DANAMMA @ SUMAN SURPUR & ANR. versus AMAR AND ORS.
[2018] 2 S.C.R. 553, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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DANAMMA @ SUMAN SURPUR & ANR.
v.
AMAR AND ORS.
(Civil Appeal Nos. 188-189 of 2018)
FEBRUARY 01, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Hindu Succession (Amendment) Act, 2005 – s.6 – Applicability
of – One ‘GS’ died in 2001 leaving behind his widow, two daughters
(appellants) and two sons, including ‘AK’ – Suit for partition filed
by respondent no.1 (son of ‘AK’ ), decreed by Trial Court holding
that appellants were not entitled to any share as they were born
prior to the enactment of the 1956 Act – Appeal filed by appellants,
dismissed by High Court – Review Petition there against, also
dismissed – Held: Section 6, as amended, stipulates that on and
from the commencement of the Amendment Act, 2005, the daughter
of a coparcener shall by birth become a coparcener in her own
right in the same manner as the son – Amendment Act, 2005 confers
upon the daughter of the coparcener, same rights and liabilities in
the coparcenery properties as that of the son – In the present case,
suit for partition was filed in 2002, however, during the pendency
of the suit, s.6 was amended– Decree was passed by trial court only
in 2007 – Thus, the rights of the appellants got crystallised in the
year 2005 – In the instant case, the subject matter of the partition
suit were joint family properties, thus, in the said partition suit, share
will devolve upon the appellants as well – Since, ‘GS’ died leaving
behind appellants, two sons, and a widow, both the appellants would
be
entitled to 1/5th share each in the property – Since, ‘AK’ will
have 1/5th share, it would be further divided into five shares on
partition i.e. between ‘AK’, his wife, his two daughters and son
(respondent no.1) – Thus, respondent no.1 would be entitled to 1/25th
share in the property – Hindu Succession Act, 1956.
Suit – Partition suit – Preliminary Decree – Effect of, on the
rights of daughters in coparcenary property as per amended s.6 –
Held: Rights of daughters in coparcenary property as per amended
s.6 are not lost merely because a preliminary decree has been passed
in a partition suit – In partition suits, partition becomes final only
  [2018] 2 S.C.R. 553
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on the passing of final decree – Where such situation arises, the
preliminary decree would have to be amended taking into account
the change in law by amendment of 2005 – Hindu Succession
(Amendment) Act, 2005 –  s.6.
Allowing the appeals, the Court
HELD : 1.1 Amendment to Section 6, Hindu Succession
Act, 1956 vide Amendment Act, 2005 clinches the issue, beyond
any pale of doubt, in favour of the appellants. This amendment
now confers upon the daughter of the coparcener as well the status
of coparcener in her own right in the same manner as the son and
gives same rights and liabilities in the coparcenery properties as
she would have had if it had been son. [Para 20][564-B]
1.2 The law relating to a joint Hindu family governed by
the Mitakshara law has undergone unprecedented changes. The
said changes have been brought forward to address the growing
need to merit equal treatment to the nearest female relatives,
namely daughters of a coparcener. The section stipulates that a
daughter would be a coparcener from her birth, and would have
the same rights and liabilities as that of a son. The daughter would
hold property to which she is entitled as a coparcenary property,
which would be construed as property being capable of being
disposed of by her either by a Will or any other testamentary
disposition. These changes have been sought to be made on the
touchstone of equality, thus seeking to remove the perceived
disability
and prejudice to which a daughter was subjected. The
fundamental changes brought forward about in the Hindu
Succession Act, 1956 by amending it in 2005, are perhaps a
realization of the immortal words of Roscoe Pound as appearing
in his celebrated treatise, The Ideal Element in Law, that “the
law must be stable and yet it cannot stand still. Hence all thinking
about law has struggled to reconcile the conflicting demands of
the need of stability and the need of change.” [Para 23][569-D-
G]
Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36
– relied on.
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Sadashiv Sakharam Patil v. Chandrakant Gopal Desale
2011 (5) Bom CR 726; Badrinarayan Shankar
Bhandari v. Omprakash Shankar Bhandari AIR 2014
Bom 151; Pravat Chandra Pattnaik v. Sarat Chandra
Pattnaik AIR 2008 Ori 133; Sugalabai v. Gundappa
A. Maradi ILR 2007 Kar 4790;  Rakhi Gupta v. Zahoor
Ahmad 197 (2013) DLT 154 – approved.
