DANAMMA @ SUMAN SURPUR & ANR. versus AMAR AND ORS. on 1 February 2018

[2018] 2 S.C.R. 553

DANAMMA @ SUMAN SURPUR & ANR.

v.

AMAR AND ORS.

(Civil Appeal Nos. 188-189 of 2018)

FEBRUARY 01, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Hindu Succession (Amendment) Act, 2005 – s.6 – Applicabilityof – One ‘GS’ died in 2001 leaving behind his widow, two daughters(appellants) and two sons, including ‘AK’ – Suit for partition filedby respondent no.1 (son of ‘AK’ ), decreed by Trial Court holdingthat appellants were not entitled to any share as they were bornprior to the enactment of the 1956 Act – Appeal filed by appellants,dismissed by High Court – Review Petition there against, alsodismissed – Held: Section 6, as amended, stipulates that on andfrom the commencement of the Amendment Act, 2005, the daughterof a coparcener shall by birth become a coparcener in her ownright in the same manner as the son – Amendment Act, 2005 confersupon the daughter of the coparcener, same rights and liabilities inthe coparcenery properties as that of the son – In the present case,suit for partition was filed in 2002, however, during the pendencyof the suit, s.6 was amended– Decree was passed by trial court onlyin 2007 – Thus, the rights of the appellants got crystallised in theyear 2005 – In the instant case, the subject matter of the partitionsuit were joint family properties, thus, in the said partition suit, sharewill devolve upon the appellants as well – Since, ‘GS’ died leavingbehind appellants, two sons, and a widow, both the appellants wouldbe entitled to 1/5[th] share each in the property – Since, ‘AK’ willhave 1/5[th] share, it would be further divided into five shares onpartition i.e. between ‘AK’, his wife, his two daughters and son(respondent no.1) – Thus, respondent no.1 would be entitled to 1/25[th]share in the property – Hindu Succession Act, 1956.

Suit – Partition suit – Preliminary Decree – Effect of, on therights of daughters in coparcenary property as per amended s.6 –Held: Rights of daughters in coparcenary property as per amendeds.6 are not lost merely because a preliminary decree has been passedin a partition suit – In partition suits, partition becomes final only

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Aon the passing of final decree – Where such situation arises, thepreliminary decree would have to be amended taking into accountthe change in law by amendment of 2005 – Hindu Succession(Amendment) Act, 2005 – s.6.

Allowing the appeals, the CourtB

HELD : 1.1 Amendment to Section 6, Hindu SuccessionAct, 1956 vide Amendment Act, 2005 clinches the issue, beyondany pale of doubt, in favour of the appellants. This amendmentnow confers upon the daughter of the coparcener as well the statusof coparcener in her own right in the same manner as the son andCgives same rights and liabilities in the coparcenery properties asshe would have had if it had been son. [Para 20][564-B]

Conclusion

1.2 The law relating to a joint Hindu family governed bythe Mitakshara law has undergone unprecedented changes. TheDsaid changes have been brought forward to address the growingneed to merit equal treatment to the nearest female relatives,namely daughters of a coparcener. The section stipulates that adaughter would be a coparcener from her birth, and would havethe same rights and liabilities as that of a son. The daughter wouldhold property to which she is entitled as a coparcenary property,Ewhich would be construed as property being capable of beingdisposed of by her either by a Will or any other testamentarydisposition. These changes have been sought to be made on thetouchstone of equality, thus seeking to remove the perceiveddisability and prejudice to which a daughter was subjected. TheFfundamental changes brought forward about in the HinduSuccession Act, 1956 by amending it in 2005, are perhaps arealization of the immortal words of Roscoe Pound as appearingin his celebrated treatise, The Ideal Element in Law, that “thelaw must be stable and yet it cannot stand still. Hence all thinkingabout law has struggled to reconcile the conflicting demands ofGthe need of stability and the need of change.” [Para 23][569-D-G]

Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36– relied on.

Sadashiv Sakharam Patil v. Chandrakant Gopal Desale2011 (5) Bom CR 726; Badrinarayan ShankarBhandari v. Omprakash Shankar Bhandari AIR 2014Bom 151; Pravat Chandra Pattnaik v. Sarat ChandraPattnaik AIR 2008 Ori 133; Sugalabai v. GundappaA. Maradi ILR 2007 Kar 4790; Rakhi Gupta v. ZahoorAhmad 197 (2013) DLT 154 – approved.

