VINEETA SHARMA versus RAKESH SHARMA & ORS.
[2020] 10 S.C.R. 135, Supreme Court of India, 2020
Outcome: Directions issued
Segment: Ratio
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partition. The rules of Hindu law on the subject in force at the
time of the death of the coparcener must, therefore, govern
the question of ascertainment of the persons who would have
been entitled to a share on the notional partition”.
11. Thus we hold that according to Section 6 of the Act when a
coparcener dies leaving behind any female relative specified in
Class I of the Schedule to the Act or male relative specified in
that class claiming through such female relative, his undivided
interest in the Mitakshara coparcenary property would not devolve
upon the surviving coparcener, by survivorship but upon his heirs
by intestate succession. Explanation 1 to Section 6 of the Act
provides a mechanism under which undivided interest of a
deceased coparcener can be ascertained and i.e. that the interest
of a Hindu Mitakshara coparcener shall be deemed to be the
share in the property that would have been allotted to him if a
partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or
not. It means for the purposes of finding out undivided interest of
a deceased coparcener, a notional partition has to be assumed
immediately before his death and the same shall devolve upon his
heirs by succession which would obviously include the surviving
coparcener who, apart from the devolution of the undivided interest
of the deceased upon him by succession,
would also be entitled to
claim his undivided interest in the coparcenary property which he
could have got in notional partition.”
In Anar Devi (supra), the question of enlargement of right by a
legal provision or otherwise change in the coparcener’s share was not
involved. The decision cannot help the cause set up of partition created
by statutory fiction. Statutory fiction is with respect to the extent of the
share of deceased coparcener  in exigency provided in the proviso to
section 6. Co-parcenary or HUF, as the case may be, does not come to
an end by statutory fiction. Disruption of coparcenary by statutory fiction
takes place, is not the proposition laid down in the aforesaid decision.
98. In Puttrangamma & Ors. v. M.S. Rangamma & Ors., AIR
1968 SC 1018, this Court considered the doctrine of Hindu law, separation
in status by a definite, unequivocal and unilateral declaration thus:
“(4) It is now a settled doctrine of Hindu Law that a member of a
joint Hindu family can bring about his separation in status by a
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definite, unequivocal and unilateral declaration of his intention to
separate himself from the family and enjoy his share in severalty.
There does not need to be an agreement between all the
coparceners for the disruption of the joint status. It is immaterial
in such a case whether the other coparceners give their assent to
the separation or not. The jural basis of this doctrine has been
expounded by the early writers of Hindu Law. The relevant portion
of the commentary of Vijnaneswara states as follows:
“x x x xx “
[And thus though the mother is having her menstrual courses (has
not lost the capacity to bear children) and the father has attachment
and does not desire a partition, yet by the will (or desire) of the
son a partition of the grandfather’s wealth does take place]”
Saraswathi Vilasa, placitum 28 states:
[From this it is known that without any speech (or
Explanation) even by means of a determination (or resolution)
only, partition is effected, just an appointed daughter is constituted
by mere intention without speech.]
Viramitrodaya of Mitra Misra (Ch. 11. pl. 23) is to the
following effect:
[Here too there is no distinction between a partition during
the lifetime of the father or after his death and partition at the
desire of the sons may take place or even by the desire (or at the
will) of a single (coparcener)].
VyavaharaMayukha of Nilakantabhatta also states:
[Even in the absence of any common (joint family) property,
severance does indeed
result by the mere declaration ‘I am
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separate from thee’ because severance is a particular state (or
condition) of the mind and the declaration is merely a manifestation
of this mental state (or condition).]” (Ch. IV, S. III-I).
Emphasis is laid on the “budhivisesha” (particular state or condition
of the mind) as the decisive factor in producing a severance in
status and the declaration is stated to be merely “abhivyanjika” or
manifestation which might vary according to circumstances. In
Suraj Narain v. Iqbal Narain, (1913) ILR 35 All 80 the Judicial
Committee made the following categorical statement of the legal
position:
“A definite and unambiguous indication by one member of intention
to separate himself and to enjoy his share in severalty may amount
to separation. But to have that effect the intention must be
unequivocal and clearly expressed … Suraj Narain alleged that
he separated a few months later; there is, however, no writing in
support of his allegation, nothing to show that at that time he gave
expression to an unambiguous intention on his part to cut himself
off from the joint undivided family.”