Vaishali Satish Gonarkar v. Satish Keshorao Gonarkar
AIR 2012 Bom 110 – not approved.
“The Ideal Element in Law” by Roscoe Pound –
referred to.
1.3 Section 6, as amended, stipulates that on and from 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 recognizes 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 death of a coparcener.
The first stage of a coparcenary is obviously its creation, as is
well
recognized. 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-s (1)(a) and (b). 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. [Paras 24, 26][569-H; 570-A-C; 571-A]
State Bank of India v. Ghamandi Ram AIR 1969 SC
1330 : [1969] 3 SCR 51 – referred to.
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1.4 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. The rights of daughters in coparcenary property as per
the amended S.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. On facts, there is no dispute that
the property which was the subject matter of partition suit belongs
to joint family and ‘GS’ was propositus of the said joint family
property. In view of the aforesaid discussion, in the said partition
suit, share will devolve upon the appellants as well. Since, ‘GS’
died leaving behind two sons, two daughters and a widow, both
the daughters, i.e. the appellants would be entitled to 1/5th share
each in the said property. Plaintiff (respondent No.1) is son of
‘AK’ (defendant No.1). Since, ‘AK’ will have 1/5th share, it would
be divided into five shares on partition i.e. between defendant
No.1 ‘AK’, his
wife defendant No.2, his two daughters defendant
Nos.3 and 4 and son/plaintiff (respondent No.1). In this manner,
the plaintiff/respondent No.1 would be entitled to 1/25th share in
the property. [Paras 27, 28][571-B-F]
Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi &
Anr. (2011) 9 SCC 788 : [2011] 12 SCR 968 – relied
on.
Anar Devi & Ors. v. Parmeshwari Devi & Ors.
(2006) 8 SCC 656 : [2006] 6  Suppl. SCR 370 – referred
to.
Mulla, Principles of Hindu Law 17th Edn., Vol. II,
p. 250 – referred to.
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Case Law Reference
[2006] 6 Suppl. SCR 370
referred to
Para 17
AIR 2012 Bom 110
not approved
Para 21
2011 (5) Bom CR 726
approved
Para 21
AIR 2014 Bom 151
approved
Para 21
AIR 2008 Ori 133
approved
Para 21
ILR 2007 Kar 4790
approved
Para 21
197 (2013) DLT 154
approved
Para 21
(2016) 2 SCC 36
relied on
Para 22
[1969] 3 SCR  51
referred to
Para 25
[2011] 12 SCR 968
relied on
Para 27
CIVIL APPELLATE JURISDICTION :Civil Appeal
Nos.188-189 of 2018.
From the Judgment and Order dated 25.01.2012 in R.F.A.
No. 322 of 2008 (PAR) and Final Order Dated 18.10.2012 in R. P.
No. 1533 of 2012 in R.F.A. No. 322 of 2008 (PAR) of the High Court of
Karnataka, Circuit Bench at Dharwad.
S. N. Bhat, Adv. for the Appellants.
H. Chandra Sekhar, Adv. for the Respondents.
The Judgment of the Court was delivered by
A. K. SIKRI, J. The appellants herein, two in number, are the
daughters of one, Gurulingappa Savadi, propositus of a Hindu Joint Family.
Apart from these two daughters, he had two sons, namely, Arunkumar
and Vijay.  Gurulingappa Savadi died in the year 2001 leaving behind the
aforesaid two daughters, two sons and his widow, Sumitra.  After his
death, Amar, S/o Arunkumar filed the suit for partition and a separate
possession of the suit property described at Schedule B to E in the plaint
stating that the two sons and widow were in joint possession of the
aforesaid properties as coparceners and properties mentioned in Schedule
DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.
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B was acquired out of the joint family nucleus in the name of Gurulingappa
Savadi.  Case set up by him was that the appellants herein were not the
coparceners in the said joint family as they were born prior to the
enactment of Hindu Succession Act, 1956 (hereinafter referred to as
the ‘Act’).  It was also pleaded that they were married daughters and at
the time of their marriage they had received gold and money and had,
hence, relinquished their share.
2.  The appellants herein contested the suit by claiming that they
were also entitled to share in the joint family properties, being daughters
of Gurulingappa Savadi and for the reason that he had died after coming
into force the Act of 1950.
