SEKAR REPORTER

Court News from Madras High Court

20.12.2004-ஆம் ஆண்டிற்கு முன்னர் சொத்தில் பாகப் பிரிவினை செய்யப்பட்டு இருந்தால் பெண்களுக்கு சொத்தில் உரிமை இல்லை என சென்னை உயர்நீதிமன்ற அமர்வு அதிரடி உத்தரவு. [8/14, 15:56] Sekarreporter: THE MADRAS HIGH COURT DIVISION BENCH OF JUSTICE T.RAJA & JUSTICE G.CHANDRASEKARAN ORDERED, (MARRIED AND UNMARRIED) WOMEN HAVE NO RIGHT TO PROPERTY PRIOR TO THE PARTITION EFFECTED ON 20.12.2004:-

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  • [8/14, 15:56] Sekarreporter: 20.12.2004-ஆம் ஆண்டிற்கு முன்னர் சொத்தில் பாகப் பிரிவினை செய்யப்பட்டு இருந்தால் பெண்களுக்கு சொத்தில் உரிமை இல்லை என சென்னை உயர்நீதிமன்ற அமர்வு அதிரடி உத்தரவு.
    [8/14, 15:56] Sekarreporter: THE MADRAS HIGH COURT DIVISION BENCH OF JUSTICE T.RAJA & JUSTICE G.CHANDRASEKARAN ORDERED, (MARRIED AND UNMARRIED) WOMEN HAVE NO RIGHT TO PROPERTY PRIOR TO THE PARTITION EFFECTED ON 20.12.2004:-

The Madras High Court on its order on 03.08.2021 passed by the Hon’ble Justice T. Raja and the Hon’ble Justice G. Chandrasekharan ordered that the appellant/plaintiff will not be entitled to a share in the suit properties, as the registered partition between the respondents 1 & 2 has been effected before the cut-off date 20.12.2004 i.e., on 11.5.2001 i.e., before the Hindu Succession (Amendment) Act came into force. Confirming the impugned judgment and decree, the first appeal fails and it was dismissed.

The court made the observation on an application filed before the Hon’ble High Court in A.S.No.687 of was filed seeking relief for filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 28.03.2018 made in O.S.No.181 of 2011 on the file of the Additional District (Fast Track) Court, Mettur.

The plaintiff has brought this first appeal, being aggrieved by the judgment and decree dated 28.03.2018 passed in O.S.No.181 of 2011 by the learned Additional District Judge, Additional District (Fast Track) Court, Mettur. The appellant and the respondents 1 & 2 belong to Hindu Undivided Family, wherein the first respondent is the Kartha and the appellant and the second respondent are the coparceners and they have been in joint possession and enjoyment of the suit properties till date without any metes and bound. The appellant sent notice to the respondents demanding partition and to allot the legitimate share in the suit properties to the appellant.

R. Srinivas for S. Sithirai Anandam, appearing for the Respondents 1 and 2 in the Appeal, mentioned that the sole issue raised in this appeal is whether Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) coming into force from 9.9.2005 will apply or Section 29-A inserted in Chapter II-A by the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) coming into force from 25.3.89 will apply, to determine the entitlement of the appellant regarding her share in the suit properties made in O.S.No.181 of 2011 before the trial Court. Shri Srinivas, learned counsel appearing for the respondents 1 & 2 argued that there is no necessity for the subsequent law of the Parliament to state that the State enactment is repealed, as there is a legal fiction embedded in Article 254, which says that when the State law becomes repugnant to the Central law, it automatically becomes void, therefore, there is no need for the new Union law to specifically repeal the State law.

The Learned Division Bench comprising of Justice T. Raja and Justice G. Chandrasekharan, pointed out that if we apply Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990), Hindu women in the State of Tamil Nadu would be facing inequality with regard to inheriting rights of coparcenary property, more importantly, the judgment of the three-Judge Bench of the Apex Court in Vineet Sharma’s case ruling that the provisions of the substituted Section 6 of the Hindu Succession (Amendment) Act, 2005 are required to be given full effect, also has a binding force, therefore, the appellant/plaintiff will not be entitled to a share in the suit properties, as the registered partition between the respondents 1 & 2 has been effected before the cut-off date 20.12.2004 i.e., on 11.5.2001 i.e., before the Hindu Succession (Amendment) Act came into force. Hence, it was hold that the trial Court has rightly dismissed the suit. Accordingly, confirming the impugned judgment and decree, the first appeal fails and it was dismissed
[8/14, 15:56] Sekarreporter: IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 01.04.2021

DATE OF DECISION : 03.08.2021

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

A.S.No.687 of 2018

P.Hemamalini .. Appellant

~vs~

1. K.Palani Malai
2. Raja alias Senthil Raja

3. City Union Bank
rep.by its Branch Manager
Jalakandapuram Branch
Jalakandapuram, Mettur Taluk
Salem District

4. Indian Oil Corporation
rep.by its Manager
Salem Branch
Leigh Bazar
Salem 636 002 .. Respondents

Memorandum of Grounds of First Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 28.03.2018 made in O.S.No.181 of 2011 on the file of the Additional District (Fast Track) Court, Mettur.

For Appellant :: Shri N.Jothi for
Mr.N.Manokaran

For Respondents :: Shri.R.Srinivas for
Mr.S.Sithirai Anandam
for R1 & R2
Mr.R.S.Varadharajan for R3
No appearance for R4

JUDGMENT
T.RAJA, J.
Mrs.P.Hemamalini, the unsuccessful plaintiff has brought this first appeal, being aggrieved by the judgment and decree dated 28.03.2018 passed in O.S.No.181 of 2011 by the learned Additional District Judge, Additional District (Fast Track) Court, Mettur.

