THERE IS A NEED FOR JUDICIAL INTERVENTION FOR THE ILLEGAL COLLECTION OF FEES FOR THE ISSUANCE, CANCELLATION AND IMPOSING FINES FOR THE REVALIDATION OF DEMAND DRAFTS

(By H. Sajeer, Court Officer, Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

Why is a Demand Draft masked with a validity period of three months? Why does the drawer have to pay a specific sum for its issue and its revalidation? Whether the regulation issued by the Reserve Bank of India has an overriding effect over a statute? Whether the Demand Draft is qualified to be a Negotiable Instrument under Section 13(1) of the NI Act, are some queries to be answered here.

The term Demand Draft is neither defined nor explained in the Negotiable Instruments Act, of 1881.

A Demand Draft is a method used by an individual or a bank to transfer money from one bank account to another. Demand Drafts differ a lot from cheques.It does not require the signature of the account holder for encashment. Demand Drafts are only payable on demand and can only be deposited in the bank. It is usually issued or taken when a large amount of money is in question or between parties who are unknown to each other and lack trust. The name of the person to whom the Demand Draft is to be paid is mentioned on the DD. The person or customer who requests the Demand Draft is called the Drawer or Applicant.While the bank that pays the money is called the drawee. The name of the person or party to whom the demand draft is to be paid is mentioned on the DD. The payee is the person or party who receives the amount through the demand draft.

It is evident that to obtain a Demand Draft, the issuer of the Demand Draft (usually a bank) collects the entire amount of the draft to ensure that the funds are available before issuing the Draft.So, it is a prior condition for availing a demand draft that the drawer should deposit the bank an amount specified in the demand draft with the drawee bank after accepting the amount specified in the demand draft along with a specified charge as the fee for issuance of the Demand Draft. As and when the DD is issued the role of the bank becomes a trustee and its liability will only be discharged after due payment. It is illegal and impermissible that the drawee bank can’t withhold the amount for any reason of fraud, misrepresentation, etc. It is the duty fastened upon the drawee bank to duly pay the amount to the payee as what is intended by the drawer.

If a court directed a petitioner to produce DD of a specific sum as the costs for condoning the delay, because of the non-filing of the complaint within the statutory time limit.Here the petitioner has to pay the costs by way of DD and to produce it before the court. It was the registry to hand over the DD to the opposite party. However, the opposite party couldn’t appear in the court to accept the DD due to some unforeseen events. If he appeared three months after and claimed the DD amount, the registry has no option but to give the outdated DD to the Opposite party. Though he may be the payee and the funds are already with the bank, the banking authorities may not honour the DD on the reason of invalidation.They insist on the presence of the drawer for its revalidation.  The drawer shall appear again before the bank and pay the fee again for its revalidation, though the funds have been with the bank for a long time. Hence the bank is looting the public money in three-foldways. First, by accepting a specific fee for the issuance of the  DD by accepting the full amount as interest interest-free deposit.  Secondly, the bank will utilise the amount deposited as such by the drawer by allowing loans to its stakeholders. Thereby, they could earn interest. Thirdly, they are again accepting a fee like a fine in the guise of revalidating the Demand Draft and thereby again plundering the drawer, though the bank is obliged to maintain the amount as a trustee.  Section 85 A clearly states that the liability of the bank will expire only on the due payment of the amount to the payee.

The Negotiable Instruments Act does not define the term Demand Draft. But in Section 85A of Chapter VII, under the heading “Discharge from Liability on Notes, Bills, and Cheques,” named a word as“drafts”. It says that,

“Where any draft, that is, an order to pay money, drawn by one office of a bank upon another office of the same bank for a sum of money payable to order on demand, purports to be endorsed by or on behalf of the payee, the bank is discharged by payment in due course.”

It clearly stated that a draft is an order to pay money by one bank to another office of the same bank payable on demand that purports to be endorsed by the payee or on behalf of the payee. Here, the only course of action for the bank is to pay the amount through its other branch to the payee, as what the drawee endorsed on behalf of the drawer. The bank was only discharged from liability after payment in due course.

Section 85A has not specified a limitation for the validity of the Draft. It only deals with the discharge mode of the bank where was received the sum from the drawer. Ona plain reading of this Section, it can be seen that the bank is only a trustee of the amount deposited by the drawer and the bank cannot impose a fine on its cancellation or revalidation or reissuance.