3. The trial court, while decreeing the suit held that the appellants
were not entitled to any share as they were born prior to the enactment
of the Act and, therefore, could not be considered as coparceners.  The
trial court also rejected the alternate contention that the appellants had
acquired share in the said properties, in any case, after the amendment
in the Act vide amendment Act of 2005.  This view of the trial court has
been upheld by the High Court in the impugned judgement dated January
25, 2012 thereby confirming the decree dated August 09, 2007 passed in
the suit filed for partition.
4. In the aforesaid backdrop, the question of law which arises for
consideration in this appeal is as to whether, the appellants,
daughters of
Gurulingappa Savadi, could be denied their share on the ground that they
were born prior to the enactment of the Act and, therefore, cannot be
treated as coparceners?  Alternate question is as to whether, with the
passing of Hindu Succession (Amendment) Act, 2005, the appellants
would become coparcener “by birth” in their “own right in the same
manner as the son” and are, therefore, entitled to equal share as that of
a son?
5. Though, we have mentioned the gist of the lis involved in this
case along with brief factual background in which it has arisen, some
more facts which may be necessary for understanding the genesis of
issue involved may also be recapitulated.  We may start with the genealogy
of the parties, it is as under:
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6.  Respondent No. 1 herein (the plaintiff) filed the suit on July 01,
2002 claiming 1/15th share in the suit schedule properties. In the said
suit, he mentioned the properties which needed partition.
7. The plaint schedule C compromised of the house properties
belonging to the joint family. The plaint schedule D comprised of the
shop properties belonging to the joint family.  The plaint schedule E
comprised of the machineries and movable belonging to the joint family.
The plaintiff averred that the plaint schedule properties belonged to the
joint family and that defendant no. 1, the father of the plaintiff was
neglecting the plaintiff and his siblings and sought partition of the suit
schedule properties. The plaintiff contended that all the suit schedule
properties were the joint family properties. The plaintiff contended in
para 5 of the plaint that the propositus, Guralingappa died 1 year prior to
the filing of the suit.  In para 7 of the plaint, the plaintiff contended that
defendant no. 1 had 1/3rd share and defendant no. 5 and 8 had 1/3rd
share each in the suit schedule properties. The plaintiff also contended
that defendants 6 and 7 did not have any share in the suit schedule
properties.
DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.
[A. K. SIKRI, J.]
                     Guralingappa=Sumitra

(Def.8)

---------------------------------------------------------------

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

-------------------------------------------------------

Sheetal

Amar

Triveni

(Def. 3)

(Plff)

(Def. 4) ”
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8. Defendant no. 1 (father of the plaintiff) and son of  Guralingappa
Savadi did not file any written statement.  Defendant nos. 2, 3 and 4
filed their separate written statements supporting the claim of the plaintiff.
Defendant no. 5 (respondent no. 5 herein and son of Guralingappa Savadi),
however, contested the suit.  He, inter alia, contended that after the
death of Guralingappa, an oral partition took place between defendant
no. 1, defendant no. 5 and others and in the said partition, defendant no.
1 was allotted certain properties and defendant no. 5 was allotted certain
other properties and defendant no. 8, Sumitra, wife of Guralingappa
Savadi was allotted certain other properties.  Defendant no. 5 further
contended that defendant nos. 6 and 7 were not allotted any properties
in the said alleged oral partition.
9. Defendant no. 5 further contended that one of the properties,
namely, C.T.S. No. 774 and also certain other properties were not joint
family properties.
10. The appellants claimed that they were also entitled to their
share in the property.  After framing the issues and recording the
evidence, the trial court by its judgment and decree dated August 09,
2007 held that the suit schedule properties were joint family properties
except CTS No. 774 (one of the house properties in plaint C schedule).
11. The trial court held that the plaintiff, defendant nos. 2 to 4
were entitled to 1/8th share in the joint
family properties.  The trial court
further noted that defendant no. 8 (wife of Gurulingappa Savadi) died
during the pendency of the suit intestate and her share devolved in favour
of defendants no. 1 and 5 only and, therefore, defendant nos. 1 and 2
were entitled to ½ share in the said share.  The trial court passed the
following order:
“The suit of the plaintiff is decreed holding that the plaintiff is
entitled for partition and separate possession of his 1/8th share in
the suit ‘B’, ‘C’ and ‘D’ schedule properties (except CTS No.