In a later case — Girja Bai v. Sadashiv Dhundiraj, ILR
42 Cal 1031, the Judicial Committee examined the relevant texts
of Hindu Law and referred to the well-marked distinction that
exists in Hindu law between a severance in status so far as the
separating member is concerned and a de facto division into
specific shares of the property held until
then jointly, and laid down
the law as follows:
“One is a matter of individual decision, the desire on the
part of any one member to sever himself from the joint family and
to enjoy his hitherto undefined or unspecified share separately
from the others without being subject to the obligations which
arise from the joint status; whilst the other is the natural resultant
from his decision, the division and separation of his share which
may be arrived at either by private agreement among the parties,
or on failure of that, by the intervention of the Court. Once the
decision has been unequivocally expressed and clearly intimated
to his co-sharers, his right to obtain and possess the share to which
he admittedly has a title is unimpeachable; neither the co-sharers
can question it nor can the Court examine his conscience to find
out whether his reasons for separation were well-founded or
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sufficient; the Court has simply to give effect to his right to have
his share allocated separately from the others.”
In Syed Kasam v. Jorawar Singh, ILR 50 Cal 84, Viscount Cave,
in delivering the judgment of the Judicial Committee, observed:
“It is settled law that in the case of a joint Hindu family
subject to the law of the Mitakshara, a severance of estate is
effected by an unequivocal declaration on the part of one of the
joint holders of his intention to hold his share separately, even
though no actual division takes place; and the commencement of
a suit for partition has been held to be sufficient to effect a
severance in interest even before decree.”
(emphasis supplied)
99. Once the constitution of coparcenary changes by birth or death,
shares have to be worked out at the time of actual partition. The shares
will have to be determined in changed scenario. The severance of status
cannot come in the way to give effect to statutory provision and change
by subsequent event. The statutory fiction of partition is far short of
actual partition, it does not bring about the disruption of the joint family
or that of coparcenary is a settled proposition of law. For the reasons
mentioned above, we are also of the opinion that mere severance of
status by way of filing a suit does not bring about the partition and till the
date of the final decree, change in law, and changes due to the subsequent
event can be taken into consideration.
100. As to the effect of
legal fiction, reliance was placed on
Commissioner of Income Tax, Delhi v. S Teja Singh, AIR 1959 SC
352, in which it was laid down that in construing the scope of legal
fiction, it would be proper and even necessary to assume all those facts
on which alone the fiction can operate. There is no dispute with the
aforesaid proposition, but the purpose of fiction is limited so as to work
out the extent of the share of the deceased at the time of his death, and
not to affect the actual partition in case it has not been done by metes
and bounds.
101. When the proviso to unamended section 6 of the Act of 1956
came into operation and the share of the deceased coparcener was
required to be ascertained, a deemed partition was assumed in the lifetime
of the deceased immediately before his death. Such a concept of notional
partition was employed so as to give effect to Explanation to section 6.
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The fiction of notional partition was meant for an aforesaid specific
purpose. It was not to bring about the real partition. Neither did it affect
the severance of interest nor demarcated the interest of surviving
coparceners or of the other family members, if any,  entitled to a share in
the event of partition but could not have claimed it. The entire partition
of the coparcenary is not provided by deemed fiction; otherwise,
coparcenary could not have continued which is by birth, and the death of
one coparcener would have brought an end to it. Legal fiction is only for
a purpose it serves, and it cannot be extended beyond was held in State
of Travancore-Cochin &Ors. v. Shanmugha Vilas Cashew Nut
Factory &Ors., (1954) SCR 53; Bengal Immunity Co. Ltd. v. State of
Bihar&Ors., AIR 1955 SC661; and Controller of Estate Duty v. Smt.