Then what is the authority of the banks to collect such illegal fees is that, on November 4, 2011, the Chief General Manager of the Reserve Bank of India issued a letter to all the Chief Executive Officers and Chairmen of the Scheduled Commercial Banks and Local Area Banks (RBI/2011-12/251 DBOD.AML BC.No.47/14.01.001/2011-12) by stating that,

“It has been brought to the notice of the Reserve Bank by the Government of India that some persons are taking undue advantage of the said practice of banks of making payment of cheques, drafts, pay orders, and banker’s cheques presented within six months from the date of the instrument as these instruments are being circulated in the market like cash for six months. The Reserve Bank is satisfied that, in the public interest and the interest of banking policy, it is necessary to reduce the period within which cheques, drafts, pay orders, and banker’s cheques are presented for payment from six months to three months from the date of such instruments. Accordingly, in the exercise of the powers conferred by Section 35A of the Banking Regulation Act, 1949, the Reserve Bank hereby directs that, with effect from April 1, 2012, banks should not make payment of cheques, drafts, pay orders, or banker’s cheques bearing that date or any subsequent date if they are presented beyond the period of three months from the date of such instrument.

Banks should ensure strict compliance with these directions and notify the holders of such instruments of the change in practice by printing or stamping on the check leaves, drafts, pay orders, and banker’s cheques issued on or after April 1, 2012, and by issuing suitable instructions for presentment within three months from the date of the instrument”.

The above-said directive of the Reserve Bank of India is on the guise of curtailment of fraudulent circulation of cheques, pay orders, and bankers’ cheques through the market-like currency. If we agree with the direction on some points the cheques can be endorsed and circulated like a currency to another person. But a Demand draft can’t be endorsed by the drawer because the endorsement is purely the domain of the drawee. So the Demand Draft is a water-tight compartment only to be released as what it endorsed by the drawee. So the Reserve Bank’s circular by clubbing the Demand draft along with other negotiable instruments is per se erroneous and unsustainable.

We know that, unlike other negotiable instruments, the demand draft is a pre-deposited document,that only can be used as the medium of a transaction between two banks. The condition precedent is that the drawer must deposit the amount as specified in the Demand Draft in his bank. The bank shall charge a fee for its issuance, according to the quantum of the amount deposited in the bank. The fee may vary from bank to bank, and it includes the value of the draft,i.e., 1.50 to 4 per cent per thousand with Service Tax. The minimum amount for obtaining a demand draft is 25 rupees. For cancellation and revalidation, the same amount is to be levied by the bank. So cancellation and revalidation are the penal provisions adopted by the banks according to their whims and fancies.

It is further noted that the question of revalidation of the Demand Draft may arise after three months, as per the regulation of the RBI. Within this period, the amount deposited by the Drawer should be with the bank. They can freely use and collect interest from the said amount without even paying a single penny to the drawer. The drawer has no right to claim interest on the amount deposited by him, as a condition precedent for obtaining a demand draft, at the time of cancellation or revalidation. Instead, he has to pay a penal amount like that it was an offence to deposit a huge sum in his bank to obtain a Demand Draft. At the same time, the bank, though a trustee of the amount, circulates the amount as loans and advances to its customers.

It is pertinent to note that for revalidation of the demand draft, the drawer should pay an amount equal to the amount paid for doing a demand draft. So, the bank could obtain triple unlawful enrichment from the drawer. It is nothing but an“illegal loot legally”.

We all know that the nomenclature of the demand draft is different from other negotiable instruments. The demand draft is a prepaid document only showing that a specified amount was deposited in the bank, and the payee can ensure its accuracy. The Demand Draft will not bounce due to insufficient funds since the payment has already been made by the drawer. As a result, it is more secure and comes with lesser risk. It is only payable to the name of the payee which was endorsed on it and is payable on its proper presentment. It means the payee can immediately be paid the specified amount and cannot be stopped from payment once he presents it to the bank as endorsed. It does not even require a signature for the transfer of funds.

In the guise of renewal, revalidation and cancellation the banks are looting the public at large and also plundering the ordinary people. They also impose fines for not possessing a minimum balance, SMS fees and ATM insufficient funds in Automated Teller Machines. What authority did a bank have to impose fines on customers for the reason of non-maintaining a minimum balance? No legislation says that a citizen shall maintain a minimum account in his bank account otherwise he will be penalised. The banks are not courts or judicial authorities to impose fines on their stakeholders. Hence a judicial intervention is highly necessary to chain up these licensed looting of public money by the banks.

