PRAKASH & ORS. versus PHULAVATI & ORS.
[2015] 12 S.C.R. 579, Supreme Court of India, 2015
Outcome: Disposed off
Segment: Ratio
[2015] 12 S.C.R. 579 
PRAKASH & ORS. 
v. 
PHULAVATI & ORS. 
(Civil Appeal No.7217 of2013) 
OCTOBER 16, 2015 
[ANIL R. DAVE AND ADARSH KUMAR GOEL, JJ.] 
Hindu Succession (Amendment) Act, 2005: 
A 
B 
ss. 6(1 ), 6(3), 6(5) -
Whether the Act will have c 
retrospective operation - Held: No - The legislature has. 
expressly made the Amendment applicable on and from its. 
commencement. 
s. 6(1 ), (5), proviso - Right of daughter of coparcener in 
coparcenery properties - Held: Rights under the amendment D 
are applicable to Jiving daughters of living coparceners as 
on 9th September, 2005 irrespective of when such daughters 
are born - Proviso to s. 6(1) and s. 6(5) clearly intend to 
exclude the transactions referred to therein which may have 
taken place prior to 2Qth December, 2004 on which date the E 
Bill was introduced - Therefore, disposition or alienation 
including partitions which may have taken place before 20th. 
December, 2004 as per law applicable prior to the said date 
to remain unaffected. 
Interpretation of statutes: 
Harmonious construction - Held: Normal rule is to read 
the words of a statute in ordinary sense - In case of apparent 
conflict, harmonious meaning to advance the object and 
F 
intention of legislature has to be given. 
G 
Proviso - Significance of - Held: Normal rule is that a 
proviso excepts something out of the enactment which would 
otherwise be within the purview of the enactment but if the 
text, context or purpose so require a different
rule may apply. 
H 
579
580 
A 
B 
c 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
Explanation - Significance of- Held: Is to explain the 
meaning of words of the section but if the language or purpose 
so require, the explanation can be so interpreted. 
Prospective operation: 
Held: An amendment of a substantive provision is 
always prospective unless either expressly or by necessary 
intendment it is retrospective - Even a social legislation 
cannot be given retrospective effect unless so provided for 
or so intended by the legislature. 
Disposing of the appeal, the Court 
HELD: 1. The text of the amendment itself clearly 
provides that the right conferred on a 'daughter of a 
coparcener' is 'on and from the commencement of Hindu 
D Succession (Amendment) Act, 2005'. Section 6(3) talks 
of death after the amendment for its applicability. In view 
of plain language of the statute, there· is no scope for a 
different interpretation than the one suggested by the 
text of the amendment. An amendment of a substantive 
E provision is always prospective unless either expressly 
or by necessary intendment it is retrospective. In the 
present case, there is neither any express provision for . 
giving retrospective effect to the amended provision nor 
necessary intendment to. that effect. Requirement of 
F partition being registered can have no applicat!on to 
statutory notional partition on opening of succession as 
per unamended provision, having regard to nature of 
such partition which is by operation of
law. [Para 17] 
G [595-F-H; 596-A-B] . 
H 
2. Contention of the respondents that the 
Amendment should be read as retrospective being a 
piece of social legislation cannot be accepted. Even a 
social legislation cannot be given retrospective effect
PRAKASH & ORS. v. PHULAVATI & ORS. 
58 'l 
unless so provided for or so intended by the legislature. A 
In the present case, the legislature has expressly made 
the Amendment applicable on and from its 
commencement and only if death of the coparcener in 
question is after the amendment. Thus, no other 
interpretation is possible in view of express language of B 
the statute. The proviso keeping dispositions or 
alienations or partitions prior to 20th December, 2004 
unaffected can also not lead to the inference that the 
daughter could be a coparcener prior to the 
commencement of the Act. The proviso only means that C 
the transactions not covered thereby will not affect the 
extent of coparcenary property which may be available 
when the main provision is applicable. Similarly, 
Explanation. has to be read harmoniously with the 0 
substantive provision of Section 6(5) by being limited to 
a transaction of partition effected after 20th December, 
2004. Notional partition, by its very nature, is not covered 
either under proviso or under sub-section 5 or under the 
Explanation. [Para 18] [596-C-G] 
E 
· 3. Interpretation of a provision depends on the text 
and the context. Normal rule is to read the words of a 
statute in ordinary sense. In case of ambiguity, rational 
meaning has to be given. In case of apparent conflict, 
harmonious meaning to advance the object and intention F 
of legislature has to be given. Normal rule is that a proviso 
excepts something out of the
enactmen_t which would 
otherwise be within the purview of the enactment but if 
the text, context or purpose so require a different rule G 
may apply. Similarly, an explanation is to explain the 
meaning of words of the section but if the language or 
purpose so require, the explanation can be so 
interpreted. Rules of interpretation of statutes are useful 
servants but difficult masters. Object of interpretation is H 
I
582 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
. 
A to discover the intention of legislature. In this 
background, the proviso to Section 6(1) and sub-section 
(5) of Section 6 clearly intend to exclude the transactions 
referred to therein which may have taken place prior to 
201h December, 2004 on which date the Bill ·was 
B introduced. Explanation cannot permit reopening of 
partitions which were valid when effected. Object of 
giving finality to transactions prior to 20th December, 2004 
is not to make the main provision retrospective in any 
manner. The object is that by fake transactions available 
C property at the introduction of the Bill is not taken away 
and remains available as and when right conferred by 
the statute becomes available and is to be enforced. Main 
provision of the Amendment in Section 6(1) and (3) is 
0 not in any manner intended to be affected but 
strengthened in this way. Settled principles governing 
such transactions relied upon by the appellants are not 
intended to be done away with for period prior to 201h 
December, 2004. In no case statutory notional partition 
E even after 201h December, 2004 could be covered by the 
Explanation or the proviso in question. Accordingly, the 
rights under the amendment are applicable to living 
daughters of living coparceners as on 91h September, 
2005 irrespective of when such daughters are born. 
F Disposition or alienation including partitions which may 
have taken place before 201h December, 2004 as
per law 
applicable prior to the said date will remain· unaffected. 
