of their rights in the coparcenary property by removing the property in question from the stock of coparcenary property, thus changing the nature of the property by such devise. Similarly, sub-section (5) of Section 6 makes it clear that nothing in amended section shall apply to a partition which was effected before 20 December 2004.” As to the further argument that the Explanation to Section 6 clearly provides that partition means any partition made by execution of a deed duly registered under the Registration Act, 1908 or a partition effected by a decree of a Court and therefore, if an oral partition had taken place before 20.12.2004, such partition would not be saved either by the proviso to sub-section (1) or subsection (5) of Section 6. And hence an oral partition effected of coparcenery property even if effected in the year 1957, would not be saved and therefore Section 6 must be held to be retrospective with effect from 17.6.1956, is dealt with thus : “45. And hence an oral partition effected of coparcenery property even if effected in the year 1957, would not be saved and therefore Section 6 must be held to be retrospective with effect from 17.6.1956, is dealt with thus : “45. Though the argument may prima facie appear to be attractive, it does not recognize the distinction between an oral partition or partition by unregistered document which is not followed by partition by metes and bounds on the one hand and oral partition or partition by unregistered document which was acted upon by physical partition of the properties by metes and bounds and entries made in the public record about such physical partition by entering the names of sharers as individual owner/s in the concerned public record, (such as records of the Municipal Corporation or the Property Registers maintained by the Government) on the other hand. It is only where an oral partition or partition by unregistered document is not followed by partition by metes and bounds, evidenced by entries in the public records that a daughter would be in a position to contend that the property still remains coparcenary property on the date of coming into force of the Amendment Act. Thus for the Amended Section 6 to apply, not only the daughter should be alive on the date of commencement of the Amendment Act, but also the property should be coparcenary property on the date of the commencement of the Act i.e. 9 September 2005 or atleast on 20 December 2004, when the Amendment Bill was introduced in Rajya Sabha.” The further argument to the effect that by the Amendment Act 2005, Section 6 of the HS Act – stood substituted and as held by the Apex court in Zile Singh v. State of Haryana, (2004)8 SCC 1 , that a substitution results not only in the old rule ceasing to exist, but also that a new rule is brought into existence in place of the earlier rule. Hence, a daughter of the coparcener has an equal right in the coparcenery property, as if she had been the son right from June 1956 and not merely from September 2005, when the Amendment Act came into force. Hence, a daughter of the coparcener has an equal right in the coparcenery property, as if she had been the son right from June 1956 and not merely from September 2005, when the Amendment Act came into force. Further, that the amended Section 6 would cover all coparcenery property, except that which was covered by any testamentary disposition or alienation, including any partition, provided such partition was made by the execution of the deed of partition duly registered under the Registration Act, 1908 or a partition effected by the decree of a court. The Full bench has seriously doubted the above contention for more than one reason. It is held that in the first place, though Section 3 of the Amendment Act of Hindu Succession (Amendment) Act 2005 has substituted with effect from 9 September 2005, erstwhile Section 6 by the new Section 6, it cannot be said that the new Section 6 relates back to 17 June 1956, when the Principal Act came into force. In fact, sub-section (1) of amended Section 6 opens with the specific words “On and from the commencement of the Hindu Succession (Amendment) Act, 2005”. Secondly, sub-section (3) of Section 6 also opens with the words “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 and not by survivorship … …”. Amended Section 6 no where provides as to what is to happen in a case where a Hindu died before commencement of the 2005 Amendment Act. Obviously, the Legislature did not intend to leave any vacuum for the period prior to 9th September 2005 when the Amendment Act came into force. Case of a Hindu, who died prior to 9th September 2005 continues to be governed by pre-amended Section 6. It was accordingly held that it was not possible to accept that the Amendment Act 2005 is retrospective in nature and that it relates back to 17.6.1956, when the Principal Act came into force, so as to unsettle all the partitions which were not effected by decrees of Court or registered documents even if executed prior to December 2004. It was accordingly held that it was not possible to accept that the Amendment Act 2005 is retrospective in nature and that it relates back to 17.6.1956, when the Principal Act came into force, so as to unsettle all the partitions which were not effected by decrees of Court or registered documents even if executed prior to December 2004. It was also held that the retrospective effect of the amendment would not set at naught notional partitions notwithstanding such notional partitions are not followed by a partition by metes and bounds. As the Amendment Act would affect partitions inter-vivos which were effected without a decree of a court or by a registered partition deed. There was nothing in the Amendment Act to indicate that statutory partitions are rendered nugatory. In the case of a statutory partition, there would be no possibility of any contrived or got up partition. It was expressed that the correct legal position , in the light of the above, was that Section 6 as amended by the 2005 Amendment Act is retroactive in nature, meaning thereby the rights under Section 6(1)(b) and (c) and