Vineeta Sharma vs. Rakesh Sharma (Supreme Court) (Larger Bench)

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R E P O R T A B L E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. DIARY NO.32601 OF 2018
VINEETA SHARMA … APPELLANT(S)
VERSUS
RAKESH SHARMA & ORS. … RESPONDENTS
WITH
SPECIAL LEAVE PETITION (C) NO.684 OF 2016
SPECIAL LEAVE PETITION (C) NO.35994 OF 2015
SPECIAL LEAVE PETITION (C) NO.38542 OF 2016
SPECIAL LEAVE PETITION (C) NO.6403 OF 2019
SPECIAL LEAVE PETITION (C) NO.14353 OF 2019
SPECIAL LEAVE PETITION (C) NO.24901 OF 2019
SPECIAL LEAVE PETITION (C) NOS.17661767
OF 2020
J U D G M E N T
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
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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
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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 redistribution
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, 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
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[C] Nos. 176667/
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
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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:
(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.
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(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
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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.
(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
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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:
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(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 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.
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(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.
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(d) A Hindu coparcenary is said to have seven essential
characteristics, which include that the interest of a deceased member
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 counterbalance
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
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coparcenary under the Mitakshara law, his right accretes to other
members by survivorship while under the English law if one of the coheirs
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).
(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
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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 forwardlooking,
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:
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(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 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
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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.
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(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 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
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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 abovesuggested
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
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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.
(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.
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(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
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death 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.
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(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
survivorship. The statutory partition under unamended Section 6 was
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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
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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
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
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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 selfacquired
property and is no more a coparcenary property.
25
(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
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
26
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 Sathyaprema Manjunatha 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 subsection
(1) and
subsection
(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 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
27
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 nonest
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
28
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 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 subdivided
into four schools, i.e., Benares, Mithila, Maharashtra
29
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 regionwise.
There
has been reorganization
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 reorganized
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 LJ202,
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.
30
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 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
31
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 greatgrandsons
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 greatgrandson,
and E
is a greatgreatgrandson.
The coparcenary will be formed up to D, i.e.,
greatgrandsons,
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 greatgrandsons
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
32
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 9.9.2005 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 greatgrandson
cannot demand a
partition as he is not a coparcener. In a case out of three male
descendants, 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
33
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)
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:
34
“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…..”
35
In Dharma Shamrao Agalawe 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 coownership
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:
36
“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 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
abovementioned
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
37
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 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
38
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:
“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
39
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.”
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 x x Coparcenary 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
40
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 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 x x”
(emphasis supplied)
41
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
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
42
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 Gowli
Buddanna 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 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
43
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
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
44
the theory of ownership being acquired by birth has given rise to
the doctrine of Samudavika swatwa or 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)
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
45
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 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
46
by the death of another coparcener and decreasing by the birth
of a new coparcener.”
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
47
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
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 coowners.
The position of ownership of coownership
property
indicates a change when actual division takes place, and coowner’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 coowner
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
48
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 Kanta
Goel 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 coowner’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 by metes and bounds. Therefore, a coowner
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 3Judge
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
49
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 x x 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
43. In Mitakshara coparcenary, there is unobstructed heritage, i.e.,
apratibandha daya and obstructed heritage i.e., sapratibandha daya.
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
50
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 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
1 Muhamad 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).
2 Sirtaji v. Algu Upadhiya, (1937) 12 Luck 237: 163 IC 935: AIR 1936 Ori 331.
3 Mitakshara, Ch.I, S 1, v 3.
51
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
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 I.—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.”
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;
52
(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;
(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 predeceased
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.
53
(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 .
(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
54
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
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
55
“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.
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
56
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 quote Savita 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 subsection
(1) contains a nonobstante
clause providing that nothing contained in the subsection
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
57
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. InState
of Andhra Pradesh, the amendment was
made, 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)
58
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 predeceased
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 predeceased
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
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
59
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,
60
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 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
61
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
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.”
62
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 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.
63
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 predeceased
daughter or son are
given a share in case child has also died then surviving child of such
predeceased
child of a predeceased
son or predeceased
daughter
would be allotted the same share, had they been alive at the time of
deemed partition. Thus, there is a seachange
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, granddaughter,
or greatgranddaughter,
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
64
retrospective as the rights and liabilities are both from the
commencement of the Amendment Act.