Any transaction of partition effected thereafter will be 
governed by the Explanation. [Paras 19, 21 to 23] [596-
G G-H; 597-A, C-G; 598-A-D] 
H 
Prema vs. Nanje Gowda 2011 (8) SCR 55: (2011) 
6 SCC 462; Ganduri Koteshwaramma vs. Chakiri 
Yanadi2011 (12) SCR 968: (2011) 9 SCC 788; 
V.K. Surendra vs. V.K. Thimmaiah 2013 (5)

PRAKASH & ORS. v. PHULAVATI & ORS 
SCR 386: (2013) 10 SCC 211; Ram Sarup vs. 
Munshi (1963) 3 SCR 858; Dayawati vs. /nderjit 
(1966) 3 SCR 275; Amarjit Kaur vs. Pritam Singh 
1975 (1) SCR 606: (1974) 2 SCC 363; Lakshmi 
Narayan Guin vs. Niranjan Modak 1985 (2) SCR 
202: (1985) 1 sec 210; s. Sai Reddy vs. s. 
Narayana Reddy (1991) 3 SCC 647; State of 
Maharashtra vs. Narayan Rao 1985 (3) SCR 358: 
(1985) 2 SCC 321; State of Rajasthan vs. Mangi/al 
Pindwal 1996 (3) Suppl. SCR 98 : (1996) 5 SCC 
60; West U.P. Sugar Mills Asson. vs. State of U.P. 
2002 (1) scR 897: (2002) 2 sec 645 - held 
inapplicable. 
M. Prithviraj vs. Nee/amma N. ILR 2009 Kar. 3612 
- referred to. 
583 
A 
. B 
c 
D
584 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
A 
From the Judgment and Order dated 16.04.2010 of the 
B 
Division Bench of the High Court of Karnataka, Circuit Bench 
at Dharwad in Regular First Appeal No. 743 of 2007. 
WITH 
SLP (C)NOS. 21814 OF 2008, 18744 OF 2010, 28702-
287030F 2010, 28471OF2011,4217-42180F2012,1299-
1300 OF 2013, 17577-17578 OF 2013, 19816 OF 2014, 5619 
OF 2015, 3805 OF 2008, 9390 OF 2015, 5680 OF 2015, 
C 35209 OF 2011 AND 15557-15558 OF 2015 AND SLP (C) 
NO. 15560 OF 2015 
R. Basant, R. Venkataramani, HuzefaAhmadi, S. N. Bhat, 
Ravi Panwar, D. P. Chaturvedi, Sushil Karanjkar, KarthikAshok 
(forK. N. Hai),Aljo K. Joseph, Neelam Singh, Shelna K., Rohan 
D Sharma, Yashraj Bundela (for Mrs. Sud ha Gupta), Azeem A. 
Kalebudde, Ankolekar Gurudatta, Charudatta Mahindrakar, A. 
Selvin Raja (for Aniruddha P. Mayee), P. R. Kovilan 
Poongkuntran, Nanda Kishore, GirishAnanthamurthi (for Mrs. 
Vaijay9nthi Girish), S. Usha Reddy, Rajesh Mahale, 
E Raghavendra S. Srivatsa, P. R. Ramasesh, G. Balaji for the 
Appellants. 
Basava Prabhu S. Patil, Sushil Kumar Jain, P. 
Vishwanatha Shetty, B. Subrahmanya Prasad, Anirudh 
F Sanganeria. Chinmay Deshpande, Amjid Maqbool, S. M. 
Jadhav, Puneet Jain, Ms. Astha Deep, Anish R. Shah, Ms. 
Ankita Gupta, Manu Maheshwari, Abhinav Gupta, Ashwin 
Kotemath, (for Mis. S. M. Jadhav & Company), Mahesh Thakur, 
Deepak S. Shetty (for G. N. Reddy), T. N. Raghupathy, G. V. 
G Chandrashekhar, Alakh Alok Srivastava, Kedar Nath Tripathy,
Manjunath Meled, Anil Kumar, Nivedita Sharma, (for Ms. 
Garima Prashad), M. Y. Deshmukh, Manu Mridul, Ms. 
Priyambada Sharma, (for Surya Kant), Mayank Kshirsagar, 
Balaji Srinivasan, Vaishnavi Subrahmanyam, Ms. Srishti Govil, 
H Virendra Sharma, Tushar Singh,Alok Krishna Agarwal, Mayank
PRAKASH & ORS. v. PHULAVATI & ORS. 
585 
Bughani, T. Mahipal, Rauf Rahim, Shashibhushan P. 
A 
Adgaonkar, Somiran Sharma, Sumeet Lall, Rajinder Mathur, 
Shankar Divate, Mrs. K. Sarada Devi, Ashok Kumar Gupta, 
Ms. E. R. Sumathy for the Respondents. 
The Judgment of the Court was delivered by 
ADARSH KUMAR GOEL, J. 1. The only issue which 
has been raised in this batch of matters is whether Hindu 
Succession (Amendment) Act, 2005 ('the Amendment Act') 
B 
will have retrospective effect. 
In the impugned judgment C 
(reported in AIR 2011 Kar. 78 Phulavati vs. Prakash), plea of 
restrospectivity has been upheld in favour of the respondents 
by which the appellants are aggrieved. 
2. Connected matters have been entertained in this 
Court mainly on account of the said tegal issue particularly when D 
there are said to be differing views of High Courts which makes 
it necessary that the issue is decided by this Court. It is not 
necessary to go into the' facts of the individual case or the 
correctness of the findings recorded by the courts below on E 
various other issues. It was made clear during the hearing that 
after deciding the legal issue, all other aspects may be decided 
separately in the light of the judgment of this Court. 
3. Only for the purpose of deciding the above legal 
question, we refer to the brief facts in Civil Appeal No.7217 of F 
2013. The respondent-plaintiff, Phulavati filed suit being O.S. 
No.12/1992 before Additional Civil Judge (Senior Division),
Belgaum for partition and separate possession to the extent 
of 1 f7th share in the suit properties in Schedule 'P\ to 'G' except 
property bearing CTS No.3241 mentioned in Schedule 'A' in G 
which the share sought was 1 /28th. 