Vaishali Satish Gonarkar v. Satish Keshorao GonarkarAIR 2012 Bom 110 – not approved.

“The Ideal Element in Law” by Roscoe Pound –referred to.

1.3 Section 6, as amended, stipulates that on and from thecommencement of the amended Act, 2005, the daughter of acoparcener shall by birth become a coparcener in her own rightin the same manner as the son. It is apparent that the statusconferred upon sons under the old section and the old HinduLaw was to treat them as coparceners since birth. The amendedprovision now statutorily recognizes the rights of coparceners ofdaughters as well since birth. The section uses the words in thesame manner as the son. It should therefore be apparent thatboth the sons and the daughters of a coparcener have beenconferred the right of becoming coparceners by birth. It is thevery factum of birth in a coparcenary that creates the coparcenary,therefore the sons and daughters of a coparcener becomecoparceners by virtue of birth. Devolution of coparcenary propertyis the later stage of and a consequence of death of a coparcener.The first stage of a coparcenary is obviously its creation, as iswell recognized. One of the incidents of coparcenary is the rightof a coparcener to seek a severance of status. Hence, the rightsof coparceners emanate and flow from birth (now includingdaughters) as is evident from sub-s (1)(a) and (b). The right topartition has not been abrogated. The right is inherent and can beavailed of by any coparcener, now even a daughter who is acoparcener. [Paras 24, 26][569-H; 570-A-C; 571-A]

State Bank of India v. Ghamandi Ram AIR 1969 SC1330 : [1969] 3 SCR 51 – referred to.

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A1.4 In the present case, no doubt, suit for partition wasfiled in the year 2002. However, during the pendency of this suit,Section 6 of the Act was amended as the decree was passed bythe trial court only in the year 2007. Thus, the rights of theappellants got crystallised in the year 2005 and this event shouldhave been kept in mind by the trial court as well as by the HighBCourt. The rights of daughters in coparcenary property as perthe amended S.6 are not lost merely because a preliminary decreehas been passed in a partition suit. So far as partition suits areconcerned, the partition becomes final only on the passing of afinal decree. Where such situation arises, the preliminary decreeCwould have to be amended taking into account the change in thelaw by the amendment of 2005. On facts, there is no dispute thatthe property which was the subject matter of partition suit belongsto joint family and ‘GS’ was propositus of the said joint familyproperty. In view of the aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since, ‘GS’Ddied leaving behind two sons, two daughters and a widow, boththe daughters, i.e. the appellants would be entitled to 1/5[th] shareeach in the said property. Plaintiff (respondent No.1) is son of‘AK’ (defendant No.1). Since, ‘AK’ will have 1/5[th] share, it wouldbe divided into five shares on partition i.e. between defendantENo.1 ‘AK’, his wife defendant No.2, his two daughters defendantNos.3 and 4 and son/plaintiff (respondent No.1). In this manner,the plaintiff/respondent No.1 would be entitled to 1/25[th] share inthe property. [Paras 27, 28][571-B-F]

Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi &FAnr. (2011) 9 SCC 788 : [2011] 12 SCR 968 – reliedon.

Anar Devi & Ors. v. Parmeshwari Devi & Ors.(2006) 8 SCC 656 : [2006] 6 Suppl. SCR 370 – referredto.GMulla, Principles of Hindu Law 17[th] Edn., Vol. II,p. 250 – referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION :Civil AppealNos.188-189 of 2018.

From the Judgment and Order dated 25.01.2012 in R.F.A.No. 322 of 2008 (PAR) and Final Order Dated 18.10.2012 in R. P.No. 1533 of 2012 in R.F.A. No. 322 of 2008 (PAR) of the High Court ofKarnataka, Circuit Bench at Dharwad.