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 coparcener
by obstructed heritage. According to the Mitakshara coparcenary
Hindu law, as administered which is recognised in section 6(1), it is
65
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).
In ref: Effect of enlargement of daughter’s rights
66
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
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.
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
68
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 of
formation 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
69
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.
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
70
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
71
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. 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.
72
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 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 x x
73
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.”
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
74
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 29A
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
75
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 29A(
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. 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
76
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
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
77
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 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
78
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.”
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
79
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 pari passu 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:
80
“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 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
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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 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:
82
“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
83
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.
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
84
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 to a partition unless an actual physical partition is carried out
pursuant to a final decree.
85
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
86
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 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
87
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.
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 Roy and
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
88
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 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 dutybound
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
89
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:
“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
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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
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:
“ x x x.”
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
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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 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.
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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 coowners
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 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
93
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 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 Bhashyam
Ayyangar, 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
94
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
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
95
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 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
96
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
97
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”.
11. Thus we hold that according to Section 6 of the Act when a
coparcener dies leaving behind any female relative specified in
Class I of the Schedule to the Act or male relative specified in that
class claiming through such female relative, his undivided interest
in the Mitakshara coparcenary property would not devolve upon the
surviving coparcener, by survivorship but upon his heirs by
intestate succession. Explanation 1 to Section 6 of the Act provides
a mechanism under which undivided interest of a deceased
coparcener can be ascertained and i.e. that the interest of a Hindu
Mitakshara coparcener shall be deemed to be the share in the
property that would have been allotted to him if a partition of the
property had taken place immediately before his death, irrespective
of whether he was entitled to claim partition or not. It means for the
purposes of finding out undivided interest of a deceased coparcener,
a notional partition has to be assumed immediately before his death
and the same shall devolve upon his heirs by succession which
would obviously include the surviving coparcener who, apart from
the devolution of the undivided interest of the deceased upon him
by succession, would also be entitled to claim his undivided interest
in the coparcenary property which he could have got in notional
partition.”
In Anar Devi (supra), the question of enlargement of right by a
legal provision or otherwise change in the coparcener’s share was not
involved. The decision cannot help the cause set up of partition
created by statutory fiction. Statutory fiction is with respect to the
extent of the share of deceased coparcener in exigency provided in the
proviso to section 6. Coparcenary
or HUF, as the case may be, does
not come to an end by statutory fiction. Disruption of coparcenary by
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statutory fiction takes place, is not the proposition laid down in the
aforesaid decision.
98. In Puttrangamma & Ors. v. M.S. Rangamma & Ors., AIR 1968 SC
1018, this Court considered the doctrine of Hindu law, separation in
status by a definite, unequivocal and unilateral declaration thus:
“(4) It is now a settled doctrine of Hindu Law that a member of a
joint Hindu family can bring about his separation in status by a
definite, unequivocal and unilateral declaration of his intention to
separate himself from the family and enjoy his share in severalty.
There does not need to be an agreement between all the coparceners
for the disruption of the joint status. It is immaterial in such a case
whether the other coparceners give their assent to the separation or
not. The jural basis of this doctrine has been expounded by the
early writers of Hindu Law. The relevant portion of the
commentary of Vijnaneswara states as follows:
“x x x x x “
[And thus though the mother is having her menstrual courses (has
not lost the capacity to bear children) and the father has attachment
and does not desire a partition, yet by the will (or desire) of the son
a partition of the grandfather’s wealth does take place]”
Saraswathi Vilasa, placitum 28 states:
[From this it is known that without any speech (or Explanation)
even by means of a determination (or resolution) only, partition is
effected, just an appointed daughter is constituted by mere intention
without speech.]
Viramitrodaya of Mitra Misra (Ch. 11. pl. 23) is to the following
effect:
[Here too there is no distinction between a partition during the
lifetime of the father or after his death and partition at the desire of
the sons may take place or even by the desire (or at the will) of a
single (coparcener)].
99
Vyavahara Mayukha of Nilakantabhatta also states:
[Even in the absence of any common (joint family) property,
severance does indeed result by the mere declaration ‘I am separate
from thee’ because severance is a particular state (or condition) of
the mind and the declaration is merely a manifestation of this
mental state (or condition).]” (Ch. IV, S. III-I).
