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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VINEETA SHARMA
v.
RAKESH SHARMA & ORS.
(Civil Appeal No. Diary No.32601 of 2018)
AUGUST 11, 2020
[ARUN MISHRA, S.ABDUL NAZEER AND M. R. SHAH, JJ.]
Hindu Succession Act, 1956 – s.6 as amended by Hindu
Succession (Amendment) Act, 2005 – Interpretation of – Held: The
provisions contained in substituted s.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 – The effect of the amendment is that a daughter is made
coparcener, with effect from the date of amendment i.e. 09.09.2005
and she can claim partition also, which is a necessary concomitant
of the coparcenary – s.6(1) recognises a Joint Hindu family
governed by Mitakshara law – The coparcenary must exist on
09.09.2005 to enable the daughter of a  coparcener to enjoy rights
conferred on her – As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose daughter is
conferred with the rights is alive or not – Conferral is not based on
death of a father or other Coparcener – In case living coparcener
dies after 09.09.2005, inheritance is not by survivorship but by
intestate or testamentary succession as provided in substituted
s.6(3).
Hindu Succession Act, 1956 – s.6 as amended by Hindu
Succession (Amendment) Act, 2005 and proviso to s.6 as originally
enacted – Held: The statutory fiction of partition created by proviso
to s.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1956 as originally enacted did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 s.6 are required
to be given full effect – Notwithstanding, that a preliminary decree
has been passed the daughters are to be given share in coparcenary
equal to that of a son in pending proceedings for final decree or in
an appeal.
[2020] 10 S.C.R. 135
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Hindu Succession Act, 1956 – s.6 as amended by Hindu
Succession (Amendment) Act, 2005 – Explanation to s.6(5) – Plea
of oral partition – Held: In view of the rigor of provisions of
Explanation to s.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 fully 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.
Hindu Succession Act, 1956 – s.6 as amended by Hindu
Succession (Amendment) Act, 2005 – Enlargement of daughter’s
rights – Held: Under the proviso to s.6 before the amendment made
in the year 2005 in case a coparcener died leaving behind female
relative of class-I heir or a male descendant claiming through such
class-I female heir, the daughter was one of them – s.6, as substituted,
presupposes the existence of coparcenary – It is only the case of
the enlargement of the rights of the daughters – The rights of other
relatives remain unaffected as prevailed in the proviso to s.6 as it
stood before amendment – The classic shastric Hindu Law excluded
the daughter from
being coparcener, which injustice has now been
done away with by amending the provisions in consonance with the
spirit of the Constitution.
Hindu Succession Act, 1956 – s.6 as amended by Hindu
Succession (Amendment) Act, 2005 – Retroactive application – Held:
Though the rights can be claimed, w.e.f. 09.09.2005, the provisions
are of retroactive application; they confer benefits based on the
antecedent event, and the Mitakshara coparcenary law shall be
deemed to include a reference to a daughter as a coparcener – A
retroactive statute is the one that does not operate retrospectively –
It operates in futuro – However, its operation is based upon the
character or status that arose earlier – Characteristic or event which
happened in the past or requisites which had been drawn from
antecedent events – Under the amended s.6, since the right is given
by birth, that is an antecedent event, and the provisions operate
concerning claiming rights on and from the date of Amendment Act.
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Hindu Succession Act, 1956 – s.6 as amended by Hindu
Succession (Amendment) Act, 2005 – Obstructed and unobstructed
heritage – Unobstructed heritage takes place by birth, and the
obstructed heritage takes place after the death of the owner – It is
significant to note that u/s. 6 by birth, right is given that is called
unobstructed heritage – It is not the obstructed heritage depending
upon the owner’s death – Thus, coparcener father need not be alive
on 09.09.2005, date of substitution of provisions of s.6.
Answering the reference, the Court
HELD: 1. The amended provisions of section 6(1) provide
that on and from the commencement of the Amendment Act, the
daughter is conferred the right. Section 6(1)(a) makes daughter
by birth a coparcener “in her own right” and “in the same manner
as the son.” Section 6(1)(a) contains the concept of the
unobstructed heritage of Mitakshara coparcenary, which is by
virtue of birth. Section 6(1)(b) confers the same rights in the
coparcenary property “as she would have had if she had been a
son”. The conferral of right is by birth, and the rights are given
in the same manner with incidents of coparcenary as that of a son
and she is treated as a coparcener in the same manner with the
same rights as if she had been a son at the time of birth. Though
the rights can be claimed, w.e.f. 09.09.2005, the provisions are of
retroactive application; they confer benefits based on the
antecedent event, and the Mitakshara coparcenary law
shall be
deemed to include a reference to a daughter as a coparcener. At
the same time, the legislature has provided savings by adding a
proviso that any disposition or alienation, if there be any
testamentary disposition of the property or partition which has
taken place before 20.12.2004, the date on which the Bill was
presented in the Rajya Sabha, shall not be invalidated. [Para
55][190-H; 191-A-C]
2. The prospective statute operates from the date of its
enactment conferring new rights. The retrospective statute
operates backward and takes away or impairs vested rights
acquired under existing laws. A retroactive statute is the one
that does not operate retrospectively. It operates in futuro.
However, its operation is based upon the character or status that
arose earlier. Characteristic or event which happened in the past
VINEETA SHARMA v. RAKESH SHARMA
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or requisites which had been drawn from antecedent events. Under
the amended section 6, since the right is given by birth, that is an
antecedent event, and the provisions operate concerning claiming
rights on and from the date of Amendment Act. [Para 56]
[191-D-E]
3. Section 6(2) provides when the female Hindu shall hold
the property to which she becomes entitled under section 6(1),
she will be bound to follow rigors of coparcenary ownership, and
can dispose of the property by testamentary mode. [Para 60]
[194-C-D]
4. With respect to a Hindu who dies after the
commencement of the Amendment Act, 2005, as provided in
section 6(3) his interest shall pass by testamentary or intestate
succession and not by survivorship, and there is a deemed
partition of the coparcenary property in order to ascertain the
shares which would have been allotted to his heirs had there
been a partition. The daughter is to be allotted the same share as
a son; even surviving child of pre-deceased daughter or son are
given a share in case child has also died then surviving child of
such pre-deceased child of a pre-deceased son or pre-deceased
daughter would be allotted the same share, had they been alive
at the time of deemed partition. Thus, there is a sea-change in
substituted section 6. In case of death of coparcener after
9.9.2005, succession is not by survivorship but in accordance
with section 6(3)(1). The Explanation to section 6(3) is the
same
as Explanation I to section 6 as originally enacted. Section 6(4)
makes a daughter liable in the same manner as that of a son. The
daughter, grand-daughter, or great-grand-daughter, as the case
may be, is equally bound to follow the pious obligation under the
Hindu Law to discharge any such debt. The proviso saves the
right of the creditor with respect to the debt contracted before
the commencement of Amendment Act, 2005. The provisions
contained in section 6(4) also make it clear that provisions of
section 6 are not retrospective as the rights and liabilities are
both from the commencement of the Amendment Act. [Para
61][194-D-H]
5. The proviso to section 6(1) and section 6(5) saves any
partition effected before 20.12.2004. However, Explanation to
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section 6(5) recognises partition effected by execution of a deed
of partition duly registered under the Registration Act, 1908 or
by a decree of a court. Other forms of partition have not been
recognised under the definition of ‘partition’ in the Explanation.
[Para 62][195-A-B]
6. Considering the principle of coparcenary that a person
is conferred the rights in the Mitakshara coparcenary by birth,
similarly, the daughter has been recognised and treated as a
coparcener, with equal rights and liabilities as of that of a son.
The expression used in section 6 is that she becomes coparcener
in the same manner as a son. By adoption also, the status of
coparcener can be conferred. The concept of uncodified Hindu
law of unobstructed heritage has been given a concrete shape
under the provisions of section 6(1)(a) and 6(1)(b). Coparcener
right is by birth. Thus, it is not at all necessary that the father of
the daughter should be living as on the date of the amendment,
as she has not been conferred the rights of a coparcener by
obstructed heritage. According to the Mitakshara coparcenary
Hindu law, as administered which is recognised in section 6(1), it
is not necessary that there should be a living, coparcener or father
as on the date of the amendment to whom the daughter would
succeed. The daughter would step into the coparcenary as that
of a son by taking birth before or after the Act. However, daughter
born before can claim these rights only with effect from
the date
of the amendment, i.e., 09.09.2005 with saving of past transactions
as provided in the proviso to section 6(1) read with section 6(5).
[Para 63][195-B-E]
7. The effect of the amendment is that a daughter is made
coparcener, with effect from the date of amendment and she can
claim partition also, which is a necessary concomitant of the
coparcenary. Section 6(1) recognises a joint Hindu family
governed by Mitakshara law. The coparcenary must exist on
09.09.2005 to enable the daughter of a coparcener to enjoy rights
conferred on her. As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose daughter is
conferred with the rights is alive or not. Conferral is not based
on the death of a father or other coparcener. In case living
coparcener dies after 09.09.2005, inheritance is not by
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survivorship but by intestate or testamentary succession as
provided in substituted section 6(3). [Para 64][195-F-H]
8. Under the proviso to section 6 before the amendment
made in the year 2005 in case a coparcener died leaving behind
female relative of Class I heir or a male descendant claiming
through such Class I female heir, the daughter was one of them.
Section 6, as substituted, presupposes the existence of
coparcenary. It is only the case of the enlargement of the rights
of the daughters. The rights of other relatives remain unaffected
as prevailed in the proviso to section 6 as it stood before
amendment. [Para 65][196-A-B]
9. As per the Mitakshara law, no coparcener has any fixed
share. It keeps on fluctuating by birth or by death. It is the said
principle of administration of Mitakshara coparcenary carried
forward in statutory provisions of section 6. Even if a coparcener
had left behind female heir of Class I or a male claiming through
such female Class I heir, there is no disruption of coparcenary by
statutory fiction of partition. Fiction is only for ascertaining the
share of a deceased coparcener, which would be allotted to him
as and when actual partition takes place. The deemed fiction of
partition is for that limited purpose. The classic Shastric Hindu
law excluded the daughter from being coparcener, which injustice
has now been done away with by amending the provisions in
consonance with the spirit
of the Constitution. [Para 66]
[196-C-D]
10. A special definition of partition has been carved out in
the explanation to section 6(5). The intendment of the provisions
is not to jeopardise the interest of the daughter and 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.
The statutory 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
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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 defence and 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 rights as 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. This Court reiterates that the plea of
an oral partition or memorandum of partition, unregistered one
can be manufactured at any point in time, without any
contemporaneous public document needs rejection at all costs.
This Court says so for exceptionally good cases where partition
is proved conclusively and the courts are cautioned that the
finding is not to be based on the preponderance of 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
exception is carved out 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. It is also taken note of the fact that even before
1956, partition in other modes than envisaged under Section 6(5)
had taken place. [Para 127][234-D-H; 235-A-C]
11. 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
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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 consonance with the spirit of
the provisions of Section 6(5) and its Explanation. [Para 128]
[235-D-G]
12. Resultantly, the reference is answered as under:
(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 9.9.2005.
(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
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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 given share in coparcenary equal to that of a son in pending
proceedings for final 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.
[Para 129][235-H; 236-E-F]
Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36:
[2015] 12 SCR 579 – overruled.
Danamma @ Suman Surpur & Anr. v. Amar & Ors.,
(2018) 3 SCC 343 : [2018] 2 SCR 553 –
partly overruled.
Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988) 2
SCC 77 : [1988] 2 SCR 623; Sheela Devi v. Lal Chand,
(2006) 8 SCC 581 : [2006] 6 Suppl. SCR 874; Smt.
Sitabai & Anr. v. Ramchandra, AIR 1970 SC 343 :
[1970]
2 SCR 1; State Bank of India v. Ghamandi Ram
(dead) through Gurbax Rai, (1969) 2 SCC 33 : [1969]
3 SCR 681; Controller of Estate Duty, Madras v. Alladi
Kuppuswamy, (1977) 3 SCC 385 : [1977] 3 SCR 721;
Satrughan Isser v. Sabujpari & Ors., AIR 1967 SC 272
: [1967] 1 SCR 7; Bhagwan Dayal (since deceased) &
Anr. v. Mst. Reoti Devi AIR 1962 SC 287 : [1962] 3
SCR 440; Surjit Lal Chhabda v. Commissioner of Income
Tax (1976) 3 SCC 142 : [1976] 2 SCR 164; State of
Maharashtra v. Narayan Rao Sham Rao Deshmukh &
VINEETA SHARMA v. RAKESH SHARMA
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Ors., (1985) 2 SCC 321 : [1985] 3 SCR 358;
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Vellikannu v. R.
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Kale v. Deputy Director of Consolidation (1976) 3 SCC
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Bedi v. Union of India (1982) 3 SCC 140 : [1983] 1
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AIR 1960 SC 335 : [1960] 2 SCR 253; Mudigowda
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Gowdappa Sankh & Ors. v. Ramchandra Revgowda
Sankh (dead) by his LRs. & Anr., AIR 1969 SC 1076 :
[1969] 3 SCR 245; Kalwa Devdattam v. Union of India,
AIR 1964 SC 880 : [1964] 3 SCR 191; Digambar Patil
v. Devram, AIR 1995 SC 1728 : [1995] 2 SCR 133;
Girijanandini Devi & Ors. v. Bijendra Narain
Choudhary, AIR 1967 SC 1124: [1967] 1 SCR 93 –
referred to.
Lokmani & Ors. v. Mahadevamma & Ors. [S.L.P.(C)
No.6840 of 2016] Balchandra v. Smt. Poonam & Ors.
[SLP (C) No.35994/2015]; Sistia Sarada Devi v.
Uppaluri Hari Narayana & Ors. [SLP (C) No.38542/
2016]; Girijavva v. Kumar Hanmantagouda & Ors.
[SLP (C) No.6403/2019]; Smt. V.L. Jayalakshmi v. V.L.
Balakrishna & Ors. [SLP (C) No. 14353/2019]; Indubai
v. Yadavrao [SLP (C) No.24901/2019]; B.K. Venkatesh
v. B.K. Padmavathi [SLP (C) Nos. 1766-67/2020]; –
referred to.
Nagindas  Bhagwandas v. Bachoo Hurkissondas, AIR
1915 PC 41; Nanak Chand & Ors. v. Chander Kishore
& Ors., AIR 1982 Del. 520; G. Narasimulu & Ors. v. P.
Basava Sankaram & Ors., AIR 1925 Mad. 249;
Haridas Narayandas Bhatia v. Devkuvarbai Mulji,  AIR
1926 Bom. 408; Raghunadha v. Brozo Kishore, 3 IA
154 (PC); Baijnath Prasad Singh & Ors. v. Tej Bali
Singh, AIR 1921 PC 62; Diwan Singh v. Bhaiya Lal,
(1997) 2 MP LJ-202; Sri Balusu Gurulingaswami v.
Sri Balusu Ramalakshmamma & Ors., 26 IA 113;
Bireswar Mookerji & Ors. v. Shib Chunder Roy, 19 IA
101; Amarendra Man Singh Bhramarbar & Anr. v.
Sanatan Singh & Ors., AIR 1933
PC 155; Sri
Raghunadha v. Sri Brozo Kishore, 1876 (1) Mad. 69 =
3 IA 154; Badrinarayan Shankar Bhandari v.
Omprakash Shankar Bhandari, AIR 2014 Bom. 151;
Ramalinga v. Narayana, AIR 1922 PC 201; Kalyanji
Vithaldas & Ors. v. Commissioner of Income Tax,
Bengal, AIR 1937 PC 36; Palani Ammal v.
Muthuvenkatachala, AIR 1925 PC 49; Joala Prasad
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D
E
F
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147
Singh v. Chanderjet Kuer AIR 1938 Pat 278;
Chokalingam v. Muthukaruppan AIR 1938 Mad 849;
Ramabadra v. Gopalaswami, AIR 1931 Mad 404; Girja
Bai v. Sadashiv, AIR 1916 PC 104, Kawal Nain v.
Prabhulal, AIR 1917 PC 39; Gangabai v. Punau
Rajwa, AIR 1956 Nag 261; Kedar Nath v. Ratan Singh
(1910) 37 IA 161; Mukund Dharman Bhoir & Ors. v.
Balkrishna Padmanji & Ors. AIR 1927 PC 224;
Bhagwani v. Mohan Singh AIR 1925 PC 132;
Poornandachi v. Gopalasami, AIR 1936 PC 281; Hari
Baksh v. Babu Lal, AIR 1924 PC 126; Katama Natchiar
v. Srimat Rajah Moottoo Vijaya Raganadha Bodha
Gooroo Swamy Periya Odaya Taver, (1863) 9 MIA 543
– referred to.
Case Law Reference
[2015] 12 SCR 579
overruled
Para 1
[2018] 2 SCR 553
partly overruled
Para 1
[1969] 3 SCR 681
relied on
Para 11(c)
[1977] 3 SCR 721
relied on
Para 11 (d)
[1970] 2 SCR 648
referred to
Para 11(e)
(1998) 5 SCC 332
referred to
Para 11(m)
[2018] 6 SCR 776
referred to
Para 12(a)
[1976] 2 SCR 164
relied on
Para 13 (a)
[1968] 3 SCR 119
referred to
Para 13(d)
[1996] 5 Suppl. SCR 813
referred to
Para 13(f)
[2006] 6 Suppl. SCR 370
referred to
Para 13(g)
[1978] 3 SCR 761
referred to
Para 13 (h)
[1985] 2 SCR 643
referred to
Para 13(j)
[1974] 3 SCR 474
referred to
Para 13(m)
[1958] SCR 360
referred to
Para 14(a)
[1983] 1 SCR 393
referred to
Para 14 (a)
[1997] 3 SCR 586
referred to
Para 15(a)
VINEETA SHARMA v. RAKESH SHARMA
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[2011] 12 SCR 968
relied on
Para 16
[1988] 2 SCR 623
relied on
Para 27
[2006] 6 Suppl. SCR 874
relied on
Para 28
[2009] 12 SCR 38
referred to
Para 28
[1970] 2 SCR 1
relied on
Para 28
[1988] 2 SCR 1077
referred to
Para 29
[1967] 1 SCR 7
relied on
Para 32
[1962] 3 SCR 440
relied on
Para 33
[1966] 3 SCR 224
referred to
Para 34
[1985] 3 SCR 358
relied on
Para 35
[2005] 1 Suppl. SCR 160
relied on
Para 37
[2013] 7 SCR 897
relied on
Para 38
[1987] 3 SCR 236
referred to
Para 39
[2011] 7 SCR 468
relied on
Para 40
[1985] 3 Suppl. SCR 169
relied on
Para 41
[1952] SCR 603
referred to
Para 42
[1996] 1 SCR 1046
referred to
Para 50
[1990] 3 Suppl. SCR 212
relied on
Para 57
[2009] 5 SCR 1005
referred to
Para 58
[2008] 7 SCR 1
referred to
Para 80
[2010] 14 SCR 577
referred to
Para 82
[1990] 1 Suppl. SCR 473
referred to
Para 89
(1991) 3 SCC 647
relied on
Para 90
[2011] 8 SCR 55
relied on
Para 91
[2009] 14 SCR 40
relied on
Para 92
[1985] 2 SCR 202
referred to
Para 94
[2000] 3 Suppl. SCR 153
referred to
Para 95
A
B
C
D
E
F
G
H
149
[1968] 3 SCR 119
referred to
Para 98
[1959] 1 Suppl. SCR 394
referred to
Para 100
[1954] SCR 53
referred to
Para 101
[1955] 2 SCR 603
referred to
Para 101
[1965] 2 SCR 154
referred to
Para 103
[2010] 12 SCR 1125
referred to
Para 105
[1976] 3 SCR 202
referred to
Para 117
[1974] 3 SCR 474
referred to
Para 118
[2007] 2 SCR 903
referred to
Para 119
[1960] 2 SCR 253
referred to
Para 120
[1969] 3 SCR 245
referred to
Para 120
[1964] 3 SCR 191
referred to
Para 121
[1995] 2 SCR 133
referred to
Para 122
[1967] 1 SCR 93
referred to
Para 123
CIVIL APPELLATE JURISDICTION: Civil Appeal Diary No.
