Whether the execution of Will before 20th day of December, 2004 was sufficient, to make a Will come within the purview of the expression "disposition" under the proviso to Section 6(1) of the Hindu Succession (Amendment) Act, 2005, especially when the testator was alive on the crucial date?
27. Section 6(1) of the Hindu Succession Act, 1956 reads as follows:
"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."
28. A careful look at Section 6(1) would show that by the amendment brought forth by Central Act No. 39/2005, the daughter of a coparcener in a joint Hindu family governed by the Mitakshara law was made a coparcener by birth, in the same manner as the son and was vested with the same rights and obligations in respect of the coparcenary property, as a son would have. But the proviso to sub-section (1) makes it clear that nothing therein would affect or invalidate any disposition or alienation including any partition or testamentary disposition which had taken place before 20.12.2004.
29. Two expressions appearing in the proviso to sub-section (1) of Section 6 are of significance. They are (1) disposition and (2) alienation. These two expressions are followed by a rider to the effect that any partition or testamentary disposition is also included within the purview of these two expressions.
30. While we would have no difficulty in understanding the purport of the expression "alienation", there is some difficulty in expounding the meaning of the expression "disposition". This difficulty is compounded by the inclusion of "testamentary disposition", within the meaning of the expression "disposition". Normally one would understand the expression "testamentary disposition" to mean the execution of a testamentary instrument, the bequest under which is to take effect in future, while alienation takes place in praesenti. Therefore the confusion or difficulty posed by the proviso to Section 6(1) is as to whether it includes testamentary disposition that has come into effect due the death of the testator before the crucial date or bequest which has not yet come into effect, due to the testator being alive as on the crucial date.
31. The question as to whether, the Hindu Succession (Amendment) Act, 2005 will have retrospective effect or not, has been answered by the Supreme Court in Prakash v. Phulavati MANU/SC/1241/2015 : (2016)2 SCC 36. The Supreme Court held therein that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters were born. The Supreme Court further held that disposition or alienation including partition, which may have taken place before 20.12.2004 as per the law applicable prior to the said date, will remain unaffected.
32. In Prakash, the Supreme Court considered some of its earlier decisions in which a tricky question similar to the one arising in the present case came up for consideration. For instance, in S. Sai Reddy v. S. Narayana Reddy MANU/SC/0788/1991 : (1991)3 SCC 647, a preliminary decree for partition was passed in favour of a son against his father. But before a final decree could be passed, an amendment was introduced by the State of Andhra Pradesh under Hindu Succession (A.P. Amendment) Act, 1986, allowing a share to the unmarried daughters. Therefore, a question arose as to whether the share allotted to the son under the preliminary decree would undergo a change or not. The Court upheld the right of the unmarried daughters on the ground that the rights of the son had not crystallized. But the Supreme Court pointed out in Prakash that the decision in S. Sai Reddy did not arise out of a case where the shares of the parties stood already crystallized by operation of law. Moreover, the A.P. amendment Act did not include under Section 29-A, a provision similar to the proviso to Section 6(1), introduced by the 2005 Central Amendment. Clause (iv) of Section 29A merely covered, marriage or partition effected before the commencement of the A.P. Amendment Act, 1986. There was no inclusion of "testamentary disposition" under the exclusion clause, in the A.P. Amendment Act.
33. Heavy reliance is placed by the learned counsel for the respondent/defendant on the judgment of the Supreme Court in Pavitri Devi v. Darbari Singh MANU/SC/0577/1993 : (1993)4 SCC 392, in support of his contention that the expression 'testamentary disposition' includes the mere execution of a Will. In the said case before the Supreme Court, what was in question was only a gift deed and not a Will. Therefore the expression "testamentary disposition" appearing in Section 30(1) of the Hindu Succession Act, 1956 had no application to the case before the Supreme Court. But nevertheless, the Supreme Court referred to the expression "testamentary disposition" appearing in Section 30 (1) and went into the scope and ambit of the said expression in paragraph 3. Paragraph-3 of the said decision reads as follows:
"Webster in Comprehensive' Dictionary in international edition at page 1298, stated the meaning of the word 'testamentary' thus: (i) derived from, bequeathed by, or set forth in a will; (ii) appointed or provided by, or done in accordance with, a will; (iii) pertaining to a will, or to the administration or settlement of a will, testamental. In the Law Lexicon by P. Ramanatha Aiyar, reprint edition 1987 at P. 1271 testamentary instrument was defined to mean a "testamentary instrument" is one which declares the present will of the maker as to the disposal of his property after death, without attempting to declare or create any rights therein prior to such event. Black's Law Dictionary [6th Ed. 1991] defines "testamentary disposition" at page 1475 thus -"the passing of property to another upon the death of the owner. A disposition of property by way of a gift, Will or deed which is not to take effect unless the grantor dies or until that event." Section 123 of the Transfer of Property Act provides disposition by a gift which takes effect even during the lifetime of the donor and effective as soon as it is registered and normally given possession of the property therein. Section 30 of the Act is merely declaratory of the law not only as it stood before the Act, but as it now stands modified by the provisions of the Act. It declares that any Hindu may dispose of by a will or other testamentary disposition his property or interest in coparcenary which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force applicable to the Hindus. Its explanation is really material. The testamentary disposition, therefore, would mean disposition of the property which would take effect after the death, instead of co-intestine on the execution of the document. A testamentary disposition is generally effected by a will or by a codicil which means an instrument made in relation to a will extending, altering or adding to its disposition arid is to be deemed to form part of the will. Will as defined in Section 2(h) of the Indian Succession Act, 1925 means legal declaration of the intention of the testator with respect to his property which he desired to carry into effect after his demise. It limits alienation intra vivos. While the gift being a disposition in presenting, it becomes effective on due execution and registration and generally delivery of the possession. Section 30 makes it clear that testamentary disposition under the Act would be dealt with in accordance with the Indian Succession Act. Section 55 and Schedule 3 of the said Act prescribe procedure effecting succession amongst Hindus by testamentary succession by will or codicil. Section 30 employs non-obstinate clause and excludes from the operation of pre-existing or any other law applicable to coparcenary property governed by Mitakshara law and introduced fiction in its explanation and empowers the Hindu male or female to dispose of his or her interest by a will or any other testamentary disposition known to law-which would be effective after the demise. It would, therefore, be difficult to envisage that disposition by gift partakes the character of testamentary succession under Section 30 of the Act.