4. According to the case of the plaintiff, the suit properties 
were acquired by her _late father Yeshwanth Chandrakant 
Upadhye by inheritance from his adoptive mother Smt H
586 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
A Sunanda Bai. After-the death of her father on .181h February, 
1988, she acquired the share in the property as claitned. 
5. The suit was conte~ted mainly with the plea that the 
plaintiff could claim share only in the self acquired property of 
B her deceased father and not in the entire property. During 
pendency of the suit, the plaintiff amended the plaint so as to 
claim share as per the Amended Act 39 of 2005. The trial 
court partly decreed the suit to the extent of 1/281h share in 
certain properties on the basis of notional partition on the death 
C of her father and in some of the items of property, no share 
was given, while 1f71h share was given in some other properties 
as mentioned in detail in the judgment of the trial court. 
6. The respondent-plaintiff preferred first appeal before 
o the High Court with the grievance that the plaintiff became 
coparcener under the Amendment Act 39 of 2005 and was 
entitled to inherit the coparcenary property equal to her brothers, 
apart from contentions based on individual claims in certain 
items of property. 
E 
7. The stand of the defendants-appellants was that the 
plaintiff could not claim any share in self acquired property of 
the members of the joint family and that the claim of the plaintiff 
had to be dealt with only under Section 6 of the Hindu 
F Succession Act, 1956 as it stood prior to the amendment by 
Act 39 of 2005. The defendants relied upon a division bench
judgment of the High Court in M. Prithviraj vs. Neelamma 
N. 1 laying down that if father of a plaintiff had died prior to 
commencement of Act 39 of 2005, the amended provision 
G could not apply. It was only the law applicable on the date of 
opening of succession which was to ~pply. 
8. The High Court framed following question for 
consideration on this aspect: 
H 
1 ILR 2009 Kar. 3612
PRAKASH & ORS. v. PHULAVATI & ORS. 
587 
[ADARSH KUMAR GOEL, J.] 
"(ii) Whether the plaintiff is entitled to a share in terms A 
of Section 6 of the Hindu Succession Act as amended 
by Act No.39 of 2005?" 
9. It was held that the amendment was applicable to 
pending proceedings even if it is taken to be prospective. The 8 
High Court held that: 
"61. The law in this regard is too well settled in terms of 
the judgment of the Supreme Court in the case of G. 
Sekar Vs. Geetha and others reported in (2009) 6 SCC 
99. Any development of law inevitably applies to a C 
pending proceeding and in fact it is not even to be taken 
as a retrospective applicability of the law but only the 
law as it stands on the day being made applicable. 
62. The suit, no doubt, might have been instituted in D 
the year 1992 and even assuming that it was four years 
after the demise ofYeshwanth Chandrakant Upadhye, 
the position so far as the parties are concerned who 
are all members of the joint family, in terms of Section 
6 as amended by Act No.39 of 2005 is that a female E 
member is, by a fiction of law created in terms of the 
amended provision also becomes a coparcener and 
has a right in joint family property by birth. They are 
also sharer members of the coparcenary property at 
par with all male members. When a partition takes F 
place, coparceners succeed to the property in equal 
measure. Such is the legal position in terms of Section 
6 of the Hindu Succession Act as amended by Act
No.39 of 2005 and as declared by the Supreme Court 
in the case of G. S. Sekar (supra). The only exception G 
carved out to the applicability and operation of Section 
6 of the Hindu Succession Act as amended by Act 
No. 39 of 2005 being a situation or a factual position 
where there was a partition which had been effected by H
588 
A 
B 
c 
D 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
a registered partition deed or by a decree of the court 
which has attained finality prior to 20. 12. 2004 in terms 
of sub-section (5) to Section 6. 
63. In the present case such being not the factual 
position, the exception available under sub-section (5) 
to Section 6 cannot be called in aid by the defendants 
and therefore, the liability in terms of the amended 
provisions operates. It is not necessary for us to multiply 
the judgment by going into details or discussing other 
judgments referred to and relied upon by the learned 
counsel for the parties at the Bar as one judgment of 
the Supreme Court if clinches the issue on the point, it 
is good enough for us, as a bihding authority to apply 
that law and dispose of the case as declared in that 
judgment." 
10. The respondent-plaintiff was accordingly held entitled 
to 1/?th share in all items in Schedules'/:\ to 'D'. In respect of 
Schedule 'F', first item was given up by the plaintiff. Out of the 
E other two items, she was held entitled to 1/?th share in Item 
No.2 and 1/71h share in 40% ownership in Item No.3. 
11. The defendants-appellants have questioned the 
judgment and order of the High Court with the contention that 
the amended provision of Section 6 has no application in ~he 
F present case. Father of the plaintiff died on 18th February, 
1988 and was thus, not a coparcener on the date of 
commencement oftheAmendmentAct. The plaintiff could not
claim to be "the daughter of a coparcener" at the time of 
G commencement of the Act which was the necessary condition 
for claiming the benefit. On the death of plaintiff's father on 
18th February, 1988, notional partition took place and shares 
of the heirs were crystallized which created vested right in the 
parties. Such vested right could not have been taken away by 
H a subsequent amendment in absence of express provision or
PRAKASH & ORS. v. PHULAVATI & ORS. 
589 
[ADARSH KUMAR GOEL, J.] 
necessary intendment to that effect. Moreover, the amending A 
provision itself was expressly applicable "on and from" the 
commencement of the Amendment Act, i.e., gth September, 
2005. The High Court held that even if the provision was 
prospective, it could certainly apply to pending proceec:lings 
as has been held in some decisions of this Court. It is pointed 
B 
out that the amendment could apply to pending proceedings, 
only if the amendment was applicable at all. 
12. Learned counsel for the respondents would support 
the view taken by the High Court. 
C 
13. We have heard learned counsel for the parties in the 
present appeal as well as in connected matters for the rival 
view points which will be noticed hereinafter. 