S. Harish Chandra, (1987) 167 ITR 230. A legal fiction created in law
cannot be stretched beyond the purpose for which it has been created,
was held in MancheriPuthusseri Ahmed (supra) thus:
“8. xxx In the first place the section creates a legal fiction.
Therefore, the express words of the section have to be given
their full meaning and play in order to find out whether the legal
fiction contemplated by this express provision of the statute has
arisen or not in the facts of the case. Rule of construction of
provisions creating legal fictions is well settled. In interpreting a
provision creating
a legal fiction the Court is to ascertain for what
purpose the fiction is created, and after ascertaining this, the Court
is to assume all those facts and consequences which are incidental
or inevitable corollaries to the giving effect to the fiction. But in so
construing the fiction it is not to be extended beyond the purpose
for which it is created, or beyond the language of the section by
which it is created. It cannot also be extended by importing another
fiction. x xx”
102. It is apparent that the right of a widow to obtain an equal
share in the event of partition with the son was not deprived under old
section 6. Unamended Section 6 provided that the interest of a coparcener
could be disposed of by testamentary or intestate succession on happening
of exigency under the proviso. Under the old law before 1956 devise by
a coparcener of Hindu Mitakshara family property was wholly invalid.
Section 30 of the Act of 1956 provided competence for a male Hindu in
Mitakshara coparcenary to dispose of his interest in the coparcenary
property by a testament.
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103. In Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055, it was
held that the shares of all coparceners should be ascertained in order to
work out the share of the deceased coparcener, partition to be assumed
and given effect to when the question of allotment comes,  but this Court
did not lay down in the said decision that the deeming fiction and notional
partition brought an end to the joint family or coparcenary.
104. In case coparcenary is continued, and later on between the
surviving coparceners partition takes place, it would be necessary to
find out the extent of the share of the deceased coparcener. That has to
be worked out with reference to the property which was available at the
time of death of deceased coparcener whose share devolved as per the
proviso and Explanation I to section 6 as in case of intestate succession.
105. In Hari Chand Roach v. Hem Chand & Ors., (2010) 14
SCC 294, a widow inherited the estate of her husband and had an
undivided interest in the property. The subsequent family arrangement
was entered into whereby she exchanged her share for another property.
This Court held that though her share was definite, the interest continued
undivided, and there was a further family arrangement that will have the
effect of giving her disposition over the property in question, which was
given to her in the subsequent family arrangement. It is apparent that
under an undivided interest, as provided under section 6, the shares are
definite,
but the interest in the property can continue undivided.
106. In the instant case, the question is different. What has been
recognised as partition by the legislation under section 6, accordingly,
rights are to be worked out. This Court consistently held in various
decisions mentioned above that when the rights are subsequently
conferred, the preliminary decree can be amended, and the benefit of
law has to be conferred. Hence, we have no hesitation to reject the
effect of statutory fiction of proviso to section 6 as discussed in Prakash
v. Phulavati (supra) and Danamma (supra). If a daughter is alive on
the date of enforcement of the Amendment Act, she becomes a
coparcener with effect from the date of the Amendment Act, irrespective
of the date of birth earlier in point of time.
In Ref. Section 6(5)
107. The Explanation to Section 6(5) provides that for the purposes
of Section 6, ‘partition’ means effected by any registered partition deed
or effected by a decree of a court. It is pertinent to mention that
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Explanation did not find place in the original Amendment Bill moved
before the Rajya Sabha on 20.12.2004. The same was added
subsequently.  In the initial Note, it was mentioned that partition should
be properly defined, leaving any arbitrary interpretation, and for all
practical purposes, the partition should be evinced by a registered public
document or have been affected by a decree of a court.  In a case
partition is oral, it should be supported by documentary evidence.  Initially,
it was proposed to recognise the oral partition also, in case the same is
supported by contemporaneous documentary evidence.  The intention
was to avoid any sham or bogus transactions in order to defeat the rights
of coparcener conferred upon daughters by the Amendment Act, 2005.