32601 of 2018.
From the Judgment and Order dated 15.05.2018 of the High Court
of  Delhi at New Delhi in R.F.A. No. 301 of 2017.
With
Special Leave Petition (Civil) Nos. 684 of 2016, 35994 of 2015,
38542 of 2016, 6403, 14353. 24901 of 2019, 1766-1767 of 2020.
Tushar Mehta, SG, R. Venkatramani, V.V.S. Rao, Ranjit Kumar,
Sr. Advs. (ACs), Biswajit Bhattacharya, Sr. Adv., Ms. Swati Ghildiyal,
A.K. Sharma, Ms. Rashmi Nandakumar, Byrapaneni Suyodhan,
Ms. Tatini Basu, Rupesh Kumar, Rajeev Sharma, Ms Neelam Sharma,
Ms Pankhuri Shrivastava, Rohit Rathi, Sameer Shrivastava, I.V. Kasyap,
Krishna Kumar, Dr (Mrs) Vipin Gupta, V.N. Raghupathy, Raghavendra
S. Srivatsa, Pai Amit, Poonacha C.M., Rahat Bansal, Ms. Pankhuri
Bhardwaj, Sridhar Potaraju, Ms. Shivani Tushir, Ms. G. Usha Sri, Vishnu
Tulashi Menon, Rajesh Mahale, Ankolekar Gurudatta, Subhasish
Mohanty, Ms. Anagha S. Desai, Irshad Ahmad,
Shree Pal Singh, Manu
VINEETA SHARMA v. RAKESH SHARMA
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Mridul, Surya Kant, Satya Kam Sharma, Ms. Apeksha D., Advs. for the
appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. The question concerning the interpretation of section 6 of the
Hindu Succession Act, 1956 (in short, ‘the Act of 1956’) as amended by
Hindu Succession (Amendment) Act, 2005 (in short, ‘the Act of 2005’)has
been referred to a larger Bench in view of the conflicting verdicts rendered
in two Division Bench judgments of this Court in Prakash & Ors. v.
Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman
Surpur&Anr. v. Amar & Ors., (2018) 3 SCC 343. In other connected
matters, the question involved is similar; as such, they have also been
referred for hearing along.
2. In the case of Lokmani & Ors. v. Mahadevamma & Ors.,
[S.L.P.(C) No.6840 of 2016] the High Court held that section 6, as
amended by the Act of 2005, is deemed to be there since 17.6.1956
when the Act of 1956 came into force, the amended provisions are given
retrospective effect, when the daughters were denied right in the
coparcenary property, pending proceedings are to be decided in the light
of the amended provisions. Inequality has been removed. The High Court
held that the oral partition and unregistered partition deeds are excluded
from the definition of ‘partition’ used in the Explanation to amended
Section 6(5).
3. In Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/
2015], the question raised is about
the retrospectivity of section 6 as
substituted by Amendment Act, 2005 and in case the father who was a
coparcener in the joint Hindu family, was not alive when the Act of 2005
came into force, whether daughter would become a coparcener of joint
Hindu family property.
4. In the matter of Sistia Sarada Devi v. Uppaluri Hari
Narayana & Ors. [SLP [C] No.38542/2016], the question raised is
where the final decree has not been passed in a suit for partition, whether
the re-distribution of shares can be claimed by the daughters by amended
section 6, as substituted.
5. In Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C]
No.6403/2019], the question raised is whether section 6, as substituted,
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is prospective as the father died in the year 1994 and, thus, no benefit
could be drawn by the daughters.
6. In Smt. V.L. Jayalakshmi v. V.L. Balakrishna &Ors. [SLP
[C] No. 14353/2019], the petitioner sought partition of his father’s
ancestral properties, and suit was filed in 2001. The trial court granted
1/7th share to all the parties. The same was modified. It was held petitioner,
and daughters were entitled to only 1/35th share in the light of the decision
of this Court in Prakash v. Phulavati (supra).
7. In Indubai v. Yadavrao [SLP [C] No.24901/2019], a similar
question has been raised. In B.K. Venkatesh v. B.K. Padmavathi [SLP
[C] Nos. 1766-67/2020], the daughters have been accorded equal shares
in Item No. 1 of Schedule A property, that has been questioned.
8. A Division Bench of this Court in Prakash v. Phulavati (supra)
held that section 6 is not retrospective in operation, and it applies when
both coparceners and his daughter were alive on the date of
commencement of Amendment Act, 9.9.2005. This Court further opined
that the provision contained in the Explanation to section 6(5) provides
for the requirement of partition for substituted section 6 is to be a
registered one or by a decree of a court, can have no application to a
statutory notional partition on the opening of succession as provided in
the unamended Section 6. The notional statutory partition is deemed to
have taken place to ascertain the share of the deceased coparcener
which is
not covered either under the proviso to section 6(1) or section
6(5), including its Explanation. The registration requirement is inapplicable
to partition of property by operation of law, which has to be given full
effect. The provisions of section 6 have been held to be prospective.
9. In Danamma (supra), this Court held that the amended
provisions of section 6 confer full rights upon the daughter coparcener.
Any coparcener, including a daughter, can claim a partition in the
coparcenary property. Gurunalingappa died in the year 2001, leaving
behind two daughters, two sons, and a widow.  Coparcener’s father
was not alive when the substituted provision of section 6 came into force.
The daughters, sons and the widow were given 1/5th share apiece.
Arguments:
10. Shri Tushar Mehta, learned Solicitor General of India, appearing
on behalf of Union of India, raised the following arguments:
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(i) The daughters have been given the right of a coparcener, to
bring equality with sons, and the exclusion of daughter from coparcenary
was discriminatory and led to oppression and negation of fundamental
rights. The Amendment Act, 2005, is not retrospective but retroactive in
operation since it enables the daughters to exercise their coparcenary
rights on the commencement of the Amendment Act. Even though the
right of a coparcener accrued to the daughter by birth, coparcenary is a
birthright.
(ii) The conferment of coparcenary status on daughters would
not affect any partition that may have occurred before 20.12.2004 when
the Bill was tabled before Rajya Sabha as contained in the proviso to
section 6(1). Hence, the conferment of right on the daughter did not
disturb the rights which got crystallised by partition before 20.12.2004.
(iii) Unamended Section 6 provided that if a male coparcener had
left behind on death a female relative specified in Class I of the Schedule
or male relative claiming through such female relative, the daughter was
entitled to limited share in the coparcenary interest of her father not
share as a coparcener in her rights. They were unable to inherit the
ancestral property like sons/male counterparts. The Mitakshara
coparcenary law not only contributed to discrimination on the ground of
gender but was oppressive and negated the fundamental right of equality
guaranteed by the Constitution of
India.
(iv) With effect from 9.9.2005, the date of enforcement of
Amendment Act, the daughters became coparceners by birth, in their
own right with the same liability in the coparcenary property as if she
had been a son.
(v) The Explanation contained under Section 6(1) concerning
conferral of rights as coparcener, daughter as coparcener, shall not affect
or invalidate any disposition or alienation including any partition or
testamentary disposition of the property which had taken place before
20.12.2004.
(vi) After substitution of the provisions of section 6, the devolution
of coparcenary by survivorship has been abrogated. Now in case of
death of coparcener, male/female, the coparcenary interest would not
devolve by survivorship but by intestate succession under the provisions
of the Hindu Succession Act or based on testamentary succession.
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(vii) The decision in Prakash v. Phulavati to the effect that there
should be a living daughter of a living coparcener on the date of
commencement of the Act of 2005 fails to appreciate that coparcenary
rights are by birth. The death of a Hindu coparcener father or any other
coparcener is only relevant for the succession of his coparcenary interest
under section 6(3) of the Act of 2005. The death of any coparcener
does not bring to an end any coparcenary. An increase or decrease in
the coparcenary interest independently held by each coparcener may
occur by birth or death. On the coparcener’s death, the notional partition
is drawn only to determine his coparcenary’s interest. It does not disturb
the other incidents of the coparcenary, it can continue without disruption
with other coparceners, and even new coparceners can be added on
account of birth till the time an actual partition takes place. Coparcenary
interest becomes definite only when a partition is effected.
(viii) The daughter of a coparcener in section 6 does not imply the
daughter of a living coparcener or father, as the death of the coparcener/
father does not automatically lead to the end of coparcenary, which may
continue with other coparceners alive. Thus, the coparcener, from whom
the daughter is inheriting by her being coparcener, needs not to be alive
as on the commencement of the Amendment Act of 2005.
(ix) The Explanation to Section 6(5) was not provided in the original
amendment Bill
moved before the Rajya Sabha on 20.12.2004, which
came to be added later.
(x) Often, coparceners enter into a family arrangement or oral
partition, and it may not be necessary to register such a partition.
Explanation to section 6(5) of the Amendment Act requires the partition
to be registered, was inserted to avoid any bogus or sham transactions.
Considering the entire scheme of the Amendment Act, the requirement
of registered partition deed is directory and not mandatory. Any
coparcener relying upon any family arrangement or oral partition must
prove the same by leading proper documentary evidence.
11. Shri R. Venkataramani, learned senior counsel/amicus curiae,
argued as under:
(a) There is no conflict between the decisions in Prakash v.
Phulavati (supra) and Danamma v. Suman (supra). In both the
decisions, the provisions of section 6 have been held to be of prospective
application. The amendment is a prospective one. The declaration by
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the law that the daughter of a coparcener has certain entitlements and
be subject to certain liabilities is prospective. The daughter is treated as
a coparcener under the amendment Act and not because of the
daughter’s birth prior to the amendment.
(b) Unlike the joint tenancy principle in English law, a joint Hindu
family stands on a different footing. Every son by birth became a
coparcener, and because of birth, the son became entitled to be a
coparcener in the joint Hindu family property entitled to claim partition
with or without reference to the death of the Karta of a joint Hindu
family. Like a son born into the family, an adopted son is also entitled to
succeed to the joint family property. He becomes a coparcener with
adoptive father, but his relationship with the natural family is severed,
including his status as a coparcener in the family of birth as laid down in
Nagindas Bhagwandas v. Bachoo Hurkissondas, AIR 1915 PC 41
and Nanak Chand & Ors. v. Chander Kishore & Ors., AIR 1982
Del. 520.
(c) A Hindu joint family consists of male members descended
lineally from a common male ancestor, together with their mothers, wives
or widows, and unmarried daughters bound together by the fundamental
principle of a Sapindaship of family relationship is the essence and
distinguishing feature of the institution of the coparcenary. A joint family
may consist of a single male member and widows of deceased male
members. This
body is purely a creature of law and cannot be created
by an act of parties, as observed in G. Narasimulu & Ors. v. P. Basava
Sankaram & Ors., AIR 1925 Mad. 249; and State Bank of India v.
Ghamandi Ram (dead) through Gurbax Rai, (1969) 2 SCC 33. An
undivided family which is the normal condition of Hindu society is
ordinarily joint not only in the estate but in food and worship, and, therefore,
not only the concerns of the joint family but whatever relates to their
commensality and their religious duties are regulated by the member or
by the manager to whom they have expressly or by implication delegated
the task of regulation as held in Raghunadha v. Brozo Kishore, 3 IA
154 (PC). The coparcener status being the result of birth; possession of
the joint property is only an adjunct of the joint family and is not necessary
for its constitution, as discussed in Haridas Narayandas Bhatia v.
Devkuvarbai Mulji,  AIR 1926 Bom. 408.
(d) A Hindu coparcenary is said to have seven essential
characteristics, which include that the interest of a deceased member
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survives on his death and merges in the coparcenary property as observed
in Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977)
3 SCC 385. As a result, if father or any other coparcener has died before
the Amendment Act, 2005, the interest of father or another coparcener
would have already merged in the surviving coparcenary. Consequently,
there will be no coparcener alive, from whom the daughter will succeed.
Thus, the daughter can succeed only in the interest of living coparcener
as on the date of enforcement of the Amendment Act.
(e) In Anthonyswamy v. Chhinnaswamy, (1969) 3 SCC 15, it
was observed that as a logical corollary and counter-balance to the
principle before the amendment, that the son from the moment of his
birth, acquires an interest in the coparcener, a pious obligation is imposed
on him to pay his father’s debts incurred for the purpose which is not
illegal or immoral.
(f) In Baijnath Prasad Singh & Ors. v. Tej Bali Singh, AIR
1921 PC 62, it was observed that there is a difference between
coparcenary in Hindu law, which is not identical with coparcenary as
understood under the English law. In the case of death of a member of
a coparcenary under the Mitakshara law, his right accretes to  other
members by survivorship while under the English law if one of the co-
heirs jointly inheriting property dies, his or her right goes to his or her
relations without accreting to surviving coparceners.
(g) By birth and adoption, a male
becomes a coparcener. The
custom of adoption is of ancient origin, as observed in Amarendra Man
Singh Bhramarbar & Anr. v. Sanatan Singh & Ors., AIR 1933 PC
155, and Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma
& Ors., 26 IA 113. The adoption at the relevant time was only of male
and not of a female as the custom related to succession to the property,
as discussed in Bireswar Mookerji & Ors. v. Shib Chunder Roy, 19
IA 101.
(h) By the expression used in the amended section 6, the daughter
becomes coparcener by birth. The retrospective effect is not intended
to be given to the provisions of section 6. Though equality has been
brought in, w.e.f. 2005, the incidence of birth of a daughter before 2005
is of no consequence and not to reopen the past transactions.
(i) The oral partition and family settlement are not intended to be
reopened by section 6(1) and 6(5).
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(j) If the daughter is treated as coparcener at any point of time in
the past before the amendment, the same will bring in enormous
uncertainty in the working of the law. It can be stated that the Parliament
has not intended to scramble the unscrambled egg or to resurrect the
past.
(k) Challenges to partition had always come when any member
of a coparcenary, including an adopted son, stood deprived of the
entitlement to succeed to the joint family property.
(l) The scheme of section 6 is future and forward-looking, and it
has to be interpreted in such a manner that its relevance is not diluted.
Now the rights of a coparcener have been enlarged, and the provision
has disabled it from defeating the right of a daughter from being treated
equally.
(m) In the light of the decision in Shashikalabai (Smt) v. the
State of Maharashtra & Anr., (1998) 5 SCC 332, the past transactions
cannot be reopened. Thus, the daughter, whose coparcener father, was
alive on the date of incorporation of provisions of section 6, will be treated
as a coparcener. Any other interpretation would cause unjust
consequences.
12. Shri V.V.S. Rao learned amicus curiae/senior counsel, argued
that:
(a) the logic of Prakash v. Phulavati has been upheld in
Mangammal v. T.B. Raju, (2018) 15 SCC 662.  It was held that there
should be a living daughter of a living coparcener to inherit the property
on the date of enforcement of the amended provisions of the
2005 Act.
(b) Section 6(1)(a) declares a daughter to be a coparcener by
birth. By the declaration, a daughter stands included in coparcenary. As
the declaration is to the effect that the daughter is to become coparcener
by birth, the question of prospectivity or retrospectivity will not arise —
daughter, whether born before 2005 or after that, is considered a
coparcener.
(c) Section 6(1)(b) and (c) deal with the effects of inclusion of
daughter as a coparcener. Having regard to the plain language and future
perfect tense “shall have the same rights,” the only conclusion is that the
daughters who are included in the coparcenary will have the same rights
after coming into force of the Amendment Act. The future perfect tense
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indicates that an action will have been completed (finished or perfected)
at some point in the future. This tense is formed with “will” plus “have”
plus the past participle of the verb. If the Parliament had intended to
mean as conferring the same rights in the coparcenary, anterior to the
amendment, the language would have been different.  The future perfect
tense indicates that action will have to be completed at some point in
time in the future. The tense is formed with “will” plus “have” plus the
past participle of the verb. If the Parliament intended to mean conferring
the same rights in the coparcenary, anterior to the amendment, the
language would have been different. If the daughter is now made a
coparcener, she would now have the same rights as she is a son.
(d) The legislative history of section 6 throws light in understanding
the provision before the Act of 1956 was enacted. Women were not
having any interest in the coparcenary properties, and on the demise of
a coparcener, the share of the deceased coparcener devolved on the
surviving coparceners. Hindu Succession Act made inroads into the
system. It provided that on the demise of a coparcener, his interest in the
coparcenary properties would not devolve on other coparceners by
survivorship, and the share of the deceased coparcener was to be
ascertained by way of notional partition as on the date of death. To that
limited extent, the women did not become a coparcener, but they could
inherit
the property.
(e) The 174th Report of Law Commission of India recommended
the adoption of the Kerala Model, and the amendments were effected in
Kerala, Andhra Pradesh, Karnataka, and in several States, giving
coparcenary rights to the daughters.
(f) The Parliament Standing Committee report indicates that the
Ministry proposed giving the benefit of the provision of this Bill to married
daughters after the commencement of the proposed amending legislation.
(g) It was proposed in the report that nothing in the amended
section 6 shall apply to a partition that has been effected before the
commencement of the Amendment Act.
(h) Deliberations by the Committee also indicate that concerning
the partition effected through oral means, it was opined that it would
depend upon the facts of a particular case. As per the prevailing law, it
was not necessary that a partition should be registered. There can be an
oral partition also, as the law does not prohibit it. At the same time, the
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Committee observed that the term ‘partition’ should be defined
appropriately, and for all practical purposes, should be registered or should
have been effected by a decree of the Court. In case where oral partition
is recognised, it should be backed by proper evidentiary support.