2. Shri N.Jothi, learned counsel appearing for the appellant/plaintiff pleaded that the appellant/plaintiff and the second respondent/second defendant are the daughter and son of the first respondent/first defendant. The appellant and the respondents 1 & 2 belong to Hindu Undivided Family, wherein the first respondent is the Kartha and the appellant and the second respondent are the coparceners and they have been in joint possession and enjoyment of the suit properties till date without any metes and bounds. While so, the appellant/plaintiff got married on 6.6.2008. Even after the marriage, the appellant was residing in her parents house till September, 2011. Thereafter, she went and settled down at her matrimonial house demanding her legitimate share in the suit properties. But the respondents 1 & 2 have denied to partition the suit properties. Later on the appellant came to know that the respondents 1 & 2, denying her request for partition, have created some fake documents by suppressing the legitimate share of the appellant to the properties, as though a partition had taken place on 11.5.2001. Further the appellant came to know that in order to deceive the appellant from getting her legitimate share in the suit properties, the respondents 1 & 2 gave some portion of the suit properties as security to the third respondent/City Union Bank and obtained loan for individual purpose. Again the respondents 1 & 2 have also entered into an agreement with the fourth respondent/Indian Oil Corporation for running a petrol bunk outlet in a portion of the suit properties. Therefore, a legal notice was sent to the respondents 1 & 2 on 13.10.2011 demanding partition and to allot the legitimate share in the suit properties to the appellant. The respondents 1 & 2 received the notice on 17.10.2011. Instead of partitioning the suit properties, the second respondent alone sent a reply notice to the appellant on 21.10.2011 alleging that the respondents 1 & 2 had already partitioned the suit properties on 11.5.2001 and the appellant had released her right in favour of the second respondent on 3.10.2011. Therefore, the suit was filed in O.S.No.181 of 2011 before the Principal District Court, Salem, which was transferred to the file of Additional District (Fast Track) Court, Mettur praying for a judgment and decree directing the defendants 1 & 2 to divide the suit properties into three equal shares by metes and bounds by taking into consideration of good and bad soil and allot one such share to the plaintiff and put her in separate possession, failing which to divide the suit properties by appointing a Court Commissioner for the purpose of the said partition and to declare the partition deed created by the defendants 1 & 2 on 11.5.2001 registered as Document No.1597 of 2001 in the Jalagandapuram Sub Registrar office as null and void and also for a permanent injunction restraining the defendants, their men, agents, servants and others from alienating or encumbering the suit properties to anyone until the partition is finally over.
3. Replying to the same, the first respondent filed a detailed written statement taking a stand that the suit was barred by limitation, because the appellant, after getting married in the year 2008, left for her matrimonial home; that she was not in joint possession and enjoyment of the suit properties; that the suit properties had already been partitioned between the family members of the first respondent in the year 1984 itself and that the suit properties are not the ancestral properties as alleged by the appellant, hence, the appellant is not entitled to one third share in the suit properties. It was further explained in the written statement that in the year 1984 itself the suit properties were allotted to the first respondent as -C- schedule properties through a registered partition deed among the first respondent and his brothers, hence the suit properties are the absolute properties of the first respondent. Therefore, it was pleaded that except the first respondent, nobody has got any right or title over the properties and due to his old age, the first respondent~Father has given away the other properties by way of partition on 11.5.2001 in favour of the second respondent~Son and that the second respondent has been in separate possession and enjoyment of his share by paying kist to the said properties. Moreover, when the second respondent is having every right individually to obtain loan in respect of his property, he entered into an agreement for running a petrol bunk through Indian Oil Corporation and these facts are also known to the appellant. However, after a lapse of ten years, the appellant is seeking a declaratory relief against the registered partition deed, therefore, the partition suit is barred by limitation. It was also further pleaded that the appellant was not entitled to any relief against the respondents 1 & 2.

4. The second respondent also filed his detailed written statement reiterating the pleadings made by the first respondent.

5. The third respondent~City Union Bank also filed its written statement stating that the second respondent had obtained loan by pledging the lands in Survey Nos.162/4 having an extent of 2.10 acre; 163/1 having an extent of 0.62 cents; 162/7 having an extent of 0.42 cents; 162/8 having an extent of 0.45 cents and 171/1A having an extent of 0.12 ½ cents at Dhoramangalam Village. Moreover, the second respondent has also created an equitable mortgage upon the properties and obtained a loan of Rs.10 lakhs from the third respondent. Before sanctioning the loan, the documents submitted by the second respondent were properly scrutinized and then only the loan was sanctioned by the third respondent bank. The second respondent has also produced a sworn affidavit dated 3.10.2011 executed by the appellant in favour of the second respondent. The recital of the said document would reveal that the appellant has ratified the partition deed dated 11.5.2001, wherein she has consented that she would not claim any right over the properties mentioned therein and that she had no objection for the second respondent getting any loan from the bank based on the above properties. Therefore, after executing such document, the appellant-s claim is unsustainable and she is estopped from making the claim.

6. The fourth respondent also filed its detailed written statement stating that the suit was vexatious, because there is no cause of action for the appellant to file the suit, hence, it is not legally maintainable. It was also pleaded that the Indian Oil Corporation Limited is a Government of India company incorporated under Section 617 of the Companies Act, 1956 and being a public sector enterprise of the Government of India, it is engaged in the marketing of petroleum products through retail network. Since the appellant has approached the Court with tainted and unclean hands, she is not entitled to any relief.

7. Based on the above pleadings, the trial Court, after framing the following seven issues,
(i)Whether the suit property is the ancestral property of the first defendant or ancestral and joint family property of plaintiff, defendant 1 and 2?

(ii)Whether the plaintiff, defendant 1 and 2 are in possession and enjoyment of the suit property or not?

(iii)Whether the second defendant fabricated a false forged release deed dated 3.10.2011?

(iv)Whether the plaintiff undervalued the suit property?

(v)Whether the first defendant purchased any portion of suit property from his brother Ponnusamy through a release deed?

(vi)Whether the plaintiff entitled for the relief claimed by her?