Hence, Judicial intervention is highly necessary in this regard to remove the limitation period for the validity of the Demand Draft and to declare the letter issued by the Reserve Bank of India is per se illegal, null and void and against the mandate of Section 85A of N.I. Act.

TO BE COMMANDED NOT DEMANDED !

(K. Ramakumar, Senior Advocate, High Court of Kerala)

With the advent of the Advocates Act 1961, there is one common bar for the whole country. Section 30 provides that every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout India in all courts including the Supreme Court. All advocates therefore form one common class entitled to appear and plead in any court in any part of the country. Nevertheless there is an entirely anomalous provision, Section 16 which creates two classes of advocates namely senior advocates and other advocates. Section 23(5) of the Act provides that Senior Advocates shall have pre audience over other advocates. This means that among the common class of advocates, a privileged class is artificially created which prima facie is violative of Articles 14 and 19 of the Constitution of India. In Pattali Makkal Katchi v. A.Mayilerumperumal & Ors. reported in (2022 (2) KLT OnLine 1061 (SC) = (2023) 7 SCC 481), this is what the Supreme Court said:-

“Equal laws would have to be applied in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. This brings in the question of classification. As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose conditions are substantially similar under the same rule of law, while applying different rules to persons differently situated. The classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should regarded as invalid. The whole doctrine of classification is based on discrimination without reason and discrimination with reason and on the well-known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances.”

The court further adds;

“…Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved.”

Can there be more equals and more privileged among the same class namely advocates of India? It is humbly submitted there is nothing that can justify an irrational discrimination among persons falling in the same class. I am not oblivious of the fact that the Apex Court has in passing upheld the validity of the classification. It is only on the slender ground that the designation is not uncontrolled, unguided or unchannelised and possibility of misuse cannot be a ground for holding a provision of the statute to be constitutionally fragile. (See Indira Jaising v. Supreme Court of India & Ors. reported in (2017 (4) KLT 632 (SC) = (2017) 9 SCC 766).

The highest court in Indira Jaising, it is humbly and respectfully submitted, has not considered whether the sub classification among a distinct class performing similar functions, duties and responsibilities can be justified. The issue therefore is yet open for further re-visitation. The designation of advocates into senior and others is part of the colonial vestige which we have inherited from the British or thrust upon us. Those who were known as sergeants–at–law, later came to be known as Queens’ Counsel/Kings’ Counsel. The process of appointment of Queen’s Counsel in the United Kingdom had drawn flak as “Propagation of coterie” and shrouded in arcanum. The practice significantly still exists mostly only in Common Wealth Countries like Australia, Nigeria, Singapore etc. In Sri Lanka they are called President’s counsel.

Why is it that in no other professions like Medicine, Engineering, Architecture etc., etc., there are no senior doctors, senior engineers or senior architects? What is so very special to the profession of law alone to devise a discriminatory dichotomy?

Section 16(2) of the Advocates Act provides that an advocate may with his consent be designated if the High Court is of the opinion that by virtue of his ability, standing at the bar, or special knowledge of law he is deserving of such distinction. Strangely, possession of good character, and high ethical standards indubitably essential for any lawyer worth the name are not mentioned in the Section, which however, finds a place only in the explanation to one of the Rules framed by the High Court of Kerala purportedly under Section 16(2) of the Advocates Act, 1961. A mere look at Section 16 makes it irrefragable that the Section does not confer on any High Court any rule making power.

‘Character’ is defined as “that moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of the common opinion and report concerning him” (Black’s Law Dictionary 6th Edition).

Seniority, like respect has to be commanded and not demanded. The Rules framed by the High Court of Kerala for Designation of Senior Advocates, 2000 contain a provision enabling an advocate to seek the designation on application highlighting specialization in any field of law making a reference to any important matter in which he has appeared, participation in seminars, conferences relating to law etc., etc., Is it permissible, particularly on parameters of doubtful validity as the Apex Court has now desired re-jigging of the extant Rules?

Seeking seniority prima facie appears to be incongruous with the high standards expected of a worthy senior and has been frowned upon by our own High Court and in more pellucid manner by the Orissa High Court.

The Supreme Court has this to say on designation. (Indira Jaising v. Supreme Court of India & Ors. reported in (2017 (4) KLT 632 (SC) = (2017) 9 SCC 766).

“…There has to be a full and effective consideration of the criteria prescribed, namely ability, standing at the bar, special knowledge or experience in law in the light of materials which necessarily have to be ascertainable and verifiable facts.”