Emphasis is laid on the “budhivisesha” (particular state or condition
of the mind) as the decisive factor in producing a severance in
status and the declaration is stated to be merely “abhivyanjika” or
manifestation which might vary according to circumstances. In
Suraj Narain v. Iqbal Narain, (1913) ILR 35 All 80 the Judicial
Committee made the following categorical statement of the legal
position:
“A definite and unambiguous indication by one member of
intention to separate himself and to enjoy his share in severalty may
amount to separation. But to have that effect the intention must be
unequivocal and clearly expressed … Suraj Narain alleged that he
separated a few months later; there is, however, no writing in
support of his allegation, nothing to show that at that time he gave
expression to an unambiguous intention on his part to cut himself
off from the joint undivided family.”
In a later case — Girja Bai v. Sadashiv Dhundiraj, ILR 42 Cal
1031, the Judicial Committee examined the relevant texts of Hindu
Law and referred to the well-marked distinction that exists in Hindu
law between a severance in status so far as the separating member
is concerned and a de facto division into specific shares of the
property held until then jointly, and laid down the law as follows:
“One is a matter of individual decision, the desire on the part of
any one member to sever himself from the joint family and to enjoy
his hitherto undefined or unspecified share separately from the
others without being subject to the obligations which arise from the
joint status; whilst the other is the natural resultant from his
decision, the division and separation of his share which may be
arrived at either by private agreement among the parties, or on
failure of that, by the intervention of the Court. Once the decision
has been unequivocally expressed and clearly intimated to his cosharers,
his right to obtain and possess the share to which he
admittedly has a title is unimpeachable; neither the co-sharers can
question it nor can the Court examine his conscience to find out
whether his reasons for separation were well-founded or sufficient;
100
the Court has simply to give effect to his right to have his share
allocated separately from the others.”
In Syed Kasam v. Jorawar Singh, ILR 50 Cal 84, Viscount Cave, in
delivering the judgment of the Judicial Committee, observed:
“It is settled law that in the case of a joint Hindu family subject
to the law of the Mitakshara, a severance of estate is effected by an
unequivocal declaration on the part of one of the joint holders of his
intention to hold his share separately, even though no actual
division takes place; and the commencement of a suit for partition
has been held to be sufficient to effect a severance in interest even
before decree.”
(emphasis supplied)
99. Once the constitution of coparcenary changes by birth or death,
shares have to be worked out at the time of actual partition. The
shares will have to be determined in changed scenario. The severance
of status cannot come in the way to give effect to statutory provision
and change by subsequent event. The statutory fiction of partition is
far short of actual partition, it does not bring about the disruption of
the joint family or that of coparcenary is a settled proposition of law.
For the reasons mentioned above, we are also of the opinion that mere
severance of status by way of filing a suit does not bring about the
partition and till the date of the final decree, change in law, and
changes due to the subsequent event can be taken into consideration.
100. As to the effect of legal fiction, reliance was placed on
Commissioner of Income Tax, Delhi v. S Teja Singh, AIR 1959 SC 352,
in which it was laid down that in construing the scope of legal fiction,
it would be proper and even necessary to assume all those facts on
101
which alone the fiction can operate. There is no dispute with the
aforesaid proposition, but the purpose of fiction is limited so as to
work out the extent of the share of the deceased at the time of his
death, and not to affect the actual partition in case it has not been
done by metes and bounds.
101. When the proviso to unamended section 6 of the Act of 1956
came into operation and the share of the deceased coparcener was
required to be ascertained, a deemed partition was assumed in the
lifetime of the deceased immediately before his death. Such a concept
of notional partition was employed so as to give effect to Explanation
to section 6. The fiction of notional partition was meant for an
aforesaid specific purpose. It was not to bring about the real partition.
Neither did it affect the severance of interest nor demarcated the
interest of surviving coparceners or of the other family members, if
any, entitled to a share in the event of partition but could not have
claimed it. The entire partition of the coparcenary is not provided by
deemed fiction; otherwise, coparcenary could not have continued
which is by birth, and the death of one coparcener would have
brought an end to it. Legal fiction is only for a purpose it serves, and it
cannot be extended beyond was held in State of TravancoreCochin
&
Ors. v. Shanmugha Vilas Cashew Nut Factory & Ors., (1954) SCR 53;
Bengal Immunity Co. Ltd. v. State of Bihar & Ors., AIR 1955 SC 661;
102
and Controller of Estate Duty v. Smt. S. Harish Chandra, (1987) 167
ITR 230. A legal fiction created in law cannot be stretched beyond the
purpose for which it has been created, was held in Mancheri
Puthusseri Ahmed (supra) thus:
“8. xxx In the first place the section creates a legal fiction.