(vii)What is the result?,

answering all the issues against the appellant/plaintiff, dismissed the suit holding that since the suit properties were already partitioned between the respondents 1 & 2/defendants 1 & 2 on 11.5.2001 before the Hindu Succession (Amendment) Act, 2005 (39 of 2005) came into force on 9.9.2005 and that any partition that took place before the Amendment Act 39 of 2005 came into force being valid, there is no legal right for the appellant/plaintiff to make her claim. Aggrieved thereby, the present first appeal has been filed.

8. Shri N.Jothi, learned counsel appearing for the appellant has raised several knotty legal issues of public importance. When the appellant daughter in this case got married on 6.6.2008, admittedly, the suit properties being ancestral, she is having equal right as a coparcener along with her father and brother, the respondents 1 & 2, because Section 29~A was inserted by the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) with effect from 25.3.89 conferring equal right on the unmarried daughter in the ancestral properties, therefore, the appellant daughter is entitled to get equal share by birth in the suit properties. Hence the partition said to have taken place on 11.5.2001 under Ex.A1 between the respondents 1 & 2/father & brother is not binding on the appellant, because Section 29A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) which came into effect from 25.3.89 has treated the daughters also as coparceners along with sons, therefore, once the appellant is treated as a coparcener by birth in the same manner as son, she is entitled to one third share in the suit properties by virtue of Section 29~A of the State Act which has been given retrospective effect. Shri Jothi also argued that the State Legislature in their wisdom thought it fit to treat the daughters as coparceners along with sons by introducing Section 29~A in the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) with effect from 25.3.89 subject to two conditions, namely, that the daughter should have remained unmarried as on 25.3.89 and no partition should have taken place prior to 25.3.89. This amendment of Tamil Nadu also got the assent of the President of India, as per Article 254(2) of the Constitution of India. Whereas the Parliament had enacted a law by substituting the then existing Section 6 of the Hindu Succession Act, 1956 by way of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) with effect from 9.9.2005, subject to a rider that any alienation or partition or testamentary disposition that had taken place before 20.12.2004 shall not be invalidated. But in the case on hand, the appellant having married on 6.6.2008 is entitled to claim her share under Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990). Since the respondents 1 & 2/father & son have created a false partition deed under Ex.A1 dated 11.5.2001, the same is not binding on the appellant. In addition thereto, Ex.A1 partition deed is illegal and also null and void.

9. Drawing our attention to Article 254 of the Constitution of India, Shri Jothi argued that the provisions of Article 254 are absolutely clear and unambiguous. As per Article 254, when the provisions of the Central Act and the State Act in the Concurrent List are fully inconsistent and they are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. However, the State law can be protected by obtaining the assent of the President under Article 254(2). By virtue of Article 254(2), after obtaining the assent of the President, the State law will prevail in the State in spite of the provisions of the Central Act. Such a situation may exist until the Parliament may at any time make a law adding to, amending, varying or repealing the law so made by the State Legislature. But in the case on hand, Shri Jothi pleaded that a comparative reading of Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) and Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) would not give rise to any inconsistency between the State Act and the Central Act. Explaining further as to the repugnancy, Shri Jothi argued that to plead a case of repugnancy under Article 254, twin requirements must be satisfied. Firstly, there has to be a repugnancy between the Central and the State Acts. Secondly, the Presidential assent has to be held as non existent. In an effort to bring the case of repugnancy, both the legislations must be substantially on the same subject. Placing reliance on a familiar Constitution Bench judgment of the Apex Court in M.Karunanidhi v. Union of India, (1979) 3 SCC 431, it has been argued that to bring the case of repugnancy, three conditions must be satisfied. They are (i) that there is a clear and direct inconsistency between the Central Act and the State Act; (ii) that such an inconsistency is absolutely irreconcilable; (iii) that the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other. Although the Apex Court in the above judgment has given the triple test, in view of the fact that there is no inconsistency between the State law and the Central law, the question of repugnancy does not arise. This has been completely overlooked by the trial Court. Article 254 can apply only when the State law is repugnant to the law enacted by the Parliament, meaning thereby that the State law cannot co~exist to the extent which is repugnant to the Central law, it is pleaded.

10. Again explaining further, Shri Jothi submitted that while determining any question as to whether there exists any conflict, the real test would be as to whether both the legislations can stand together. Now the question is whether the State Amendment by inserting Section 29~A is relatable to Entry 5 in List III. While so, if we apply the rule of pith and substance, Section 29~A would still be valid, subject to the Parliamentary enactment by virtue of the proviso to Section 254(2), for which the statement of objects and reasons may be referred to. When the Constitution has made a clear distinction between the making of law and the commencement of a law in view of the plain language used in Article 254(2), the State Act, namely, Section 29~A shall prevail over Section 6 of the Central Act, 2005, because Section 29~A has not been declared as invalid by any Court of law. Referring to the judgment of the Apex Court in Vineeta Sharma v. Rakesh Sharma and others, (2020) 9 SCC 1 and drawing our attention to paragraph~81, Shri Jothi argued that when a similar issue came up for consideration before the Apex Court in Mangammal v. T.B.Raju, (2018) 15 SCC 662, the Apex Court, while considering Section 29~A made in the State of Tamil Nadu, held that the State Government enacted the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) making effective from 25.3.89 adding Section 29~A in the Hindu Succession Act, 1956 specifically holding that Section 29~A is valid regarding succession by survivorship. The Apex Court has also held in that judgment that Section 29~A provided equal rights to daughters in coparcenary property, therefore, when Section 29~A has been held valid, the impugned judgment and decree passed by the trial Court are liable to be set aside with a direction to give one third share of the suit properties to the appellant/plaintiff.