The court has administered a word of caution.

“….. The credentials of every advocate who seeks to be designated as a senior advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.”

The quality and merit of a lawyer are best assessed by the litigants, the lawyers’ clerks and of course other lawyers. What is the machinery for the High Court either under the rules or otherwise to find out whether there had been an unethical conduct on the part of the lawyer who is proposed to be designated? A successful legal practitioner will be always artful while appearing in court. It is not the length of his limousine but the depth of his learning that earns admiration and respect to a lawyer.

Please remember in one of the foremost High Courts of the Country, the High Court of Delhi, two reputed Senior Advocates, (One of them counsel to the former Prime Minister, to boot) were stripped of their designation for unethical conduct.

The Supreme Court in Second Indira Jaising reported in (2023 (3) KLT 744 (SC) = (2023) 8 SCC 1) reiterated the criteria as follows:-

“The designation of Senior Advocates in India is a privilege awarded as a mark of excellence to advocates who have distinguished themselves and have made a significant contribution to the development of the legal profession. It identifies advocates whose standing and achievements would justify an expectation on the part of the clients, the judiciary, and the public, they can provide outstanding services as advocates in the best interest of the administration of justice.”

In the meantime, the High Court of Orissa in a batch of cases (Banshidhar Baug v. Orissa High Court & Ors. (2021 (3) KLT OnLine 1043 (Ori.) = W.P.(C) Nos.17009 of 2019) has declared the procedure followed by that court irregular and one of the rules ultra vires. Even so, in regard to the five wrongly designated seniors, the court said “we do not want to disgrace them by withdrawing the designation as there is no fault on their part in the entire exercise”.

That court thought aloud on who should be a designated senior.

“(I) He is an Advocate with towering personality. He is suave and gentle. His disposition towards the Court and his fellow counsels is impressive. He is known for his ready wit. Ask him any question on any law, he has an answer with reasoning. His standing in the Bar is remarkable. He is a social factor in the society, he lives. He is humble, dignified, kind and a person with sobriety. He would however not come to stand in a queue to file an application for being designated as “Senior Advocate”. Such a person being an asset to the profession, suo motu power should be reserved to be exercised for such a person only and such power should be given to the High Courts, as in our understanding, such power has not been given to the High Courts in the guidelines/norms framed in Indira Jaising case. (underlining supplied)

(II) Designation of “Senior Advocate” is a coveted position from the point of view of the bar and the society. There should not be crowd in such a coveted position. Every Tom, Dick and Harry should not be brought to this position by whatever means permissible. Certain percentage of the total strength of a particular Bar should only be allowed to enter into this coveted position.”

Canvassing for seniority by self-certification should therefore, be immediately ended not merely mended.

Let us therefore, strive to retrieve the glory of the legal profession back to its lustrous past.

A Tribute to the Stalwart – By Juniors of Advocate P.B.Menon

 The legal fraternity in Palakkad is privileged to have the oldest active lawyer in India and perhaps in the world practicing amongst us. Sri P.B. Menon popularly known as Senior, who has attained the pinnacle  of his career, has turned 97 years old and is still in active practice in trial courts. He has completed 73 years of active practice. On July 18, 2023, his name was formally recorded in the India book of records for having the longest number of years of active practice. Sri Pachuveetil Balasubramania Menon was born in Pallasena Village of Palakkad District, Kerala, then part of the Madras presidency to Sri.Koman Nair and Smt. Kalyanikuttyamma. He has three brothers and three sisters. He completed his matriculation from P.M.G. School Palakkad, intermediate, and graduation from Government Victoria College, Palakkad.

 He was enrolled as an Advocate on July 18th 1950  and has set up his practise under the tutelage of legendary Sri.Kuttikrishnan Menon, then Advocate General of Madras in the High Court of Madras. Later in 1952, he moved to Palakkad, his native place, where he started practising under the Late Sri.Rama Krishna Iyer, a leading criminal lawyer of the time. Later, as per the wishes of his parents, he got married to Late Smt.Malathi Menon, daughter of Late Sri C. Madhavan Nair, a doyen of the Palakkad bar, and started practising under him. He has two daughters and one son.

His passion and unwavering commitment to the legal profession are unparalleled, and his desire and quench for perfection and punctuality in his work are unmatched beyond words. Probably one of the hardest things in the life of an aspiring Advocate is to make him a role model.