In this regard, Note for Cabinet issued by the Legislative Department,
Ministry of Law & Justice, Government of India, suggested as under:
“As regards subsection 5 of the proposed new section 6, the
committee vide paragraph has recommended that the term
“partition” should be properly defined, leaving any arbitrary
interpretation. Partition for all practical purposes should be
registered have been effected by a decree of the Court. In case
where oral partition is recognised, be backed by proper
documentary evidence. It is proposed to accept this
recommendation and make suitable changes in the Bill.”
108. Learned Solicitor General argued that the requirement of
a
registered partition deed may be interpreted as the only directory and
not mandatory in nature considering its purposes. However, any
coparcener relying upon any such family arrangements or oral partition
so arrived must prove the same by leading proper documentary evidence.
109. The Cabinet note made on 29.7.2005 with respect to ‘partition’
is quoted hereunder:
“5.2 In this connection it may be noted that the amendments made
in the Hindu Succession Act, 1956 by the States of Andhra
Pradesh, Karnataka, Maharashtra and Tamil Nadu and the Kerala
Joint Hindu Family System (Abolition) Act, 1975 will be
superseded by any subsequent Central enactment containing
provisions to the contrary as the Central legislation will prevail
over the State enactments by virtue of operation of doctrine of
repugnancy enunciated in article 254 of the Constitution.
Innumerable settled transactions and partitions which have taken
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place hitherto will also become disturbed by the proposed course
of action.  Further, there could be heartburning from the majority
of the Hindu population.  In the circumstances, it is proposed that
we may remove the distinction between married and unmarried
daughters and at the same time clearly lay down that alienation or
disposition of property made at any time before the 20th day of
December, 2004, that is, the date on which the Hindu Succession
(Amendment) Bill, 2004 was introduced in the Rajya Sabha will
not be affected or invalidated. Consequential changes are also
suggested in sub-section (5) of proposed section 6.”
110. Section 6(5) as proposed in the original Bill of 2004 read
thus:
“(5) Nothing contained in this section shall apply to a partition,
which has been effected before the commencement of the Hindu
Succession (Amendment) Act, 2004.”
111. Shri R. Venkataramani, Amicus Curiae, argued that proviso
to Section 6 is plain and clear.  All dispositions, alienations, testamentary
depositions, including partition effected prior to 20.12.2004, shall not be
reopened. There may be a partition of coparcenary property, and they
would have also acted in pursuance of such partition. There could be
any number of instances where parties would have entered into family
settlements or division of properties on the basis of respective shares or
entitlement to succeed on a partition. In many of those cases, a simple
mutation in revenue entries would have
been considered as sufficient
for severance of status. The Parliament did not intend to upset all such
cases, complete transactions, and open them for a new order of
succession. The partition effected merely to avoid any obligation under
any law, for example, the law relating to taxation or land ceiling legislation,
are not examples relevant for understanding the objects and scheme of
Section 6. Therefore, the proviso to sub-Section (1) of Section 6 and
sub-Section 5 of Section 6 is required to be given such meaning and
extent to not dilute the relevance in the forward and future-looking scheme
of Section 6. The past cases shall not be reopened for this purpose.  He
has relied upon Shashika Bai (supra).
112. Shri V.V.S. Rao, learned senior counsel appearing as Amicus
Curiae, pointed out that under Section 6(5), as proposed in the Bill
mentioned that nothing contained in the amended Section 6 should apply
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to a partition, which has been effected before the commencement of the
Amendment Act. Following deliberation was made by the Committee:
“Deliberation by the Committee
35. During its deliberation on the Bill, the Committee pondered on
the concept of ‘partition’ as referred to in the aforesaid sub section.
When the Secretary (Legislative Department) was asked as to
the validity of partition effected through oral means, he replied
that it depends upon the facts of the particular case.The Secretary
stated as below:
“Sub clause (5) (of the Bill) says that nothing contained in this
section shall apply to a partition, which has been effected before
the commencement of the Act.  So, people may not have a chance
of effecting registered partition or going to the court and getting it
registered.”
36. Further, the Legal Secretary stated as below:
“…. under the present legal position, it is not necessary that a
partition should be registered.  There is no legal requirement.  There
can be oral partition also.”