11. Again reiterating that Section 29~A of the State Act is valid, Shri Jothi further argued that when the Central Amendment Act came into force on 9.9.2005, the Parliament took note of various State Amendments into consideration for the purpose of amending Section 6 of the Hindu Succession Act, 1956. While amending Section 6 of the Hindu Succession Act, Parliament has removed Sections 23 and 24 of the Act in toto, but very carefully chose not to amend or repeal or vary or amend or delete Section 29~A of the Tamil Nadu Act 1 of 1990. That shows that Section 29~A was allowed to stay in the field. Therefore, the findings given by the trial Court that the suit properties were already partitioned on 11.5.2001 between the respondents 1 & 2 before the Hindu Succession (Amendment) Act came into force i.e., before 20.12.2004 is unsustainable in law. The proviso to Article 254(2) naturally curtails the scope of clause (2) of Article 254 by providing that the Parliament can enact a law with respect to the same matter in which the State Legislature has made the law, it goes without saying that the proviso to Article 254(2) enlarges the power of the Parliament to add, amend, vary or repeal, whereas the Parliament has not chosen to vary or amend Section 29~A when Section 6 was amended on 9.9.2005. That shows that the effect and existence of Section 29~A of the State Act has been well taken note of as recommended by the Law Commission-s report. Again placing reliance on the judgment of the Apex Court in Vineeta Sharma-s case, Shri Jothi argued that more than once a similar issue of Section 29~A of the Tamil Nadu Act 1 of 1990 came up for consideration before the Apex Court. When Section 29~A of the Andhra Pradesh Amendment Act came up for consideration in S.Sai Reddy v. S.Narayana Reddy, (1991) 3 SCC 647 before the Apex Court as to whether the benefit of Section 29~A of the State Act can be extended even at the stage of final decree, the Court was pleased to extend the benefit of the amended Section 29~A to the pending matters even though the suit was laid prior to 1986. When the intention of both the State and Central Acts are to ensure that the daughters are not deprived of their right to obtain the share on becoming coparceners, making a frivolous defence by fraudulently creating a sham and nominal partition deed like Ex.A1 in the present case should be eschewed by this Court, because the appellant cannot be deprived of her right to equality conferred upon her by Section 29~A of the State Act. Contending further, Shri Jothi heavily argued that the law makers keeping in mind the goal of reaching gender justice constitutionally envisaged to be achieved, have enacted Section 29~A in the State of Tamil Nadu giving equal rights to daughters by birth in the coparcenary property as the sons have, similar to this social reforms, the State of Andhra Pradesh, Karnataka, Maharashtra and Kerala have made necessary changes in the law giving equal rights to daughters in Hindu Mitakshara Coparcenary property, therefore, such a social reforms resulting gender justice required to be espoused by this Court by reversing the impugned judgment. Therefore the appellant/plaintiff/daughter cannot be deprived of her right of equality conferred upon her by Section 29~A of the State Act.

12. Shri R.Srinivas, learned counsel appearing for the respondents 1 & 2/defendants 1 & 2, supporting the impugned judgment and decree passed by the trial Court, urging this Court to dismiss the first appeal, argued that the sole issue raised in this appeal is whether Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) coming into force from 9.9.2005 will apply or Section 29~A inserted in Chapter II~A by the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) coming into force from 25.3.89 will apply, to determine the entitlement of the appellant regarding her share in the suit properties made in O.S.No.181 of 2011 before the trial Court. Since the Hindu Succession Act has been enacted by the Indian Parliament relating to Entry 5 in List III Concurrent List, there is a repugnancy between Section 6 of the Central Act 39 of 2005 and Section 29~A of the Tamil Nadu Amendment Act 1 of 1990 with regard to the entitlement of a female coparcener. Section 29~A of the State Act gives right of equality in ancestral property with effect from 25.3.89 with two conditions, whereas Section 6 of the Central Act gives larger rights from 9.9.2005 with one condition that no partition should have taken place on and from 20.12.2004, therefore, as there has been a repugnancy, the Central legislation will prevail over the State legislation, hence, Section 29~A inserted by the Tamil Nadu Amendment Act 1 of 1990 will become void. Again pointing out the repugnancy so as to bring the operation of substituted Section 6 of the Hindu Succession Act valid, it was argued that Section 6 and Section 29~A broadly produce different results when applied to the same facts, inasmuch when the appellant/plaintiff got married after 25.3.89 i.e., on 6.6.2008, if the substituted Section 6 of the Central Act is applied, the appellant/plaintiff will not be entitled to any share, as a registered partition deed had taken place on 11.5.2001 under Ex.A1. Since both Section 6 and Section 29~A produce different results when applied to the facts and circumstances of the instant case, they are running repugnant to each other, hence, they cannot go together in the same field. Referring to the ratio laid down by the Apex Court in Zaverbhai Amaidas v. State of Bombay, (1955) 1 SCR 799 and in Innoventive Industries Ltd., v. ICICI Bank, CDJ 2017 SC 1013, he has pleaded that on a question arising from Article 254(1), whether an Act of Parliament prevails against the law of the State, if the subject matter of the State Legislation is identical with that of the earlier Central legislation enacted in the Concurrent List, both cannot stand together, if there is a repugnancy, as a result the Act of Parliament prevails against the law of the State. Shri Srinivas has pleaded that when the Tamil Nadu Amendment Act 1 of 1990 inserting Section 29~A in Chapter II~A to the Hindu Succession Act came into force on 25.3.89 that remained in force till 9.9.2005 when the Parliament substituted Section 6 by the Hindu Succession (Amendment) Act 39 of 2005 on 9.9.2005, the provisions of Section 29~A being repugnant to Section 6 of the Central Act, Section 29~A becomes void, inasmuch as Section 6 will prevail and occupies the field and therefore anything inconsistent or repugnant to Section 6 will become void. Shri Srinivas further stated that when the present suit was filed in November, 2011 in O.S.No.181 of 2011, as the provisions of the Tamil Nadu Amendment Act 1 of 1990 inserting Section 29~A are repugnant to the substituted Section 6 of the Hindu Succession (Amendment) Act 39 of 2005 which came into force on 9.9.2005, it is only Section 6 that will apply to the facts and circumstances of this case.