774) and also in respect of the Machinery’s stated in the report of
the commissioner.  The commissioners report Ex. P16 which
contains the list of machinery’s to form part of the decree.
The defendants 2 to 4 are each entitled to a/8th share and the 5th
defendant is entitled for 4/8 share in the above said properties.”
12. The trial court, thus, denied any share to the appellants.
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13. Aggrieved by the said judgment and decree of the trial court,
the defendant nos. 6 and 7 filed an appeal bearing R.F.A. No. 322 of
2008 before the High Court seeking equal share as that of the sons of
the propositus, namely, defendant nos. 1 and 5.
14. The High Court by its impugned judgment and order dated
January 25, 2012 dismissed the appeal. Thereafter, on March 04, 2012
defendant nos. 6 and 7 filed a review petition bearing no. 1533 of 2012
before the High Court, which met the same fate.
15. We have heard the learned counsel for the parties.  Whereas,
the learned counsel for the appellants reiterated his submissions which
were made before the High Court as well and noted above, learned
counsel for the respondents refuted those submissions by relying upon
the reason given by the High Court in the impugned judgment.
16. In the first instance, let us take note of the provisions of Section
6 of the Act, as it stood prior to its amendment by the Amendment Act,
2005.  This provision reads as under:
“6. Devolution of interest in coparcenary property.—When 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
relative specified in Class I of the Schedule or a male
relative
specified in that class who claims through such female relative,
the interest of the deceased in the Mitakshara coparcenary property
shall devolve by testamentary or intestate succession, as the case
may be, under this Act and not by survivorship.
     Explanation 1.—For the purposes of this 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.
   Explanation 2.—Nothing contained in the proviso to this
section shall be construed as enabling a person who had separated
DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.
[A. K. SIKRI, J.]
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himself from the coparcenary before the death of the deceased
or any of his heirs to claim on intestacy a share in the interest
referred to therein.”
17. No doubt, Explanation 1 to the aforesaid Section states that
the interest of the deceased Mitakshara coparcenary property shall be
deemed to be the share in the property that would have been allotted to
him if the partition of the property had taken place immediately before
his death, irrespective whether he was entitled to claim partition or not.
This Explanation came up for interpretation before this Court in Anar
Devi & Ors. v. Parmeshwari Devi & Ors.1.  The Court quoted, with
approval, the following passage from the authoritative treatise of Mulla,
Principles of Hindu Law, 17th Edn., Vol. II, p. 250 wherein the learned
author made following remarks while interpreting Explanation 1 to Section
6:
“…Explanation 1 defines the expression ‘the interest of the
deceased in Mitakshara coparcenary property’ and incorporates
into the subject the concept of a notional partition. It is essential to
note that this notional partition is for the purpose of enabling
succession to and computation of an interest, which was otherwise
liable to devolve by survivorship and for the ascertainment of the
shares in that interest of the relatives mentioned in Class I of the
Schedule. Subject to such carving out of the interest of the
deceased coparcener the other incidents of the
coparcenary are
left undisturbed and the coparcenary can continue without
disruption. A statutory fiction which treats an imaginary state of
affairs as real requires that the consequences and incidents of the
putative state of affairs must flow from or accompany it as if the
putative state of affairs had in fact existed and effect must be
given to the inevitable corollaries of that state of affairs.”
7.  The learned author further stated that:
“[T]he operation of the notional partition and its inevitable
corollaries and incidents is to be only for the purposes of this
section, namely, devolution of interest of the deceased in
coparcenary property and would not bring about total disruption
of the coparcenary as if there had in fact been a regular partition
and severance of status among all the surviving coparceners.”
 1 (2006) 8 SCC 656
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8. According to the learned author, at pp. 253-54, 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 partition. The
rules of Hindu law on the subject in force at the time of the death
of the coparcener must, therefore, govern the question of
ascertainment of the persons who would have been entitled to a
share on the notional partition”.