Therefore, the express words of the section have to be given their
full meaning and play in order to find out whether the legal fiction
contemplated by this express provision of the statute has arisen or
not in the facts of the case. Rule of construction of provisions
creating legal fictions is well settled. In interpreting a provision
creating a legal fiction the Court is to ascertain for what purpose the
fiction is created, and after ascertaining this, the Court is to assume
all those facts and consequences which are incidental or inevitable
corollaries to the giving effect to the fiction. But in so construing
the fiction it is not to be extended beyond the purpose for which it
is created, or beyond the language of the section by which it is
created. It cannot also be extended by importing another fiction. x x
x”
102. It is apparent that the right of a widow to obtain an equal share
in the event of partition with the son was not deprived under old
section 6. Unamended Section 6 provided that the interest of a
coparcener could be disposed of by testamentary or intestate
succession on happening of exigency under the proviso. Under the old
law before 1956 devise by a coparcener of Hindu Mitakshara family
property was wholly invalid. Section 30 of the Act of 1956 provided
competence for a male Hindu in Mitakshara coparcenary to dispose of
his interest in the coparcenary property by a testament.
103. In Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055, it was held
that the shares of all coparceners should be ascertained in order to
103
work out the share of the deceased coparcener, partition to be
assumed and given effect to when the question of allotment comes,
but this Court did not lay down in the said decision that the deeming
fiction and notional partition brought an end to the joint family or
coparcenary.
104. In case coparcenary is continued, and later on between the
surviving coparceners partition takes place, it would be necessary to
find out the extent of the share of the deceased coparcener. That has
to be worked out with reference to the property which was available at
the time of death of deceased coparcener whose share devolved as per
the proviso and Explanation I to section 6 as in case of intestate
succession.
105. In Hari Chand Roach v. Hem Chand & Ors., (2010) 14 SCC 294, a
widow inherited the estate of her husband and had an undivided
interest in the property. The subsequent family arrangement was
entered into whereby she exchanged her share for another property.
This Court held that though her share was definite, the interest
continued undivided, and there was a further family arrangement that
will have the effect of giving her disposition over the property in
question, which was given to her in the subsequent family
arrangement. It is apparent that under an undivided interest, as
104
provided under section 6, the shares are definite, but the interest in
the property can continue undivided.
106. In the instant case, the question is different. What has been
recognised as partition by the legislation under section 6, accordingly,
rights are to be worked out. This Court consistently held in various
decisions mentioned above that when the rights are subsequently
conferred, the preliminary decree can be amended, and the benefit of
law has to be conferred. Hence, we have no hesitation to reject the
effect of statutory fiction of proviso to section 6 as discussed in
Prakash v. Phulavati (supra) and Danamma (supra). If a daughter is
alive on the date of enforcement of the Amendment Act, she becomes a
coparcener with effect from the date of the Amendment Act,
irrespective of the date of birth earlier in point of time.
In Ref. Section 6(5)
107. The Explanation to Section 6(5) provides that for the purposes of
Section 6, ‘partition’ means effected by any registered partition deed or
effected by a decree of a court. It is pertinent to mention that
Explanation did not find place in the original Amendment Bill moved
before the Rajya Sabha on 20.12.2004. The same was added
subsequently. In the initial Note, it was mentioned that partition
should be properly defined, leaving any arbitrary interpretation, and
105
for all practical purposes, the partition should be evinced by a
registered public document or have been affected by a decree of a
court. In a case partition is oral, it should be supported by
documentary evidence. Initially, it was proposed to recognise the oral
partition also, in case the same is supported by contemporaneous
documentary evidence. The intention was to avoid any sham or bogus
transactions in order to defeat the rights of coparcener conferred upon
daughters by the Amendment Act, 2005. In this regard, Note for
Cabinet issued by the Legislative Department, Ministry of Law &
Justice, Government of India, suggested as under:
“As regards sub section 5 of the proposed new section 6, the
committee vide paragraph has recommended that the term
“partition” should be properly defined, leaving any arbitrary
interpretation. Partition for all practical purposes should be
registered have been effected by a decree of the Court. In case
where oral partition is recognised, be backed by proper
documentary evidence. It is proposed to accept this
recommendation and make suitable changes in the Bill.”