General observation by the Committee
37. The Committee recommends that the term ‘partition’ should
be properly defined leaving no scope for any arbitrary
interpretation.  Partition, for all practical purposes should be
registered or should have been effected by a decree of the court.
In cases, where oral partition is recognised, it should be backed
by proper evidentiary support.
Subject to above, clause 2 of the Bill is
adopted.”
113. Shri V.V.S. Rao argued that the status of coparcener
conferred on daughters cannot affect the partition made orally, and the
explanation at the end of Section 6 was added after receiving report of
the Parliamentary Committee. The partition may be effected orally and
later on memorandum can be created for memory purposes. Such a
document containing memorandum of partition is not required to be
registered. The parties may settle their rights and enter into subsequent
transactions based upon such a partition.It is not to unsettle the completed
property transactions that had already taken place. The explanation should
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not be understood as invalidating all the documents or oral partition in
respect of the coparcenary property. In case genuineness of such
document is questioned, it has to be proved to the satisfaction of the
Court. The saving of transactions would safeguard the genuine past
transaction and prevent unrest in the family system. Similar proposal
was made by the Law Commission of India.
114. The learned counsel, Shri Sridhar Potaraju, argued that ignoring
statutory fiction of partition under proviso to section 6, which provision
had been incorporated in 1956 and continued till 2005, is not warranted.
115. Ms. Anagha S. Desai, learned counsel,argued that in the
absence of partition deed also, partition could be effected by metes and
bounds, and if it is proved properly, the daughters will not open these
concluded transactions of coparcenary property.
116. The intendment of amended Section 6 is to ensure that
daughters are not deprived of their rights of obtaining share on becoming
coparcener and claiming a partition of the coparcenary property by setting
up the frivolous defence of oral partition and/or recorded in the
unregistered memorandum of partition. The Court has to keep in mind
the possibility that a plea of oral partition maybe set up, fraudulently or in
collusion, or based on unregistered memorandum of partition which may
also be created at any point of time.  Such a partition is not recognized
under Section 6(5).
117. How family settlement is
effected was considered in Kale v.
Deputy Director of Consolidation, (1976) 3 SCC 119, thus:
“10. In other words to put the binding effect and the essentials of
a family settlement in a concretised form, the matter may be
reduced into the form of the following propositions:
“(1) The family settlement must be a bona fide one so as to
resolve family disputes and rival claims by a fair and equitable
division or allotment of properties between the various members
of the family;
(2) The said settlement must be voluntary and should not
be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which
case no registration is necessary;
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(4) It is well settled that registration would be necessary
only if the terms of the family arrangement are reduced into
writing. Here also, a distinction should be made between a document
containing the terms and recitals of a family arrangement made
under the document and a mere memorandum prepared after
the family arrangement had already been made either for the
purpose of the record or for information of the Court for making
necessary mutation. In such a case the memorandum itself does
not create or extinguish any rights in immovable properties and
therefore does not fall within the mischief of Section 17(2) of the
Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family
arrangement must have some antecedent title, claim or interest
even a possible claim in the property which is acknowledged by
the parties to the settlement. Even if one of the parties to the
settlement has no title but under the arrangement the other party
relinquishes all its claims or titles in favour of such a person and
acknowledges him to be the sole owner, then the antecedent title
must be assumed and the family arrangement will be upheld and
the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which
may not involve legal claims are settled by a bona fide family
arrangement which is fair and equitable the family
arrangement
is final and binding on the parties to the settlement.”
15. In Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR
1966 SC 292, 295, it was pointed out by this Court that a family
arrangement could be arrived at even orally and registration would
be required only if it was reduced into writing. It was also held
that a document which was no more than a memorandum of what
had been agreed to did not require registration. This Court had
observed thus:
“Family arrangement as such can be arrived at orally. Its
terms may be recorded in writing as a memorandum of what had
been agreed upon between the parties. The memorandum need
not be prepared for the purpose of being used as a document on
which future title of the parties be founded. It is usually prepared
as a record of what had been agreed upon so that there be no
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hazy notions about it in future. It is only when the parties reduce
the family arrangement in writing with the purpose of using that
writing as proof of what they had arranged and, where the
arrangement is brought about by the document as such, that the
document would require registration as it is then that it would be a
document of title declaring for future what rights in what properties
the parties possess.””