(i) The Parliament intended to confer the status of a coparcener
from the birth of a daughter. However, it was never intended to confer
her the rights in the coparcenary property retrospectively, for the following
reasons:
a. Section 6(1)(a) deals with the inclusion of a daughter in the
coparcenary “on and from the commencement of amendment
Act 2005, w.e.f. 9.9.2005;
b. The operating part of section 6(1) controls not only clause (a)
but also clauses (b) and (c);
c. Hence the daughter who is declared as coparcener from
9.9.205 would have the right in a coparcenary property only
from 9.9.2005;
d. Equally, a daughter who is now coparcener will be subject to
the same liabilities in respect of property only from 9.9.2005.
(j) Conferment of coparcenary status shall take effect on and
from the commencement “of the Amendment Act.” The use of the words
“on and from” in section 6(1) indicates that the daughter becomes
coparcener from the commencement of the Act. The daughter of a
coparcener shall by birth become a coparcener, have the same rights
and be subject to the same liabilities. The word “shall” indicates the due
status of the daughter as
coparcener is created only for the future and
would not affect the existing rights of a male coparcener. The use of the
words “become,” “have,” and “be” are all present tenses, and they
reiterate to support the above-suggested interpretation.
(k) In the Bill recommended by the Law Commission and the Bill
introduced, the Explanation to section 6(5) was not mentioned. It was
introduced only on the recommendations of the Parliamentary Committee.
Thus, the concept of partition by registered deed and decree of the Court
were introduced. It follows that on a daughter becoming coparcener
from a particular date, she cannot prospectively affect the share of a
coparcener, which was already fixed as held in Prakash v. Phulavati.
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(l) The essential condition for conferring the status of coparcener
on the daughter is that there should be a coparcenary on the date of
coming into force of the Act in 2005. If the coparcenary was disrupted
by the act of the parties or by the death of parties, in partition or sale, the
daughter could not get the status of a coparcener in coparcenary. The
status conferred cannot affect the past transactions of alienation,
disposition, partition – oral or written.
(m) Partition could be in the form of a memorandum of partition,
or it could also be made orally. In most of the families, there used to be
an oral partition. Once parties settle their rights, the partition effected
orally cannot be ignored to give shares to the daughters. Such legal
transactions cannot be unsettled; the Explanation safeguards all genuine
transactions of the past, including oral partition effected by the parties.
The Explanation should not be understood as invalidating all other
documents recording partition or oral partition in respect of coparcenary
property before 20.12.2004.
(n) Daughters conferred with the status of coparcener under the
Amendment Act cannot challenge past transactions that took place before
20.12.2004, and the daughter should be alive as on the date of amendment.
There should be ‘living coparcener’ to whom the daughter can inherit to
become a coparcener.
13. Shri Sridhar Potaraju, learned counsel, vociferously argued
that:
(a) The decision in Prakash v.
Phulavati adopted the correct
interpretation of the provision. Married daughters are not considered as
part of the father’s joint family. They were recognised as Class I heirs
that, by itself, did not make them part of their father’s joint Hindu family.
He has relied upon Surjit Lal Chhabda v. Commissioner of Income
Tax, (1976) 3 SCC 142. A married daughter ceases to be a member of
the father’s family and becomes a member of her husband’s family.
(b) As considered by P. Ramanatha Aiyar in Major Law Lexicon,
the land is held in coparcenary when there is the unity of title, possession,
and interest. A Hindu coparcenary is a narrower body than the joint
family. A coparcener shares (equally) with others in inheritance in the
estate of a common ancestor. Otherwise called parceners are such as
have an equal portion in the inheritance of an ancestor. The share of a
coparcener is undefined and keeps fluctuating with the birth and death
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of a coparcener. When a male is born, he becomes a coparcener, thereby
decreasing the share of other coparceners. In the event of the death of
a coparcener, the rule of survivorship comes into play, and the estate
devolves on the surviving coparceners to the exclusion of heirs of the
deceased coparcener. Status of a coparcener is a creation of law
commencing with birth and ending with death or by severance of such
status by way of partition or statutory fiction. The status of coparcenary
ceases on death.
(c) “Daughter of a coparcener” means the daughter of an alive
person and has the status of a coparcener on the date of commencement
of the Amendment Act. In case a statutory partition has taken place, the
same is required to be recognised. It would bring severance of jointness
of status and settle the share.
(d) If a preliminary decree of partition has been passed and has
attained finality, it must be given effect. The mere filing of a suit for
partition is sufficient to effect a partition. On separation of status, the
decree is passed by a court as held in Puttrangamma & Ors. v. M.S.
Ranganna & Ors., AIR 1968 SC  1018.
(e) What rights have been conferred by way of survivorship are
not intended to be taken away except as provided by the amended proviso
in section 6(3) of the Amendment Act.
(f) A legal fiction created in law cannot be stretched beyond the
purpose for which the fiction has been created, as held in
Mancheri
Puthusseri Ahmed & Ors. v. Kuthiravattam Estate Receiver, (1996) 6
SCC 185.
(g) Statutory partition leads to disruption. A statutory partition, as
provided in section 6(3), is to be given full effect. The same leads to
severance of status of jointness of the deceased coparcener and his
legal heirs, which shall include the right of maintenance from the joint
family of the widow of the deceased coparcener and such other rights.
Such partition brings an end to the joint family. In the case of death of
the father of petitioner in 1963, notional partition would occur and the
consequences laid down in Anar Devi & Ors. v. Parmeshwari Devi &
Ors., (2006) 8 SCC 656 would follow.
(h) The married daughters on the death of father in 1963 were
not entitled to a share in the coparcenary property. Only sons were
entitled to equal shares, and sons obtained the property by way of
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survivorship. The statutory partition under unamended Section 6 was
considered in Gurupad Khandappa Magdum v. Hirabai Khandappa
Magdum & Ors., (1978) 3 SCC 383.  Statutory partition has been in
existence in section 6 since 1956 and is continued by the 2005
Amendment.
(i) Section 6, as amended, is not applicable in the case of a daughter
whose father is not alive at the time of the introduction of provisions of
section 6. Every member of a joint Hindu family is not entitled to be a
coparcener either under the traditional Hindu law or under the Hindu
Succession Act, 1956 or the Amendment Act, 2005. Under Section 29A
introduced in the State of Andhra Pradesh, unmarried daughters were
given the rights of a coparcener while excluding married daughters. The
Central Amendment has not made a distinction based on the daughter’s
marital status expressly but has made it evident by the use of the
expression ‘joint Hindu family’ and ‘daughter of a coparcener.’ The
provisions should be read to exclude married daughters. The provisions
of section 6, as amended, are prospective. It was not intended to unsettle
the settled affairs.
(j) The Explanation to section 6(5) cannot be interpreted to take
away the rights crystallised upon the surviving coparceners of the joint
family under the statutory partition. The purpose of the Explanation was
considered in S. Sundaram Pillai & Ors. v. V. R. Pattabiraman &
Ors., (1985) 1 SCC 591 thus:
“53. Thus, from a conspectus of the
authorities referred to above,
it is manifest that the object of an Explanation to a statutory provision
is—
“(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main
enactment, to clarify the same to make it consistent with the
dominant object it seems to subserve,
(c) to provide an additional support to the dominant object of the
Act in order to make it meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change the
enactment or any part thereof but where some gap is left which is
relevant for the Explanation, in order to suppress the mischief and
advance the object of the Act it can help or assist the Court in
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interpreting the true purport and intendment of the enactment,
and
(e) it cannot, however, take away a statutory right with which any
person under a statute has been clothed or set at naught the
working of an Act by becoming an hindrance in the interpretation
of the same.”
(k) A preliminary decree determines the shares. Section 2(2) of
the Code of Civil Procedure defines ‘decree’ to mean the formal
expression, which clarifies that a decree is preliminary when further
proceedings have to be taken before the suit can be decided entirely. In
so far as the determination of individual shares to be allotted to parties to
the suit is concerned, the preliminary decree is final. After the dismissal
of Special Leave Petition (C) No.38542/2016 in Sistla Sarada Devi v.
Uppaluri Hari Narayana & Ors., the only step required to be taken is
to apportion the shares by metes and bounds in terms of the preliminary
decree which was passed. The daughters born after the commencement
of the Amendment Act become coparceners, and daughters born before
the commencement of the Amendment Act have been covered under
section 6(1)(b) and granted the same rights in coparcenary as given to a
son. The daughters born before and after the amendment covered under
section 6 are given the status of a coparcener. The status of a coparcener
to daughters cannot be given from the date of birth, and they cannot be
made liable for all the liabilities of
coparcenary property. The benefit
cannot be conferred from the date of birth as it would relate in several
cases to date of birth even in the year 1925. All liabilities are to be borne
only from the amendment; as such, the provisions are not retrospective.
(l) Even alternatively, if the status of coparcenary on the daughter
is to be conferred retrospectively, the limitations governing such legal
fiction will have to take into consideration the implications of (i) statutory
partition; (ii) court’s decree; and (iii) legitimate alienation of the property
by Karta/coparceners, prior to commencement of the Amendment Act.
All other dispositions or alienations, including any partition or testamentary
disposition of property made before 20.12.2004, are required to be saved
as earlier the daughters were not coparceners. On a statutory partition,
the property becomes the self-acquired property and is no more a
coparcenary property.
(m) Even in a case of adoption, the past transactions are saved
while applying the theory of relation back as laid down in Sripad Gajanan
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Suthankar v. Dattaram  Kashinath Suthankar & Ors., (1974) 2 SCC
156.
Thus, the provisions of section 6 are to be construed prospectively.
14. Shri Amit Pai, learned counsel, strenuously urged that:
(a) The golden rule of interpretation is required to be adopted as
laid down in Kanai Lal Sur v. Paramnidhi Sadhukhan, (1958) SCR
360. The rule of literal construction is relied upon, as observed in Lt.
Amrendra Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3
SCC 140.
(b) The substitution of the provision of section 6 dates back to the
commencement of the Principal Act of 1956. A notional partition on the
death of a coparcener to ascertain his share is not an actual partition.
The same is not saved by the proviso contained in section 6. A daughter
cannot be deprived of the right to equality as per the Statement of Objects
and Reasons. The provision of section 6 is required to be given full
effect.
(c) The decision in Prakash v. Phulavati cannot be said to be
laying down the law correctly. The concept of living daughter of a living
coparcener is adding to the text of provisions of section 6, whereas no
word can be added or read into a statute by the Court. It can only repair
errors or supply omissions. It is for the legislature to provide such a
concept of a daughter of a living coparcener. Thus, it was argued that
section 6 includes all living daughters of coparceners, irrespective of
whether such coparceners are deceased or alive at the commencement
of
the 2005 Amendment.
15. Shri Sameer Shrivastava, learned counsel, urged that:
(a) The term ‘coparcener’ is not defined in the Succession Act.
This Court considered it in SathyapremaManjunatha Gowda  (Smt) v.
Controller of Estate Duty, Karnataka, (1997) 10 SCC 684. It is a
narrower body than a joint family and consists of only those persons
who have taken by birth, an interest in the property, and can enforce a
partition, whenever they like. The daughter is entitled to share in the
property subject to the restrictions provided under sub-section (1) and
sub-section (5) of amended section 6.
(b) Section 6(3) provides a consequence of the death of a
coparcener, devolution on the death of a coparcener after the
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commencement of the Amendment Act. The concept of survivorship
has been done away. Testamentary or intestate succession has been
provided where a Hindu dies before the commencement of the
Amendment Act. The relevant provisions are section 6(1)(2), where
male Hindus are given the right by birth to become a coparcener, and
they have the right to take a partition with coparcenary property.
(c) The decision in Prakash v. Phulavati, laying down that section
6 as amended applies in case of living daughters of a living coparcener,
is arbitrary and non-est in the eye of law. Both sons and daughters of
coparceners are conferred the right of becoming coparcener by birth.
Birth in coparcenary creates interest. The only other exception is by
way of adoption. Coparcenary incident is the right to the severance of
the status of partition.
16. Ms. Anagha S. Desai, learned counsel, strenuously urged that
section 6 provides parity of rights in coparcenary property among male
and female members of a joint Hindu family on and from 9.9.2005. The
declaration in section 6 that the daughter of a coparcener shall have the
same rights and liabilities as she would have been a son is unambiguous
and unequivocal. The daughter is entitled to a share in the ancestral
property. She has relied upon Ganduri Koteshwaramma & Anr. v.
Chakiri Yanadi & Anr., (2011) 9 SCC 788.
17. When a daughter, who is claiming and demanding a share in
the coparcenary,
is alive, there is no difficulty of interpretation, irrespective
of the fact whether a coparcener has died before the commencement of
the Amendment Act. The coparcener and the daughter do not need to
be alive as on the date of the amendment. If it is to be interpreted that
coparcener and daughter both should be alive, it will defeat the very
purpose and objective of the amended provisions. Earlier, the provisions
of Hindu law treated a son as a coparcener by birth; now, daughters are
given the same rights since birth. In case partition has been effected by
metes and bounds and is adequately proved, then the daughter of
coparcenary cannot seek partition of already divided property.
In Ref. Historical Background
18. The Hindu branch of dharma is influenced by the theological
tenets of the Vedic Aryans. What is not modified or abrogated by the
legislation or constitutional provisions still prevails, the basic Hindu law
emanates from Vedas and past shrutis/smritis. Various dharma shastras
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regard custom as the basis of Hindu law as administered from time to
time. Law has advanced and made progress as per the requirements of
the society and the prevailing ethos. The justice used to be administered
by the emperors resolving the conflicts. The building of law has taken
place over time. There are two main schools of Hindu law, i.e., Mitakshara
and Dayabhaga. Mitakshara has further been sub-divided into four
schools, i.e., Benares, Mithila, Maharashtra or Bombay, and Dravida or
Madras school. Benares, Mithila, Dravida, and Maharashtra denote old
names of the territories.
19. The application of schools of Mitakshara is region-wise. There
has been re-organization of States in 1956, and after that, some confusion
has arisen concerning the administration of Bombay school and Benares
School. Benares school practically governs the whole of Northern India.
The Bombay school covers Western India and various other territories.
The certain States were re-organized by the State Reorganisation Act
of 1956. In some regions of reorganised States, given the common name,
different schools apply. Take, for example, Madhya Pradesh. It consists
of territories to which both Bombay and Benares schools are applicable.
However, various authors of Hindu law have failed to note the fact in
which parts of the State of M.P. after reorganisation which school is
applicable. A reference is found to tenets of Bombay school of Hindu
law in the entire State of M.P., whereas
Benares school is applicable in
various parts of Madhya Pradesh.  It was clarified by a Full Bench of
Madhya Pradesh High Court in Diwan Singh v. Bhaiya Lal, (1997) 2
MP LJ-202, and a Division Bench decision was relied on in FA No.31/
1968 decided on 14.12.1976. In integrating State of Madhya Bharat and
some other parts of Madhya Pradesh, Benares school is applicable, not
Bombay.
20. Mitakshara law applies to most parts of India except Bengal.
Maharashtra school prevailed in North India, Bombay school, in Western
India. However, certain areas in Southern India are governed by
Marumakkatayam, Aliyasantana, and Nambudiri systems of law.
21. Besides the various sources, custom, equity, justice, and
conscience have also played a pivotal role in the development of Hindu
law, which prevailed. When the law was silent on certain aspects, Judicial
decisions also acted as a source of law. Hindu law was not static but
always progressive. Slowly necessity was felt for the codification of
Hindu law. In particular, women’s rights were taken care of, and attempts
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were made to remove the anomalies and unscrupulous practices.
Necessity was also felt after the independence, given the constitutional
imperatives to bring about equality of status, the codified law has been
amended from time to time.The latest attempt has been made by way of
amending the Hindu Succession Act concerning rights of daughter to be
a coparcener in Mitakshara coparcenary and has been given the rights
equal to that of a son.
In Ref.Coparcenary and Joint Hindu Family
22. A joint Hindu family is a larger body than a Hindu coparcenary.
A joint Hindu family consists of all persons lineally descended from a
common ancestor and include their wives and unmarried daughters. A
joint Hindu family is one in worship and holds joint assets. After separation
of assets, the family ceases to be joint. Mere severance in food and
worship is not treated as a separation, as observed in Sri Raghunadha
v. Sri Brozo Kishore, 1876 (1) Mad. 69 = 3 IA 154.
23. Hindu coparcenary is a much narrower body. It consists of
propositus and three lineal descendants. Before 2005, it included only
those persons like sons, grandsons, and great-grandsons who are the
holders of joint property. For example, in case A is holding the property,
B is his son, C is his grandson, D is great-grandson, and E is a great-
great-grandson. The coparcenary will be formed up to D, i.e., great-
grandsons, and only on the death of A, holder of the property, the
right of
E would ripen in coparcenary as coparcenary is confined to three lineal
descendants. Since grandsons and great-grandsons become coparceners
by birth, they acquired an interest in the property.
24. Coparcenary property is the one which is inherited by a Hindu
from his father, grandfather, or great grandfather. Property inherited
from others is held in his rights and cannot be treated as forming part of
the coparcenary. The property in coparcenary is held as joint owners.
25. Coparcener heirs get right by birth.  Another method to be a
coparcener is by way of adoption. As earlier, a woman could not be a
coparcener, but she could still be a joint family member. By substituted
section 6 with effect from 09.09.2005 daughters are recognised as
coparceners in their rights, by birth in the family like a son. Coparcenary
is the creation of law. Only a coparcener has a right to demand partition.
Test is if a person can demand a partition, he is a coparcener not
otherwise. Great great-grandson cannot demand a partition as he is not
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a coparcener. In a case out of three maledescendants, one or other has
died, the last holder, even a fifth descendant, can claim partition. In case
they are alive, he is excluded.
In Ref. Formation of Coparcenary
26. For interpreting the provision of section 6, it is necessary to
ponder how coparcenary is formed. The basic concept of coparcenary
is based upon common ownership by coparceners. When it remains
undivided, the share of the coparcener is not certain. Nobody can claim
with precision the extent of his right in the undivided property. Coparcener
cannot claim any precise share as the interest in coparcenary is
fluctuating. It increases and diminishes by death and birth in the family.
27. In Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988) 2
SCC 77, the Court discussed essential features of coparcenary of birth
and sapindaship thus:
“17. Those who are of individualistic attitude and separate
ownership may find it hard to understand the significance of a
Hindu joint family and joint property. But it is there from the ancient
time perhaps, as a social necessity. A Hindu joint family consists
of male members descended lineally from a common male
ancestor, together with their mothers, wives or widows and
unmarried daughters. They are bound together by the fundamental
principle of sapindaship or family relationship, which is the essential
feature of the institution. The cord that knits the members of the
family is not property but the relationship of one
another.