under sub-Rule (2) are available to all daughters living on the date of coming into force of the 2005 Amendment Act i.e. on 9th September 2005, though born prior to 9th September 2005. Obviously, the daughters born on or after 9th September 2005 are entitled to get the benefits of Amended Section 6 of the Act under clause (a) of sub section (1). In other words, the heirs of daughters, who died before 9th September 2005 do not get the benefits of amended Section 6. The following questions were then considered together. In so far as question (iv) was concerned – it stood answered by the discussion on question (i). “iii) Whether Section 6 of the Hindu Succession Act, 1956, as amended by the Amendment Act , applies to daughters born prior to 17.6.1956 ? iv) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, applies to daughters born after 17.6.1956 and prior to 9.9.2005 ?” The Full bench, while noting the contention that the Act applied to daughters whenever they were born, in that, though Section 6 of the Amendment Act is retrospective, with effect from 17.6.1956, the benefit of the same would be applicable to all daughters whenever born, even after 17.6.1956. And that the operation of Section 6 could not be restricted-which contention was sought to be fortified with reference to the Division bench judgment of the Karnataka High Court in Pushpalatha v. Padma, supra. It was held that on an examination of amended Section 6 of the Principal Act and bearing in mind the words 'on and from commencement of the Hindu Succession Act, 2005' found in Section 6, it must follow that the rights under the amended Section 6 can be exercised by a daughter of a coparcener only after the commencement of the Amendment Act 2005. Therefore, it is imperative that the daughter who seeks to exercise such a right must herself be alive at the time when the Amendment Act, 2005 was brought into force. It would not matter whether the daughter concerned is born before 1956 or after 1956. This is for the simple reason that the Hindu Succession Act, 1956 when it came into force applied to all Hindus in the country irrespective of their date of birth. The date of birth was not a criterion for application of the Principal Act. The only requirement is that when the Act is being sought to be applied, the person concerned must be in existence/ living. The Parliament has specifically used the word “on and from the commencement of Hindu Succession (Amendment) Act, 2005” so as to ensure that rights which are already settled are not disturbed by virtue of a person claiming as an heir to a daughter who had passed away before the Amendment Act came into force. Since reliance had been placed on Pushpalatha’s case, the reasoning and conclusion therein was extracted : “101. ... … … a vested right can be taken away by way of an amendment by the legislature by expressly saying so or by implication. Secondly, a declaratory law is retrospective in operation because the object of such declaratory law is to supply the omission. In the instant case, in 1956 when the Act was passed, the daughters of a coparcener was not treated as coparcener nor any right in the coparcenary property by birth was conferred on her. Now, by a declaration such a right is sought to be conferred. It is done by way of substitution. In other words, the legislative intent is to supply the omission in the original Act. Now, by a declaration such a right is sought to be conferred. It is done by way of substitution. In other words, the legislative intent is to supply the omission in the original Act. The parliament has not kept any one in doubt about their intention. The effect is that the Act as enacted in 1956 is to be read and construed as if the altered words/new section had been written into the earlier Act with the pen and ink and the old Section/Words scored out, so that thereafter there is no need to refer to the amending Act at all. The constitutional validity of the substituted section is not under challenge. On the contrary, the substituted section is in conformity with the constitutional provision. The effect is old Section 6 is superseded by the new Section 6, the amended section taking the place of the original section, for all intents and purposes as if the amendment had always been there. This is the way the parliament has expressly made its intention clear to the effect the amendment is retrospective. 102. Secondly, though the opening words of the section declares that “on and from the commencement of the Hindu Succession (Amendment) Act, 2005, the daughter of a coparcener in a joint family governed by the Mithakshara is conferred the status of coparcener, it is expressly stated that she becomes a coparcener by birth. Conferment of the status is different from conferring the rights in the coparcenary property. The right to coparcenary property is conferred from the date of birth, which necessarily means from the date anterior to the date of conferment of status, and thus the Section is made retroactive. By such express words the amended section is made retrospective. 103. Thirdly, the proviso to Section 6(1) makes the intention of the parliament manifestly clear. The Parliament has expressly stated in the proviso to sub-section (1) of Section 6 – the substituted provision, that the declaration of right in favour of a daughter as a coparcener though it takes effect by birth i.e. anterior to the amendment, the same would not 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. The way this proviso is expressed makes it clear the substituted provision is retrospective in operation. The way this proviso is expressed makes it clear the substituted provision is retrospective in operation. By substitution it is made clear that this provision is there in the principal Act from 1956 itself. But, as the amendment came into force only in 2005, the question would arise that what should happen to the transactions between 1956 and 2005. it is in this context the Parliament has expressly stated though the right by birth is given from 1956, if the dispositions….” While agreeing that the legislative intent was to protect