S. N. Bhat, Adv. for the Appellants.

H. Chandra Sekhar, Adv. for the Respondents.

The Judgment of the Court was delivered by

A. K. SIKRI, J. The appellants herein, two in number, are thedaughters of one, Gurulingappa Savadi, propositus of a Hindu Joint Family.Apart from these two daughters, he had two sons, namely, Arunkumarand Vijay. Gurulingappa Savadi died in the year 2001 leaving behind theaforesaid two daughters, two sons and his widow, Sumitra. After hisdeath, Amar, S/o Arunkumar filed the suit for partition and a separatepossession of the suit property described at Schedule B to E in the plaintstating that the two sons and widow were in joint possession of theaforesaid properties as coparceners and properties mentioned in Schedule E

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AB was acquired out of the joint family nucleus in the name of GurulingappaSavadi. Case set up by him was that the appellants herein were not thecoparceners in the said joint family as they were born prior to theenactment of Hindu Succession Act, 1956 (hereinafter referred to asthe ‘Act’). It was also pleaded that they were married daughters and atthe time of their marriage they had received gold and money and had,Bhence, relinquished their share.

2. The appellants herein contested the suit by claiming that theywere also entitled to share in the joint family properties, being daughtersof Gurulingappa Savadi and for the reason that he had died after comingCinto force the Act of 1950.

3. The trial court, while decreeing the suit held that the appellantswere not entitled to any share as they were born prior to the enactmentof the Act and, therefore, could not be considered as coparceners. Thetrial court also rejected the alternate contention that the appellants hadDacquired share in the said properties, in any case, after the amendmentin the Act vide amendment Act of 2005. This view of the trial court hasbeen upheld by the High Court in the impugned judgement dated January25, 2012 thereby confirming the decree dated August 09, 2007 passed inthe suit filed for partition.

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4. In the aforesaid backdrop, the question of law which arises forconsideration in this appeal is as to whether, the appellants, daughters ofGurulingappa Savadi, could be denied their share on the ground that theywere born prior to the enactment of the Act and, therefore, cannot betreated as coparceners? Alternate question is as to whether, with theFpassing of Hindu Succession (Amendment) Act, 2005, the appellantswould become coparcener “by birth” in their “own right in the samemanner as the son” and are, therefore, entitled to equal share as that ofa son?

5. Though, we have mentioned the gist of the lis involved in thisGcase along with brief factual background in which it has arisen, somemore facts which may be necessary for understanding the genesis ofissue involved may also be recapitulated. We may start with the genealogyof the parties, it is as under:

DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.[A. K. SIKRI, J.]

Guralingappa=Sumitra (Def.8)

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--------------------------------------------------------------- Mahandanda Arunkumar @ Arun=Sarojini Vijay Danamma (Def. 7) (Def.1) (dead) (Def.2) (Def.5) (Def. 6)

BMahandanda Arunkumar @ Arun=Sarojini Vijay Danamma (Def. 7) (Def.1) (dead) (Def.2) (Def.5) (Def. 6) C------------------------------------------------------- Sheetal Amar Triveni D (Def. 3) (Plff) (Def. 4) ”

6. Respondent No. 1 herein (the plaintiff) filed the suit on July 01,2002 claiming 1/15[th] share in the suit schedule properties. In the saidsuit, he mentioned the properties which needed partition.

7. The plaint schedule C compromised of the house propertiesbelonging to the joint family. The plaint schedule D comprised of theshop properties belonging to the joint family. The plaint schedule Ecomprised of the machineries and movable belonging to the joint family.The plaintiff averred that the plaint schedule properties belonged to thejoint family and that defendant no. 1, the father of the plaintiff wasneglecting the plaintiff and his siblings and sought partition of the suitschedule properties. The plaintiff contended that all the suit scheduleproperties were the joint family properties. The plaintiff contended inpara 5 of the plaint that the propositus, Guralingappa died 1 year prior tothe filing of the suit. In para 7 of the plaint, the plaintiff contended thatdefendant no. 1 had 1/3[rd] share and defendant no. 5 and 8 had 1/3[rd]share each in the suit schedule properties. The plaintiff also contendedthat defendants 6 and 7 did not have any share in the suit scheduleproperties.

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A8. Defendant no. 1 (father of the plaintiff) and son of GuralingappaSavadi did not file any written statement. Defendant nos. 2, 3 and 4filed their separate written statements supporting the claim of the plaintiff.Defendant no. 5 (respondent no. 5 herein and son of Guralingappa Savadi),however, contested the suit. He, inter alia, contended that after thedeath of Guralingappa, an oral partition took place between defendantBno. 1, defendant no. 5 and others and in the said partition, defendant no.1 was allotted certain properties and defendant no. 5 was allotted certainother properties and defendant no. 8, Sumitra, wife of GuralingappaSavadi was allotted certain other properties. Defendant no. 5 furthercontended that defendant nos. 6 and 7 were not allotted any propertiesCin the said alleged oral partition.