14. The contention raised on behalf of the appellants and 
other learned counsel supporting the said view is that the 2005 
Amendment was not applicable to the claim of a daughter when 
D 
her father who was a coparcener in the joint hindu family died 
prior to 91h September, 2005. This submission is based on 
E 
the plain language of the statute and the established principle 
that in absence of express provision or implied intention to the 
contrary, an amendment dealing with a substantive right is 
prospective and does not affect the vested rights2. If such a 
coparcener had died prior to the commencement of the F 
AmendmentAct, succession opens out on the date of the death 
as per
the prevailing provision of the succession law and the 
rights of the heirs get crystalised even if partition by metes 
and bounds does not take place. It was pointed out that 
apparently conflicting provision in Explanation to Section 6(5) G 
and the said Section was required to be given harmonious 
construction with the main provision. The explanation could 
not be read in conflict with the main provision. Main provision 
of Section 6( 1) confers right of coparcener on a daughter only 
2 Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27 
H
590 
SUPREME COURT REPORTS 
(2015] 12 S.C.R. 
A from commencement of the Act and not for any period prior to 
that. The proviso to Section 6(1) also applies only where the 
main provision of Section 6(5) applies. Since Section 6(5) 
applies to partition effected after 201h December, 2004, the 
said. proviso and the Explanation also applies only when 
B Section 6(1) applies. It is also submitted thatthe Explanation 
was merely a rule of evidence and not a substantive provision 
determining the rights of the parties. Date of a daughter 
becoming coparcener is on and from the commencement of 
the Act. Partitions effected before 2ot11 December, 2004 remain 
C unaffected as expressly provided. The Explanation defines 
partition, as partition made by a registered deed or effected 
by decree of a court. Its effect is not to wipe out a legal and 
valid partition prior to the said date, but to place burden of 
D proof of genuineness of such partition on the party alleging it. 
In any case, statutory notional partition remailJ~lid and 
effective. 
15. On the contrary, stand on behalf of the respondents 
is that the amendment being piece of social legislation to 
E remove discriminatiqn'°aga~st women in the light of 1741h 
Report of the Law Co_mmlssion, the amendment should be 
read as being retrospective as interpreted by the High Court 
in the impugned judgment. A daughter acquired right by birth 
F and even if her father, who was a coparcener, had died prior 
to coming into force of
the amendment, the shares of the 
parties were required to be redefined. It was submitted that 
any partition which may have taken place even prior to 201h 
December, 2004 was liable to be ignored unless it was by a 
G registered deed of partition or by a decree of the Court. If no 
registered partition had taken place, share of the daughter will 
stand enhanced by virtue of the amendment. 
16. We have given due consideration to the rival 
submissions. We may refer to the provision of Section 6 of the 
H
. PRAKASH & ORS. v. PHULAVATI & ORS. 
591 
[ADARSH KUMAR GOEL, J.] 
Hindu Succession Act as it stood prior to the 2005Amendment A 
and as amended : 
Section 6 of the Hindu 
Succession Act 
. 
Section 6 on and from the 
cdmmencement of the 
Hindu Succession 
(Amendment) Act, 2005 
6. Devolution of interest 6. Devolution of interest in 
of coparcenary property. coparcenary 
property.-(1) 
When a male Hindu dies ' On 
and 
from 
the 
after the commencement commencement of the Hindu 
of this Act, having at the Succession 
(Amendment) 
time 
of 
his 
death 
an Act, 2005, in a Joint Hindu 
interest in a Mitakshara family 
governed 
by 
the 
coparcenary property, his Mitakshara law, the daughter 
interest in the property of a coparcener shall.-
shall 
devolve 
by 
survivorship 
upon 
the 
(a) 
by 
birth 
become 
a 
surviving members of the coparcener in her own right in 
coparcenary and not in the same manner as the son; 
accordance with this Act: 
PROVIDED that, if the 
deceased had left him 
surviving a female relative 
specified in class I of the 
Schedule 
or 
a 
male 
relative specified in that 
class who claims through 
such female relative, the 
interest of the deceased 
in 
the 
Mitakshara 
coparcenary 
property 
shall 
devolve 
by 
testamentary or intestate 
succession, as the case 
may be. under this Act 
and not by survivorship. 
(b) have the same rights in 
the coparcenary property as 
she would have had if she 
had been a son; 
(c) be subject to the same 
liabilities
in respect of the said 
coparcenary property as that 
of a son, 
and any reference to a Hindu 
Mitakshara coparcener shall 
be deemed to include 
a 
reference to a daughter of a 
coparcener: 
B 
c 
D 
E 
F 
G 
H
592 
A 
B 
c 
D 
E 
F 
G 
H 
S~PREMECOURTREPORTS 
[2015] 12 S.C.R. 
Explanation 
I: 
For 
he 
Provided 
that 
nothing 
purposes of this section, 
contained in this sub-section 
the interest of a Hindu shall affect or invalidate any 
Mitakshara 
coparcener disposition 
or 
alienation 
shall be deemed to be the 
inducting 
any 
partition 
or 
share in the property that testamentary disposition of 
would have been allotted property which 
had 
taken 
to him if a partition of the 
place before the 20th day of 
property had taken place 
December, 2004. 
1 
immediately 
before 
his 
1· 
death. 
irrespective 
of (2) Any property to which a 
1 
whether he was entitled to 
female 
Hindu 
becomes 
claim 
partition 
or 
not. 
entitled 
by 
virtue of sub-
Explanation 
2: 
Nothing section -(1) shall be held by 
contained in the proviso to 
her with the incidents of 
this 
section 
shal! 
be 
coparcenary ownership and 
construed as enabling a shall 
be 
regarded, I 
person who has separated notwithstanding 
anything 
himself 
from 
the contained in this Act, or any 
coparcenary 
before 
the other law for the time being in 
death of the deceased or force, as property capable of 
any of his heirs to claim on 
being disposed of by her by 
intestacy a share in the testamentary disposition. 
interest referred to therein. 