18. Thereafter the Court spelled out the manner in which the
statutory fiction is to be construed by referring to certain judgments and
summed up the position as follows:
“11. Thus we hold that according to Section 6 of the Act when a
coparcener dies leaving behind any female relative specified in
Class I of the Schedule to the Act or male relative specified in
that class claiming through such female relative, his undivided
interest in the Mitakshara coparcenary property would not devolve
upon the surviving coparcener, by survivorship but upon his heirs
by intestate succession. Explanation 1 to Section 6 of the Act
provides a mechanism under which
undivided interest of a
deceased coparcener can be ascertained and i.e. that the interest
of a Hindu Mitakshara coparcener shall be deemed to be the
share in the property that would have been allotted to him if a
partition of the property had taken place immediately before his
death, irrespective of whether he was entitled to claim partition or
not. It means for the purposes of finding out undivided interest of
a deceased coparcener, a notional partition has to be assumed
immediately before his death and the same shall devolve upon his
heirs by succession which would obviously include the surviving
coparcener who, apart from the devolution of the undivided interest
of the deceased upon him by succession, would also be entitled to
claim his undivided interest in the coparcenary property which he
could have got in notional partition.”
DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.
[A. K. SIKRI, J.]
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19. This case clearly negates the view taken by the High Court in
the impugned judgment.
20. That apart, we are of the view that amendment to the aforesaid
Section vide Amendment Act, 2005 clinches the issue, beyond any pale
of doubt, in favour of the appellants.  This amendment now confers
upon the daughter of the coparcener as well the status of coparcener in
her own right in the same manner as the son and gives same rights and
liabilities in the coparcener properties as she would have had if it had
been son.  The amended provision reads as under:
“6. Devolution of interest in coparcenary property.¯(1) On and
from the commencement of the Hindu Succession (Amendment)
Act, 2005 (39 of 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 the same manner
as the son;
(b) have the same rights in the coparcenery property as she would
have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenery 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 (39 of 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
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case may be, under this Act and not by survivorship, and the
coparcenery 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;
(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 (39 of 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
(39 of 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 (39 of 2005) had not been
enacted.
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[A. K. SIKRI, J.]
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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 (39 of 2005).
(5) Nothing contained in this section shall apply to a partition,
which has been effected before the 20th day of December, 2004.
Explanation.¯For the purposes of this section “partition” means
any partition made by execution of a deed of partition duly registered
under the Registration Act, 1908 (16 of 1908) or partition effected
by a decree of a court.]”
21. The effect of this amendment has been the subject matter of
pronouncements by various High Courts, in particular, the issue as to
whether the right would be conferred only upon the daughters who are
born after September 9, 2005 when Act came into force or even to
those daughters who were born earlier.  Bombay High Court in Vaishali
Satish Gonarkar v. Satish Keshorao Gonarkar2 had taken the view
that the provision cannot be made applicable to all daughters born even
prior to the amendment, when the Legislature itself specified the posterior
date from which the Act would come into force. This view was contrary
to the view taken by the same High Court in Sadashiv Sakharam Patil
v. Chandrakant Gopal Desale3.  Matter was referred to the Full Bench
and the judgment of the Full
Bench is reported as Badrinarayan
Shankar Bhandari v. Omprakash Shankar Bhandari4. The Full
Bench held that clause (a) of sub-section (1) of Section 6 would be
prospective in operation whereas clause (b) and (c) and other parts of
sub-section (1) as well as sub-section (2) would be retroactive in operation.
It held that amended Section 6 applied to daughters born prior to June
17, 1956 (the date on which Hindu Succession Act came into force) or
thereafter (between June 17, 1956 and September 8, 2005) provided
they are alive on September 9, 2005 i.e. on the date when Amended Act,
2005 came into force.  Orissa, Karnataka and Delhi High Court have
also held to the same effect5.
2AIR 2012 Bom 110
32011 (5) Bom CR 726
4AIR 2014 Bom 151
5 AIR 2008 Ori 133: Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik; ILR 2007 Kar
4790: Sugalabai v. Gundappa A. Maradi and 197 (2013) DLT 154: Rakhi Gupta v.
Zahoor Ahmad
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22. The controversy now stands settled with the authoritative
pronouncement in the case of Prakash & Ors. v. Phulavati & Ors.6
which has approved the view taken by the aforesaid High Courts as
well as Full Bench of the Bombay High Court.  Following discussion
from the said judgment is relevant:
“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 Sunder 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
of coparcenary property which may be available when the main
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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.