 He is the crown jewel of the Palakkad District Bar Association, he is our pride and other’s envy. We, as the members of the Palakkad District Bar Association, are blessed to have a maestro like him on our bar roll and, of course, fortunate to inherit his legacy, a very rare feat. He being the light tower of this profession, may the almighty shower blessings abundantly on him so that we could progress usher  in the shade and the light shed by him. We, on behalf of the Advocate Fraternity in Palakkad, bow down before our senior the veteran of legal fraternity with lots of love, respect, and prayers. We thank him for being our invaluable resource person with his huge library donated to the Palakkad District Bar Association. He is a perfect combination of brevity, analytical skills, and dedication. To express him in one word, brevity is his soul. His office is always open to all members of the advocate fraternity for consultation and clarification. We take this opportunity to thank KLT for publishing his insightful and thought-provoking articles on various subjects related to law. We expect him to enrich the treasure trove by penning down more and more visionary articles.

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Section 6 of the Hindu Succession Act 30/1956 as Amended in 2005
by Act 39/2005 and Kerala Hindu Joint Family (System) Abolition Act, Act 30/1976 –A Critical Study

(By  P.B. Menon, Advocate, Palakkad)

Under the Hindu Succession Act 1956 the original Section 6 of the Act as interpreted by the courts is to the effect that due to the death of a coparcener, in case he has left behind a female relative specified in Clause 1 of the Schedule,a notional partition takes place as regards the deceased and amongst the rest of the male members no disruption takes place and as such they continue as Hindu Joint Family retaining their coparcenary status. That is what is clearly provided for in reading the plain language too in the Section, without any interpretation. Under the law there are various modes of interpretation and what is held to be the best method of interpretation is not to interpret but read the Section as it is in the statute.

As the result of the Hindu Joint Family (System) Abolition Act passed by the Kerala Government, Kerala Act 30/1976 which is applicable only to Kerala is that the concept of the joint family coparcenery property is put an end to and in coming into force of the Act, all existing male members i.e., coparceners in the said joint family on that date as the result of notional partition and as the result of statutory division among such sharers, become tenants in common or co-owners. Thus  by the statute, the coparcenary is put an end to forever so as to not to  revive that status in future.  Actually it puts an end to the theory of reunion as well under the old pristine Hindu Mitakshara Law. As such division in status is effected by a statute and not as the result of division of status having brought about by the coparceners by issuing a registered notice for partition or even by filing a suit for partition or as the result of a preliminary decree passed in such a suit for partition,wherein under the above circumstances under the old mitakshara law a reunion is possible; but being under a statute that such division has taken place the scope of reunion is lost  and as on that date the members have attained the status of co-owners or tenants in common. The status of coparcenary property is lost forever in the light of statute and that has what was happened to in Kerala i.e., a disruption of the Hindu joint family by bringing about a  statutory notional partition among the members  of the coparcenary. The effect is shares of each are determined as on that date without any future fluctuation as they are tenants in common from that crucial date.

A larger bench of the Hon’ble Supreme Court in order to avoid the conflict between two Division Bench decisions of the Hon’ble Supreme Court reported in Prakash v. Phulavati (2016 (1) KLT SN 7 (C.No.9) SC and Danamma @ Suman Surpur v. Amar (2018 (1) KLT OnLine 3039 (SC) has made an authoritative pronouncement considering the various aspects of pristine Hindu law and the Hindu Succession Act Section 6  and the amended Section 6 of 2005 Act.

The matter involved and considered by the Hon’ble Supreme Court in that case related to a partition suit in which a preliminary decree for partition was already passed on the date  the amendment  came into force of such  i.e., 9.9.2005. The court holds that a partition suit does not stand disposed of by passing a preliminary decree and that the preliminary decree can be amended in order to fully recognize the rights  of a daughter introduced by the amended Section 6. After the passing of the preliminary decree the suit continues till the final decree is passed. If in the interregnum i.e., after passing of the preliminary decree and before the final decree is passed the events and supervening circumstances occur necessitating change in shares there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interest of the parties having regard to the changed situation.

Now let me come to the fundamental principle accepted by the Hon’ble Supreme Court in para 80 and let me quote the same.