9. Defendant no. 5 further contended that one of the properties,namely, C.T.S. No. 774 and also certain other properties were not jointfamily properties.

10. The appellants claimed that they were also entitled to theirDshare in the property. After framing the issues and recording theevidence, the trial court by its judgment and decree dated August 09,2007 held that the suit schedule properties were joint family propertiesexcept CTS No. 774 (one of the house properties in plaint C schedule).

11. The trial court held that the plaintiff, defendant nos. 2 to 4Ewere entitled to 1/8[th] share in the joint family properties. The trial courtfurther noted that defendant no. 8 (wife of Gurulingappa Savadi) diedduring the pendency of the suit intestate and her share devolved in favourof defendants no. 1 and 5 only and, therefore, defendant nos. 1 and 2were entitled to ½ share in the said share. The trial court passed theFfollowing order:

“The suit of the plaintiff is decreed holding that the plaintiff isentitled for partition and separate possession of his 1/8[th] share inthe suit ‘B’, ‘C’ and ‘D’ schedule properties (except CTS No.774) and also in respect of the Machinery’s stated in the report ofGthe commissioner. The commissioners report Ex. P16 whichcontains the list of machinery’s to form part of the decree.

The defendants 2 to 4 are each entitled to a/8[th] share and the 5[th]defendant is entitled for 4/8 share in the above said properties.”

12. The trial court, thus, denied any share to the appellants.

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13. Aggrieved by the said judgment and decree of the trial court,the defendant nos. 6 and 7 filed an appeal bearing R.F.A. No. 322 of2008 before the High Court seeking equal share as that of the sons ofthe propositus, namely, defendant nos. 1 and 5.

14. The High Court by its impugned judgment and order datedJanuary 25, 2012 dismissed the appeal. Thereafter, on March 04, 2012defendant nos. 6 and 7 filed a review petition bearing no. 1533 of 2012before the High Court, which met the same fate.

15. We have heard the learned counsel for the parties. Whereas,the learned counsel for the appellants reiterated his submissions whichwere made before the High Court as well and noted above, learnedcounsel for the respondents refuted those submissions by relying uponthe reason given by the High Court in the impugned judgment.

16. In the first instance, let us take note of the provisions of Section6 of the Act, as it stood prior to its amendment by the Amendment Act,2005. This provision reads as under:

“6. Devolution of interest in coparcenary property.—When amale Hindu dies after the commencement of this Act, having atthe time of his death an interest in a Mitakshara coparcenaryproperty, his interest in the property shall devolve by survivorshipupon the surviving members of the coparcenary and not inaccordance with this Act:

Provided that, if the deceased had left him surviving a femalerelative specified in Class I of the Schedule or a male relativespecified in that class who claims through such female relative,the interest of the deceased in the Mitakshara coparcenary propertyshall devolve by testamentary or intestate succession, as the casemay be, under this Act and not by survivorship.

Explanation 1.—For the purposes of this section, the interestof a Hindu Mitakshara coparcener shall be deemed to be theshare in the property that would have been allotted to him if apartition of the property had taken place immediately before hisdeath, irrespective of whether he was entitled to claim partition ornot.

Explanation 2.—Nothing contained in the proviso to thissection shall be construed as enabling a person who had separated A

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Ahimself from the coparcenary before the death of the deceasedor any of his heirs to claim on intestacy a share in the interestreferred to therein.”

17. No doubt, Explanation 1 to the aforesaid Section states thatthe interest of the deceased Mitakshara coparcenary property shall beBdeemed to be the share in the property that would have been allotted tohim if the partition of the property had taken place immediately beforehis death, irrespective whether he was entitled to claim partition or not.This Explanation came up for interpretation before this Court in AnarDevi & Ors. v. Parmeshwari Devi & Ors.[1]. The Court quoted, withapproval, the following passage from the authoritative treatise of Mulla,CPrinciples of Hindu Law, 17[th] Edn., Vol. II, p. 250 wherein the learnedauthor made following remarks while interpreting Explanation 1 to Section6:

“…Explanation 1 defines the expression ‘the interest of thedeceased in Mitakshara coparcenary property’ and incorporatesDinto the subject the concept of a notional partition. It is essential tonote that this notional partition is for the purpose of enablingsuccession to and computation of an interest, which was otherwiseliable to devolve by survivorship and for the ascertainment of theshares in that interest of the relatives mentioned in Class I of theESchedule. Subject to such carving out of the interest of thedeceased coparcener the other incidents of the coparcenary areleft undisturbed and the coparcenary can continue withoutdisruption. A statutory fiction which treats an imaginary state ofaffairs as real requires that the consequences and incidents of theputative state of affairs must flow from or accompany it as if theFputative state of affairs had in fact existed and effect must begiven to the inevitable corollaries of that state of affairs.”