108. Learned Solicitor General argued that the requirement of a
registered partition deed may be interpreted as the only directory and
not mandatory in nature considering its purposes. However, any
coparcener relying upon any such family arrangements or oral
partition so arrived must prove the same by leading proper
documentary evidence.
109. The Cabinet note made on 29.7.2005 with respect to ‘partition’ is
quoted hereunder:
106
“5.2 In this connection it may be noted that the amendments
made in the Hindu Succession Act, 1956 by the States of
Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu and
the Kerala Joint Hindu Family System (Abolition) Act, 1975
will be superseded by any subsequent Central enactment
containing provisions to the contrary as the Central legislation
will prevail over the State enactments by virtue of operation
of doctrine of repugnancy enunciated in article 254 of the
Constitution. Innumerable settled transactions and partitions
which have taken place hitherto will also become disturbed
by the proposed course of action. Further, there could be
heartburning from the majority of the Hindu population. In
the circumstances, it is proposed that we may remove the
distinction between married and unmarried daughters and at
the same time clearly lay down that alienation or disposition
of property made at any time before the 20th day of
December, 2004, that is, the date on which the Hindu
Succession (Amendment) Bill, 2004 was introduced in the
Rajya Sabha will not be affected or invalidated.
Consequential changes are also suggested in sub-section (5)
of proposed section 6.”
110. Section 6(5) as proposed in the original Bill of 2004 read thus:
“(5) Nothing contained in this section shall apply to a
partition, which has been effected before the commencement
of the Hindu Succession (Amendment) Act, 2004.”
111. Shri R. Venkataramani, Amicus Curiae, argued that proviso to
Section 6 is plain and clear. All dispositions, alienations,
testamentary depositions, including partition effected prior to
20.12.2004, shall not be reopened. There may be a partition of
coparcenary property, and they would have also acted in pursuance of
such partition. There could be any number of instances where parties
would have entered into family settlements or division of properties on
107
the basis of respective shares or entitlement to succeed on a partition.
In many of those cases, a simple mutation in revenue entries would
have been considered as sufficient for severance of status. The
Parliament did not intend to upset all such cases, complete
transactions, and open them for a new order of succession. The
partition effected merely to avoid any obligation under any law, for
example, the law relating to taxation or land ceiling legislation, are not
examples relevant for understanding the objects and scheme of
Section 6. Therefore, the proviso to subSection
(1) of Section 6 and
subSection
5 of Section 6 is required to be given such meaning and
extent to not dilute the relevance in the forward and futurelooking
scheme of Section 6. The past cases shall not be reopened for this
purpose. He has relied upon Shashika Bai (supra).
112. Shri V.V.S. Rao, learned senior counsel appearing as Amicus
Curiae, pointed out that under Section 6(5), as proposed in the Bill
mentioned that nothing contained in the amended Section 6 should
apply to a partition, which has been effected before the
commencement of the Amendment Act. Following deliberation was
made by the Committee:
“Deliberation by the Committee
35. During its deliberation on the Bill, the Committee
pondered on the concept of ‘partition’ as referred to in the
aforesaid sub section. When the Secretary (Legislative
Department) was asked as to the validity of partition effected
108
through oral means, he replied that it depends upon the facts
of the particular case. The Secretary stated as below:
“Sub clause (5) (of the Bill) says that nothing contained in
this section shall apply to a partition, which has been effected
before the commencement of the Act. So, people may not
have a chance of effecting registered partition or going to the
court and getting it registered.”
36. Further, the Legal Secretary stated as below:
“…. under the present legal position, it is not necessary that a
partition should be registered. There is no legal requirement.
There can be oral partition also.”
General observation by the Committee
37. The Committee recommends that the term ‘partition’
should be properly defined leaving no scope for any arbitrary
interpretation. Partition, for all practical purposes should be
registered or should have been effected by a decree of the
court. In cases, where oral partition is recognised, it should
be backed by proper evidentiary support.