the interest of third-parties, who may have acquired interest in the coparcenery property and also to protect the interests of the sharers in the coparcenery property, on the same becoming their separate property, it was held not possible to agree with the view in Puspalatha, to the effect that a daughter of a coparcener born before 9.9.2005 became a coparcener by birth anterior to the amendment. As had been stated earlier, Clause (a) of sub-section (1) of amended Section 6 only applies to daughters born on or after the date of commencement of the Amendment Act, i.e. on or after 9.9.2005. It is only by virtue of clauses (b) and (c) of subsection 1 of the Amended Section 6 that the daughters born before 9.9.2005, acquired rights in coparcenery property and acquired the status of coparceners with effect from 9.9.2005. The view taken in Pushpalatha that a daughter of the coparcener gets a right in coparcenery property with retrospective effect from 17.6.1956 or from a date prior to 9.9.2005 did not commend to the Full bench. It was asserted that the provisions of the Amended Section 6 were retroactive in operation , and a daughter living on 9.9.2005 would get rights in coparcenery property with effect from 9.9.2005. The further discussion by the Full Bench with reference to Ganduri Koteshwaramma’s case, G.Shekar v. Geeta and Sheela devi’s cases, may not be relevant for our present purposes, though it is illuminating. The questions posed in the reference were answered thus by the Full bench, in brief, as follows : “(1) Question (a) – Section 6 of Hindu Succession Act, 1956 as amended by the Amendment Act of 2005 is retroactive in operation, as explained in this judgment. The questions posed in the reference were answered thus by the Full bench, in brief, as follows : “(1) Question (a) – Section 6 of Hindu Succession Act, 1956 as amended by the Amendment Act of 2005 is retroactive in operation, as explained in this judgment. In brief : Clause (a) of sub-section (1) of amended Section 6 is prospective in operation; Clauses (b) and (c) and other parts of sub-section (1) as well as subsection (2) of amended Section 6 are retroactive in operation, as indicated hereinafter. (II) Questions (b), (c) and (d) – Amended Section 6 applies to daughters born prior to 17 June 1956 or thereafter (between 17 June 1956 and 8 September 2005), provided they are alive on 9 September 2005 that is on the date when the Amendment Act of 2005 came into force. Admittedly, amended Section 6 applies to daughters born on or after 9 September 2005; (III) Question (e) – Yes. Decision of the Division Bench of this Court in Vaishali S Ganorkar, 2012(5) Bom.C.R.210 is per incurium the Supreme Court decision in Ganduri Koteshwaramma’ case, (2011)9 SCC 788 .” It is evident that the petitioners are not really aggrieved, in seeking to question the constitutional validity of the ‘Explanation’ to Section 6 of the Amendment Act no.39 of 2005, when it is their case that pursuant to an oral partition of the year 1980, the parties have been undisputedly enjoying their respective share of the properties, as divided by metes and bounds and hence, as held by the Full Bench of the Bombay High Court, in Shri Badrinarayan Shankar Bhandari, supra, the petitioners would not be affected. In addressing an argument that the Explanation to Section 6 clearly provides that partition means any partition made by execution of a deed duly registered under the Registration Act, 1908 or a partition effected by a decree of a Court and therefore, if an oral partition had taken place before 20.12.2004, such partition would not be saved either by the proviso to sub-section (1) or subsection (5) of Section 6. And hence an oral partition effected of coparcenery property even if effected in the year 1957, would not be saved and therefore Section 6 must be held to be retrospective with effect from 17.6.1956, is met thus : “45. And hence an oral partition effected of coparcenery property even if effected in the year 1957, would not be saved and therefore Section 6 must be held to be retrospective with effect from 17.6.1956, is met thus : “45. Though the argument may prima facie appear to be attractive, it does not recognize the distinction between an oral partition or partition by unregistered document which is not followed by partition by metes and bounds on the one hand and oral partition or partition by unregistered document which was acted upon by physical partition of the properties by metes and bounds and entries made in the public record about such physical partition by entering the names of sharers as individual owner/s in the concerned public record, (such as records of the Municipal Corporation or the Property Registers maintained by the Government) on the other hand. It is only where an oral partition or partition by unregistered document is not followed by partition by metes and bounds, evidenced by entries in the public records that a daughter would be in a position to contend that the property still remains coparcenary property on the date of coming into force of the Amendment Act.” This bench respectfully endorses the said view and hence it is not necessary to address the constitutional validity or otherwise of the provision as sought to be claimed by the petitioners. Further, the second prayer in the writ petition is again fully answered by the Full Bench of the Bombay High Court. Though, this bench is bound by the Division Bench judgment of this court in Pushpalatha. However, the persuasive value and the reasoning of the judgment of a Full Bench of the Bombay High Court with specific reference to Pushpalatha, can hardly be overlooked. In any event, if the petitioners should succeed on the strength of the oral partition set up, the second relief prayed for is not relevant to the petitioners. And as already stated, a Full bench of the Karnataka High Court having been seized of the very question, having deferred the hearing on the issue, pending the decision of the Apex Court on a challenge to the decision in Pushpalatha’s case, the same is not addressed, independently. The petition stands disposed of.