13. Replying to the contention made by the appellant-s counsel that Section 29~A of the State Act has been held as valid by the Apex Court in Mangammal v. T.B.Raju, (2018) 15 SCC 662, Shri Srinivas, referring to the ratio laid down by the Apex Court in Vineeta Sharma-s case (2020) 9 SCC 1, pleaded that the three Judge Bench in the said decision, taking into consideration the State amendments vis~a~vis the grant of coparcenary rights to daughters effected by the States of Kerala, Andhra Pradesh, Karnataka etc., finally held that the rights under the amendments are applicable to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born, however, while holding so, the Apex Court also has made it clear that the disposition or alienation including partition which may have taken place before 20.12.2004 as per law prior to the said date will remain unaffected. Again in the said judgment, the Apex Court has held that any transaction of partition effected therefor will be governed by the explanation. Therefore, when the Apex Court has clearly applied the amendment to Section 6 of the Central Act holding that the rights under the amendments are applicable to the living daughters of living coparceners as on 9.9.2005 with a further clarification that any disposition or alienation including partition which may have taken place before 20.12.2004 will remain unaffected, it goes without saying that the substituted Section 6 of the Hindu Succession (Amendment) Act 39 of 2005 which came into force on 9.9.2005 will apply to determine the entitlement of the appellant regarding her share in the suit properties. While so, the controversy between Section 29~A and Section 6 was not in issue therein, therefore, the decision in Mangammal-s case is inapplicable to the present case.

14. Again answering the second contention made by the appellant that the inserted Section 29~A in Chapter II~A of the Hindu Succession Act by the Tamil Nadu Amendment Act 1 of 1990 was held valid, refuting the same, Shri Srinivas argued that the three~Judge Bench of the Apex Court in Vineeta Sharma-s case, in paragraph~139, overruling the views to the contrary expressed in Prakash v. Phulavati, (2016) 2 SCC 36 and Mangammal v. T.B.Raju, (2018) 15 SCC 662 and holding the opinion expressed in Danamma v. Amar, (2018) 3 SCC 343 is partly overruled to the extent it is contrary to this decision, has categorically held that the provisions of the substituted Section 6 are required to be given full effect, notwithstanding that a preliminary decree has been passed, because the daughters are to be given share in coparcenary property equal to that of a son in pending proceedings for final decree or in an appeal. Arguing further, Shri Srinivas stated that when the judgment in Vineeta Sharma-s case has made it clear that Section 6 as substituted with effect from 9.9.2005 will have to be applied even in cases where preliminary decree has been passed, the judgment in Vineeta Sharma-s case fully holds good the case of these respondents, therefore, Section 6 alone will prevail over Section 29~A, for the simple reason that the Apex Court has held in the said judgment that the substituted Section 6 will apply retroactively Accordingly, directions have been given to all Courts in India to apply the new substituted Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) even to pending appeal. Therefore, in the present case also, he pleaded that the substituted Section 6 has to be applied and not the inserted Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990). Lastly meeting the arguments of the appellant that when the Central Act came into effect from 9.9.2005, the Parliament took note of various State enactments into consideration for the purpose of Section 6 of the Hindu Succession Act, 1956 to remove the gender bias, more importantly, the Parliament removed Sections 23 and 24 from the Hindu Succession Act, 1956, but carefully chose not to amend or repeal or vary or amend or delete Section 29~A of the State Act that shows the mind of the law makers that both Acts can co~exist, therefore, Section 29~A shall be allowed to exist; Shri Srinivas pressed into service a judgment of the Apex Court in State of Orissa and another v. M/s M.A.Tulloch & Co., AIR 1964 SC 1284 answering the issue in this regard that the entire theory underlying implied repeals is that there is no need for the later enactment to state in express terms that the earlier enactment has been repealed by using any particular set of words if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, hence, Section 29~A is impliedly repealed, resultantly Section 6 of the Hindu Succession (Amendment) Act, 2005 will govern the present situation and this legal aspect has been rightly followed by the trial Court, therefore this appeal shall fail.

15. Heard learned counsel for the parties.

16. The appellant/plaintiff Mrs.P.Hemamalini, Daughter of Mr.K.Palani Malai, the first respondent/first defendant and sister of Mr.Raja alias Senthil Raja, the second respondent/second defendant has brought this appeal aggrieved by the judgment and decree of the trial Court refusing her prayer. The appellant has filed the suit in O.S.No.181 of 2011 before the Principal District Court, Salem, which was transferred to the Additional District (Fast Track) Court, Mettur, to divide the suit properties in three equal shares, failing which to appoint a Court Commissioner for the said purpose of division, to declare the partition deed created by the defendants 1 & 2 dated 11.5.2001 as null and void and to grant permanent injunction restraining the defendants, their men, agents, servants, executors or assignees from alienating or encumbering the suit properties to any body until the partition is finally made. According to the appellant, she got married on 6.6.2008 and since the Tamil Nadu State Legislature has introduced Section 29~A in Chapter II~A by the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) with effect from 25.3.89 conferring equal rights to daughter in coparcenary property as is allotable to a son, subject to fulfillment of two conditions that (a) the daughter should have remained unmarried as on 25.3.89 and (b) no partition should have taken place prior to 25.3.89, she is entitled to one third share in the ancestral properties, as per Section 29~A of the Hindu Successsion (Tamil Nadu Amendment) Act, 1989 (1 of 1990). But the respondents 1 & 2 have refused to partition the properties on the false ground that the suit properties were already partitioned by a registered partition deed dated 11.5.2001 under Ex.A1 and the recital of the partition deed would show that the appellant has ratified the partition deed and consented that she would not claim any right in the aforementioned properties. Secondly, when the marriage of the appellant was solemnized on 6.6.2008, the trial Court, erroneously accepting the case of the respondents 1 & 2, ought not to have dismissed the suit, overlooking Section 29~A of the Hindu Successsion (Tamil Nadu Amendment) Act, 1989 (1 of 1990), holding that the proviso to Section 6(1) of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) clearly speaks that any disposition or alienation including partition which may have taken place before 20.12.2004 would remain unaffected.