34. Though the Supreme Court, in Pavitri Devi, expounded the meaning of the expression 'testamentary disposition' and gave it a meaning, we do not think that we can take the decision in Pavitri Devi as an authoritative pronouncement on the issue now before us, for two reasons. They are:
"(a) As we have pointed out in the preceding paragraph, the Supreme Court was concerned in Pavitri Devi with a gift deed and not a Will. A gift is actually a transfer of property, while a Will is not. Therefore, the interpretation given by the Supreme Court in Pavitri Devi to the expression "testamentary disposition" is actually out of context and did not arise out of the lis before the Supreme Court. Hence, the decision in Pavitri Devi cannot be taken to be the last word on the interpretation of the expression found in the proviso to Section 6(1).
(b) By its very nature, a testamentary disposition is one which does not take effect and which does not become final, unless and until the testator dies. It is not only the bequest under Will, which is subject to various uncertainties, dependent upon the life and wish of the testator, but even the right of the testator to bequeath particular property may undergo change before he dies. Take for instance a case where the testator begets a child after the execution of Will. If his undivided share in the joint family property had been the subject matter of the Will, his own share may undergo a change with the birth of a son after the execution of the Will. In peculiar cases it may even happen with the birth of a sibling to the testator. Therefore, a testamentary disposition can never be an actual disposition in the true sense of the term, since its coming into effect as well as the extent to which it takes effect, are always subject to the uncertainties of time and mind, apart from birth and death. As pointed out by the Supreme court in Mathai Samuel v. Eapen {MANU/SC/0996/2012 : (2012) 13 SCC 80}, a Will is merely a legal declaration of the testator's intention and its essential characteristic is its ambulatoriness and revocability."
35. Unfortunately, the word 'disposition' itself emerged from the English language and law and hence the manner in which law dictionaries have expounded the term, is in tune more with linguistics than with law. This is perhaps why the Supreme court pointed out in Goli Eswariah v. Commissioner of Gift Tax {MANU/SC/0258/1970 : AIR 1970 SC 1722} that the word 'disposition' is not a term of law, having a precise meaning and that its meaning has to be gathered from the context in which it is used.
36. Black's Law Dictionary defines "disposition" to mean "the fact of transferring something to another's care or possession especially by deed or will; the relinquishing of property". The same dictionary defines "testamentary disposition" to mean "a disposition to take effect upon the death of the person making it, who retains substantially entire control of the property until death". P. Ramanatha Aiyar's the Law Lexicon (3rd Edition 2012) deals with the definition of the word "disposition" in a variety of circumstances. One of the several connotations given in the Law Lexicon is as follow:
"The word disposition in relation to property means disposition made by deed or will and also disposition made by or under a decree or under order of a Court as the qualifying phrase used in Section 21(2), viz., including any transfer in execution of a decree or order of a Court, Tribunal or authority (Sanjay v. State of Maharashtra - MANU/SC/0200/1985 : AIR 1986 SC 414).
37. The right of a Hindu to dispose of his property by will or other testamentary disposition is recognised by Section 30 of the Hindu Succession Act. It is that in Section 30, the expression "testamentary disposition" is used. A careful look at the manner in which Section 30 is worded would show two things, viz., - a) that a testamentary disposition could be either by way of will or otherwise; and b) that what is sought to be done through will or other testamentary disposition is considered by Section 30 to be a "disposal".
38. Interestingly the Oxford English Dictionary defines the word, whenever used as a noun in the branch of law, to mean "the distribution or transfer of property or money to someone especially by bequest". The origin and etymology of the word 'disposition', as indicated in Merriam Webster Dictionary shows that the word evolved in the 14th century from the Latin word 'Dispositio' and from the word 'disponere'. Though no disposition or disposal or distribution of property takes place at the time of execution of the Will, the word disposition has come to be associated even with testamentary instruments.