(emphasis supplied)
It is settled law that family arrangements can be entered into to
keep harmony in the family.
118. Reliance has been placed on Shripad Gajanan Suthankar
v. Dattaram Kashinath Suthankar, (1974) 2 SCC 156, in which effect
of adoption by a widow and its effect on partition and other alienation
made before adoption was considered. , the following observations were
made:
“11. Two crucial questions then arise. One-third share out of what?
Should the gift by Mahadev of what was under the then
circumstances his exclusive property be ignored in working out
the one-third share? Two principles compete in this jurisdiction
and judges have struck a fair balance between the two, animated
by a sense of realism, impelled by desire to do equity and to avoid
unsettling vested rights and concluded transactions, lest a legal
fiction should by invading actual facts of life become an
instrumentality of instability. Law and order are jurisprudential
twins and this perspective has inarticulately informed judicial
pronouncements in this branch of Hindu
law.
18. We reach the end of the journey of precedents, ignoring as
inessential other citations. The balance sheet is clear. The
propositions that emerge are that: (i) A widow’s adoption cannot
be stultified by an anterior partition of the joint family and the
adopted son can claim a share as if he were begotten and alive
when the adoptive father breathed his last; (ii) Nevertheless, the
factum of partition is not wiped out by the later adoption; (iii) Any
disposition testamentary or inter vivos lawfully made antecedent
to the adoption is immune to challenge by the adopted son; (iv)
Lawful alienation in this context means not necessarily for a family
necessity but alienation made competently in accordance with
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law; (v) A widow’s power of alienation is limited and if — and
only if — the conditions set by the Hindu Law are fulfilled will the
alienation bind a subsequently adopted son. So also alienation by
the Karta of an undivided Hindu family or transfer by a coparcener
governed by the Benares school; (vi) Once partitioned validly, the
share of a member of a Mitakshara Hindu family in which his
own issue have no right by birth can be transferred by him at his
will and such transfers, be they by will, gift or sale, bind the adopted
son who comes later on the scene. Of course, the position of a
void or voidable transfer by such a sharer may stand on a separate
footing but we need not investigate it here.”
 (emphasis supplied)
119. In ChinthamaniAmmal v. NandgopalGounder, (2007) 4
SCC 163, it was observed that a plea of partition was required to be
substantiated as under law, there is a presumption as to jointness.  Even
separate possession by co-sharers may not, by itself, lead to a presumption
of partition.
120. In Rukhmabai v. Laxminarayan, AIR 1960 SC 335 and
Mudigowda Gowdappa Sankh & Ors. v. Ramchandra Revgowda
Sankh (dead) by his LRs. &Anr., AIR 1969 SC 1076, it was observed
that prima facie a document expressing the intention to divide brings
about a division in status, however, it is open to prove that the document
was a sham or a nominal one and was not intended to be acted upon and
executed for some ulterior
purpose. The relations with the estate is the
determining factor in the statement made in the document. The statutory
requirement of substituted Section 6(5) is stricter to rule out unjust
deprivation to the daughter of the coparcener’s right.
121. In Kalwa Devdattam v. Union of India, AIR 1964 SC 880,
it was laid down that when a purported petition is proved to be a sham,
the effect would be that the family is considered joint.
122. Earlier, an oral partition was permissible, and at the same
time, the burden of proof remained on the person who asserted that
there was a partition. It is also settled law that Cesser of Commonality is
not conclusive proof of partition, merely by the reason that the members
are separated in food and residence for the convenience, and separate
residence at different places due to service or otherwise does not show
separation. Several acts, though not conclusive proof of partition, may
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lead to that conclusion in conjunction with various other facts. Such as
separate occupation of portions, division of the income of the joint property,
definement of shares in the joint property in the revenue of land registration
records, mutual transactions, as observed in Bhagwani v. Mohan Singh,
AIR 1925 PC 132, and Digambar Patil v. Devram, AIR 1995 SC 1728.