17. One of the knotty legal issues involved in this appeal is whether the substituted Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) brought in Chapter~II by the Parliament which came into force with effect from 9.9.2005 or Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) brought in Chapter II~A by the State Legislature which came into force with effect from 25.3.89 and holding the field till 9.9.2005, will apply, to determine the entitlement of the appellant/plaintiff regarding her one third share in the Hindu coparcenary properties in O.S.No.181 of 2011 on the file of the Additional District (Fast Track) Court, Mettur. The appellant claims that Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) shall be applied, without reference to the substituted Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005). On the other hand, the respondents 1 & 2 make a counter claim that only the substituted Section 6 of the Hindu Succession (Amendment) Act, 2005 shall be applied and not Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, on the ground that when there is a repugnancy between these two Acts, the Act enacted by the Parliament alone shall prevail over the Act enacted by the State Legislature and that a repugnancy between two statutes would arise if there is a direct conflict between the two provisions and if the law made by the Parliament and the law made by the State Legislature occupy the same field, namely, Concurrent List and clash with each other, the Parliament Act will prevail over the State Act. In this regard, let us first examine whether there is any repugnancy between the Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) and the substituted Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) in this case.
18. Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990) came into force with effect from 25.3.89 with two conditions, namely, daughter should remain unmarried as on 25.3.89 and no partition should have taken place prior to 25.3.89. The appellant in this case got married on 6.6.2008, hence she makes her claim under Section 29~A. Whereas the Parliament in the same subject has enacted a law substituting Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) with effect from 9.9.2005 with one condition that the daughter is entitled to have equal share in the Hindu coparcenary property like a son only if there is no disposition or alienation including partition or testamentary disposition of property had taken place before 20.12.2004. Now it is counter claimed that the right given by the State Act has been taken away by the Central Act by virtue of the proviso to Article 254 of the Constitution.

19. Let us now make a comparative analysis of both the provisions, namely, Section 29~A of the State Act and Section 6 of the Central Act. Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990), which came into force with effect from 25.3.89 is reproduced as follows:~
“S.29~A. Equal rights to daughter in coparcenary property. Notwithstanding anything contained in section 6 of this Act,~~
(i) in a Joint Hindu Family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary 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 liabilities and disabilities in respect thereto as the son;
(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a pre~deceased son or a pre~deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre~deceased son or of such pre~deceased daughter:
Provided further that the share allotable to the pre~deceased child of a predeceased son or of a pre~deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre~deceased child of the predeceased son or of the pre~deceased daughter, as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary 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;
(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;
(v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.”

20. A careful reading of the above shows that Section 29~A was brought in with effect from 25.3.89 with three vital aspects:~
(1)Notwithstanding anything contained in Section 6 of this Act i.e., as on 25.3.89 (a) daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property like a son and (b) also subject to the same liabilities and disabilities in respect thereto as the son.
(2) A daughter married before the commencement of the Act~25.3.89 cannot claim anything under this Act.
(3) A daughter cannot claim any property if partition had taken place before 25.3.89.

21. Whereas, Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005) substituted with effect from 9.9.2005 is also reproduced as follows:~
“S.6. Devolution of interest in coparcenary 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 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.
(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 coparcenary 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 coparcenary 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 the pre~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) the share of the pre~deceased child of a pre~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 coparcener 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 the 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 been 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 this 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.”

22. A careful reading of the above shows the following benefits:
(a) A daughter becomes a coparcener like a son by birth;
(b) she shall have the same equal rights in the coparcenary property like a son;
(c) a daughter is also subject to the same liabilities and disabilities in respect of the coparcenary properties;
(d) any partition taken place prior to 20.12.2004 shall not be affected;
(e) whether the daughter is married or unmarried;
(f) any partition by execution of a deed of partition duly registered;
(g) the Act lays down a uniform and comprehensive system of inheritance all over the country to every Hindu by religion.

23. After a comparative analysis of both the above provisions, if we apply Section 29~A by taking the marriage date 25.3.89 and the partition date 25.3.89, the same will go repugnant to the cut off date 20.12.2004 fixed by Section 6 of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), because as per Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (1 of 1990), if any partition has taken place prior to 25.3.89, such partition shall not be invalidated and any partition taking place from 26.3.89 will be invalid, whereas when we apply Section 6 of the Hindu Succession (Amendment) Act, 2005, the partition taking place from 26.3.89 till 20.12.2004 will not be invalidated or affected and they are saved and protected. This huge repugnancy gives a direct collision with each other resulting in a situation where it is impossible to obey the one without disobeying the other. The second repugnancy is this. If a daughter is married on or before 25.3.89, Section 29~A will disentitle her to have a share, whereas Section 6 of the Hindu Succession (Amendment) Act, 2005 says that from the commencement of the Act, a daughter of a coparcener in a joint family shall become a coparcener by birth and the disqualification of getting married is obliterated, therefore, Section 29~A of the State Act is in direct conflict with Section 6 of the Central Act 39 of 2005.
24. Now the tricky question is in view of the above repugnancy, whether Section 29~A will prevail over Section 6 of the Act or vice~versa. The answer is clearly given in Article 254 of the Constitution of India that when a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to the previous law made by Parliament, such law can be protected by obtaining the assent of the President under Article 254(2). The effect of obtaining the assent of the President would make the State law to prevail over the Central law in the State. Such a situation will legally continue until the Parliament makes a law adding to or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254(2).

25. When both the Parliament and the State Legislature are entitled to legislate in the Concurrent List in regard to any of the Entries appearing in Entry 5 of the List of Seventh Schedule of the Constitution and if there is any overlapping leading to repugnancy as to which law made by the Parliament or the State Legislature shall be enforced, in such event, the question of repugnancy would arise. In this context, it is relevant to refer to a decision of the Constitution Bench of the Apex Court in M.Karunanidhi v.Union of India, (1979) 3 SCC 431, wherein it is held that where there is a direct collision between the law made by the State and that made by the Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the State law would be void to the extent of the repugnancy. The above judgment shows that Parliament is empowered to legislate regarding the matters contained in List I, which is called Union List to the Seventh Schedule and the State Legislature have no authority to make any law in respect of Entries contained in List I. Secondly, so far as the Concurrent List is concerned, both the Parliament and the State Legislature are entitled to legislate in regard to any of the Entries appearing therein. If there is any repugnancy between the State law and the Central law, as per Article 254(1), the Central law will prevail over the State law. So far as List II is concerned, only the State Legislatures are entitled to legislate on them.