39. But the Proviso to section 6(1) does not merely use the expression 'testamentary disposition'. It starts with the word 'disposition', then proceeds to include 'testamentary disposition' within its ambit and then qualifies it with the words "which had taken place". Therefore, we think that the proviso to Section 6(1) has to be split into 3 parts-
"(i) the first part containing the words "disposition or alienation"
(ii) the second part containing the words "including any partition or testamentary disposition" and
(iii) the third part containing the words "which had taken place before 20-12-2004."
40. Therefore, if a case is to be brought within the purview of the proviso to section 6(1), especially in relation to a Will, 2 things are to be proved namely (i) that there was a valid Will and (ii) that the disposition under the Will had taken place before the date specified. The disposition under Will would take place only when the testator dies and not otherwise. This is not only due to the very nature of testamentary disposition but also due to the fact that during the period between the date of execution of the Will and the date of death of the testator, many things may happen, even beyond the control of the testator, that would make the bequest invalid, wholly or partially. Therefore, the expression 'testamentary disposition' appearing in the proviso to section 6(1) should be understood to mean only a Will which had taken come into effect before 20-12-2004. The words "which had taken place" should be understood to mean "which had taken effect".
41. There is one clue available in Section 6 itself, for anyone to come to the same conclusion as we have. It is in sub-section (5) and the Explanation following the same. Sub-section (5) of section 6 and the Explanation following the same, read as follow:
"(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."
42. While the proviso under sub-section (1) of section 6 excludes from the operation of sub-section (1), any alienation or disposition, including any partition or testamentary disposition that has taken place before the appointed day, sub-section (5) excludes from the operation of section 6 in entirety, a partition made by a registered deed repartition effected by a decree of court. It is important to note that the proviso to sub-section (1) is confined in its applicability to sub-section (1). In contrast, the prescription contained in sub-section (5) and the Explanation there under, are applicable to the entirety of section 6.
43. The prescription contained in sub-section (5) and the Explanation following the same, give a clear indication to the fact that the law makers did not want parties to plead oral partition effected before the appointed day, for the purpose of defeating the right created by the Amendment Act. An oral partition or a Memorandum recording past partition, had always been accepted by courts, subject to proof. But the Explanation to section 6, makes it clear that unless a partition had been effected by a registered deed or by a decree of court, the benefit of subsection (5) may not be available.
44. It is needless to point out that in a partition, mutual transfers take place in presenti. Even then, the benefit of sub-section (5) will not be available unless the partition had been effected by a registered deed or a decree of court. Therefore, the intention of the law makers is very clear to the effect that no one should be allowed to create documents, after the advent of the Amendment Act of 2005, to defeat the rights conferred by the amendment. In order to prevent the creation of ante dated documents, the Amendment ensures that even reliance upon such documents is impermissible. In such circumstances, if the expression "testamentary disposition" is taken to mean the mere execution of a Will, the rights conferred by section 6 can be easily defeated by parties by setting up a Will, which is not required to be compulsorily registered.
45. Therefore, we are of the considered view that in cases where the testator was alive as on 20-12-2004, the Will, even if any executed by him genuinely before the said date, would not make it a case of "testamentary disposition which had taken place", so as to make the case fall under the proviso and to take it out of the application of section 6(1). In other words, a case will fall under the proviso to section 6(1), only if 2 things had taken place before 20-12-2004 namely (i) execution of a Will and (ii) the death of the testator. The execution of the Will before 20-12-2004 alone is not sufficient to take a case out of the operation of section 6(1), as no disposition under the Will would have taken place, if the testator was alive. As pointed by the Supreme court in S. Rathinam v. Mariappan {MANU/SC/7732/2007 : AIR 2007 SC 2134}, a Will of a man is the aggregate of his testamentary intentions manifested in writing and is not a transfer.
46. Today there can be no dispute any longer about the proposition that to fall under the category of "a disposition that had taken place", a partition should have become final and conclusive and that even a preliminary decree for partition would not suffice. This is in view of at least 3 decisions of the Supreme court namely (1) S. Sai Reddy v. S. Narayana Reddy MANU/SC/0788/1991: (1991) 3 SCC 647 (2) Prema v. Nanje Gowda MANU/SC/0607/2011 : (2011) 6 SCC 462 and (3) Ganduri Koteshwaramma v. Chakiri Yanadi MANU/SC/1216/2011 : (2011) 9 SCC 788. If a preliminary decree for partition itself cannot bring a case within the ambit of the proviso to section 6(1) or within the ambit of section 6(5), on account of the same not becoming final and conclusive, we do not know how the mere execution of a Will, without the death of the testator before the appointed day, can make the case come within the purview either of the proviso to section 6(1) or of section 6(5). Hence, we answer point No. 2 in favour of the appellant/plaintiff, since the father of the parties hereto died (unfortunately for the respondent and fortunately for the appellant) after 20-12-2004.