7. The learned author further stated that:

“[T]he operation of the notional partition and its inevitableGcorollaries and incidents is to be only for the purposes of thissection, namely, devolution of interest of the deceased incoparcenary property and would not bring about total disruptionof the coparcenary as if there had in fact been a regular partitionand severance of status among all the surviving coparceners.”

1 (2006) 8 SCC 656H

DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.[A. K. SIKRI, J.]

8. According to the learned author, at pp. 253-54, the undividedinterest “of the deceased coparcener for the purpose of giving effect tothe rule laid down in the proviso, as already pointed out, is to beascertained on the footing of a notional partition as of the date ofhis death. The determination of that share must depend on thenumber of persons who would have been entitled to a share in thecoparcenary property if a partition had in fact taken placeimmediately before his death and such person would have to beascertained according to the law of joint family and partition. Therules of Hindu law on the subject in force at the time of the deathof the coparcener must, therefore, govern the question ofascertainment of the persons who would have been entitled to ashare on the notional partition”.

18. Thereafter the Court spelled out the manner in which thestatutory fiction is to be construed by referring to certain judgments andsummed up the position as follows:

“11. Thus we hold that according to Section 6 of the Act when acoparcener dies leaving behind any female relative specified inClass I of the Schedule to the Act or male relative specified inthat class claiming through such female relative, his undividedinterest in the Mitakshara coparcenary property would not devolveupon the surviving coparcener, by survivorship but upon his heirsby intestate succession. Explanation 1 to Section 6 of the Actprovides a mechanism under which undivided interest of adeceased coparcener can be ascertained and i.e. that the interestof a Hindu Mitakshara coparcener shall be deemed to be theshare in the property that would have been allotted to him if apartition of the property had taken place immediately before hisdeath, irrespective of whether he was entitled to claim partition ornot. It means for the purposes of finding out undivided interest ofa deceased coparcener, a notional partition has to be assumedimmediately before his death and the same shall devolve upon hisheirs by succession which would obviously include the survivingcoparcener who, apart from the devolution of the undivided interestof the deceased upon him by succession, would also be entitled toclaim his undivided interest in the coparcenary property which hecould have got in notional partition.”

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A19. This case clearly negates the view taken by the High Court inthe impugned judgment.

20. That apart, we are of the view that amendment to the aforesaidSection vide Amendment Act, 2005 clinches the issue, beyond any paleof doubt, in favour of the appellants. This amendment now confersBupon the daughter of the coparcener as well the status of coparcener inher own right in the same manner as the son and gives same rights andliabilities in the coparcener properties as she would have had if it hadbeen son. The amended provision reads as under:

“6. Devolution of interest in coparcenary property.¯(1) On andCfrom the commencement of the Hindu Succession (Amendment)Act, 2005 (39 of 2005), in a Joint Hindu family governed by theMitakshara law, the daughter of a coparcener shall,¯

(a) by birth become a coparcener in her own right the same manneras the son; D(b) have the same rights in the coparcenery property as she wouldhave had if she had been a son;

(c) be subject to the same liabilities in respect of the saidcoparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall beEdeemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affector invalidate any disposition or alienation including any partition ortestamentary disposition of property which had taken place beforethe 20th day of December, 2004.

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(2) Any property to which a female Hindu becomes entitled byvirtue of sub-section (1) shall be held by her with the incidents ofcoparcenary ownership and shall be regarded, notwithstandinganything contained in this Act or any other law for the time beingin force, as property capable of being disposed of by her bytestamentary disposition.