18.The coparcenary consists of only those persons who have taken
by birth an interest in the property of the holder and who can
enforce a partition whenever they like. It is a narrower body than
a joint family. It commences with a common ancestor and includes
a holder of joint property and only those males in his male line
who are not removed from him by more than three degrees. The
reason why coparcenership is so limited is to be found in the tenet
of the Hindu religion that only male descendants up to three degrees
can offer spiritual ministration to an ancestor. Only males can be
coparceners. [See: Hindu Law by N.R. Raghavachariar, 8th Edn.,
p. 202]”
                         (emphasis supplied)
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28. In case coparcenary property comes to the hands of a ‘single
person’ temporarily, it would be treated as his property, but once a son is
born, coparcenary would revive in terms of the Mitakshara law. In Sheela
Devi v. Lal Chand, (2006) 8 SCC 581, it was observed:
“12. The principle of law applicable in this case is that so long a
property remains in the hands of a single person, the same was to
be treated as separate property, and thus such a person would be
entitled to dispose of the coparcenary property as the same were
his separate property, but, if a son is subsequently born to him or
adopted by him, the alienation whether it is by way of sale,
mortgage or gift, will nevertheless stand, for a son cannot object
to alienations so made by his father before he was born or begotten
(See C. Krishna Prasad v. CIT, (1975) 1 SCC 160). But once a
son is born, it becomes a coparcenary property, and he would
acquire an interest therein.”
In M. Yogendra & Ors. v. Leelamma N. & Ors., (2009) 15 SCC
184, similar opinion was expressed thus:
“29. It is now well settled in view of several decisions of this
Court that the property in the hands of a sole coparcener allotted
to him in partition shall be his separate property for the same shall
revive only when a son is born to him. It is one thing to say that
the property remains a coparcenary property but it is another thing
to say that it revives. The distinction between the two
is absolutely
clear and unambiguous. In the case of former any sale or alienation
which has been done by the sole survivor coparcener shall be
valid whereas in the case of a coparcener any alienation made by
the karta would be valid.”
 (emphasis supplied)
In Smt. Sitabai & Anr. v. Ramchandra, AIR 1970 SC 343, it was
held:
“3. x x x  under the Hindu system of law a joint family may consist
of a single male member and widows of deceased male members
and that the property of a joint family did not cease to belong to a
joint family merely because the family is represented by a single
coparcener who possesses rights which an absolute owner of
property may possess…..”
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In Dharma ShamraoAgalawe v. Pandurang Miragu Agalwe
& Ors., (1988) 2 SCC 126, it was held that joint family property retains
its character even after its passing on to the hands of a sole surviving
coparcener. If a son is subsequently born or adopted, the coparcenary
will survive, subject to saving the alienations made in the interregnum.
29. In Ghamandi Ram (supra), the formation, concept and
incidents of the coparcenary were discussed thus:
“5. According to the Mitakshara School of Hindu Law all the
property of a Hindu joint family is held in collective ownership by
all the coparceners in a quasi-corporate capacity. The textual
authority of the Mitakshara lays down in express terms that the
joint family property is held in trust for the joint family members
then living and thereafter to be born (see Mitakshara, Ch. I, 1-
27). The incidents of co-parcenership under the Mitakshara law
are: first, the lineal male descendants of a person up to the third
generation, acquire on birth ownership in the ancestral properties
of such person; secondly, that such descendants can at any time
work out their rights by asking for partition; thirdly, that till partition
each member has got ownership extending over the entire property,
conjointly with the rest; fourthly, that as a result of such co-
ownership the possession and enjoyment of the properties is
common; fifthly, that no alienation of the property is possible unless
it be for necessity, without the concurrence
of the coparceners,
and sixthly, that the interest of a deceased member lapses on his
death to the survivors. A coparcenary under the Mitakshara School
is a creature of law and cannot arise by Act of parties except in
so far that on adoption the adopted son becomes a coparcener
with his adoptive father as regards the ancestral properties of the
latter. In Sundaranam Maistri v. Harasimbhulu Maistri and
Another, ILR 25 Mad 149 at 154.
Mr Justice Bhashyam Ayyangar stated the legal position thus:
“The Mitakshara doctrine of joint family property is founded
upon the existence of an undivided family, as a corporate body
(Gan Savant Bal Savant v. Narayan Bhond Savant) [ILR 7
Bom 467] and Mayne’s ‘Hindu Law and Usage’, (6th
edition,Paragraph 270) and the possession of property by such
corporate body. The first requisite therefore is the family unit;
and the possession by it of property is the second requisite. For
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the present purpose, female members of the family may be left
out of consideration and the conception of a Hindu family is a
common male ancestor with his lineal descendants in the male
line, and so long as that family is in its normal condition viz. the
undivided state — it forms a corporate body. Such corporate body,
with its heritage, is purely a creature of law and cannot be created
by Act of parties, save in so far that, by adoption, a stranger may
be affiliated as a member of that corporate family.”
6. Adverting to the nature of the property owned by such a family
the learned Judge proceeded to state:
“As regards the property of such family, the ‘unobstructed
heritage’ devolving on such family, with its accretions, is owned
by the family, as a corporate body, and one or more branches of
that family, each forming a corporate body within a larger
corporate body, may possess separate ‘unobstructed heritage’
which, with its accretions, may be exclusively owned by such
branch as a corporate body.”
(emphasis supplied)
30. Essential characteristics of coparcenary, as discussed in the
above-mentioned decision in Ghamandi Ram (supra), were analysed in
Controller of Estate Duty v. Alladi Kuppuswamy, (supra), thus:
“8. ….
“Thus analysing the ratio of the aforesaid case regarding the
incidents of a Hindu coparcenary it would appear that a Hindu
coparcenary has six essential characteristics, namely, (1) that
the lineal male
descendants up to the third generation acquire
an independent right of ownership by birth and not as
representing their ancestors; (2) that the members of the
coparcenary have the right to work out their rights by demanding
partition; (3) that until partition, each member has got ownership
extending over the entire property conjointly with the rest and
so long as no partition takes place, it is difficult for any
coparcener to predicate the share which he might receive; (4)
that as a result of such co-ownership the possession and
enjoyment of the property is common; (5) that there can be no
alienation of the property without the concurrence of the other
coparceners unless it be for legal necessity; and (6) that the
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interest of a deceased member lapses on his death and merges
in the coparcenary property. Applying these tests to the interest
of a Hindu widow who has been introduced into a coparcenary
by virtue of the Act of 1937, we find that, excepting Condition
(1), all other conditions are fully satisfied in case of a Hindu
widow succeeding to the interest of her husband in a Hindu
coparcenary. In other words, after her husband’s death the
Hindu widow under the Act of 1937 has got the right to demand
partition, she cannot predicate the exact share which she might
receive until partition is made, her dominion extends to the
entire property conjointly with the other members of the
coparcenary, her possession and enjoyment is common, the
property cannot be alienated without concurrence of all the
members of the family, except for legal necessity, and like other
coparceners she has a fluctuating interest in the property which
may be increased or decreased by deaths or additions in the
family. It is manifest that she cannot fulfil the first condition,
because she enters the coparcenary long after she is born and
after she is married to her husband and acquires his interest on
his death. Thus, short of the first condition, she possesses all
the necessary indicia of a coparcenary interest. The fact that
before the Act of 1956, she had the characteristic of a widow-
estate in her interest in the property does not detract any the
less from this position. It must follow as a
logical corollary that
though a Hindu widow cannot be a coparcener, she has
coparcenary interest and she is also a member of the
coparcenary by virtue of the rights conferred on her under the
Act of 1937.”
31. In Controller of Estate Duty (supra), it has also been laid
down that if a widow does not exercise her right of partition, there is no
severance of the Hindu coparcenary and on her death, the interest of
the widow merges in the coparcenary property or lapses to the other
coparceners. It was observed that the male issue of coparcener acquires
an interest in the coparcenary by birth, not as representing his father.
32. This Court in Controller of Estate Duty (supra), placed reliance
on Satrughan Isser v. Sabujpari, & Ors., AIR 1967 SC 272. In case
the right to partition by a widow has not been exercised, there is no
severance of Hindu coparcenary, and on death of coparcener, there is
no dissolution of coparcenary. In Satrughan (supra), it was held:
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“7. By the Act certain antithetical concepts are sought to be
reconciled. A widow of a coparcener is invested by the Act with
the same interest which her husband had at the time of his death
in the property of the coparcenary. She is thereby introduced into
the coparcenary, and between the surviving coparceners of her
husband and the widow so introduced, there arises community of
interest and unity of possession. But the widow does not on that
account become a coparcener: though invested with the same
interest which her husband had in the property she does not acquire
the right which her husband could have exercised over the interest
of the other coparceners. Because of statutory substitution of her
interest in the coparcenary property in place of her husband, the
right which the other coparceners had under the Hindu law of the
Mitakshara school of taking that interest by the rule of survivorship
remains suspended so long as that estate enures. But on the death
of a coparcener there is no dissolution of the coparcenary so as to
carve out a defined interest in favour of the widow in the
coparcenary property: Lakshmi Perumallu v. Krishnavanamma.
The interest acquired by her under Section 3(2) is subject to the
restrictions on alienation which are inherent in her estate. She has
still power to make her interest definite by making a demand for
partition, is a male owner may. If the widow after being introduced
into
family to which her husband belonged does not seek partition,
on the termination of her estate her interest will merge into the
coparcenary property. But if she claims partition, she is severed
from the other members and her interest becomes a defined
interest in the coparcenary property, and the right of the other
coparceners to take that interest by survivorship will stand
extinguished. If she dies after partition or her estate is otherwise
determined, the interest in coparcenary property which has vested
in her will devolve upon the heirs of her husband. It is true that a
widow obtaining an interest in coparcenary property by Section
3(2) does not inherit that interest but once her interest has ceased
to have the character of undivided interest in the property, it will
upon termination of her estate devolve upon her husband’s heirs.
To assume as has been done in some decided cases that the right
of the coparceners to take her interest on determination of the
widow’s interest survives even after the interest has become
definite, because of a claim for partition, is to denude the right to
claim partition of all reality.”
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33. In Bhagwan Dayal (since deceased) & Anr. v. Mst. Reoti
Devi, AIR 1962 SC 287, it was held that coparcenary is a creature of
law and branch of the family was a subordinate corporate body and
discussed the proposition thus:
“47. x xxCoparcenary is a creature of Hindu law and cannot be
created by agreement of parties except in the case of reunion. It
is a corporate body or a family unit. The law also recognizes a
branch of the family as a subordinate corporate body. The said
family unit, whether the larger one or the subordinate one, can
acquire, hold and dispose of family property subject to the limitations
laid down by law. Ordinarily, the manager, or by consent, express
or implied, of the members of the family, any other member or
members can carry on business or acquire property, subject to
the limitations laid down by the said law, for or on behalf of the
family. Such business or property would be the business or property
of the family. The identity of the members of the family is not
completely lost in the family. One or more members of that family
can start a business or acquire property without the aid of the
joint family property, but such business or acquisition would be his
or their acquisition. The business so started or property so acquired
can be thrown into the common stock or blended with the joint
family property in which case the said property becomes the estate
of the joint family. But he or they need not do so, in which case
the said
property would be his or their self-acquisition, and
succession to such property would be governed not by the law of
joint family but only by the law of inheritance. In such a case, if a
property was jointly acquired by them, it would not be governed
by the law of joint family; for Hindu law does not recognize some
of the members of a joint family belonging to different branches,
or even to a single branch, as a corporate unit. Therefore, the
rights inter se between the members who have acquired the said
property would be subject to the terms of the agreement
whereunder it was acquired. The concept of joint tenancy known
to English law with the right of survivorship is unknown to Hindu
law except in regard to cases specially recognized by it. In the
present case, the uncle and the two nephews did not belong to the
same branch. The acquisitions made by them jointly could not be
impressed with the incidents of joint family property. They can
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only be co-sharers or co-tenants, with the result that their properties
passed by inheritance and not by survivorship.”
(emphasis supplied)
34. In Kalyanji Vithaldas & Ors. v. Commissioner of Income
Tax, Bengal, AIR 1937 PC 36, the concept of Hindu Undivided Family
was considered thus:
“ …….. The phrase “Hindu undivided family” is used in the statute
with reference, not to one school only of Hindu law, but to all
schools; and their Lordships think it a mistake in method to begin
by pasting over the wider phrase of the Act the words “Hindu
coparcenary”-all the more that it is not possible to say on the face
of the Act that no female can be a member.  …..”
(emphasis supplied)
In Gowli Buddanna v. Commissioner of Income Tax, Mysore,
AIR 1966 SC 1523, it was held that coparcenary is narrower body than
joint family thus:
“6. x x x A Hindu joint family consists of all persons lineally
descended from a common ancestor and includes their wives and
unmarried daughters. A Hindu coparcenary is a much narrower
body than the joint family: it includes only those persons who
acquire by birth an interest in the joint or coparcenary property,
these being the sons, grandsons, and great-grandsons of the holder
of the joint property for the time being.Therefore there may be a
joint Hindu family consisting of a single male member and widows
of deceased coparceners. x xx”
(emphasis supplied)
The difference between joint Hindu family and
coparcenary was
considered in Surjit Lal Chhabda v. The Commissioner of Income
Tax, Bombay, (supra) thus:
“13. Outside the limits of coparcenary, there is a fringe of persons,
males and females, who constitute an undivided or joint family.
There is no limit to the number of persons who can compose it
nor to their remoteness from the common ancestor and to their
relationship with one another. A joint Hindu family consists of
persons lineally descended from a common ancestor and includes
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their wives and unmarried daughters. The daughter, on marriage,
ceases to be a member of her father’s family and becomes a
member of her husband’s family. The joint Hindu family is thus a
larger body consisting of a group of persons who are united by
the tie of sapindaship arising by birth, marriage or adoption:
“The fundamental principle of the Hindu joint family is
the sapindaship. Without that it is impossible to form a joint
Hindu family. With it as long as a family is living together, it is
almost impossible not to form a joint Hindu family. It is the
family relation, the sapinda relation, which distinguishes the
joint family, and is of its very essence, (1908) 32 Bom. 479.””
(emphasis supplied)
35. In State of Maharashtra v. Narayan Rao Sham Rao
Deshmukh & Ors., (1985) 2 SCC 321, characteristics of joint family
and coparcenary were culled out. It was also held that interest of a
female member of a joint Hindu family getting fixed, on her inheriting
interest of a deceased male member of the family. She would not cease
to be a member of family unless she chooses to become separate by
partition, thus:
“8. A Hindu coparcenary is, however, a narrower body than the
joint family. Only males who acquire by birth an interest in the
joint or coparcenary property can be members of the coparcenary
or coparceners. A male member of a joint family and his sons,
grandsons and great grandsons constitute a coparcenary, A
coparcener acquires right in the coparcenary
property by birth
but his right can be definitely ascertained only when a partition
takes place. When the family is joint, the extent of the share of a
coparcener cannot be definitely predicated since it is always
capable of fluctuating. It increases by the death of a coparcener
and decreases on the birth of a coparcener. A joint family, however,
may consist of female members. It may consist of a male member,
his wife, his mother and his unmarried daughters. The property of
a joint family does not cease to belong to the family merely because
there is only a single male member in the family. (See
GowliBuddanna v. CIT, AIR 1966 SC 1523 and Sitabai v. Ram
Chandra, (1969) 2 SCC 544). A joint family may consist of a
single male member and his wife and daughters. It is not necessary
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that there should be two male members to constitute a joint family.
(See N.V. Narendranath v. C.W.T.,  (1969) 1 SCC 748). While
under the Mitakshara Hindu law there is community of ownership
and unity of possession of joint family property with all the members
of the coparcenary, in a coparcenary governed by the Dayabhaga
law, there is no unity of ownership of coparcenary property with
the members thereof. Every coparcener takes a defined share in
the property and he is the owner of that share. But there is,
however, unity of possession. The share does not fluctuate by
births and deaths. Thus it is seen that the recognition of the right
to a definite share does not militate against the owners of the
property being treated as belonging to a family in the Dayabhaga
law.
10. We have carefully considered the above decision and we feel
that this case has to be treated as an authority for the position that
when a female member who inherits an interest in the joint family
property under Section 6 of the Act files a suit for partition
expressing her willingness to go out of the family she would be
entitled to get both the interest she has inherited and the share
which would have been notionally allotted to her, as stated in
Explanation I to Section 6 of the Act. But it cannot be an authority
for the proposition that she ceases to be a member of the family
on the death of a male member of the family whose interest in the
family property devolves on her without her volition to separate
herself from the family. A legal fiction should no doubt ordinarily
be carried to its logical end to carry out the purposes for which it
is enacted but it cannot be carried beyond that. It is no doubt true
that the right of a female heir to the interest inherited by her in the
family property gets fixed on the death of a male member under
Section 6 of the Act but she cannot be treated as having ceased
to be a member of the family without her volition as otherwise it
will lead to strange results which could not have been in the
contemplation of Parliament when it enacted that provision and
which might also not be in the interest of such female heirs. To
illustrate, if what is being asserted is accepted as correct it may
result in the wife automatically being separated from her husband
when one of her sons dies leaving her behind as his heir. Such a
result does not follow from the language of the statute. In such an
event she should have the option to separate herself or to continue
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in the family as long as she wishes as its member though she has
acquired an indefeasible interest in a specific share of the family
property which would remain undiminished whatever may be the
subsequent changes in the composition of the membership of the
family. As already observed the ownership of a definite share in
the family property by a person need not be treated as a factor
which would militate against his being a member of a family. We
have already noticed that in the case of a Dayabhaga family, which
recognises unity of possession but not community of interest in
the family properties amongst its members, the members thereof
do constitute a family. That might also be the case of families of
persons who are not Hindus. In the instant case the theory that
there was a family settlement is not pressed before us. There
was no action taken by either of the two females concerned in
the case to become divided from the remaining members of the
family. It should, therefore, be held that notwithstanding the death
of Sham Rao the remaining members of the family continued to
hold the family properties together though the individual interest
of the female members thereof in the family properties had become
fixed.”
(emphasis supplied)
36. The essential feature is aggregate ownership, i.e., ‘Samudavika
Swatwa’  in coparcenary and the share keeps on fluctuating, was
observed in Commissioner of Income Tax, Poona v. H.H. Raja of
Bhor, (1967) (65) ITR 634 thus:
“…… no individual member of a Hindu coparcenary, while it
remains undivided, can predicate of the joint and undivided
property, that he, or any particular member, has a definite share,
one-third or one-fourth – (Lord Westbury in Approvier v. Rama
Subha Aiyan, (1866 11 MIA 75).  His interest in the coparcenary
property is a fluctuating interest which is capable of being enlarged
by death in the family.  It is only on partition that the coparcener is
entitled to a definite share.  But the important thing to notice is
that the theory of ownership being acquired by birth has given
rise to the doctrine of Samudavika swatwaor aggregate
ownership in the Mitakshara school.  Till partition therefore all the
coparceners have got rights extending over the entirety of the
coparcenary property……”
 (emphasis supplied)
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37. In Vellikannu v. R. Singaperumal & Anr., (2005) 6 SCC
622, this Court restated that the share of a member of a coparcenary
fluctuates from time to time is a settled proposition of law. It was held:
“11. So far as the property in question is concerned, there is a
finding of the courts below that the property is a coparcenary
property and if that being so, if Defendant 1 had not murdered his
father then perhaps things would have taken a different shape.