7. Devolution of interest in 
the property of a tarwad, 
(3) Where a Hindu dies after 
the commencement of the 
Hindu 
Succession 
(Amendment) Act, 2005, his 
interest in the
property of a 
Joint Hindu family governed 
by the Mitakshara law, shall 
devolve by testamentary or 
intestate succession, as the 
case may be, under this Act 
and not by survivorship, and 
the 
coparcenary 
property 
shall be deemed to have 
been divided as if a partition 
. had taken place and,-

PRAKASH & ORS. v. PHULAVATI & ORS. 
593 
[ADARSH KUMAR GOEL, J.] 
(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 
predeceased son or of such 
pre-deceased daughter; and 
(c) the share of the pre-
deceased child of a pre-
deceased son or of a pre-
deceased daughter, as such 
child would have got had he 
or she been alive at the time · 
of the partition, 
shall 
be 
allotted to the child of such 
pre-deceased child of the pre-
deceased 
son 
or a pre-
deceased daughter, as the 
case may be. 
Explanation.-
For 
the 
purposes of this sub-section, 
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. 
A 
B 
c 
D 
E 
F 
G 
H
594 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
(4) After the commencement of 
the 
Hindu 
Succession 
(Amendment) Act, 2005, no 
court shall recognise any right 
to proceed against a son, 
grandson or great-grandson 
for the recovery of any debt 
due 
from 
his 
father, 
grandfather 
or 
great-
grandfather 
solely 
on 
the 
ground of the pious obligation 
under the Hindu law, of such 
son, 
grandson 
or 
great-
grandson to discharge any 
such debt: 
Provided that in the case of 
any debt contracted before the 
commencement of the Hindu 
Succession (Amendment) Act, 
2005, nothing contained in this 
sub-section shall affect-
(a) the right of any creditor to 
proceed 
against 
the 
son, 
grandson or great-grandson, 
as the case may be; or 
(b) any alienation made in 
respect of or in satisfaction of, 
any such debt, and any such 
right or alienation shall be 
enforceable under the rule of 
pious obligation in the same 
manner and 
to 
the 
same 
extent as it would have been 
enforceable as if the Hindu 
Succession (Amendment) Act, 
2005 had not been enacted.
PRAKASH & ORS. v. PHULAVATI & ORS. 
595 
[ADARSH KUMAR GOEL, J.] 
Explanation.-For the purposes 
of clause (a), the expression 
"son", "grandson" or "great-
grandson" shall be deemed to 
refer to the son: grandson or 
great-grandson, as the case 
may be, who was born or 
adopted 
prior 
to 
the 
commencement of the Hindu 
Succession (Amendment) Act, 
2005. 
(5) Nothing contained in this 
section 
shall · apply 
to 
a 
partition, 
which 
has 
been 
effected before the 20th day of 
December, 2004. 
Explanation- For the purposes 
of this section "partition" means 
any 
partition 
made 
by 
execution of a deed of partition 
duly 
registered 
under 
the 
Registration Act, 1908 ( 16 of 
1908) or partition effected by a 
decree of a court.' 
A 
B 
c 
D 
E 
17. The text of the amendment itself clearly provides that 
F 
the right conferred on a 'daughter of a coparcener' is 'on and 
from the commencement of Hindu Succession (Amendment) 
Act, 2005'. Section 6(3) talks of death after the amendment 
for its applicability. In view of plain language of the statute, G 
there is no scope for a different interpretation than the one 
suggested by the text of the amendment. An amendment of a 
substantive provision is always prospective unless either 
expressly or by necessary intendment it is retrospective3. In 
' Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27 
H
596 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
A the present case, there is neither any express provision for 
giving retrospective effect to the amended provision nor 
necessary intendment to that effect. Requirement of partition · 
being registered can have no application to statutory notional 
partition on opening of succession as per unamended 
B provision, having regard to nature of such partition which is by 
operation of law. The intent and effect of the Amendment will 
be considered a little later. On this finding, the view of the 
High Court cannot be sustained. 
C 
18. Contention of the respondents that theAmendment 
should be read as retrospective being a piece of social 
legislation cannofbe accepted. Even a social legislation cannot 
be given retrospective effect unless so provided for or so 
intended by the legislature. In the present case, the legislature 
D has expressly made the Amendment applicable on and from 
its commencement and only if death of the coparcener in 
question is after the Amendment. Thus, no other interpretation 
is possible in view of express language of the statute. The 
proviso keeping dispositions or alienations or partitions prior 
E to 20th December, 2004 unaffected can also not lead to the 
inference that the daughter could be a coparcener prior to the 
commencement of the Act. The proviso only means that the 
transactions not covered thereby will not affect the extent of 
F coparcenary property which may be available when the main
provision is applicable. Similarly, Explanation has to be read 
harmoniously with the substantive provision of Section 6(5) by 
being limited to a transaction of partition effected after 20th 
December, 2004. Notional partition, by its very nature, is not 
G covered either under proviso or under sub-section 5 or under 
the Explanation. 
19. Interpretation of a provision depends on the text and 
the context4 . Normal rule is to read the words of a statute in 
H ' RBI vs. Peerless (1987) 1 SCC 424, para 33
-- PRAKASH & ORS. v. PHULAVATI & ORS. 
597 
[ADARSH KUMAR GOEL, J.] 
ordinary sense. In case of ambiguity, rational meaning has to A 
be given 5. In case of apparent conflict, harmonious meaning 
to advance the object and intention of legislature has to be 
given6. 
20. There have been number of occasions when a proviso B 
or an explanation came up for interpretation. Depending on 
the text, context and the purpose, different rules of interpretation 
have been applied7. 
21. Normal rule is that a proviso excepts something out c 
of the enactment which would otherwise be within the purview 
of the enactment but if the text, context or purpose so require a 
different rule may apply. Similarly, an explanation is to explain 
the meaning of words of the section but if the language or 
purpose so require, the explanation can be so interpreted. D 
Rules of interpretation of statutes are useful servants but difficult 
masters8. Object of interpretation is to discover the intention 
of legislature. 