19. Interpretation of a provision depends on the text and the context.
[RBI v. Peerless General Finance & Investment Co. Ltd., (1987)
1 SCC 424, p. 450, para 33] Normal rule is to read the words of a
statute in ordinary sense. In case of ambiguity, rational meaning
has to be given. [Kehar Singh v. State (Delhi Admn.), (1988) 3
SCC 609 : 1988 SCC (Cri) 711] In case of apparent conflict,
harmonious meaning to advance the object and intention of
legislature has to be given. [District Mining Officerv. TISCO, (2001)
7 SCC 358]
20. There have been number of occasions when a proviso or an
explanation came up for interpretation. Depending on the text,
context and the purpose, different rules of interpretation have been
applied. [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC
591]
21. Normal rule is that a proviso excepts something out of the
enactment which would otherwise be within the purview of the
enactment but if the text, context or purpose so require a different
rule may apply. Similarly, an explanation is to explain the meaning
of words of the section but if the language or purpose so
require,
the explanation can be so interpreted. Rules of interpretation of
statutes are useful servants but difficult masters. [Keshavji Ravji
& Co. v. CIT, (1990) 2 SCC 231 : 1990 SCC (Tax) 268] Object of
interpretation is to discover the intention of legislature.
22. In this background, we find that the proviso to Section 6(1)
and sub-section (5) of Section 6 clearly intend to exclude the
transactions referred to therein which may have taken place prior
to 20-12-2004 on which date the Bill was introduced. Explanation
cannot permit reopening of partitions which were valid when
effected. Object of giving finality to transactions prior to 20-12-
2004 is not to make the main provision retrospective in any manner.
The object is that by fake transactions available property at the
introduction of the Bill is not taken away and remains available as
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and when right conferred by the statute becomes available and is
to be enforced. Main provision of the amendment in Sections 6(1)
and (3) is not in any manner intended to be affected but
strengthened in this way. Settled principles governing such
transactions relied upon by the appellants are not intended to be
done away with for period prior to 20-12-2004. In no case statutory
notional partition even after 20-12-2004 could be covered by the
Explanation or the proviso in question.
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.”
23. The law relating to a joint Hindu family governed by the
Mitakshara law has undergone unprecedented changes. The said
changes have been brought forward to address the growing need to
merit equal treatment to the nearest female relatives, namely daughters
of a coparcener. The section stipulates that a daughter would be a
coparcener from her birth, and would have the same rights and liabilities
as that of a son. The daughter would hold property to which she is
entitled as a coparcenary property, which would be construed as property
being capable of being
disposed of by her either by a will or any other
testamentary disposition. These changes have been sought to be made
on the touchstone of equality, thus seeking to remove the perceived
disability and prejudice to which a daughter was subjected.  The
fundamental changes brought forward about in the Hindu Succession
Act, 1956 by amending it in 2005, are perhaps a realization of the immortal
words of Roscoe Pound as appearing in his celebrated treaties, The
Ideal Element in Law, that “the law must be stable and yet it cannot
stand still. Hence all thinking about law has struggled to reconcile the
conflicting demands of the need of stability and the need of change.”
24. 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
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old section and the old Hindu Law was to treat them as coparceners
since birth.  The amended provision now statutorily recognizes 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 death of a coparcener. The first stage of a coparcenary
is obviously its creation as explained above, and as is well recognized.
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-s (1)(a)
and (b).
25. Reference to the decision of this Court, in the case of State
Bank of India v. Ghamandi Ram7 in essential to understand the
incidents of coparceneryship as was always inherited in a Hindu
Mitakshara coparcenary:
“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 coparcenership
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 is common;
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.”
7 AIR 1969 SC 1330.
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26. 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.
27. 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 &
Anr. v. Chakiri Yanadi & Anr.8  held that the rights of daughters in
coparcenary property as per the amended S. 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.
28. 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.  Plaintiff (respondent No.1) is son of
Arun Kumar (defendant No.1).  Since, Arun Kumar will have 1/5th share,
it would be divided into five shares on partition i.e. between defendant
No.1 Arun Kumar, his wife defendant No.2, his two daughters defendant
Nos.3 and 4 and son/plaintiff (respondent No.1).  In this manner, the
plaintiff/respondent No.1 would be entitled to 1/25th share in the property.
29. The appeals are allowed in the aforesaid terms and decree of
partition shall be drawn by the trial court accordingly.
No order as to costs.
Divya Pandey
                                                              Appeals allowed.
 8 (2011) 9 SCC 788
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