But what is the effect on the succession of the property of the
deceased father when the son has murdered him? If he had not
murdered his father he would have along with his wife succeeded
in the matter. So far as the rights of coparceners in the Mitakshara
law are concerned, the son acquires by birth or adoption a vested
interest in all coparcenary property whether ancestral or not and
whether acquired before or after his birth or adoption, as the case
may be, as a member of a joint family. This is the view which has
been accepted by all the authors of the Hindu law. In the famous
principles of Mulla, 15th Edn. (1982) at pp. 284 and 285, the
learned author has stated thus:
“The essence of a coparcenary under the Mitakshara
law is unity of ownership. The ownership of the coparcenary
property is in the whole body of coparceners. According to the
true notion of an undivided family governed by the Mitakshara
law, no individual member of that family, whilst it remains
undivided, can predicate, of the joint and undivided property,
that he, that particular member, has a definite share, one-third
or one-fourth. His interest is a fluctuating interest, capable of
being enlarged by deaths in the family, and liable to be diminished
by births in the family. It is only on a partition that he becomes
entitled to a definite share. The most appropriate term to describe
the interest of a coparcener in coparcenary property is
‘undivided coparcenary interest’. The nature and extent of that
interest is defined in Section 235. The rights of each coparcener
until a partition takes place consist in a common possession
and common enjoyment of the coparcenary property. As
observed by the Privy Council in Katama Natchiar v. Rajah
of Shivagunga, (1863) 9 MIA 543, ‘there is community of
interest and unity of possession between all the members of
the family, and upon the death of any one of them the others
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may well take by survivorship that in which they had during
the deceased’s lifetime a common interest and a common
possession’.”
13. In N.R. Raghavachariar’s Hindu Law — Principles and
Precedents, 8th Edn. (1987) at p. 230 under the heading “Rights of
Coparceners” it is said thus:
“The following are the rights of a coparcener.—(1) Right
by birth, (2) Right of survivorship, (3) Right to partition, (4) Right
to joint possession and enjoyment, (5) Right to restrain unauthorised
acts, (6) Right of alienation, (7) Right to accounts, and (8) Right
to make self-acquisition.”
While dealing with “Right by Birth” learned author says thus:
“Every coparcener gets an interest by birth in the
coparcenary property. This right by birth relates back to the date
of conception. This, however, must not be held to negative the
position that coparcenary property may itself come into existence
after the birth of the coparcener concerned.”
While dealing with right of survivorship, it is said thus:
“The system of a joint family with its incident of succession
by survivorship is a peculiarity of the Hindu law. In such a family
no member has any definite share and his death or somehow
ceasing to be a member of the family causes no change in the
joint status of the family. Where a coparcener dies without male
issue his interest in the joint family property passes to the other
coparceners by survivorship and not by succession to his own
heir. Even where a coparcener becomes afflicted
with lunacy
subsequent to his birth, he does not lose his status as a coparcener
which he has acquired by his birth, and although his lunacy may
under the Hindu law disqualify him from demanding a share in a
partition in his family, yet where all the other coparceners die and
he becomes the sole surviving member of the coparcenary, he
takes the whole joint family property by survivorship, and becomes
a fresh stock of descent to the exclusion of the daughter of the
last predeceased coparcener, a case of leprosy of the last surviving
coparcener. The beneficial interest of each coparcener is liable to
fluctuation, increasing by the death of another coparcener and
decreasing by the birth of a new coparcener.”
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Therefore, it is now settled that a member of a coparcenary
acquires a right in the property by birth. His share may fluctuate
from time to time but his right by way of survivorship in
coparcenary property in Mitakshara law is a settled proposition.
(emphasis supplied)”
38. In Rohit Chauhan v. Surinder Singh & Ors., (2013) 9 SCC
419, the concept of coparcenary of sharing equally with others and no
definite share, was discussed thus:
“11. We have bestowed our consideration to the rival submissions
and we find substance in the submission of Mr Rao. In our opinion
coparcenary property means the property which consists of
ancestral property and a coparcener would mean a person who
shares equally with others in inheritance in the estate of common
ancestor. Coparcenary is a narrower body than the joint Hindu
family and before the commencement of the Hindu Succession
(Amendment) Act, 2005, only male members of the family used
to acquire by birth an interest in the coparcenary property. A
coparcener has no definite share in the coparcenary property but
he has an undivided interest in it and one has to bear in mind that
it enlarges by deaths and diminishes by births in the family. It is
not static. We are further of the opinion that so long, on partition
an ancestral property remains in the hand of a single person, it
has to be treated as a separate property and such a person shall
be entitled to dispose of the coparcenary
property treating it to be
his separate property but if a son is subsequently born, the alienation
made before the birth cannot be questioned. But, the moment a
son is born, the property becomes a coparcenary property and
the son would acquire interest in that and become a coparcener.”
(emphasis supplied)”
39. A similar view was taken in Thamma Venkata Subramma
(dead) by LR v. Thamnma Ratamma & Ors., (1987) 3 SCC 294, that
the share is not defined in coparcenary. It keeps on fluctuating on death
and birth in the family.
40. It is only on actual partition a coparcener becomes entitled to
a definite share. The interest of a coparcener is called “undivided
coparcenary interest,” which remains undivided as held by the Privy
Council in Katama Natchiar v. Srimat Rajah Moottoo Vijaya
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Raganadha Bodha Gooroo Swamy Periya Odaya Taver, (1863) 9
MIA 543.
In Shankara Cooperative Housing Society Ltd. v. M.
Prabhakar &Ors., (2011) 5 SCC 607, it was observed that coparcenary
be collective ownership. If a suit for recovery of property is filed, it is
for the benefit of all co-owners. The position of ownership of co-
ownership property indicates a change when actual division takes place,
and co-owner’s share becomes identifiable. In Shankara Cooperative,
it was observed:
“85. Shri Ranjit Kumar, learned Senior Counsel, contends that
the writ petition was filed by one of the co-owners of late Mandal
Buchaiah and judgment and order passed would not bind the other
parties. We cannot agree. It is a settled law that no co-owner has
a definite right, title and interest in any particular item or portion
thereof. On the other hand, he has right, title and interest in every
part and parcel of the joint property or coparcenary under Hindu
law by all the coparceners. Our conclusion is fortified by the view
expressed by this Court in A. Viswanatha Pillai v. Tahsildar
(LA), (1991) 4 SCC 17 in which this Court observed: (SCC p. 21,
para 2)
“2. … It is settled law that one of the co-owners can file a
suit and recover the property against strangers and the decree
would enure to all the co-owners. It is equally settled law that no
co-owner has a definite right, title and interest in any particular
item or a portion thereof. On the other hand he has right, title
and
interest in every part and parcel of the joint property or coparcenary
under Hindu law by all the coparceners. In KantaGoel v. B.P.
Pathak, (1977) 2 SCC 814, this Court upheld an application by
one of the co-owners for eviction of a tenant for personal occupation
of the co-owners as being maintainable. The same view was
reiterated in Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184,
and Pal Singh v. Sunder Singh, (1989) 1 SCC 444. A co-owner
is as much an owner of the entire property as a sole owner of the
property. It is not correct to say that a co-owner’s property was
not its own. He owns several parts of the composite property
along with others and it cannot be said that he is only a part owner
or a fractional owner in the property. That position will undergo a
change only when partition takes place and division was effected
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by metes and bounds. Therefore, a co-owner of the property is
an owner of the property acquired but entitled to receive
compensation pro rata.””
(emphasis supplied)
41. In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, (1986)
1 SCC 366, a 3-Judge Bench of this Court held that character of a joint
family property does not change with the severance in the status of the
joint family before an actual partition takes place. It was observed thus:
“14. …The character of any joint family property does not change
with the severance of the status of the joint family and a joint
family property continues to retain its joint family character so
long as the joint family property is in existence and is not partitioned
amongst the co-sharers. By a unilateral act it is not open to any
member of the joint family to convert any joint family property
into his personal property.”
42. In Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari
Kuer & Anr., AIR 1952 SC 72, it was held that once a coparcener
separates himself from other members of the joint family, there is no
presumption that rest of the coparceners continued to be joint, it would
be a question of fact in each case. Following discussion was made:
“7. x xx The general principle undoubtedly is that a Hindu family
is presumed to be joint unless the contrary is proved, but ……where
it is admitted that one of the coparceners did separate himself
from the other members of the joint
family and had his share in
the joint property partitioned off for him, there is no presumption
that the rest of the coparceners continued to be joint. There is no
presumption on the plaintiff’s side too that because one member
of the family separated himself, there has been separation with
regard to all. It would be a question of fact to be determined in
each case upon the evidence relating to the intention of the parties
whether there was a separation amongst the other coparceners
or that they remained united. The burden would undoubtedly lie
on the party who asserts the existence of a particular state of
things on the basis of which he claims relief….”
In Ref. Unobstructed and obstructed heritage
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43. In Mitakshara coparcenary, there is unobstructed heritage,
i.e., apratibandhadaya and obstructed heritage i.e., sapratibandhadaya.
When right is created by birth is called unobstructed heritage. At the
same time, the birthright is acquired in the property of the father,
grandfather, or great grandfather. In case a coparcener dies without
leaving a male issue, right is acquired not by birth, but by virtue of there
being no male issue is called obstructed heritage. It is obstructed because
the accrual of right to it is obstructed by the owner’s existence. It is only
on his death that obstructed heritage takes place. Mulla on Hindu Law
has discussed the concept thus:
“216. Obstructed and unobstructed heritage. – Mitakshara
divides property into two classes, namely, apratibandha daya or
unobstructed heritage, and sapratibandha daya or obstructed
heritage.
(1) Property in which a person acquires an interest by birth
is called unobstructed heritage, because the accrual of the right to
it is not obstructed by the existence of the owner.
Thus, property inherited by a Hindu from his father, father’s
father, or father’s father’s father, but not from his maternal
grandfather,1 is unobstructed heritage as regards his own male
issue, i.e., his son, grandson, and great-grandson.2 His male issues
acquire an interest in it from the moment of their birth.  Their right
to it arises from the mere fact of their birth in the family, and they
become coparceners with their
paternal ancestor in such property
immediately on their birth, and in such cases ancestral property is
unobstructed heritage.
Property, the right to which accrues not by birth but on the
death of the last owner without leaving a male issue, is called
obstructed heritage.  It is called obstructed, because the accrual
of  right to it is obstructed by the existence of the owner.
Thus, property which devolves on parents, brothers,
nephews, uncles, etc. upon the death of the last owner, is obstructed
1Muhamad Hussain v. Babu Kishava Nandan Sahai, (1937) 64 IA 250 : (1937) All 655:
39 Bom LR 979: 169 IC 1: AIR 1937 PC 223; Om Prakash v. Sarvjit Singh, AIR 1995
MP 92 (property inherited from person other than father, father’s father, or father’s
father’s father is obstructed heritage).
2Sirtaji v. Algu Upadhiya, (1937) 12 Luck 237: 163 IC 935: AIR 1936 Ori 331.
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heritage. These relations do not take a vested interest in the
property by birth. Their right to it arises for the first time on the
death of the owner. Until then, they have a mere spes successionis,
or a bare chance of succession to the property, contingent upon
their surviving the owner.3
(2)  Unobstructed heritage devolves by survivorship;
obstructed heritage, by succession. There are, however, some
cases in which obstructed heritage is also passed by survivorship.”
44. It is apparent that unobstructed heritage takes place by birth,
and the obstructed heritage takes place after the death of the owner. It
is significant to note that under section 6 by birth, right is given that is
called unobstructed heritage. It is not the obstructed heritage depending
upon the owner’s death. Thus, coparcener father need not be alive on
9.9.2005, date of substitution of provisions of Section 6.
In Ref. Section 6 of the Act of 1956
45. Section 6 of the Act of 1956 before the substitution by
Amendment Act, 2005 is reproduced hereunder :
“6.  Devolution of interest in coparcenary property.—When a
male Hindu dies after the commencement of this Act, having
at the time of his death an interest in a Mitakshara
coparcenary property, his interest in the property shall devolve
by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female
relativespecified 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.
Explanation I.—For the purposes of this section, the interest
of a HinduMitakshara 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
3Mitakshara, Ch.I, S 1, v 3.
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his death, irrespective of whether he was entitled to claim
partition or not.”
46. The substituted provision of section 6 by the Amendment Act,
2005 is extracted hereunder:
“6.   Devolution of interest in coparcenary property.-
 (1) On and from the commencement of the Hindu Succession
(Amendment) Act, 2005 , in a Joint Hindu family governed by the
Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same
manner as the son;
(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:
Provided that nothing contained in this sub- section shall affect or
invalidate any disposition or alienation including any partition or
testamentary disposition of property which had taken place before
the 20th day of December, 2004 .
(2) Any property to which a female Hindu becomes entitled by
virtue of sub- section (1) shall be held by her with the incidents of
coparcenary ownership and shall be regarded, notwithstanding
anything contained in this Act, or any other law for the time being
in force, as property capable of being disposed of by her by
testamentary disposition.
(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,-
(a) the daughter is allotted the same share as is allotted to a son;
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(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
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.
(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.
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.
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(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.’.”
47. Statement of Objects and Reasons behind the introduction of
Bill is reproduced as under:
          “STATEMENT OF OBJECTS AND REASONS
The Hindu Succession Act, 1956 has amended and codified
the law relating to intestate succession among Hindus. The Act
brought about changes in the law of succession among Hindus
and gave rights which were till then unknown in relation to women’s
property. However, it does not interfere with the special rights of
those who are members of Hindu Mitakshara coparcenary except
to provide rules for devolution of the interest of a deceased male
in certain cases. The Act lays down a uniform and comprehensive
system of inheritance and applies, inter alia, to persons governed
by the Mitakshara and Dayabhaga schools and also to those
governed previously by the Murumakkattayam, Aliyasantana and
Nambudri laws. The Act applies to every person who is a Hindu
by religion in any of its forms or developments including a
Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana
or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by
religion; or to any other person who
is not a Muslim, Christian,
Parsi or Jew by religion. In the case of a testamentary disposition,
this Act does not apply and the interest of the deceased is governed
by the Indian Succession Act, 1925.
2. Section 6 of the Act deals with devolution of interest of a male
hindu in coparcenary property and recognises the rule of devolution
by survivorship among the members of the coparcenary. The
retention of the Mitakashara coparcenary property without
including the females in it means that the females cannot inherit in
ancestral property as their male counterparts do. The law by
excluding the daughter from participating in the coparcenary
ownership not only contributes to her discrimination on the ground
of gender but also has led to oppression and negation of her
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fundamental right of equality guaranteed by the Constitution. having
regard to the need to render social justice to women, the States of
Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have
made necessary changes in the law giving equal right to daughters
in Hindu Mitakshara coparcenary property. The Kerala Legislature
has enacted the Kerala Joint Hindu Family System (Abolition)
Act, 1975.
3. It is proposed to remove the discrimination as contained in
section 6 of the Hindu Succession Act, 1956 by giving equal rights
to daughters in the Hindu Mitakshara coparcenary property as
the sons have. Section 23 of the Act disentitles a female heir to
ask for partition in respect of a dwelling house wholly occupied
by a joint family until the male heirs choose to divide their respective
shares therein. It is also proposed to omit the said section so as to
remove the disability on female heirs contained in that section.
4. The above proposals are based on the recommendations of the
Law Commission of India as contained in its 174th Report on
“Property Rights of Women: Proposed Reform under the Hindu
Law”.
5. The Bill seeks to achieve the above objects.
NEW DELHI;
The 16th December, 2004.”
48. Section 6 deals with devolution of interest in coparcenary
property of a joint Hindu family governed by the Mitakshara law. The
originally enacted provision of section 6 excluded the rule of succession
concerning Mitakshara
coparcenary property. It provided the interest of
a coparcener male Hindu who died after the commencement of Act of
1956, shall be governed by survivorship upon the surviving members of
the coparcenary. The exception was provided that if the deceased had
left 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 such coparcener shall devolve by testamentary
or intestate succession, as the case may be, in order to ascertain the
share of deceased coparcener, the partition has to be deemed before his
death. Explanation 2 disentitled the separated person to make any claim
in case of intestate succession.
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49. Though the widow or daughter could claim a share, being a
Class I heir in the property left by the deceased coparcener, and a widow
was entitled, having a right to claim a share in the event of partition
daughter was not treated as a coparcener. The goal of gender justice as
constitutionally envisaged is achieved though belatedly, and the
discrimination made is taken care of by substituting the provisions of
section 6 by Amendment Act, 2005.
50. Concerning gender discrimination to a daughter who always
remains a loving daughter, we quoteSavita Samvedi (Ms) & Anr. v.
Union of India & Ors., 1996 (2) SCC 380, thus:
“6.  A common saying is worth pressing into service….
“A son is a son until he gets a wife. A daughter is a daughter
throughout her life.”
7.  …The eligibility of a married daughter must be placed on a par
with an unmarried daughter (for she must have been once in that
state), …..to claim the benefit…..
…(Otherwise, it would be) unfair, gender-biased and unreasonable,
liable to be struck down under Article 14 of the Constitution. … It
suffers from twin vices of gender discrimination inter se among
women on account of marriage.”
51. The daughter is treated as a coparcener in the same manner
as a son by birth with the same rights in coparcenary property and
liabilities. However, the proviso of sub-section (1) contains a non-obstante
clause providing that nothing contained in the sub-section shall affect or
invalidate any disposition or
alienation including any partition or
testamentary disposition of the property which had taken place before
20.12.2004.
52. It is apparent from the provisions of section 6 that the
discrimination with the daughter has been done away with, and they
have been provided equal treatment in the matter of inheritance with
Mitakshara coparcenary. In several States viz., Andhra Pradesh, Tamil
Nadu, Karnataka, and Maharashtra, the State Amendments in the Act
of 1956 were made to extend equal rights to daughters in Hindu
Mitakshara coparcenary property. An amendment was made on
30.7.1994 by the insertion of Section 6A by Karnataka Act 23 of 1994 in
the Act of 1956. In-State of Andhra Pradesh, the amendment was made,
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w.e.f. 5.9.1985, Tamil Nadu w.e.f 25.3.1989 and Maharashtra w.e.f.
26.9.1994 by the addition of Section 29A in the Act of 1956.  In Kerala,
the Act was enacted in 1975.