Subject to above, clause 2 of the Bill is adopted.”
113. Shri V.V.S. Rao argued that the status of coparcener conferred
on daughters cannot affect the partition made orally, and the
explanation at the end of Section 6 was added after receiving report of
the Parliamentary Committee. The partition may be effected orally
and later on memorandum can be created for memory purposes.
Such a document containing memorandum of partition is not required
to be registered. The parties may settle their rights and enter into
subsequent transactions based upon such a partition. It is not to
unsettle the completed property transactions that had already taken
place. The explanation should not be understood as invalidating all
109
the documents or oral partition in respect of the coparcenary property.
In case genuineness of such document is questioned, it has to be
proved to the satisfaction of the Court. The saving of transactions
would safeguard the genuine past transaction and prevent unrest in
the family system. Similar proposal was made by the Law Commission
of India.
114. The learned counsel, Shri Sridhar Potaraju, argued that
ignoring statutory fiction of partition under proviso to section 6, which
provision had been incorporated in 1956 and continued till 2005, is
not warranted.
115. Ms. Anagha S. Desai, learned counsel, argued that in the
absence of partition deed also, partition could be effected by metes
and bounds, and if it is proved properly, the daughters will not open
these concluded transactions of coparcenary property.
116. The intendment of amended Section 6 is to ensure that
daughters are not deprived of their rights of obtaining share on
becoming coparcener and claiming a partition of the coparcenary
property by setting up the frivolous defence of oral partition and/or
recorded in the unregistered memorandum of partition. The Court
has to keep in mind the possibility that a plea of oral partition may be
set up, fraudulently or in collusion, or based on unregistered
110
memorandum of partition which may also be created at any point of
time. Such a partition is not recognized under Section 6(5).
117. How family settlement is effected was considered in Kale v.
Deputy Director of Consolidation, (1976) 3 SCC 119, thus:
“10. In other words to put the binding effect and the essentials
of a family settlement in a concretised form, the matter may
be reduced into the form of the following propositions:
“(1) The family settlement must be a bona fide one so as
to resolve family disputes and rival claims by a fair and
equitable division or allotment of properties between the
various members of the family;
(2) The said settlement must be voluntary and should not
be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which
case no registration is necessary;
(4) It is well settled that registration would be necessary
only if the terms of the family arrangement are reduced into
writing. Here also, a distinction should be made between a
document containing the terms and recitals of a family
arrangement made under the document and a mere
memorandum prepared after the family arrangement had
already been made either for the purpose of the record or for
information of the Court for making necessary mutation. In
such a case the memorandum itself does not create or
extinguish any rights in immovable properties and therefore
does not fall within the mischief of Section 17(2) of the
Registration Act and is, therefore, not compulsorily
registrable;
(5) The members who may be parties to the family
arrangement must have some antecedent title, claim or
interest even a possible claim in the property which is
acknowledged by the parties to the settlement. Even if one of
the parties to the settlement has no title but under the
arrangement the other party relinquishes all its claims or titles
in favour of such a person and acknowledges him to be the
sole owner, then the antecedent title must be assumed and the
family arrangement will be upheld and the courts will find no
difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which
may not involve legal claims are settled by a bona fide family
111
arrangement which is fair and equitable the family
arrangement is final and binding on the parties to the
settlement.”
15. In Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC
292, 295, it was pointed out by this Court that a family
arrangement could be arrived at even orally and registration
would be required only if it was reduced into writing. It was
also held that a document which was no more than a
memorandum of what had been agreed to did not require
registration. This Court had observed thus:
“Family arrangement as such can be arrived at orally.
Its terms may be recorded in writing as a memorandum of
what had been agreed upon between the parties. The
memorandum need not be prepared for the purpose of
being used as a document on which future title of the
parties be founded. It is usually prepared as a record of
what had been agreed upon so that there be no hazy
notions about it in future. It is only when the parties reduce
the family arrangement in writing with the purpose of
using that writing as proof of what they had arranged and,
where the arrangement is brought about by the document
as such, that the document would require registration as it
is then that it would be a document of title declaring for
future what rights in what properties the parties possess.””
(emphasis supplied)
It is settled law that family arrangements can be entered into to
keep harmony in the family.