22. In this background, we find that the proviso to Section E 
6(1) and sub-section (5) of Section 6 clearly intend to exclude 
the transactions referred to therein which may have taken place 
prior to 20th December, 2004 on which date the Bill was 
introduced. Explanation cannot permit reopening of partitions 
which were valid when effected. Object of giving finality to F 
transactions prior to 2Qth December, 2004 is not to make the 
main provision retrospective in any manner. The object
is that 
by fake transactions available property at the introduction of 
the Bill is not taken away and remains available as and when 
right conferred by the statute becomes available and is to be G 
enforced. Main provision of the Amendment in Section 6( 1) 
and (3) is not in any manner intended to be affected but 
5 Kehar Singh vs. State (1988) 3 SCC 609 
6 District Mining Officer vs. Tata Iron and Steel Co. (2001) 7 SCC 358 
7 S. Sundaram Pillai vs. R. Pattabiraman (1985) 1 SCC 591 
' Keshavji Ravji & Co. vs. CIT (1990) 2 SCC 231 
H
598 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
A strengthened in this way. Settled principles governing such 
transactions relied upon by the appellants are not intended to 
IJe done away with for period prior to 20th December, 2004. In 
no case statutory notional partition even after 2Qth December, 
2004 could be covered by the Explanation or the proviso in 
B question. 
23. Accordingly, we hold that the rights under the 
amendment are applicable to living daughters of living 
coparceners as on 9th September, 2005 irrespective of when 
C such daughters are born. Disposition or alienation including 
partitions which may have taken place before 20lh December, 
2004 as per law applicable prior to the said date will remain 
unaffected. Any transaction of partition effected thereafter will 
D 
be governed by the Explanation. 
24. On above interpretation, Civil Appeal No.7217 of 
2013 is allowed. The order of the High Court is set aside. 
The matter is remanded to the High Court for a fresh decision 
in accordance with law. All other matters may be listed for 
E hearing separately for consideration on 24th November, 2015. 
25. The view which we have taken above is consistent 
with and not in conflict with any of the earlier decisions. We 
may now refer to the decisions cited by the parties. Main 
F 
dec:isbns c:i1Bd by the respondents are: Prema VS. Nanje 
Gowda9, Ganduri Koteshwaramma vs. Chakiri Yanadi10, 
V. K. Surendra vs. V.K. Thimmaiah 11, Ram Sarup vs. 
Munshi12, Dayawati
vs. lnderjit13, Amarjit Kaur vs. Pritam 
Singh14, Lakshmi Narayan Guin vs. Niranjan Modak15, S. 
G Sai Reddy vs. S. Narayana Reddy16 and State of 
Maharashtra vs. Narayan Rao17• Many of these decisions 
H 
'(2011)6 sec 462 
10 (2011) 9 sec 788 
11 (2013)10 sec 211, para 18 
12 (1963) 3 SCR 858 
" ( 1966) 3 SCR 275 
"(1974) 2 sec 363 
" (1985) 1 sec 270 
" (1991) 3 sec 647 
17 (1985) 2 sec 321, paras 8 to 10
PRAKASH & ORS. v. PHULAVATI & ORS. 
599 
[ADARSH KUMAR GOEL, J.] 
deal with situations where change in law is held to be applicable A 
to pending proceedings having regard to intention of 
legislature in a particular law. There is no dispute with the 
propositions laid down in the said decisions. Question is of 
application of the said principle in the light of a particular 
amending law. The decisions relied upon do not apply to the B 
present case to support the stand of the respondents. 
25.1.· In Ram Sarup case (supra), the question for 
consid~{,ation was of amendment to the Punjab Pre-emption 
Act, 1 ~Q.by Punjab Act 10of1960 restricting the pre-emption C 
right. · $ection 31 inserted by way of amendment prohibited 
passing bf a decree which was inconsistent with the amended 
provisions, It was held that the amendment was retrospective 
and had retrospective operation in view of language employed 
in the said provision. 
D 
25.2. In Dayawati case (supra), Section 6 of the Punjab 
Relief of Indebtedness Act, 1956 expressly gave retrospective 
effect and made the statute applicable to all p~f1ding suits on 
the commencement of the Act. The Act soug~ to reduce the 
E 
rate of interest in certain transactions to give relief against 
indebtedness to certain specified persons. 
25.3. In Lakshmi Narayan Guin case (supra), the 
question was of applicability of Section 13 of the West Bengal F 
Premises Tenancy Act, 1956 which expressly provided that 
no order could be passed by
the Court contrary to the scheme 
of the new law. 
25.4. In Amarjit Kaur case (supra), Section 3 of the G 
Punjab Pre-emption (Repeal) Act, 1973 was considered which 
expressly prohibited the Court from passing any pre-emption 
decree after the commencement of the Act. 
25.5. There is also no conflict with the principle laid down 
H
. 600 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
A in V.K. Surendra case (supra) which deals with a 
presumption about the nature of a joint family property and 
burden of proof being on the person claiming such property to 
be separate. The said decision only lays down a rule of 
evidence. 
B 
25.6. In S. Sai Reddy case (supra), the question for 
consideration was whether even after a preliminary decree is 
passed determining the shares in partition, such shares could 
be varied on account of intervening events at the time of 
C passing of the final decree. In the said case, partition suit was 
filed by a son against his father in which a preliminary decree 
was passed determining share of the parties. Before final 
decree could be passed, there was an amendment in the Hindu 
Succession Act (vide A. P. Amendment Act, 1986) allowing 
D share to the unmarried daughters. Accordingly, the unmarried 
daughters applied to the court for their shares which plea was 
upheld. The said judgment does not deal with the issue 
involved in the present matter. It was not a case where the 
coparcener whose daughter claimed right was not alive on 
E the date of the commencement of the Act nor a case where 
shares of the parties stood already crystal1sed by operation of 
law to which the amending law had no application. Same is 
the position in Prema and Ganduri cases (supra). 
F 
25.7. In Narayan Rao case (supra), it was observed 
that even after notional partition, the joint family
continues. The 
proposition laid down in this judgment is also not helpful in 
deciding the question involved herein. The text of the 
Amendment itself shows that the right conferred by the 
G Amendment is on a 'daughter of a coparcener' who is member 
of a coparcenary and alive on commencement of the Act. 