123. There is a general presumption that every Hindu family is
presumed to be joint unless the contrary is proved. It is open even if one
coparcener has separated, to the non-separating members to remain
joint and to enjoy as members of a joint family. No express agreement is
required to remain joint. It may be inferred from how their family business
was carried on after one coparcener was separated from them. Whether
there was a separation of one coparcener fromall other members of a
joint family by a decree of partition, the decree alone should be looked at
to determine the question was laid down in Palani Ammal (supra) and
Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967
SC 1124. In Palani Ammal (supra), it was held:
“…… It is also now beyond doubt that a member of such a joint
family can separate himself from the other members of the joint
family and is on separation entitled to have his share in the property
of the joint family ascertained and partitioned off for him, and that
the remaining coparceners, without any special agreement amongst
themselves, may continue to be
coparceners and to enjoy as
members of a joint family what remained after such a partition of
the family property. That the remaining members continued to be
joint may, if disputed, be inferred from the way in which their
family business was carried on after their previous coparcener
had separated from them. It is also quite clear that if a joint Hindu
family separates, the family or any members of it may agree to
reunite as a joint Hindu family, but such a reuniting is for obvious
reasons, which would apply in many cases under the law of the
Mitakshara, of very rare occurrence, and when it happens it must
be strictly proved as any other disputed fact is proved….”
124. In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laid
down that in case there are two coparcener brothers, it is not necessary
that there would be a separation inter se family of the two brothers.
The family of both the brothers may continue to be joint.
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[ARUN MISHRA, J.]
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125. The severance of status may take place from the date of
filing of a suit; however, a decree is necessary for working out the results
of the same, and there may be a change of rights during the pendency of
the suit for allotting definite shares till final decree is passed. There are
cases in which partition can be reopened on the ground of fraud or
mistake, etc. or on certain other permissible grounds. In appropriate
cases, it can be reopened at the instance of minor also.
126. The protection of rights of daughters as coparcener is
envisaged in the substituted Section 6 of the Act of 1956 recognises the
partition brought about by a decree of a court or effected by a registered
instrument. The partition so effected before 20.12.2004 is saved.
127. A special definition of partition has been carved out in the
explanation. The intendment of the provisions is not to jeopardise the
interest of the daughterand to take care of sham or frivolous transaction
set up in defence unjustly to deprive the daughter of her right as
coparcener and prevent nullifying the benefit flowing from the provisions
as substituted. Thestatutory provisions made in section 6(5) change the
entire complexion as to partition. However, under the law that prevailed
earlier, an oral partition was recognised. In view of change of provisions
of section 6, the intendment of legislature is clear and such a plea of oral
partition is not to be readily
accepted. The provisions of section 6(5) are
required to be interpreted to cast a heavy burden of proof upon proponent
of oral partition before it is accepted such as separate occupation of
portions, appropriation of the income, and consequent entry in the revenue
records and invariably to be supported by other contemporaneous public
documents admissible in evidence,may be accepted most reluctantly while
exercising all safeguards. The intendment of Section 6 of the Act is only
to accept the genuine partitions that might have taken place under the
prevailing law, and are not set up as a false defenceand only oral ipse
dixit is to be rejected outrightly. The object of preventing, setting up of
false or frivolous defence to set at naught the benefit emanating from
amended provisions, has to be given full effect. Otherwise, it would
become very easy to deprive the daughter of her rightsas a coparcener.
When such a defence is taken, the Court has to be very extremely careful
in accepting the same, and only if very cogent, impeccable, and
contemporaneous documentary evidence in shape of public documents
in support are available, such a plea may be entertained, not otherwise.
