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It was observed by the Supreme Court of India that a plea of partition for the purpose of Section 6(5) of the Hindu Succession Act based on the oral evidence it cannot be accepted alone. The court held that the plea of oral partition can be accepted in exceptional cases where it is supported by the public documents. The bench comprising of Justice Arun Mishra, Justice S. Abdul Nazeer, Justice MR Shah observed that the Statutory Fiction of partition contained in the original Section 6 of the Act did not bring about the disruption of the coparcenary and actual partition. Section 6 of the Hindu Succession Act states that " Sub-Section (5) of Section 6 shall apply to a partition, which has been effected before the 20th day of December 2004.
A similar provision to Section 6(1) provides 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 explanation appended to Section 6 further clarifies that for the purposes of Section 6, 'Partition' means effected by any registered partition or deed or effected by a decree of a court." All genuine transactions are of the past, including oral partition effected by the parties are safeguarded by the explanation of the Section, this was one of the contentions raised.
The contention was supported by the Solicitor General, he submitted before the court that the requirement of the registered partition deed may be interpreted as the only directory and non-mandatory in nature considering its purposes. The legislation has recognized partition under Section 6 and according to that rights are to be worked out.
When the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law ha to be conferred, this was held by the court in various decisions. The court stated that they have no hesitation in rejecting the effect statutory fiction of proviso to section 6. Hence, if the daughter is alive on the date when the Amendment Act was enforced, she becomes the coparcener irrespective of the date of birth.
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