25.8. 
We also do not find any relevance of decisions 
in State of Rajasthan vs. Mangila/ Pindwa/18 and West U.P. 
H " (1996) s sec 60
PRAKASH & ORS. v. PHULAVATI & ORS. 
601 
[ADARSH KUMAR GOEL, J.] 
Sugar Mills Asson. vs. State of U.P. 19 or other similar A 
decisions for deciding the issue involved herein. The said 
decisions deal with the effect of repeal of a provision and not 
the issue of restrospectivity with which the Court is concerned 
in the present case. 
26. We now come to the decisions relied upon by the 
appellants. In M. Prithviraj cast,) (supra), the view taken 
appears to be consistent with what has been said above. It 
appears that this was a binding precedent before the Bench 
B 
of the High Court which passed the impugned order but does C 
not appear to have been referred to in the impugned judgment. 
Judgments of this Court in Sheela Devi vs. Lal ChancP0 and 
G Sekarvs. Geetha21 and the judgment of Madras High Court 
in Bagirathi vs. S. Manivanan22 have been relied upon 
therein. In Sheela Devi case (supra), this Court observed: 
D 
21. The Act indisputably would prevail over the old 
Hindu Law. We may notice that the Parliament, with a 
view to. confer right upon the female heirs, even in 
relation to the joint family property, enacted Hindu E 
Succession Act, 2005. Such a provision was enacted 
as far back in 1987 by the State of Andhra Pradesh. 
The succession having opened in 1989, evidently, the 
provisions of Amendment Act, 2005 would have no 
application. Sub-section (1) of Section 6 of the Act F 
governs the law relating to succession on the death of 
a coparcener in the event
the· heirs are only male 
descendants. But, the proviso appended to Sub-section 
(1) of Section 6 of the Act creates an exception. First 
son of Babu Lal, viz., Lal Chand, was, thus, a G 
coparcener. Section 6 is exception to the general rules. 
1• (2002) 2 sec 645 
20 (2006) s sec 581 
21 (2009) 6 sec 99, para 30 
22 AIR 2005 Mad 250 (DB}
602 
SUPREMECOURTR~PORTS 
[2015] 12 S.C.R. 
A 
It was, therefore, obligatory on the part of the 
respondents-plaintiffs to show that apart from Lal 
Chand, Sohan Lal will also derive the benefit thereof. 
So far as the Second son, Sohan Lal is concerned, no 
evidence has been brought on records to show that he 
B 
was born prior to coming into force of Hindu Succession 
Act, 1956." 
Full Bench judgment of Bombay High Court in 
Badrinarayan Shankar Bhandari Vs. Ompraskash 
C Shankar Bhandari23 also appears to be consistent with the 
view taken hereinabove. 
26.1. In Gurupad Khandappa Magdum vs. Hirabai 
Khandappa Magdum24 , Sh ya ma Devi vs. Man ju Shukla25 , 
D and Anar Devi vs. Parmeshwari Devi26 cases this Court 
interpre.ted the Explanation 1 to Section 6 (prior to 2005 
Amendment) of the Hindu Succession Act. It was held that the 
deeming provision referring to partition of the property 
immediately before the death of the coparcenerwas to be given 
E due and full effect in view of settled principle of interpretation 
of a provision incorporating a deeming fiction. In Shyama 
Devi and Anar Devi cases, same view was followed. 
26.2. In Vaishali Satish Ganorkar vs. Satish 
F Keshaorao Ganorkar7, the Bombay High Court held that the 
amendment will not apply unless the daughter .is born after the 
2005Amendment, but on this aspect a different view has been 
taken in the later larger Bench judgment. We are unable to 
find any reason to hold that birth of the daughter after
the 
G amendment was a necessary condition for its applicability. All 
that is required is that daughter should be alive and her father 
23 AIR 2014, BOM 151. paras 40-57 
24 (1978) 3 sec 383, paras 6, 11 and 13 
25 (1994) 6 sec 342, para 7 
26 (2006) 8 sec 656, paras 10,11 
H 
27 AIR 2012, SOM 101, paras 13 to 37
PRAKASH & ORS. v. PHULAVATI & ORS. 
603 
[ADARSH KUMAR GOEL, J.] 
should also be alive on the date of the amendment. 
A 
26.3. Kale vs. Dy. Director of Conso/idation28 and 
Digambar AdharP.atil vs. Devram Girdhar Patil29 have been 
cited to submit that the family settlement was not required to 
be registered. Santosh Hazari vs. Purushottam Tiwari3° 
B 
lays down that the Appellate Court must deal with reasons of 
the trial court while reversing its findings. 
26.4 Kannaiyan vs. The Assistant Collector of 
Central Excise31, C.I. T. Gujarat vs. Keshavlal Lallubhai C 
Pate/32, Umayal Achi vs. Lakshmi Achi33 and Shivappa 
Laxman vs. Yellawa Shivappa Shivagannavaf34 have been 
cited to canvass that partition was recognition of pre-existing 
rights and did not create new rights. 
26.5 This would normally have ended our order with the D 
operative part being in para 24 which disposes of Civil Appeal 
No.7217 of 2013 and directs listing of other matters for being 
dealt with separately. However, one more aspect relating to 
gender discrimination against muslim women which came up E 
for consideration needs to be gone into as Part II of this order. 
Part II 
27. An important issue of gender discrimination which 
though not directly involved in this appeal, has been raised by F 
some of the learned counsel for the parties which concerns 
rights to muslim women. Discussions on gender discrimination 
·Jed to this issue also. It was pointed out that inspite of guarantee 
of the
Constitution, muslim women are subjected to 
"(1976) 3 sec 119, para 9 
29 (1995) Supp. 2 SCC 428 at page 430 
30 (2001) 3 sec 179, para 15. 