118. Reliance has been placed on Shripad Gajanan Suthankar v.
Dattaram Kashinath Suthankar, (1974) 2 SCC 156, in which effect of
adoption by a widow and its effect on partition and other alienation
made before adoption was considered. , the following observations
were made:
“11. Two crucial questions then arise. One-third share out of
what? Should the gift by Mahadev of what was under the then
circumstances his exclusive property be ignored in working
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out the one-third share? Two principles compete in this
jurisdiction and judges have struck a fair balance between the
two, animated by a sense of realism, impelled by desire to do
equity and to avoid unsettling vested rights and concluded
transactions, lest a legal fiction should by invading actual
facts of life become an instrumentality of instability. Law and
order are jurisprudential twins and this perspective has
inarticulately informed judicial pronouncements in this
branch of Hindu law.
18. We reach the end of the journey of precedents, ignoring as
inessential other citations. The balance sheet is clear. The
propositions that emerge are that: ( i ) A widow’s adoption
cannot be stultified by an anterior partition of the joint family
and the adopted son can claim a share as if he were begotten
and alive when the adoptive father breathed his last; ( ii )
Nevertheless, the factum of partition is not wiped out by the
later adoption; ( iii ) Any disposition testamentary or inter
vivos lawfully made antecedent to the adoption is immune to
challenge by the adopted son; ( iv ) Lawful alienation in this
context means not necessarily for a family necessity but
alienation made competently in accordance with law; ( v ) A
widow’s power of alienation is limited and if — and only if
— the conditions set by the Hindu Law are fulfilled will the
alienation bind a subsequently adopted son. So also alienation
by the Karta of an undivided Hindu family or transfer by a
coparcener governed by the Benares school; (vi) Once
partitioned validly, the share of a member of a Mitakshara
Hindu family in which his own issue have no right by birth
can be transferred by him at his will and such transfers, be
they by will, gift or sale, bind the adopted son who comes
later on the scene. Of course, the position of a void or
voidable transfer by such a sharer may stand on a separate
footing but we need not investigate it here.”
(emphasis supplied)
119. In Chinthamani Ammal v. Nandgopal Gounder, (2007) 4 SCC 163,
it was observed that a plea of partition was required to be
substantiated as under law, there is a presumption as to jointness.
113
Even separate possession by cosharers
may not, by itself, lead to a
presumption of partition.
120. In Rukhmabai v. Laxminarayan, AIR 1960 SC 335 and
Mudigowda Gowdappa Sankh & Ors. v. Ramchandra Revgowda Sankh
(dead) by his LRs. & Anr., AIR 1969 SC 1076, it was observed that
prima facie a document expressing the intention to divide brings about
a division in status, however, it is open to prove that the document
was a sham or a nominal one and was not intended to be acted upon
and executed for some ulterior purpose. The relations with the estate
is the determining factor in the statement made in the document. The
statutory requirement of substituted Section 6(5) is stricter to rule out
unjust deprivation to the daughter of the coparcener’s right.
121. In Kalwa Devdattam v. Union of India, AIR 1964 SC 880, it was
laid down that when a purported petition is proved to be a sham, the
effect would be that the family is considered joint.
122. Earlier, an oral partition was permissible, and at the same time,
the burden of proof remained on the person who asserted that there
was a partition. It is also settled law that Cesser of Commonality is
not conclusive proof of partition, merely by the reason that the
members are separated in food and residence for the convenience, and
separate residence at different places due to service or otherwise does
not show separation. Several acts, though not conclusive proof of
114
partition, may lead to that conclusion in conjunction with various
other facts. Such as separate occupation of portions, division of the
income of the joint property, definement of shares in the joint property
in the revenue of land registration records, mutual transactions, as
observed in Bhagwani v. Mohan Singh, AIR 1925 PC 132, and
Digambar Patil v. Devram, AIR 1995 SC 1728.