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(3) Where a Hindu dies after the commencement of the HinduSuccession (Amendment) Act, 2005 (39 of 2005), his interest inthe property of a Joint Hindu family governed by the Mitaksharalaw, shall devolve by testamentary or intestate succession, as the H

case may be, under this Act and not by survivorship, and thecoparcenery property shall be deemed to have been divided as ifa 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 orof such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son orof a pre-deceased daughter, as such child would have got had heor she been alive at the time of the partition, shall be allotted to thechild of such pre-deceased child of the pre-deceased son or apre-deceased daughter, as the case may be.

Explanation.¯For the purposes of this sub-section, the interestof a Hindu Mitakshara coparcener shall be deemed to be theshare in the property that would have been allotted to him if apartition of the property had taken place immediately before hisdeath, irrespective of whether he was entitled to claim partition ornot.

(4) After the commencement of the Hindu Succession(Amendment) Act, 2005 (39 of 2005), no court shall recogniseany right to proceed against a son, grandson or great-grandsonfor the recovery of any debt due from his father, grandfather orgreat-grandfather solely on the ground of the pious obligation underthe Hindu law, of such son, grandson or great-grandson todischarge any such debt:

Provided that in the case of any debt contracted before thecommencement of the Hindu Succession (Amendment) Act, 2005(39 of 2005), nothing contained in this sub-section shall affect¯

(a) the right of any creditor to proceed against the son, grandsonor great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, anysuch debt, and any such right or alienation shall be enforceableunder the rule of pious obligation in the same manner and to thesame extent as it would have been enforceable as if the HinduSuccession (Amendment) Act, 2005 (39 of 2005) had not beenenacted.

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AExplanation.¯For the purposes of clause (a), the expression “son”,“grandson” or “great-grandson” shall be deemed to refer to theson, grandson or great-grandson, as the case may be, who wasborn or adopted prior to the commencement of the HinduSuccession (Amendment) Act, 2005 (39 of 2005).

B(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” meansany partition made by execution of a deed of partition duly registeredunder the Registration Act, 1908 (16 of 1908) or partition effectedby a decree of a court.]”C

21. The effect of this amendment has been the subject matter ofpronouncements by various High Courts, in particular, the issue as towhether the right would be conferred only upon the daughters who areborn after September 9, 2005 when Act came into force or even tothose daughters who were born earlier. Bombay High Court in VaishaliDSatish Gonarkar v. Satish Keshorao Gonarkar[2] had taken the viewthat the provision cannot be made applicable to all daughters born evenprior to the amendment, when the Legislature itself specified the posteriordate from which the Act would come into force. This view was contraryto the view taken by the same High Court in Sadashiv Sakharam PatilEv. Chandrakant Gopal Desale[3]. Matter was referred to the Full Benchand the judgment of the Full Bench is reported as BadrinarayanShankar Bhandari v. Omprakash Shankar Bhandari[4]. The FullBench held that clause (a) of sub-section (1) of Section 6 would beprospective in operation whereas clause (b) and (c) and other parts ofsub-section (1) as well as sub-section (2) would be retroactive in operation.FIt held that amended Section 6 applied to daughters born prior to June17, 1956 (the date on which Hindu Succession Act came into force) orthereafter (between June 17, 1956 and September 8, 2005) providedthey are alive on September 9, 2005 i.e. on the date when Amended Act,2005 came into force. Orissa, Karnataka and Delhi High Court haveGalso held to the same effect[5].

2AIR 2012 Bom 110

32011 (5) Bom CR 726

4AIR 2014 Bom 151

5 AIR 2008 Ori 133: Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik; ILR 2007 Kar4790: Sugalabai v. Gundappa A. Maradi and 197 (2013) DLT 154: Rakhi Gupta v.Zahoor AhmadH

22. The controversy now stands settled with the authoritativepronouncement in the case of Prakash & Ors. v. Phulavati & Ors.[6]which has approved the view taken by the aforesaid High Courts aswell as Full Bench of the Bombay High Court. Following discussionfrom the said judgment is relevant:

“17. The text of the amendment itself clearly provides that theright conferred on a “daughter of a coparcener” is “on and fromthe commencement of the Hindu Succession (Amendment) Act,2005”. Section 6(3) talks of death after the amendment for itsapplicability. In view of plain language of the statute, there is noscope for a different interpretation than the one suggested by thetext of the amendment. An amendment of a substantive provisionis always prospective unless either expressly or by necessaryintendment it is retrospective. [Shyam Sunder v. Ram Kumar,(2001) 8 SCC 24, paras 22 to 27] In the present case, there isneither any express provision for giving retrospective effect tothe amended provision nor necessary intendment to that effect.Requirement of partition being registered can have no applicationto statutory notional partition on opening of succession as perunamended provision, having regard to nature of such partitionwhich is by operation of law. The intent and effect of theamendment will be considered a little later. On this finding, theview of the High Court cannot be sustained.