31 1969 (2) MLJ 277, 
32 (1965) 2 SCR 100 
33 AIR 1945 FC 25 at 31 (d) 
"AIR 1954 BOM 47, para 4 
G 
H
604 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
A discrimination. There is no safeguard against arbitrary divorce 
and second marriage by her husband during currency of the 
first marriage, resulting in denial of dignity and security to her. 
Although the issue was raised before this Court in Ahmedabad 
Women Action Group(AWAG) vs. Union of lndia35, this 
B Court did not go into the merits of the discrimination with the 
observation that the issue involved state policy to be dealt 
with by the legislature36. It was observed that challenge to the 
Muslim Women (Protection of Rights on Divorce) Act, 1986 
was pending before the Constitution Bench and there was no 
C 
rea~on to multiply proceedings on such an issue. 
28. It is pointed out that the matter needs consideration 
by this Court as the issue relates not merely to a policy matter 
but to fundamental rights of women under Articles 14, 15 and 
D 21 and international conventions and covenants. One of the 
reasons for the court having not gone into the matter was 
pendency of an issue before the Constitution Bench which has 
since been decided by this Court in Danial Latifi vs. Union 
of /ndia37• The Constitution Bench did not address the -said 
E issue but the Court held that Article 21 included right to live 
with dignity38 which supports the plea that a muslim woman 
"(1997) 3 sec 573 
36 This Court referred to the observations of Sahai. J. in Sarla Mudgal vs. 
Union of India (1995) 3 sec 635 that a climate wa~ required
to be built for a 
F 
uniform civil code. Reference was also made to observations in Madhu 
l<ishwar vs. State of Bihar (1996 (5) sec 125 to the effect that the court could 
at best advise and focus attention to the problem instead of playing an activist 
role. 
" (2001 l 7 sec 740 
""Para 33 ....... This Court in Olga Tellis v. Bombay Municipal Corpn. [1985(3} 
SCC 545] and Maneka Gandhi v. Union of India [1978 (1) SCC 248] held that 
G 
the concept of"right to life and personal liberty" guaranteed under Article 21 of 
the Constitution would include the "right to live with dignity". Before the Act, a 
Muslim woman who was divorced by her husband was granted a right to 
maintenance from her husband under the provisions of Section 125 CrPC 
until she may remarry and such a right, if deprived, would not be reasonable, 
just and fair. Thus the provisions of the Act depriving the divorced Muslim 
H women of such a right to maintenance from her husband and providing for 
her maintenance to be paid by the former husband only for the period of iddat
PRAKASH & ORS. v. PHULAVATI & ORS. 
[ADARSH KUMAR GOEL, J.] 
605 
could invoke fundamental rights in such matters. In Javed vs. A 
State of Haryana39, a Bench of three judges observed that 
practice of polygamy is injurious to public morals and can be 
superseded by the State just as practice of 'sati' 40. It was 
further observed that conduct rules providing for monogamy 
irrespective of religion are valid and could not be struck down 
B 
on the ground of violation of personal law of muslims41 . In John 
Vallamattom vs. U0/42, it was observed that Section 118 ·of 
Indian Succession Act, 1925 restricting right of christians to 
make Will for charitable purpose was without any rational basis, 
was discriminatory against christians and violated Article 1443. 
Laws dealing with marriage and succession are not part of 
religion 44 . Law has to change with time45 . International 
covenants and treaties could be referred to examine validity 
and reasonableness of a provision46. 
and thereafter to make her run from pillar to post in search of her relatives 
one after the other and ultimately to knock at the doors of the Wakf Board 
does not appear to be reasonable and fair' substitute of the provisions of 
Section 125 CrPC. Such deprivation of the divorced Muslim women of their 
right to maintenance from their former husbands under the beneficial 
provisions of the Code of Criminal Procedure which are otherwise available 
c 
D 
to all other women in India cannot be stated to have
been effected by a E 
reasonable, right, just and fair law and. if these provisions are less beneficial 
than the provisions of Chapter IX of the Code of Criminal Procedure. a divorced 
Muslim woman has obviously been unreasonably discriminated and got out 
of the protection of the provisions of the general law as indicated under the 
~ode which are available to Hindu, Buddhist, Jain, Parsi or Christian women 
or women belonging to any other community. The provisions prima facie, 
therefore, appear to be violative of Article 14 of the Constitution mandating F 
equality and equal protection of law to all persons otherwise similarly 
circumstanced and also violative of Article 15 of the Constitution which 
prohibits any discrimination on the ground of religion as the Act would 
obviously apply to Muslim divorced women only and solely on the ground 
of their belonging to the Muslim religion." 
"(2003) a sec 369 
" Para 46 
" Paras 54 to 59 
"(2003) 6 sec 611 
43 Paras 28 and 29 
44 Para 44 
" Paras 33 to 36 
46 Paras 30 to 32 
G 
H
606 
SUPREME COURT REPORTS 
[2015] 12 S.C.R. 
A 
29. In Charu Khurana vs. U0/47, this Court considered 
B 
the issue of gender discrimination in the matter of denial of 
membership of "Cine Costume Make-up Artists and Hair 
Dressers Association" in film industry. It was held that such 
discrimination violates basic constitutional rights. 
30. It was thus submitted that this aspect of the matter 
may be gone into by separately registering the matter as Public 
Interest Litigation (PIL). We are of the view that the suggestion 
needs consideration in view of earlier decisions of this Court. 
C The issue has also been highlighted in recentArticles appearing 
in the press on this subject48 • 
31. For this purpose, a PIL be separately registered and 
put up before the appropriate Bench as per orders of Hon'ble 
o the Chief Justice of India. 
32. Notice be issued to learned Attorney General and 
National Legal Services Authority, New Delhi returnable on 23rct 
November, 2015. We give liberty to learned counsel already 
E appearing in this matter to assist the Court on this aspect of 
the matter, if they wish to volunteer, for either view point. 
Devika Gujral 
Appeal disposed of. 
" (2015) 1 sec rn2 
'"""The Tribune"" dated 24.09.2015 '"Muslim Women's quest for equality"' by 
Vandana Shukla and ··Sunday Express Magazine·· dated 04.10.2015 '"In Her 
l"ourr· by llipti Nagpaul D"Souza.