123. There is a general presumption that every Hindu family is
presumed to be joint unless the contrary is proved. It is open even if
one coparcener has separated, to the nonseparating
members to
remain joint and to enjoy as members of a joint family. No express
agreement is required to remain joint. It may be inferred from how
their family business was carried on after one coparcener was
separated from them. Whether there was a separation of one
coparcener from all other members of a joint family by a decree of
partition, the decree alone should be looked at to determine the
question was laid down in Palani Ammal (supra) and Girijanandini
Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124. In
Palani Ammal (supra), it was held:
“…… It is also now beyond doubt that a member of such a
joint family can separate himself from the other members of
the joint family and is on separation entitled to have his share
in the property of the joint family ascertained and partitioned
off for him, and that the remaining coparceners, without any
special agreement amongst themselves, may continue to be
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coparceners and to enjoy as members of a joint family what
remained after such a partition of the family property. That
the remaining members continued to be joint may, if disputed,
be inferred from the way in which their family business was
carried on after their previous coparcener had separated from
them. It is also quite clear that if a joint Hindu family
separates, the family or any members of it may agree to
reunite as a joint Hindu family, but such a reuniting is for
obvious reasons, which would apply in many cases under the
law of the Mitakshara, of very rare occurrence, and when it
happens it must be strictly proved as any other disputed fact
is proved….”
124. In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laid down
that in case there are two coparcener brothers, it is not necessary that
there would be a separation inter se family of the two brothers. The
family of both the brothers may continue to be joint.
125. The severance of status may take place from the date of filing of
a suit; however, a decree is necessary for working out the results of
the same, and there may be a change of rights during the pendency of
the suit for allotting definite shares till final decree is passed. There
are cases in which partition can be reopened on the ground of fraud or
mistake, etc. or on certain other permissible grounds. In appropriate
cases, it can be reopened at the instance of minor also.
126. The protection of rights of daughters as coparcener is envisaged
in the substituted Section 6 of the Act of 1956 recognises the partition
brought about by a decree of a court or effected by a registered
instrument. The partition so effected before 20.12.2004 is saved.
116
127. A special definition of partition has been carved out in the
explanation. The intendment of the provisions is not to jeopardise the
interest of the 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 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
117
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. We reiterate 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. We say so for
exceptionally good cases where partition is proved conclusively and we
caution the courts that the finding is not to be based on the
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 by us as earlier
execution of a registered document for partition was not necessary,
and the Court was rarely approached for the sake of family prestige. It
was approached as a last resort when parties were not able to settle
their family dispute amicably. We take note of the fact that even
before 1956, partition in other modes than envisaged under Section
6(5) had taken place.
118
128. The expression used in Explanation to Section 6(5) ‘partition
effected by a decree of a court’ would mean giving of final effect to
actual partition by passing the final decree, only then it can be said
that a decree of a court effects partition. A preliminary decree
declares share but does not effect the actual partition, that is effected
by passing of a final decree; thus, statutory provisions are to be given
full effect, whether partition is actually carried out as per the
intendment of the Act is to be found out by Court. Even if partition is
supported by a registered document it is necessary to prove it had
been given effect to and acted upon and is not otherwise sham or
invalid or carried out by a final decree of a court. In case partition, in
fact, had been worked out finally in toto as if it would have been
carried out in the same manner as if affected by a decree of a court, it
can be recognized, not otherwise. A partition made by execution of
deed duly registered under the Registration Act, 1908, also refers to
completed event of partition not merely intendment to separate, is to
be borne in mind while dealing with the special provisions of Section
6(5) conferring rights on a daughter. There is a clear legislative
departure with respect to proof of partition which prevailed earlier;
thus, the Court may recognise the other mode of partition in
exceptional cases based upon continuous evidence for a long time in
the shape of public document not mere stray entries then only it
119
would not be in consonance with the spirit of the provisions of Section
6(5) and its Explanation.
129. Resultantly, we answer the reference 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 9.9.2005 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 share of deceased coparcener
when he was survived by a female heir, of ClassI
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
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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.
130. We understand that on this question, suits/appeals are
pending before different High Courts and subordinate courts. The
matters have already been delayed due to legal imbroglio caused by
conflicting decisions. The daughters cannot be deprived of their right
of equality conferred upon them by Section 6. Hence, we request that
the pending matters be decided, as far as possible, within six months.
In view of the aforesaid discussion and answer, we overrule the
views to the contrary expressed in Prakash v. Phulavati and
Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @
Suman Surpur & Anr. v. Amar is partly overruled to the extent it is
121
contrary to this decision. Let the matters be placed before appropriate
Bench for decision on merits.
…………………………….J.
(Arun Mishra)
…………………………….J.
(S. Abdul Nazeer)
…………………………….J.
(M.R. Shah)
New Delhi:
August 11, 2020.