18. The contention of the respondents that the amendment shouldbe read as retrospective being a piece of social legislation cannotbe accepted. Even a social legislation cannot be given retrospectiveeffect unless so provided for or so intended by the legislature. Inthe present case, the legislature has expressly made theamendment applicable on and from its commencement and onlyif death of the coparcener in question is after the amendment.Thus, no other interpretation is possible in view of the expresslanguage of the statute. The proviso keeping dispositions oralienations or partitions prior to 20-12-2004 unaffected can alsonot lead to the inference that the daughter could be a coparcenerprior to the commencement of the Act. The proviso only meansthat the transactions not covered thereby will not affect the extentof coparcenary property which may be available when the main A

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provision is applicable. Similarly, Explanation has to be readharmoniously with the substantive provision of Section 6(5) bybeing limited to a transaction of partition effected after 20-12-2004. Notional partition, by its very nature, is not covered eitherunder the proviso or under sub-section (5) or under the Explanation.

19. Interpretation of a provision depends on the text and the context.[RBI v. Peerless General Finance & Investment Co. Ltd., (1987)1 SCC 424, p. 450, para 33] Normal rule is to read the words of astatute in ordinary sense. In case of ambiguity, rational meaninghas to be given. [Kehar Singh v. State (Delhi Admn.), (1988) 3SCC 609 : 1988 SCC (Cri) 711] In case of apparent conflict,harmonious meaning to advance the object and intention oflegislature has to be given. [District Mining Officerv. TISCO, (2001)7 SCC 358]

20. There have been number of occasions when a proviso or anexplanation came up for interpretation. Depending on the text,context and the purpose, different rules of interpretation have beenapplied. [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC591]

21. Normal rule is that a proviso excepts something out of theenactment which would otherwise be within the purview of theenactment but if the text, context or purpose so require a differentrule may apply. Similarly, an explanation is to explain the meaningof words of the section but if the language or purpose so require,the explanation can be so interpreted. Rules of interpretation ofstatutes are useful servants but difficult masters. [Keshavji Ravji& Co. v. CIT, (1990) 2 SCC 231 : 1990 SCC (Tax) 268] Object ofinterpretation is to discover the intention of legislature.

22. In this background, we find that the proviso to Section 6(1)and sub-section (5) of Section 6 clearly intend to exclude thetransactions referred to therein which may have taken place priorto 20-12-2004 on which date the Bill was introduced. Explanationcannot permit reopening of partitions which were valid wheneffected. Object of giving finality to transactions prior to 20-12-2004 is not to make the main provision retrospective in any manner.The object is that by fake transactions available property at theintroduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and isto be enforced. Main provision of the amendment in Sections 6(1)and (3) is not in any manner intended to be affected butstrengthened in this way. Settled principles governing suchtransactions relied upon by the appellants are not intended to bedone away with for period prior to 20-12-2004. In no case statutorynotional partition even after 20-12-2004 could be covered by theExplanation or the proviso in question.

23. Accordingly, we hold that the rights under the amendment areapplicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Dispositionor alienation including partitions which may have taken place before20-12-2004 as per law applicable prior to the said date will remainunaffected. Any transaction of partition effected thereafter willbe governed by the Explanation.”

23. The law relating to a joint Hindu family governed by theMitakshara law has undergone unprecedented changes. The saidchanges have been brought forward to address the growing need tomerit equal treatment to the nearest female relatives, namely daughtersof a coparcener. The section stipulates that a daughter would be acoparcener from her birth, and would have the same rights and liabilitiesas that of a son. The daughter would hold property to which she isentitled as a coparcenary property, which would be construed as propertybeing capable of being disposed of by her either by a will or any othertestamentary disposition. These changes have been sought to be madeon the touchstone of equality, thus seeking to remove the perceiveddisability and prejudice to which a daughter was subjected. Thefundamental changes brought forward about in the Hindu SuccessionAct, 1956 by amending it in 2005, are perhaps a realization of the immortalwords of Roscoe Pound as appearing in his celebrated treaties, TheIdeal Element in Law, that “the law must be stable and yet it cannotstand still. Hence all thinking about law has struggled to reconcile theconflicting demands of the need of stability and the need of change.”