26. When we look at the scheme of the Constitution, the distribution of legislative powers between the Parliament and the State Legislatures is scientifically made with equal distribution of legislative power.
26.1. Firstly, in List I to the Seventh Schedule, Parliament alone is empowered to legislate, hence the State Legislatures have no authority to make any law in respect of Entries contained in List I.
26.2. Secondly, so far as List II is concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions, Parliament can do so.
26.3. Thirdly, so far as the Concurrent List is concerned, both the Parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the conditions laid down by Article 254(1).
26.4. From the above three Lists, repugnancy may occur from the following circumstances. For example, if there is repugnancy between the Central Act and the State Act arising only from the Concurrent List, by virtue of Article 254(1), the Central Act will prevail and the State Act will become void in view of the repugnancy.
26.5. If any law is made by the State Legislature in the Concurrent List and the assent of the President is obtained so far as the State Act is concerned, it will prevail in the State and will overrule the Central Act in its applicability to the State only. It is more important that such a state of affairs will exist only until the Parliament may at any time make a law by adding to or amending or varying or repealing the law made by the State legislatures under the proviso to Article 254(2). It is also equally important that even if the subsequent law made by the State Government clashes with Central Act, Parliament need not expressly state that it repeals, alters or amends the State law made under Article 254(2), because the subsequent law made by the Parliament will prevail and the provisions of the State law which are inconsistent/repugnant to the law made by the Parliament will to the extent of such repugnancy be void. With this background of legal position, let us go to the case on hand.

27. Shri Srinivas, learned counsel appearing for the respondents 1 & 2 argued that there is no necessity for the subsequent law of the Parliament to state that the State enactment is repealed, as there is a legal fiction embedded in Article 254, which says that when the State law becomes repugnant to the Central law, it automatically becomes void, therefore, there is no need for the new Union law to specifically repeal the State law. In support of his submissions, he has relied upon the judgment of the Apex Court in Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752. The Apex Court while reading Section 107(2) of the Government of India Act and also referring to the power of the Dominion Legislature, Canada, in relation to that of the Provincial Legislature, similar to that under Section 107(2) of the Government of India Act, observed as follows:~
“7. This is, in substance, a reproduction of section 107(2) of the Government of India Act, the concluding portion thereof being incorporated in a proviso with further additions. Discussing the nature of the power of the Dominion Legislature, Canada, in relation to that of the Provincial Legislature, in a situation similar to that under section 107(2) of the Government of India Act, it was observed by Lord Watson in “Attorney~General for Ontario v. Attornery~General for the Dominion”, 1896 AC 348(A), that though a law enacted by the Parliament of Canada and within its competence would override Provincial legislation covering the same field, the Dominion Parliament had no authority conferred upon it under the Constitution to enact a statute repealing directly any Provincial statute. That would appear to have been the position under section 107(2) of the Government of India Act with reference to the subjects mentioned in the Concurrent List.
Now, by the proviso to Article 254(2), the Constitution has enlarged the powers of Parliament, and under that proviso, Parliament can do what the Central Legislature could not under section 107(2) of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the State, when it relates to a matter mentioned in the Concurrent List. The position then is that under the Constitution Parliament can, acting under the proviso to Article 254, repeal a State law. But where it does not expressly do so, even then, the State law will be void under that provision if it conflicts with a later “law with respect to the same matter“ that may be enacted by Parliament.” (emphasis applied)

28. The Apex Court in M/s Innoventive Industries Ltd., v. ICICI Bank and another, CDJ 2017 SC 1013, has clearly picturized how the legal position around the world is settled in regard to repugnancy arising between the State law and the Parliamentary law, as follows:~
“38….the Commonwealth of Australia Constitution Act of 1900, also enacted by the British Parliament, has a scheme by which Parliament, in Section 51, has power to make laws with respect to 39 stated matters. Under Section 52, Parliament, subject to the Constitution, has exclusive power to make laws only qua three subjects set out therein. Section 109 of the Australian Constitution reads as under:
“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
B.N.Rau, J of the Calcutta High Court, delivering the judgment in G.P.Stewart v. B.K.Roy Choudhury, AIR 1939 Cal 628, while considering the meaning of -repugnancy-, after discussing the various authorities which laid down the test of repugnancy in Australia, Canada and England, concluded thus:~
“The principle deducible from the English cases, as from the Canadian cases, seems therefore to be the same as that enunciated by Isaacs, J. in the Australian 44 hour case (37 C.L.R. 466) if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law.” (emphasis supplied)

29. Doctrine of Pith and Substance: Coming to the doctrine of pith and substance, the Constitution of India has demarcated the boundary between the Centre and the States by way of the Seventh Schedule, which specifies the subject matters by dividing the power to make laws between them. List I or the Union List contains matters where the Centre has the power to make laws viz., Defence, Foreign Affairs, Currency etc.
List II or the State List contains the subjects where the State has the power to make laws viz., Public Order, Health, Sanitation etc.

List III or the Concurrent List contains subjects where both the Centre and the States have powers to legislate viz., Education, Forest, Administration, Justice etc.

30. In spite of the limitation given, often conflict arises between the State Law and the Central Law. When they are encroaching upon the sphere of the other, to deal with the said conflict, the Courts in India have developed a few Doctrines and the Doctrine of Pith and Substance is one amongst them. This doctrine was evolved by the Privy Council, when it determines the appeals from Canada or Australia involving the question of legislative competence of the Centre or the States in those federations. Later on this doctrine came to be established in India, not only to find out whether the Parliament encroaches into the domain of State Legislature and vice~versa, but also employed to resolve the inconsistencies between the laws made by the Centre and the State Legislature. According to this doctrine, the law in question must be looked into as an organic hold and not as a mere collection of sections for determining the true nature and character of the impugned law. For applying this doctrine, one must have regard (a) to the enactment as a whole; (b) to its main objects and (c) to the scope and effect of this provision.