53. Before the amendment, section 6 provided that on the death
of a male Hindu, a coparcener’s interest in Mitakshara coparcenary
shall devolve by survivorship upon the surviving members of the
coparcenary under the uncodified Hindu law and not in accordance with
the mode of succession provided under the Act of 1956. It was provided
by the proviso to section 6, in case a male Hindu of Mitakshara
coparcenary has left surviving a female relative of Class I heir or a male
relative who claims through such female relative of Class I. The Schedule
containing categories of Class I heirs is extracted hereunder:
“THE SCHEDULE
(See section 8)
HEIRS IN CLASS I AND CLASS II
Class I
Son, daughter, widow; mother; son of a pre-deceased son; daughter
of a pre-deceased son, son of a pre-deceased daughter, daughter
of a pre-deceased daughter; widow of a pre-deceased son, son
of a pre-deceased son of a pre-deceased son; daughter of a pre-
deceased son of a pre-deceased son; widow of a pre-deceased
son of a pre-deceased son; [son of a pre-deceased daughter of a
pre-deceased daughter, daughter of a pre-deceased daughter of
a pre-deceased daughter, daughter of a pre-deceased son of a
pre-deceased daughter, daughter of a pre-deceased daughter of
a pre-deceased so.”
54. In
view of the provisions contained in section 6 when a
coparcener is survived by a female heir of Class I or male relative of
such female, it was necessary to ascertain the share of the deceased, as
such, a legal fiction was created. The Explanation I provided legal fiction
of partition as if it had taken place immediately before his death,
notwithstanding whether he had the right to claim it or not. However, a
separated Hindu could not claim an interest in the coparcenary based on
intestacy in the interest left by the deceased.
55. The amended provisions of section 6(1) provide that on and
from the commencement of the Amendment Act, the daughter is conferred
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the right. Section 6(1)(a) makes daughter by birth a coparcener “in her
own right” and “in the same manner as the son.” Section 6(1)(a) contains
the concept of the unobstructed heritage of Mitakshara coparcenary,
which is by virtue of birth. Section 6(1)(b) confers the same rights in the
coparcenary property “as she would have had if she had been a son”.
The conferral of right is by birth, and the rights are given in the same
manner with incidents of coparcenary as that of a son and she is treated
as a coparcener in the same manner with the same rights as if she had
been a son at the time of birth. Though the rights can be claimed, w.e.f.
9.9.2005, the provisions are of retroactive application; they confer benefits
based on the antecedent event, and the Mitakshara coparcenary law
shall be deemed to include a reference to a daughter as a coparcener.
At the same time, the legislature has provided savings by adding a proviso
that any disposition or alienation, if there be any testamentary disposition
of the property or partition which has taken place before 20.12.2004, the
date on which the Bill was presented in the Rajya Sabha, shall not be
invalidated.
56. The prospective statute operates from the date of its enactment
conferring new rights. The retrospective statute operates backward and
takes away or impairs vested rights acquired under existing laws. A
retroactive statute is the one that does not operate retrospectively. It
operates in futuro. However,
its operation is based upon the character
or status that arose earlier. Characteristic or event which happened in
the past or requisites which had been drawn from antecedent events.
Under the amended section 6, since the right is given by birth, that is an
antecedent event, and the provisions operate concerning claiming rights
on and from the date of Amendment Act.
57. The concept of retrospective and retroactive statute was stated
by this Court in Darshan Singh etc. v. Ram Pal Singh &Anr., (1992
Supp. (1) SCC 191, thus:
“35. Mr Sachar relies on Thakur Gokulchand v. Parvin Kumari,
AIR 1952 SC 231, Garikapatti Veeraya v. N. Subbiah
Choudhury, AIR 1957 SC 540, Jose Da Costa v. Bascora
Sadasiva Sinai Narcornim, (1976) 2 SCC 917, Govind Das v.
ITO, (1976) 1 SCC 906, Henshall v. Porter, (1923) 2 KBD 193,
United Provinces v. Mst. Atiga Begum, AIR 1941 FC 16, in
support of his submission that the Amendment Act was not made
retrospective by the legislature either expressly or by necessary
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implication as the Act itself expressly provided that it shall be
deemed to have come into force on January 23, 1973; and therefore
there would be no justification to giving it retrospective operation.
The vested right to contest which was created on the alienation
having taken place and which had been litigated in the court, argues
Mr Sachar, could not be taken away. In other words, the vested
right to contest in appeal was not affected by the Amendment
Act. However, to appreciate this argument we have to analyse
and distinguish between the two rights involved, namely, the right
to contest and the right to appeal against lower court’s decision.
Of these two rights, while the right to contest is a customary right,
the right to appeal is always a creature of statute. The change of
the forum for appeal by enactment may not affect the right of
appeal itself. In the instant case we are concerned with the right
to contest and not with the right to appeal as such. There is also
no dispute as to the propositions of law regarding vested rights
being not taken away by an enactment which is ex facie or by
implication not retrospective. But merely because an Act envisages
a past act or event in the sweep of its operation, it may not
necessarily be said to be retrospective. Retrospective, according
to Black’s Law Dictionary, means looking backward;
contemplating what is past; having reference to a statute or things
existing
before the Act in question. Retrospective law, according
to the same dictionary, means a law which looks backward or
contemplates the past; one which is made to affect acts or facts
occurring, or rights occurring, before it came into force. Every
statute which takes away or impairs vested rights acquired under
existing laws, or creates a new obligation, imposes a new duty, or
attaches a new disability in respect to transactions or considerations
already past. Retroactive statute means a statute which creates a
new obligation on transactions or considerations already past or
destroys or impairs vested rights.
36. In Halsbury’s Laws of England (4th edn., Vol. 44, at paragraph
921) we find:
“921. Meaning of ‘retrospective’.— It has been said that
‘retrospective’ is somewhat ambiguous and that a good deal of
confusion has been caused by the fact that it is used in more
senses than one. In general, however, the courts regard as
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retrospective any statute which operates on cases or facts coming
into existence before its commencement in the sense that it affects,
even if for the future only, the character or consequences of
transactions previously entered into or of other past conduct. Thus
a statute is not retrospective merely because it affects existing
rights; or is it retrospective merely because a part of the requisites
for its action is drawn from a time antecedent to its passing.”
37. We are inclined to take the view that in the instant
case legislature looked back to January 23, 1973 and not beyond
to put an end to the custom and merely because on that cut off
date some contests were brought to abrupt end would not make
the Amendment Act retrospective. In other words, it would
not be retrospective merely because a part of the requisites
for its action was drawn from a time antecedent to the
Amendment Act coming into force. We are also of the view
that while providing that “no person shall contest any alienation
of immovable property whether ancestral or non-ancestral or
any appointment of an heir to such property”, without preserving
any right to contest such alienations or appointments as were
made after the coming into force of the Principal Act and before
the coming into force of the Amendment Act, the intention of
the legislature was to cut off even the vested right; and that it
was so by implication as well. There is no dispute as to the
proposition that retrospective
effect is not to be given to an
Act unless, the legislature made it so by express words or
necessary implication. But in the instant case it appears that
this was the intention of the legislature. Similarly courts will
construe a provision as conferring power to act retroactively
when clear words are used. We find both the intention and
language of the Amendment Act clear in these respects.”
58. In G. Sekar v. Geetha &Ors., (2009) 6 SCC 99 with respect
to the operation of Amendment Act, 2005, it was observed that the same
is prospective in nature and not retrospective thus:
“30. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting
of a right where succession had already been taken place. The
operation of the said statute is no doubt prospective in nature.
The High Court might have committed a mistake in opining that
the operation of Section 3 of the 2005 Act is retrospective in
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character, but, for the reasons aforementioned, it does not make
any difference. What should have been held was that although it
is not retrospective in nature, its application is prospective.”
59. The decision in G. Sekar (supra) concerned with the provisions
of section 23 of the Hindu Succession Act prior to its deletion, w.e.f.
9.9.2005. The question involved therein was the effect of the deletion by
Amendment Act of 2005. The suit for partition of the residential dwelling
house was not maintainable under section 23. In that context, the
observations were made by this Court. In Sheela Devi (supra), the
question was whether Section 8 of the Act of 1956 would apply or the
law applicable prior to the Act of 1956.
60. Section 6(2) provides when the female Hindu shall hold the
property  to which she becomes entitled under section 6(1), she will be
bound to follow rigors of coparcenary ownership, and can dispose of the
property by testamentary mode.
61. With respect to a Hindu who dies after the commencement of
the Amendment Act, 2005, as provided in section 6(3) his interest shall
pass by testamentary or intestate succession and not by survivorship,
and there is a deemed partition of the coparcenary property in order to
ascertain the shares which would have been allotted to his heirs had
there been a partition. The daughter is to be allotted the same share as a
son; even surviving child of pre-deceased daughter or son
are given a
share in case child has also died then surviving child of such pre-deceased
child of a pre-deceased son or pre-deceased daughter would be allotted
the same share, had they been alive at the time of deemed partition.
Thus, there is a sea-change in substituted section 6. In case of death of
coparcener after 9.9.2005, succession is not by survivorship but in
accordance with section 6(3)(1). The Explanation to section 6(3) is the
same as  Explanation I to section 6 as originally enacted. Section 6(4)
makes a daughter liable in the same manner as that of a son. The daughter,
grand-daughter, or great-grand-daughter, as the case may be, is equally
bound to follow the pious obligation under the Hindu Law to discharge
any such debt. The proviso saves the right of the creditor with respect to
the debt contracted before the commencement of Amendment Act, 2005.
The provisions contained in section 6(4) also make it clear that provisions
of section 6 are not retrospective as the rights and liabilities are both
from the commencement of the Amendment Act.
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62. The proviso to section 6(1) and section 6(5) saves any partition
effected before 20.12.2004. However, Explanation to section 6(5)
recognises partition effected by execution of a deed of partition duly
registered under the Registration Act, 1908 or by a decree of a court.
Other forms of partition have not been recognised under the definition
of ‘partition’ in the Explanation.
63. Considering the principle of coparcenary that a person is
conferred the rights in the Mitakshara coparcenary by birth, similarly,
the daughter has been recognised and treated as a coparcener, with
equal rights and liabilities as of that of a son. The expression used in
section 6 is that she becomes coparcener in the same manner as a son.
By adoption also, the status of coparcener can be conferred. The concept
of uncodified Hindu law of unobstructed heritage has been given a
concrete shape under the provisions of section 6(1)(a) and 6(1)(b).
Coparcener right is by birth. Thus, it is not at all necessary that the
father of the daughter should be living as on the date of the amendment,
as she has not been conferred the rights of a coparcenerby obstructed
heritage. According to the Mitakshara coparcenary Hindu law, as
administered which is recognised in section 6(1), it is not necessary that
there should be a living, coparcener or father as on the date of the
amendment to whom the daughter would succeed. The daughter would
step into the coparcenary as that of a son by taking birth
before or after
the Act. However, daughter born before can claim these rights only with
effect from the date of the amendment, i.e., 9.9.2005 with saving of past
transactions as provided in the proviso to section 6(1) read with section
6(5).
64. The effect of the amendment is that a daughter is made
coparcener, with effect from the date of amendment and she can claim
partition also, which is a necessary concomitant of the coparcenary.
Section 6(1) recognises a joint Hindu family governed by Mitakshara
law. The coparcenary must exist on 9.9.2005 to enable the daughter of
a coparcener to enjoy rights conferred on her. As the right is by birth and
not by dint of inheritance, it is irrelevant that a coparcener whose daughter
is conferred with the rights is alive or not. Conferral is not based on the
death of a father or other coparcener. In case living coparcener dies
after 9.9.2005, inheritance is not by survivorship but by intestate or
testamentary succession as provided in substituted section 6(3).
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In ref: Effect of enlargement of daughter’s rights
65. Under the proviso to section 6 before the amendment made in
the year 2005 in case a coparcener died leaving behind female relative
of Class I heir or a male descendant claiming through such Class I female
heir, the daughter was one of them. Section 6, as substituted, presupposes
the existence of coparcenary. It is only the case of the enlargement of
the rights of the daughters. The rights of other relatives remain unaffected
as prevailed in the proviso to section 6 as it stood before amendment.
66. As per the Mitakshara law, no coparcener has any fixed share.
It keeps on fluctuating by birth or by death. It is the said principle of
administration of Mitakshara coparcenary carried forward in statutory
provisions of section 6. Even if a coparcener had left behind female heir
of Class I or a male claiming through such female Class I heir, there is
no disruption of coparcenary by statutory fiction of partition. Fiction is
only for ascertaining the share of a deceased coparcener, which would
be allotted to him as and when actual partition takes place. The deemed
fiction of partition is for that limited purpose. The classic Shastric Hindu
law excluded the daughter from being coparcener, which injustice has
now been done away with by amending the provisions in consonance
with the spirit of the Constitution.
67. There can be a sole surviving coparcener in a given case
the
property held by him is treated individual property till a son is born. In
case there is a widow or daughter also, it would be treated as joint
family property. If the son is adopted, he will become a coparcener. An
adoption by a widow of a deceased coparcener related to the date of
her husband’s death, subject to saving the alienations made in the
intermittent period.
In Ref.Acquisition of Rights in Coparcenary Property
68. It is by birth that interest in the property is acquired. Devolution
on the death of a coparcener before 1956 used to be only by survivorship.
After 1956, women could also inherit in exigencies, mentioned in the
proviso to unamended section 6. Now by legal fiction, daughters are
treated as coparceners. No one is made a coparcener by devolution of
interest. It is by virtue of birth or by way of adoption obviously within the
permissible degrees; a person is to be treated as coparcener and not
otherwise.
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69. The argument raised that if the father or any other coparcener
died before the Amendment Act, 2005, the interest of the father or other
coparcener would have already merged in the surviving coparcenary,
and there was no coparcener alive from whom the daughter would
succeed. We are unable to accept the submission because it is not by
the death of the father or other coparcener that rights accrue. It is by
the factum of birth. It is only when a female of Class I heir is left, or in
case of her death, male relative is left, the share of the deceased
coparcener is fixed to be distributed by a deemed partition, in the event
of an actual partition, as and when it takes place as per the proviso to
unamended section 6. The share of the surviving coparcener may undergo
change till the actual partition is made. The proviso to section 6 does not
come in the way offormation of a coparcenary, and who can be a
coparcener. The proviso to section 6 as originally stood, contained an
exception to the survivorship right. The right conferred under substituted
section 6(1) is not by survivorship but by birth. The death of every
coparcener is inevitable. How the property passes on death is not relevant
for interpreting the provisions of section 6(1). Significant is how right of
a coparcener is acquired under Mitakshara coparcenary. It cannot be
inferred that the daughter is conferred with the right only on the death of
a living coparcener, by declaration contained in
section 6, she has been
made a coparcener. The precise declaration made in section 6 (1) has to
be taken to its logical end; otherwise, it would amount to a denial of the
very right to a daughter expressly conferred by the legislature.Survivorship
as a mode of succession of property of a Mitakshara coparcener, has
been abrogated with effect from 9.9.2005 by section 6(3).
70. The decision in Bireswar Mookerji & Ors. v. Shib Chunder
Roy (supra), was relied upon to contend that adoption is only of a male
and not a female as held in Amarendra Man Singh Bhramarbar &
Anr. v. Sanatan Singh & Ors., (supra), a male becomes a coparcener
by birth or adoption. There is no dispute with the custom, which was
prevalent earlier that there could be the adoption of a male child and not
that of females. There is no dispute with the proposition that a
coparcenary right accrued to males under the prevalent law by birth or
adoption. In the same manner, right is accrued by birth to the daughter
under the provisions of section 6. The legislature in section 6 used the
term that a daughter becomes coparcener by birth. The claim based on
birth is distinguishable and is different from modes of succession.
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71. It was argued that in case Parliament intended that the incident
of birth prior to 2005 would be sufficient to confer the status of a
coparcener, Parliament would need not have enacted the proviso to
section 6(1). When we read the provisions conjointly, when right is given
to the daughter of a coparcener in the same manner as a son by birth, it
became necessary to save the dispositions or alienations, including any
partition or testamentary succession, which had taken place before
20.12.2004. A daughter can assert the right on and from 9.9.2005,  and
the proviso saves from invalidation above transactions.
72. It was argued that in the eventuality of the death of a father or
other coparcener, the parties would have not only partitioned their assets
but also acted in pursuance of such partition. However, partitions have
been taken care of by the proviso to section 6(1) and 6(5). Parliament
has not intended to upset all such transactions as specified in the proviso
to section 6(1).
73. It was vehemently argued that if the daughter is given the
right to be a coparcener by birth and deemed to become a coparcener at
any point in the past, in the normal working of the law, uncertainty would
be caused. In our opinion, no uncertainty is brought about by the provisions
of section 6 as the law of Mitakshara coparcenary makes the share of
surviving coparceners uncertain till actual partition takes place.
Uncertainty in the
right of share in a Mitakshara coparcenary is inhered
in its underlying principles, and there is no question of upturning it when
the daughter is treated like a son and is given the right by birth; to be
exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the
past but recognising an antecedent event for conferral of rights,
prospectively. There is no doubt about it that advancement brings about
the enlargement of the size of the coparcenary and disabling it from
treating the daughter unequally. Even otherwise, its size could be enlarged
by the birth of a son also. By applying section 8, the joint possession was
not repudiated by the fact that a female, whether a wife or daughter,
inherited the share of coparcener under the proviso to original section 6.
She was an equal member of the joint Hindu family and deemed statutory
partition did not bring disruption of the coparcenary.
74. In Prakash v. Phulavati, father died in the year 1988,
daughters filed a suit for partition in 1992, same was dismissed in 2007,
entitlement was given to the daughters to a share on a notional partition
under the proviso to section 6 in the share of the coparcener father.
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However, the High Court applied the amended provisions of section 6 to
the pending proceedings and treated daughters equally with sons. As
such, the matter travelled to this Court. It was held that the proviso is not
retrospective. The requirement of partition being registered can have no
application to statutory notional partition, on the opening of succession
as per the unamended proviso to section 6, having regard to the nature
of such partition, which is by operation of law. It was opined:
“17. 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 the 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, 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 retrospective.[Shyam Kumar v. Ram
Kumar, (2001) 8 SCC 24, paras 22 to 27] 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 partition being registered can have no application
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. 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.
18. The 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 unless so provided for or so intended by the
legislature. 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 the express
language of the statute. The proviso keeping dispositions or
alienations or partitions prior to 20-12-2004 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
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of 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 20-12-
2004. Notional partition, by its very nature, is not covered either
under the proviso or under sub-section (5) or under the Explanation.
    x x x
23. Accordingly, we hold that the rights under the
amendment are applicable to living daughters of living coparceners
as on 9-9-2005 irrespective of when such daughters are born.