We reiterate that the plea of an oral partition or memorandum of partition,
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unregisteredone can be manufactured at any point in time, without any
contemporaneous public document  needs rejection at all costs.  We say
so for exceptionally good cases where partition is proved conclusively
and we caution the courts that the finding is not to be based on the
preponderanceof probabilities in view of provisions of gender justice
and the rigor of very heavy burden of proof which meet intendment of
Explanation to Section 6(5). It has to be remembered that courts cannot
defeat the object of the beneficial provisions made by the Amendment
Act. The exceptioniscarved out by us as earlier execution of a registered
document for partition was not necessary, and the Court was rarely
approached for the sake of family prestige. It was approached as a last
resort when parties were not able to settle their family dispute amicably.
We take note of the fact that even before 1956, partition in other modes
than envisaged under Section 6(5) had taken place.
128. The expression used in Explanation to Section 6(5) ‘partition
effected by a decree of a court’ would mean giving of final effect to
actual partition by passing the final decree, only then it can be said that
a decree of a court effects partition. A preliminary decree declares share
but does not effect the actual partition, that is effected by passing of a
final decree; thus, statutory provisions are to be given full effect, whether
partition is actually carried out as per the intendment of the
Act is to be
found out by Court. Even if partition is supported by a registered document
it is necessary to prove it had been given effect to and acted upon and is
not otherwise sham or invalid or carried out by a final decree of a court.In
case partition, in fact, had been worked out finally in toto as if it would
have been carried out in the same manner as if affected by a decree of
a court, it can be recognized, not otherwise.  A partition made by execution
of deed duly registered under the Registration Act, 1908, also refers to
completed event of partition not merely intendment to separate, is to be
borne in mind while dealing with the special provisions of Section 6(5)
conferring rights on a daughter.  There is a clear legislative departure
with respect to proof of partition which prevailed earlier; thus, the Court
may recognise the other mode of partition in exceptional cases based
upon continuous evidence for a long time in the shape of public document
not mere stray entries then only it would not be in consonancewith the
spirit of the provisions of Section 6(5) and its Explanation.
129. Resultantly, we answer the reference as under:
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(i) The provisions contained in substituted Section 6 of the Hindu
Succession Act, 1956 confer status of coparcener on the daughter born
before or after amendment in the same manner as son with same rights
and liabilities.
(ii) The rights can be claimed by the daughter born earlier with
effect from 09.09.2005 with savings as provided in Section 6(1) as to
the disposition or alienation, partition or testamentary disposition which
had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary
that father coparcener should be living as on 09.09.2005.
(iv) The statutory fiction of partition created by proviso to Section
6 of the Hindu Succession Act, 1956 as originally enacted did not bring
about the actual partition or disruption of coparcenary. The fiction was
only for the purpose of ascertaining share of deceased coparcener when
he was survived by a female heir, of Class-I as specified in the Schedule
to the Act of 1956 or male relative of such female. The provisions of the
substituted Section 6 are required to be given full effect. Notwithstanding
that a preliminary decree has been passed the daughters are to be
givenshare in coparcenary equal to that of a sonin pending proceedings
forfinal decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section
6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the
statutory recognised mode of partition effected by a deed of partition
duly registered under the provisions of the Registration Act, 1908 or
effected by a decree of a court. However, in exceptional cases where
plea of oral partition is supported by public documents and partition is
finally evinced in the same manner as if it had been affected by a decree
of a court, it may be accepted. A plea of partition based on oral evidence
alone cannot be accepted and to be rejected outrightly.
130. We understand that on this question, suits/appeals are pending
before different High Courts and subordinate courts. The matters have
already been delayed due to legal imbroglio caused by conflicting
decisions.The daughters cannot be deprived of their right of equality
conferred upon them by Section 6. Hence, we request that the pending
matters be decided, as far as possible, within six months.
In view of the aforesaid discussion and answer, we overrule the
views to the contrary expressed in Prakash v. Phulavati and

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Mangammal v. T.B. Raju & Ors.  The opinion expressed in Danamma
@ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is
contrary to this decision.Let the matters be placed before appropriate
Bench for decision on merits.
Ankit Gyan
Reference answered.
VINEETA SHARMA v. RAKESH SHARMA
[ARUN MISHRA, J.]