24. Section 6, as amended, stipulates that on and from thecommencement of the amended Act, 2005, the daughter of a coparcenershall by birth become a coparcener in her own right in the same manneras the son. It is apparent that the status conferred upon sons under the A

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Aold section and the old Hindu Law was to treat them as coparcenerssince birth. The amended provision now statutorily recognizes the rightsof coparceners of daughters as well since birth. The section uses thewords in the same manner as the son. It should therefore be apparentthat both the sons and the daughters of a coparcener have been conferredthe right of becoming coparceners by birth. It is the very factum ofBbirth in a coparcenary that creates the coparcenary, therefore the sonsand daughters of a coparcener become coparceners by virtue of birth.Devolution of coparcenary property is the later stage of and aconsequence of death of a coparcener. The first stage of a coparcenaryis obviously its creation as explained above, and as is well recognized.COne of the incidents of coparcenary is the right of a coparcener to seeka severance of status. Hence, the rights of coparceners emanate andflow from birth (now including daughters) as is evident from sub-s (1)(a)and (b).

25. Reference to the decision of this Court, in the case of StateDBank of India v. Ghamandi Ram[7] in essential to understand theincidents of coparceneryship as was always inherited in a HinduMitakshara coparcenary:

“According to the Mitakshara School of Hindu Law all theproperty of a Hindu joint family is held in collective ownershipby all the coparceners in a quasi-corporate capacity. TheEtextual authority of the Mitakshara lays down in express termsthat the joint family property is held in trust for the joint familymembers then living and thereafter to be born (SeeMitakshara, Ch. I. 1-27). The incidents of coparcenershipunder the Mitakshara law are: first, the lineal maleFdescendants of a person up to the third generation, acquireon birth ownership in the ancestral properties is common;secondly, that such descendants can at any time work outtheir rights by asking for partition; thirdly, that till partitioneach member has got ownership extending over the entireproperty, conjointly with the rest; fourthly, that as a result ofGsuch co-ownership the possession and enjoyment of theproperties is common; fifthly, that no alienation of the propertyis possible unless it be for necessity, without the concurrenceof the coparceners, and sixthly, that the interest of a deceasedmember lapses on his death to the survivors.”

H7 AIR 1969 SC 1330.

26. Hence, it is clear that the right to partition has not beenabrogated. The right is inherent and can be availed of by anycoparcener, now even a daughter who is a coparcener.

27. In the present case, no doubt, suit for partition was filed in theyear 2002. However, during the pendency of this suit, Section 6 of theAct was amended as the decree was passed by the trial court only in theyear 2007. Thus, the rights of the appellants got crystallised in the year2005 and this event should have been kept in mind by the trial court aswell as by the High Court. This Court in Ganduri Koteshwaramma &Anr. v. Chakiri Yanadi & Anr.[8] held that the rights of daughters incoparcenary property as per the amended S. 6 are not lost merelybecause a preliminary decree has been passed in a partition suit. So faras partition suits are concerned, the partition becomes final only on thepassing of a final decree. Where such situation arises, the preliminarydecree would have to be amended taking into account the change in thelaw by the amendment of 2005.

28. On facts, there is no dispute that the property which was thesubject matter of partition suit belongs to joint family and GurulingappaSavadi was propositus of the said joint family property. In view of ouraforesaid discussion, in the said partition suit, share will devolve uponthe appellants as well. Since, Savadi died leaving behind two sons, twodaughters and a widow, both the appellants would be entitled to 1/5[th]share each in the said property. Plaintiff (respondent No.1) is son ofArun Kumar (defendant No.1). Since, Arun Kumar will have 1/5[th] share,it would be divided into five shares on partition i.e. between defendantNo.1 Arun Kumar, his wife defendant No.2, his two daughters defendantNos.3 and 4 and son/plaintiff (respondent No.1). In this manner, theplaintiff/respondent No.1 would be entitled to 1/25[th] share in the property.

29. The appeals are allowed in the aforesaid terms and decree ofpartition shall be drawn by the trial court accordingly.

No order as to costs.

Divya Pandey

Appeals allowed.

8 (2011) 9 SCC 788

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