Disposition or alienation including partitions which may have taken
place before 20-12-2004 as per law applicable prior to the said
date will remain unaffected. Any transaction of partition effected
thereafter will be governed by the Explanation.
        x xx
27.2. In Gurupad Khandappa Magdum v. Hirabai
Khandappa Magdum(1978) 3 SCC 383, Shyama Devi v.
Manju Shukla (1994) 6 SCC 342 and Anar Devi v. Parmeshwari
Devi (2006) 8 SCC 656 cases this Court interpreted Explanation
1 to Section 6 (prior to the 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
coparcener was to be given due and full effect in view of settled
principle of interpretation of a provision incorporating a deeming
fiction. In Shyama Devi (supra) and Anar Devi (supra) cases,
same view was followed.
27.3. In Vaishali Satish Ganorkar v. Satish Keshaorao
Ganorkar, AIR 2012 Bom. 101, the Bombay High Court held
that the amendment will not apply unless the daughter is born
after the 2005 Amendment, but on this aspect a different view
has been taken in the later larger Bench judgment [AIR 214 Bom
151]. We are unable to find any reason to hold that birth of the
daughter after the amendment was a necessary condition for its
applicability. All that is required is that daughter should be alive
and her father should also be alive on the date of the amendment.”
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75. A finding has been recorded in Prakash v. Phulavati that the
rights under the substituted section 6 accrue to living daughters of living
coparceners as on 9.9.2005 irrespective of when such daughters are
born. We find that the attention of this Court was not drawn to the
aspect as to how a coparcenary is created. It is not necessary to form a
coparcenary or to become a coparcener that a predecessor coparcener
should be alive; relevant is birth within degrees of coparcenary to which
it extends. Survivorship is the mode of succession, not that of the
formation of a coparcenary. Hence, we respectfully find ourselves unable
to agree with the concept of “living coparcener”, as laid down in Prakash
v. Phulavati. In our opinion, the daughters should be living on 9.9.2005.
In substituted section 6, the expression ‘daughter of a living coparcener’
has not been used. Right is given under section 6(1)(a) to the daughter
by birth. Declaration of right based on the past event was made on
9.9.2005 and as provided in section 6(1(b), daughters by their birth, have
the same rights in the coparcenary, and they are subject to the same
liabilities as provided in section 6(1)(c). Any reference to the coparcener
shall include a reference to the daughter of a coparcener. The provisions
of section 6(1) leave no room to entertain the proposition that coparcener
should be living on 9.9.2005 through whom the daughter is claiming. We
are unable to be in unison with the effect of
deemed partition for the
reasons mentioned in the latter part.
76. In Mangammal v. T.B. Raju & Ors. (supra), the Court
considered the provisions made in the State of Tamil Nadu, the State
Government enacted the Hindu Succession (Tamil Nadu Amendment)
Act, 1989, made effective from 25.3.1989, adding section 29-A in the
Hindu Succession Act, 1956. Section 29A was held to be valid regarding
succession by survivorship. Section 29A provided equal rights to daughters
in coparcenary property.  The provisions were more or less similar, except
section 29A(iv) treated a married daughter differently. The provisions
were not applicable to the daughters married before the date of
commencement of Amendment Act, 1989. Thus, married daughters were
not entitled to equal rights. That too, has been taken care of in section 6,
as substituted by Act of 2005, and no discrimination is made against
married daughters. In the said case, Mangammal got married in 1981,
and Indira got married in or about 1984, i.e., before the 1989 Amendment.
Therefore, it was held that because of section 29-A(iv) of the Amendment
Act, the appellant could not institute a suit for partition and separate
possession as they were not coparceners. The decisions in Prakash v.
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Phulavati  and Danamma were referred, and it was opined that Prakash
v. Phulavati  would still hold the value of precedent for right of a daughter
in ancestral property and only “living daughters of living coparceners”
as on 9.9.2005 would be entitled to claim a share in the coparcenary
property. In Mangammal, the Court opined thus:
“15. Moreover, under Section 29-A of the Act, the
legislature has used the word “the daughter of a coparcener.”
Here, the implication of such wordings mean both the coparcener
as well as daughter should be alive to reap the benefits of this
provision at the time of commencement of the amendment of
1989. The similar issue came up for the consideration before this
Court in Prakash v. Phulavati, (2016) 2 SCC 36, wherein this
Court while dealing with the identical matter held at para 23 as
under (SCC p. 49)
“23. Accordingly, we hold that the rights under the
amendment are applicable to living daughters of living
coparceners as on 9-9-2005 irrespective of when such daughters
are born.”
(emphasis supplied)
16. It is pertinent to note here that recently, this Court in
Danamma v. Amar, (2018) 3 SCC 343, dealt, inter alia, with the
dispute of daughter’s right in the ancestral property. In the above
case, father of the daughter died in 2001, yet court permitted the
daughter to claim the right in ancestral property in view of the
amendment in 2005. On a perusal of the judgment and after having
regard to the peculiar facts of the Danamma(supra), it is evident
that the Division Bench of this Court primarily did not deal with
the issue of death of the father rather it was mainly related to the
question of law whether daughter who was born prior to 2005
amendment would be entitled to claim a share in ancestral
property or not? In such circumstances, in our view, Prakash,
(2016) 2 SCC 36, would still hold precedent on the issue of death
of coparcener for the purpose of right of daughter in ancestral
property. Shortly put, only living daughters of living coparceners
would be entitled to claim a share in the ancestral property.
17. Hence, without touching any other aspect in the present
case, we are of the view that the appellants were not the
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coparceners in the Hindu joint family property in view of the 1989
amendment, hence, they had not been entitled to claim partition
and separate possession at the very first instance. At the most,
they could claim maintenance and marriage expenses if situation
warranted.”
It is apparent that the question of living daughter of a living
coparcener was not involved in the matter, once this Court held that the
married daughters were not entitled to claim partition and separate
possession as marriage had taken place prior to the enforcement of the
1989 amendment, as observed in para 17 quoted above. However, this
Court opined that the decision in Prakash v. Phulavati,  laying down
that only living daughters of living coparceners would be entitled to claim
a share in the ancestral property under section 6 of the Act of 1956. The
opinion expressed cannot be accepted for the reasons mentioned above.
Moreover, it was not necessary to go into the aforesaid question.
77. In Danamma, a Division Bench of this Court dealt with the
interpretation of amended provisions of section 6. The decision in Anar
Devi v. Parmeshwari Devi (supra) was relied upon. It was observed
that the controversy concerning the interpretation of section 6 now stands
settled with authoritative pronouncement in Prakash v. Phulavati which
affirmed the view taken by the High Court as well as a Full Bench in
Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari,
AIR 2014 Bom. 151. In Danamma,
the Court further opined:
“23. Section 6, as amended, stipulates that on and from
the commencement of the amended Act, 2005, the daughter of a
coparcener shall by birth become a coparcener in her own right
in the same manner as the son. It is apparent that the status
conferred upon sons under the old section and the old Hindu Law
was to treat them as coparceners since birth. The amended
provision now statutorily recognises the rights of coparceners of
daughters as well since birth. The section uses the words in the
same manner as the son. It should therefore be apparent that
both the sons and the daughters of a coparcener have been
conferred the right of becoming coparceners by birth. It is the
very factum of birth in a coparcenary that creates the
coparcenary, therefore the sons and daughters of a coparcener
become coparceners by virtue of birth. Devolution of
coparcenary property is the later stage of and a consequence of
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death of a coparcener. The first stage of a coparcenary is obviously
its creation as explained above, and is well recognised. One of
the incidents of coparcenary is the right of a coparcener to seek a
severance of status. Hence, the rights of coparceners emanate
and flow from birth (now including daughters) as is evident from
sub-sections (1)(a) and (b).
25. Hence, it is clear that the right to partition has not been
abrogated. The right is inherent and can be availed of by any
coparcener, now even a daughter who is a coparcener.
26. In the present case, no doubt, suit for partition was
filed in the year 2002. However, during the pendency of this suit,
Section 6 of the Act was amended as the decree was passed by
the trial court only in the year 2007. Thus, the rights of the appellants
got crystallised in the year 2005 and this event should have been
kept in mind by the trial court as well as by the High Court. This
Court in Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9
SCC 788, held that the rights of daughters in coparcenary property
as per the amended Section 6 are not lost merely because a
preliminary decree has been passed in a partition suit. So far as
partition suits are concerned, the partition becomes final only on
the passing of a final decree. Where such situation arises, the
preliminary decree would have to be amended taking into account
the change in the law by the amendment of 2005.
27. On facts,
there is no dispute that the property which
was the subject-matter of partition suit belongs to joint family and
Gurulingappa Savadi was propositus of the said joint family
property. In view of our aforesaid discussion, in the said partition
suit, share will devolve upon the appellants as well. Since, Savadi
died leaving behind two sons, two daughters and a widow, both
the appellants would be entitled to 1/5th share each in the said
property. The plaintiff (Respondent 1) is son of Arun Kumar
(Defendant 1). Since, Arun Kumar will have 1/5th share, it would
be divided into five shares on partition i.e. between Defendant 1
Arun Kumar, his wife Defendant 2, his two daughters Defendants
3 and 4 and son/plaintiff (Respondent 1). In this manner,
Respondent 1-plaintiff would be entitled to 1/25th share in the
property.”
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78. In Danamma, it is pertinent to mention that Gurulingappa,
propositus of a Hindu joint family and the father of living daughter
coparcener died in 2001, before the Amendment Act, 2005 came into
force, leaving behind two daughters, son and a widow. Daughters were
given equal rights by this Court. We agree with certain observations
made in paras 23 and 25 to 27 (supra) but find ourselves unable to agree
with the earlier part approving the decision in Prakash v. Phulavati and
the discussion with respect to the effect of the statutory partition. As a
matter of fact, in substance, there is a divergence of opinion in Prakash
v. Phulavati and Danamma with respect to the aspect of living daughter
of a living coparcener. In the latter case, the proposition of the living
daughter of a living coparcener was not dealt with specifically. However,
the effect of reasons given in para 23 had been carried out to logical end
by giving an equal share to the daughter.
In Ref. Partition and Effect of Statutory Fiction
79. The right to claim partition is a significant basic feature of the
coparcenary, and a coparcener is one who can claim partition. The
daughter has now become entitled to claim partition of coparcenary w.e.f.
9.9.2005, which is a vital change brought about by the statute. A
coparcener enjoys the right to seek severance of status. Under section
6(1) and 6(2), the rights of a daughter are paripassu with a son. In the
eventuality of a partition, apart from
sons and daughters, the wife of the
coparcener is also entitled to an equal share. The right of the wife of a
coparcener to claim her right in property is in no way taken away.
80. We deem it appropriate to refer to the decision in Hardeo Rai
v. Sakuntala Devi & Ors., (2008) 7 SCC 46 laying down that when an
intention is expressed to partition the coparcenary property, the share of
each of the coparceners becomes clear and ascertainable. Once the
share of a coparcener is determined, it ceases to be a coparcenary
property. After taking a definite share in the property, a coparcener
becomes the owner of that share, and, as such, he can alienate the same
by sale or mortgage in the same manner as he can dispose of his separate
property. It was observed:
“22. For the purpose of assigning one’s interest in the property, it
was not necessary that partition by metes and bounds amongst
the coparceners must take place. When an intention is expressed
to partition the coparcenary property, the share of each of the
coparceners becomes clear and ascertainable. Once the share of
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a coparcener is determined, it ceases to be a coparcenary property.
The parties in such an event would not possess the property as
“joint tenants” but as “tenants-in-common”. The decision of this
Court in SBI, (1969) 2 SCC 33, therefore, is not applicable to the
present case.
23. Where a coparcener takes definite share in the property, he is
owner of that share and as such he can alienate the same by sale
or mortgage in the same manner as he can dispose of his separate
property.”
81. It is settled proposition of law that without partition, only
undivided share can be sold but not specific property, nor joint possession
can be disrupted by such alienation. Whether the consent of other
coparcener is required for sale or not, depends upon by which School of
Mitakshara law, parties are governed, to say, in Benares School, there is
a prohibition on the sale of property without the consent of other
coparceners. The Court in the abovesaid decision made general
observation but was not concerned with the aspect when the partition
was completed, the effect of intervening events and effect of statutory
provisions as to partition, as such, it cannot be said to be an authority as
to provisions of section 6 as substituted and as to enlargement of the
right by operation of law  achieved thereunder. Shares of coparceners
can undergo a change in coparcenary by birth and death unless and until
the final division is made. The body of
coparcenary is increased by the
operation of law as daughters have been declared as a coparcener,  full
effect is required to be given to the same. The above decision cannot be
said to be an authority for the question involved in the present matters.
82. In Man Singh (D) by LRs. v. Ram Kala (D) by LRs., AIR
2011 SC 1542, the question of devolution of interest in coparcenary
property arose on the death of male Hindu leaving behind wife, son and
three daughters, and determination of their shares. It was observed that
until the disruption of joint family status occurs, the definite share cannot
be claimed with certainty, and share cannot be predicated in joint and
undivided property. The question of disruption of joint family status by a
definite and unequivocal declaration of intention to separate himself from
the family was also considered. The question in the present case is when
the partition has not taken place whether the statutory fiction contained
in the proviso to section 6 with respect to the determination of shares of
a deceased coparcener and its devolution thereunder would disrupt
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coparcenary. The answer is in the negative. In Man Singh (supra), it
was observed that the wife has a right to claim an equal share in the
husband’s property as that of a son, and she can enjoy the share separately
even from her husband thus:
“12. …Till disruption of joint family status takes place, neither
coparcener nor the other heirs entitled to share in the joint family
property can claim with certainty the exact share in that property.
In the case of Appovier Alias Seetaramier v. Rama Subba Aiyan
& Ors., (1866) 11 MIA 75, Lord Westbury speaking for the Judicial
Committee (Privy Council) observed, ‘According to the true notion
of an undivided family in Hindoo law, no individual member of
that family, whilst it remains undivided, can predicate of the joint
and undivided property, that he, that particular member, has a certain
definite share.’
15. In Principles of Hindu Law by Mulla, Vol. I (17th Edition) as
regards the right of wife, it is stated that a wife cannot herself
demand a partition, but if a partition does take place between her
husband and his sons, she is entitled (except in Southern India) to
receive a share equal to that of a son and to hold and enjoy that
share separately even from her husband (Article 315 at Page
506).”
83. In Girja Bai v. Sadashiv, AIR 1916 PC 104, Kawal Nain v.
Prabhulal, AIR 1917 PC 39 and Ramalinga v. Narayana, AIR 1922
PC 201, it was laid that the institution of a suit for partition by a member
of a joint family
is a clear intimation of his intention to separate and the
decisions indicate that there was consequential severance of joint status
from the date when the suit was filed though there was an assertion of
his right to separate by filing of the suit whether the consequential judgment
is passed or not.  However, we add a rider that if subsequently, the law
confers a right, or such other event takes place, its effect has to be
worked out even after passing of the preliminary decree.
84. In Kedar Nath v. Ratan Singh, (1910) 37 IA 161 and Palani
Ammal v. Muthuvenkatachala, AIR 1925 PC 49, it was observed that
if the suit is withdrawn before trial and passing of the decree, the plaintiff
ultimately has not chosen to go for separation. It was laid down that
there was no severance of the joint status of the family by filing of the
suit.
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85. In Joala Prasad Singh v. Chanderjet Kuer, AIR 1938 Pat
278, it was held that the filing of a suit is a shred of strong evidence, but
not conclusive evidence of an intention to separate.  However, in our
opinion, the intention to separate need not be confused with the change
of rights during the pendency of the suit, which has to be given full
effect, to do complete justice.
86. In Chokalingam v. Muthukaruppan, AIR 1938 Mad 849, it
was laid down that even a decree passed by consent does not affect a
severance; it had no validity if its terms were not executed and the
members continue to live together having abandoned their decision to
separate.
87. In Mukund Dharman Bhoir & Ors. v. Balkrishna Padmanji
& Ors., AIR 1927 PC 224, a distinction was made between severance
of the joint status, which is a matter of individual decision and the division
of the property where the allotment of shares may be effected by private
arrangements, by arbitrators or as a last resort, by the Court.  It was
observed:
“In the first place, there is separation, which means the
severance of the status of jointness. That is matter of individual
volition; and it must be shown that an intention to become divided
has been clearly and unequivocally expressed, it may be by explicit
declaration or by conduct.
Secondly, there is the partition or division of the joint estate,
comprising the allotment of shares, which may be effected by
different
methods.”
88. In Palani Ammal (supra), Ramabadra v. Gopalaswami, AIR
1931 Mad 404 and Gangabai v. Punau Rajwa, AIR 1956 Nag 261, it
was laid down that joint family does not get disrupted merely by
ascertainment of the shares of the coparcener. In order to constitute a
partition, the shares should be defined with the intention of an immediate
separation.
89. In Poornandachi v. Gopalasami, AIR 1936 PC 281, only
one of the members was given the share by way of instrument of partition.
It was also provided that the rest of the property was to remain joint.  It
was held that there was no partition between the other members.In I.T.
Officer, Calicut v. N.K. Sarada Thampatty, AIR 1991 SC 2035, it was
held that if a preliminary decree for partition is passed, it will not amount
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to a partition unless an actual physical partition is carried out pursuant to
a final decree.
90. In S. Sai Reddy v. S. Narayana Reddy &Ors. (1991) 3 SCC
647, a suit for partition, was filed. A preliminary decree determining the
shares was passed. The final decree was yet to be passed. It was
observed that unless and until the final decree is passed and the allottees
of the shares are put in possession of the respective property, the partition
is not complete. A preliminary decree does not bring about the final
partition. For, pending the final decree, the shares themselves are liable
to be varied on account of the intervening events, and the preliminary
decree does not bring about any irreversible situation. The concept of
partition that the legislature had in mind could not be equated with a
mere severance of the status of the joint family, which could be effected
by an expression of a mere desire by a family member to do so. The
benefit of the provision of section 29A could not have been denied to
women whose daughters were entitled to seek shares equally with sons
in the family. In S. Sai Reddy (supra), it was held:
“7. The question that falls for our consideration is whether the
preliminary decree has the effect of depriving respondents 2 to 5
of the benefits of the amendment. The learned counsel placed
reliance on clause (iv) of Section 29-A to support his contention
that it does. Clause (ii) of the section provides that a daughter
shall be allotted
share like a son in the same manner treating her
to be a son at the partition of the joint family property. However,
the legislature was conscious that prior to the enforcement of the
amending Act, partitions will already have taken place in some
families and arrangements with regard to the disposition of the
properties would have been made and marriage expenses would
have been incurred etc. The legislature, therefore, did not want to
unsettle the settled positions. Hence, it enacted clause (iv) providing
that clause (ii) would not apply to a daughter married prior to the
partition or to a partition which had already been effected before
the commencement of the amending Act. Thus if prior to the
partition of family property a daughter had been married, she was
disentitled to any share in the property. Similarly, if the partition
had been effected before September 5, 1985 the date on which
the amending Act came into force, the daughter even though
unmarried was not given a share in the family property. The crucial
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question, however, is as to when a partition can be said to have
been effected for the purposes of the amended provision. A partition
of the joint Hindu family can be effected by various modes, viz.,
by a family settlement, by a registered instrument of partition, by
oral arrangement by the parties, or by a decree of the Court.