We deem it appropriate to refer to the decision Hardeo Rai v. Sakuntala Devi & Ors.(2008 (3) KLT OnLine 1125 (SC))laying down that when an intention is expressed to partition the coparcenary property, the share of each of the coparceners become clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. After  taking  a definite share in the property a coparcener becomes the owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. It was observed for the purpose of assigning one’s interest in the property it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an  intention is expressed to partition the coparcenary property the share of each of the coparceners become clear and ascertainable. Once the share of the coparcener is determined it ceased to be a coparcenary property. The parties in such an event would not possess the property as “joint tenants” but as “tenants in common”. The decision of this court in State Bank of India v. Ghamandi Ram (1969 KLT OnLine 1054 (SC)) is therefore is not applicable to the present case.

It is learnt that this decision of the Hon’ble Supreme Court, support the view that the amendment will apply to Kerala as well. Another view seen expressed at some quarters is unless partition by metes and bounds have not taken place it will apply to Kerala as well. Hence my attempts to pen down my opinion in this connection against such views

Before I proceed to  discuss the effect of Hindu Joint Family (System) Abolition Act, let me refer to a few decisions more as set down below.

In 1938 PC189 it is held that once the shares are defined there is severance of joint status. Merely because there is no physical partition, but decide to live together and enjoy the property in common –cannot lead to an inference that members wanted to retain as tarawad property.

In Gurupad Khandappa Magadum v. Hirabai Khandappa Magdum (1978 KLT OnLine 1007 (SC)) Hon’ble Supreme Court quotes Lord Asquith the famous passage in East End Dwelling Co.Ltd. v. Finsburry Burrough Council which is held to be locus classicus.

If you are bidden to to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, most inevitable have followed from or accompanied it, and if the statute say that you must imagine a certain state of affairs it cannot be interpreted to mean that having done so you must cause or permit your imagination to boggle when it comes the inevitable corollaries of that state of affairs.

In the light of the above, let me attempt to analyse the effect of amendment of Section 6
under Act 39/2005 with reference to the Kerala Hindu Joint Family (System) Abolition
Act 1976.

The Hindu Joint Family (System) Abolition Act, Kerala Act 30/76, Section 4 provides that all members of an undivided Hindu family governed by the Mithakshara Law holding any coparcenary property on the date the Act comes into force shall be deemed to hold it as tenants in common as if a partition had taken place among all the members of that undivided Hindu family. Hence should there be an actual partition by metes and bounds ?
No  if at all, it will only be a partition among co owners not coparceners as shown below.

So when Section 6 as amended by Act 39/2005 came into force on 9.9.2005 there was no coparcenary in existence in Kerala, as  the result of the Kerala Act 30/1976. The main aspect is that the coparcenary in Kerala is put an end to, not by volition among the coparceners or as the result of preliminary decree or final decree in partition suit or by any other mode, but by statutory enactment.

Regarding partition suits I feel there are two types i.e., one as in olden days by a coparcener to get his share separated which may or may not fluctuate by the time a preliminary decree is passed or even after as held by the Hon’ble Supreme Court, before passing a final decree due to intervening circumstances and the other type is when a division in status has already occurred due to the statute by a co owner whose share is definite and certain at the time of filing of the suit and which will never be alterable.

In the said circumstance my considered view, whether acceptable or not is that the decision reported in Yineeta Sharma v. Rakesh Sharma (2020 (4) KLT OnLine 1009 (SC)) by a Larger Bench of the Hon’ble Supreme Court will not be applicable to Kerala and will apply to all other States where coparcenary exists. If we analyse the situation with reference to shares in case coparcenary exists, the share will fluctuate, whereas if such coparcenery is put an end to and the members become co-owners, the shares will be definite and certain on the date they attain division in status by virtue of statute.

Let us view the situation from another angle. A new class of coparceners is created by amended Section 6 Hindu Succession Act but for them to walk in there must be a body coparcenery in existence. Is it not like throwing once separated property into the common hotchpot with a intention to waive individual right over the same as in the olden days under the law, and convert the same into coparcenery property by blending. But for that there should exist coparcenary property for the purpose of blending the same. In case  if there is nothing in the hotch pot  to blend with, it will remain as separate property  see Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao (AIR 1994 A.P.134) such blending is always in favour of entire body of coparcenary (See 1968(2) MLJ 411).

(For further clarification kindly see any standard text book on Hindu Law like Mulla,
MAYNE or N.C.Ragahavachari Standard Text Book on Hindu Law).

The view expressed in Babu v. Arunapriya (2012 (4) KLT 487) will be I feel the correct view applicable to Kerala which hold that the Central Act 39/2005 amendment of Section 6 will not apply to Kerala in view of the fact that no coparcenery exist in Kerala since 1.12.76 when Kerala Act 30/76 came into force.