31. Taking support from the above doctrine, Shri Jothi argued that when several Entries in List III to the Seventh Schedule are legislative heads, it is quite likely that they may go overlapping. When such a situation arises, the issue may be resolved by applying the doctrine of pith and substance giving regard to the main object, the scope and effect of the provision and the extant of the Act.

32. In the light of the above, we have to look at the law as a whole and in substance whether it falls within the object of the Act. Coming to the object of substituting Section 6 of the Hindu Succession Act, 1956 is concerned, the statement of objects and reasons for introduction of the Bill is relevant, which reads thus:~
“Statement of Objects and Reasons.~~The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. The Act applies to every 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, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.
2.Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
3. It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.
4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on “Property Rights of Women: Proposed Reform under the Hindu Law”.
5. The Bill seeks to achieve the above objects.
NEW DELHI
16.12.2004.” (emphasis supplied)

33. The above statement of objects and reasons clearly states that the Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws, making it further clear that the Act applies to every 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, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. The statement of objects further states that when the States of Andhra Pradesh, Tamil Nadu, Karnataka, Kerala and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property to remove the discrimination as contained, the substituted Section 6 in the Hindu Succession Act, 1956 is sought to be brought in. Since the Apex Court in Vineeta Sharma-s case, (2020) 9 SCC 1 has clearly held that this legislation is retroactive, it has to be applied after 9.9.2005 to all women to claim a share in the coparcenary property and even in pending proceedings. As rightly held by the Apex Court in Prakash v. Phulavati, (2016) 2 SCC 36 holding clearly that the living daughters of living coparceners as on 9.9.2005 would be entitled to claim an equal share in the coparcenary property like a son if there was no registered partition taken place before 20.12.2004, the fundamental right of equality guaranteed by the Constitution has been given to women. When the intention of the lawmaker is very clear to bring a uniform law on property rights of women bringing a huge reform in Hindu Law throughout India giving a share in coparcenary property to women, whether married or unmarried, Section 6 of the Hindu Succession (Amendment) Act, 2005 brought into force with effect from 9.9.2005 by Act 39 of 2005 will prevail over Section 29~A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 which came into force with effect from 25.3.89 by Tamil Nadu Act 1 of 1990.

34. Again the applicability of the doctrine of pith and substance in the matters of Concurrent List came up for consideration before the Apex Court in Vijay Kumar Sharma v. State of Karnataka, (1990) 2 SCC 562, wherein the Apex Court held that the Doctrine of Pith and Substance is applicable even to the matters in the Concurrent List in which both the Central and State legislature have the power to legislate. But, when there is an irreconcilable conflict between the two legislations, the Central Legislation will prevail. The Apex Court further held as follows:~
“63. The Court has to examine in each case whether both the legislations or the relevant provisions therein occupy the same field with respect to one of the matters enumerated in the Concurrent List and whether there exists repugnance between the two laws. The emphasis laid by Article 254 is “with respect to that matter”. Clause (1) of Article 254 posits as a rule that in case of repugnancy or inconsistency between the State law and the Union law relating to the same matter in the Concurrent List occupying the same field, the Union law shall prevail and the State law will fail to the extent of the repugnancy or inconsistency whether the Union law is prior or later in point of time to the State law. To this general rule, an exception has been engrafted in clause (2) thereof, viz., provided the State law is reserved for consideration of the President and it has received his assent, and then it will prevail in that State notwithstanding its repugnancy or inconsistency with the Union law. This exception again is to be read subject to the proviso to clause (2) thereof, which empowers the Parliament to make law afresh or repeal or amend, modify or vary the repugnant State law which will become void even though it received President-s assent. In short, clause (1) lays down a general rule; clause (2) is an exception to clause (1) and proviso qualifies that exception. The premise is that the law made by the Parliament is paramount and Union and State law must relate to the same subject matter in the Concurrent List. It is, thus, made clear that the Parliament can always, whether prior or subsequent to State law, make a law occupied by the State law. An absurd or an incongruous or irreconcilable result would emerge if two inconsistent laws or particular provisions in a statute, each of equal validity, could co~exist and operate in the same territory.” (emphasis supplied)
The above judgment tells us that if the State law is found repugnant to Central Act, the State Act will give way for the Central Act.

35. Can we save Section 29~A by applying Doctrine of Eclipse: An eclipse situation is a situation which is temporary in nature. It means that a superior Legislature, because of some reason, is given certain power which it does not possess and for a brief period, and when that time is over, by virtue of the doctrine of eclipse, the State Law that was eclipsed by the operation of Central Act will come back to operation. That is called the doctrine of eclipse. For example, under Article 250, lets imagine an emergency is declared either internally or externally, Parliament can legislate on any subject and during the emergency, such Parliamentary Act will have force and after the emergency is over, the State Law will come back to force and will have full operation. Useful reference can be had from one of our old judgments in Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128. Similarly, under Article 249, the Rajya Sabha can by two~third of the members of the House present and voting that for a period of one year, a particular subject in the State list can be availed of by the Parliament. Accordingly, if the Parliament enacts any law, Article 251 says that for the duration that parliamentary law is made, the State law will stand eclipsed. However, after that one year period, the parliamentary law goes out of the statute book and the State law will come back to force. But, this eclipse theory cannot be applied to our case as Section 6 of the Hindu Succession Act with more benefits than Section 29~A, will determine the rights of parties all over the Country without any interruption.

36. Our High Court Position: The Hon-ble Division Bench of our High Court had an occasion to consider the effect of the provisions of the Central Act, namely, Act 39 of 2005, in the case of Vijayalakshmi.P v. P.Susheela and others, 2012 (5) LW 378, and clearly held that the Hindu Succession (Amendment) Act 39 of 2005 is prospective in operation and if the father had died prior to the coming into force of the said Act, i.e., on 9.9.2005, the benefit of the provisions of the said Act would n

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