When a suit for partition is filed in a court, a preliminary decree is
passed determining shares of the members of the family. The
final decree follows, thereafter, allotting specific properties and
directing the partition of the immovable properties by metes and
bounds. Unless and until the final decree is passed and the allottees
of the shares are put in possession of the respective property, the
partition is not complete. The preliminary decree which determines
shares does not bring about the final partition. For, pending the
final decree the shares themselves are liable to be varied on account
of the intervening events. In the instant case, there is no dispute
that only a preliminary decree had been passed and before the
final decree could be passed the amending Act came into force
as a result of which clause (ii) of Section 29-A of the Act became
applicable. This intervening event which gave shares to
respondents 2 to 5 had the effect of varying shares of the parties
like any supervening development. Since the legislation is beneficial
and placed on the statute book with the avowed object
of benefitting
women which is a vulnerable section of the society in all its stratas,
it is necessary to give a liberal effect to it. For this reason also, we
cannot equate the concept of partition that the legislature has in
mind in the present case with a mere severance of the status of
the joint family which can be effected by an expression of a mere
desire by a family member to do so. The partition that the legislature
has in mind in the present case is undoubtedly a partition completed
in all respects and which has brought about an irreversible situation.
A preliminary decree which merely declares shares which are
themselves liable to change does not bring about any irreversible
situation. Hence, we are of the view that unless a partition of the
property is effected by metes and bounds, the daughters cannot
be deprived of the benefits conferred by the Act. Any other view
is likely to deprive a vast section of the fair sex of the benefits
conferred by the amendment. Spurious family settlements,
instruments of partitions not to speak of oral partitions will spring
up and nullify the beneficial effect of the legislation depriving a
vast section of women of its benefits.
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8. Hence, in our opinion, the High Court has rightly held that since
the final decree had not been passed and the property had not
been divided by metes and bounds, clause (iv) to Section 29-A
was not attracted in the present case and the respondent-daughters
were entitled to their share in the family property.”
(emphasis supplied)
91. In Prema v. Nanje Gowda, AIR 2011 SC 2077, insertion of
section 6A by the amendment made by the State of Karnataka in the
Hindu Succession Act, 1956, was considered. Equal rights were given
to the daughter in coparcenary property in a suit for partition. A preliminary
decree was passed. Amendment in the Act was made during the final
decree proceedings. It was held that the discrimination practiced against
the unmarried daughter was removed. Unmarried daughters had equal
rights in the coparcenary property. The amendment’s effect was that
the unmarried daughter could claim an equal share in the property in
terms of section 6A inserted in Karnataka. In Prema (supra), the Court
opined:
“11.  … in R. Gurubasaviah v. Rumale Karibasappa and others,
AIR 1955 Mysore 6, Parshuram Rajaram Tiwari v. Hirabai
Rajaram Tiwari, AIR 1957 Bombay 59 and Jadunath Royand
others v. Parameswar Mullick and others, AIR 1940 PC 11,
and held that if after passing of preliminary decree in a partition
suit but before passing of final decree, there has been enlargement
or diminution of the shares of the parties or their rights have been
altered by
statutory amendment, the Court is duty-bound to decide
the matter and pass final decree keeping in view of the changed
scenario.”
“14.  We may add that by virtue of the preliminary decree passed
by the trial court, which was confirmed by the lower appellate
Court and the High Court, the issues decided therein will be deemed
to have become final but as the partition suit is required to be
decided in stages, the same can be regarded as fully and
completely decided only when the final decree is passed. If in the
interregnum any party to the partition suit dies, then his/her share
is required to be allotted to the surviving parties and this can be
done in the final decree proceedings. Likewise, if law governing
the parties is amended before the conclusion of the final decree
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proceedings, the party benefited by such amendment can make a
request to the Court to take cognizance of the amendment and
give effect to the same. If the rights of the parties to the suit
change due to other reasons, the Court seized with the final decree
proceedings is not only entitled but is duty-bound to take notice of
such change and pass appropriate order…”
(emphasis supplied)
It was held that if after passing of a preliminary decree in a partition
suit but before passing of the final decree, there has been enlargement
or diminution of the shares of the parties or their rights have been altered
by statutory amendment; the Court is duty-bound to decide the matter
and pass final decree keeping in view the changed scenario. In Prema
(supra), the Court further opined:
“20.  In our view, neither of the aforesaid three judgments can be
read as laying down a proposition of law that in a partition suit,
preliminary decree cannot be varied in the final decree proceedings
despite amendment of the law governing the parties by which the
discrimination practiced against unmarried daughter was removed
and the statute was brought in conformity with Articles 14 and 15
of the Constitution. We are further of the view that the ratio of
Phoolchand v. Gopal Lal, (AIR 1967 SC 1470) (supra) and S. Sai
Reddy v. S. Narayana Reddy, (1991 AIR SCW 488) (supra) has
direct bearing on this case and the trial court and the High Court
committed serious error by dismissing the application filed by the
appellant for grant of equal share in the suit property in terms of
Section 6A of the Karnataka Act No.23 of 1994.”
It was laid down that by the change of law, the share of daughter
can be enlarged even after passing a preliminary decree, the effect can
be given to in final decree proceedings.
92. In Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi &
Anr., (supra), this Court considered the amendment made in section 6 of
the Hindu Succession Act in 2005 and held that the right of a daughter in
coparcenary property is not lost bypassing of a preliminary decree for
partition before stipulated date i.e., 20th December, 2004. A partition suit
does not stand disposed of bypassing a preliminary decree. Relying inter
alia, on S. Sai Reddy (supra), it was held that the preliminary decree
can be amended in order to fully recognise the rights of a daughter:
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“16. The legal position is settled that partition of a joint Hindu
family can be effected by various modes, inter alia, two of these
modes are (one) by a registered instrument of a partition and
(two) by a decree of the Court. In the present case, admittedly,
the partition has not been effected before 20-12-2004 either by a
registered instrument of partition or by a decree of the Court. The
only stage that has reached in the suit for partition filed by
Respondent 1 is the determination of shares vide preliminary decree
dated 19-3-1999, which came to be amended on 27-9-2003 and
the receipt of the report of the Commissioner.
17. A preliminary decree determines the rights and interests of
the parties. The suit for partition is not disposed of by passing of
the preliminary decree. It is by a final decree that the immovable
property of joint Hindu family is partitioned by metes and bounds.
After the passing of the preliminary decree, the suit continues
until the final decree is passed. If in the interregnum i.e. after
passing of the preliminary decree and before the final decree is
passed, the events and supervening circumstances occur
necessitating change in shares, there is no impediment for the
Court to amend the preliminary decree or pass another preliminary
decree redetermining the rights and interests of the parties having
regard to the changed situation.  We are fortified in our view by a
three-Judge Bench decision of this Court in Phoolchand & Anr. v.
Gopal Lal, AIR 1967 SC 1470, wherein this Court stated as follows:
“We are of opinion that there is nothing in the Code of Civil
Procedure which prohibits the passing of more than one
preliminary decree if circumstances justify the same and that
it may be necessary to do so particularly in partition suits when
after the preliminary decree some parties die and shares of
other parties are thereby augmented. … So far therefore as
partition suits are concerned we have no doubt that if an event
transpires after the preliminary decree which necessitates a
change in shares, the Court can and should do so; … there is
no prohibition in the Code of Civil Procedure against passing a
second preliminary decree in such circumstances and we do
not see why we should rule out a second preliminary decree in
such circumstances only on the ground that the Code of Civil
Procedure does not contemplate such a possibility. … for it
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must not be forgotten that the suit is not over till the final decree
is passed and the Court has jurisdiction to decide all disputes
that may arise after the preliminary decree, particularly in a
partition suit due to deaths of some of the parties. … a second
preliminary decree can be passed in partition suits by which
the shares allotted in the preliminary decree already passed
can be amended and if there is dispute between surviving parties
in that behalf and that dispute is decided the decision amounts
to a decree…..”
19.  The above legal position is wholly and squarely applicable to
the present case. It surprises us that the High Court was not
apprised of the decisions of this Court in Phoolchand, (AIR 1967
SC 1470) and S. Sai Reddy, (1991 AIR SCW 488). High Court
considered the matter as follows:
   “ xxx.”
20.  The High Court was clearly in error in not properly appreciating
the scope of Order XX Rule 18 of CPC. In a suit for partition of
immovable property, if such property is not assessed to the
payment of revenue to the Government, ordinarily passing of a
preliminary decree declaring the share of the parties may be
required. The Court would thereafter proceed for preparation of
final decree. In Phoolchand, this Court has stated the legal position
that CPC creates no impediment for even more than one
preliminary decree if after passing of the preliminary decree events
have taken place necessitating the
readjustment of shares as
declared in the preliminary decree. The Court has always power
to revise the preliminary decree or pass another preliminary decree
if the situation in the changed circumstances so demand. A suit
for partition continues after the passing of the preliminary decree
and the proceedings in the suit get extinguished only on passing of
the final decree. It is not correct statement of law that once a
preliminary decree has been passed, it is not capable of
modification. It needs no emphasis that the rights of the parties in
a partition suit should be settled once for all in that suit alone and
no other proceedings.
21. Section 97 of C.P.C. that provides that where any party
aggrieved by a preliminary decree passed after the commencement
of the Code does not appeal from such decree, he shall be
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precluded from disputing its correctness in any appeal which may
be preferred from the final decree does not create any hindrance
or obstruction in the power of the Court to modify, amend or alter
the preliminary decree or pass another preliminary decree if the
changed circumstances so require.
22. It is true that final decree is always required to be in conformity
with the preliminary decree but that does not mean that a
preliminary decree, before the final decree is passed, cannot be
altered or amended or modified by the trial court in the event of
changed or supervening circumstances even if no appeal has been
preferred from such preliminary decree.”
(emphasis supplied)
The effect of the legislative provision concerning partition was
considered, and it was held that a preliminary decree merely declares
the shares and on which law confers equal rights upon the daughter that
is required to be recognised.
93. The concept of partition and its effect was considered by this
Court in Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita
Saran Bubna and Ors., (2009) 9 SCC 689 thus:
“The issue
5. “Partition” is a redistribution or adjustment of pre-existing rights,
among co-owners/coparceners, resulting in a division of lands or
other properties jointly held by them into different lots or portions
and delivery thereof to the respective allottees. The effect of such
division is that the joint ownership is terminated and the respective
shares vest in them in
severalty.
6. A partition of a property can be only among those having a
share or interest in it. A person who does not have a share in such
property cannot obviously be a party to a partition. “Separation of
share” is a species of “partition”. When all co-owners get
separated, it is a partition. Separation of share(s) refers to a division
where only one or only a few among several co-owners/
coparceners get separated, and others continue to be joint or
continue to hold the remaining property jointly without division by
metes and bounds. For example, where four brothers owning a
property divide it among themselves by metes and bounds, it is a
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partition. But if only one brother wants to get his share separated
and other three brothers continue to remain joint, there is only a
separation of the share of one brother.
***
18. The following principles emerge from the above discussion
regarding partition suits:
18.3.As the declaration of rights or shares is only the first stage
in a suit for partition, a preliminary decree does not have the effect
of disposing of the suit. The suit continues to be pending until
partition, that is, division by metes and bounds takes place by
passing a final decree. An application requesting the Court to take
necessary steps to draw up a final decree effecting a division in
terms of the preliminary decree, is neither an application for
execution (falling under Article 136 of the Limitation Act) nor an
application seeking a fresh relief (falling under Article 137 of the
Limitation Act). It is only a reminder to the Court to do its duty to
appoint a Commissioner, get a report, and draw a final decree in
the pending suit so that the suit is taken to its logical conclusion.
20.On the other hand, in a partition suit the preliminary decrees
only decide a part of the suit and therefore an application for
passing a final decree is only an application in a pending suit,
seeking further progress. In partition suits, there can be a
preliminary decree followed by a final decree, or there can be a
decree which is a combination of preliminary
decree and final
decree or there can be merely a single decree with certain further
steps to be taken by the Court. In fact, several applications for
final decree are permissible in a partition suit. A decree in a partition
suit enures to the benefit of all the co-owners and therefore, it is
sometimes said that there is really no judgment-debtor in a partition
decree.”
(emphasis supplied)
94. In Laxmi Narayan Guin&Ors. v. Niranjan Modak, (1985)
1 SCC 270, it was laid down that change in law during the pendency of
the appeal has to be taken into consideration thus:
“9. That a change in the law during the pendency of an appeal
has to be taken into account and will govern the rights of the
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parties was laid down by this Court in Ram Sarup v. Munshi,
AIR 1963 SC 553 which was followed by this Court in Mula v.
Godhu, (1969) 2 SCC 653. We may point out that in Dayawati
v. Inderjit, AIR  1966 SC 1423 this Court observed:
“If the new law speaks in language, which, expressly or by
clear intendment, takes in even pending matters, the Court of trial
as well as the court of appeal must have regard to an intention so
expressed, and the court of appeal may give effect to such a law
even after the judgment of the court of first instance.”
Reference may also be made to the decision of this Court in Amarjit
Kaur v. Pritam Singh, (1974) 2 SCC 363 where  effect was
given to a change in the law during the pendency of an appeal,
relying on the proposition formulated as long ago as Kristnama
Chariar v. Mangammal, ILR (1902) 26 Mad 91 (FB) by
BhashyamAyyangar, J., that the hearing of an appeal was, under
the processual law of this country, in the nature of a re-hearing of
the suit. In Amarjit Kaur, (1974) 2 SCC 363 this Court referred
also to Lachmeshwar Prasad Shukul v. Keshwar Lal
Chaudhuri, AIR 1941 FC 5 in which the Federal Court had laid
down that once a decree passed by a court had been appealed
against the matter became sub judice again and thereafter the
appellate court acquired seisin of the whole case, except that for
certain purposes, for example, execution, the decree was regarded
as final and the Court below retained jurisdiction.”
95. In United
Bank of India, Calcutta v. Abhijit Tea Co. Pvt.
Ltd. & Ors., AIR 2000 SC 2957, with respect to change in law during
the pendency of proceedings, it was observed:
“20. Now, it is well settled that it is the duty of a court, whether it
is trying original proceedings or hearing an appeal, to take notice
of the change in law affecting pending actions and to give effect
to the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn.,
p. 406). If, while a suit is pending, a law like the 1993 Act that the
Civil Court shall not decide the suit, is passed, the Civil Court is
bound to take judicial notice of the statute and hold that the suit —
even after its remand — cannot be disposed of by it.”
96. In Gurupad Khandappa Magdum (supra), the question of
Explanation I to section 6 of the Hindu Succession Act, 1956 came up
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for consideration with respect to the determination of widow’s interest
in the coparcenary property. Court held that a widow’s share in the
coparcenary property must be ascertained by adding the share to which
she is entitled at a notional partition during her husband’s lifetime and the
share she would have obtained in her husband’s interest upon his death.
The first step is to ascertain the share of the deceased in the coparcenary
property that would be worked out ultimately, and that shall be deemed
to be the share in the property that should have been allotted to the
deceased. What is therefore required to be assumed is that a partition
had, in fact, taken place between the deceased and his coparceners
immediately before his death. The assumption must permeate the entire
process of ascertainment of the ultimate share of the heirs. All the
consequences must be taken to a logical end. It was opined:
“13. In order to ascertain the share of heirs in the property of a
deceased coparcener it is necessary in the very nature of things,
and as the very first step, to ascertain the share of the deceased
in the coparcenary property. For, by doing that alone can one
determine the extent of the claimant’s share. Explanation 1 to
Section 6 resorts to the simple expedient, undoubtedly fictional,
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 that property had taken place
immediately before his death. What is therefore required to be
assumed is that a partition had in fact taken place between the
deceased and his coparceners immediately before his death. That
assumption, once made, is irrevocable. In other words, the
assumption having been made once for the purpose of ascertaining
the share of the deceased in the coparcenary property, one cannot
go back on that assumption and ascertain the share of the heirs
without reference to it. The assumption which the statute requires
to be made that a partition had in fact taken place must permeate
the entire process of ascertainment of the ultimate share of the
heirs, through all its stages. To make the assumption at the initial
stage for the limited purpose of ascertaining the share of the
deceased and then to ignore it for calculating the quantum of the
share of the heirs is truly to permit one’s imagination to boggle.
All the consequences which flow from a real partition have to be
logically worked out, which means that the share of the heirs
must be ascertained on the basis that they had separated from
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one another and had received a share in the partition which had
taken place during the lifetime of the deceased. The allotment of
this share is not a processual step devised merely for the purpose
of working out some other conclusion. It has to be treated and
accepted as a concrete reality, something that cannot be recalled
just as a share allotted to a coparcener in an actual partition cannot
generally be recalled. The inevitable corollary of this position is
that the heir will get his or her share in the interest which the
deceased had in the coparcenary property at the time of his death,
in addition to the share which he or she received or must be deemed
to have received in the notional partition.”
The only question involved in the aforesaid matter was with respect
to the Explanation of section 6 and the determination of the widow’s
share. In that case, the question was not of fluctuation in the coparcenary
body by a legal provision or otherwise. Everything remained static. No
doubt about it, the share of the deceased has to be worked out as per the
statutory fiction of partition created. However, in case of change of
body of the coparceners by a legal provision or otherwise, unless and
until the actual partition is finally worked out, rights have to be recognised
as they exist at the time of the final decree. It is only the share of the
deceased coparcener, and his heirs are ascertained under the Explanation
to section 6 and not that of other
coparceners, which keep on changing
with birth and death.
97. In Anar Devi & Ors. v. Parmeshwari Devi & Ors (supra),
the decision in Gurupad (supra) was considered, and it was held that
when a coparcener dies leaving behind any female relative specified in
Class I of the Schedule to the Act or male relative claiming through such
female relative, his undivided interest is not devolved by survivorship but
upon his heir by intestate succession thus:
“8. According to the learned author, at page 253, the undivided
interest”of the deceased coparcener for the purpose of giving
effect to the rule laid down in the proviso, as already pointed
out, is to be ascertained on the footing of a notional partition as
of the date of his death. The determination of that share must
depend on the number of persons who would have been entitled
to a share in the coparcenary property if a partition had in fact
taken place immediately before his death and such person would
have to be ascertained according to the law of joint family and
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[ARUN MISHRA, J.]