1
\nR E P O R T A B L E
\nIN THE SUPREME COURT OF INDIA
\nCIVIL APPELLATE JURISDICTION
\nCIVIL APPEAL NO. DIARY NO.32601 OF 2018
\nVINEETA SHARMA \u2026 APPELLANT(S)
\nVERSUS
\nRAKESH SHARMA & ORS. \u2026 RESPONDENTS
\nWITH
\nSPECIAL LEAVE PETITION (C) NO.684 OF 2016
\nSPECIAL LEAVE PETITION (C) NO.35994 OF 2015
\nSPECIAL LEAVE PETITION (C) NO.38542 OF 2016
\nSPECIAL LEAVE PETITION (C) NO.6403 OF 2019
\nSPECIAL LEAVE PETITION (C) NO.14353 OF 2019
\nSPECIAL LEAVE PETITION (C) NO.24901 OF 2019
\nSPECIAL LEAVE PETITION (C) NOS.17661767
\nOF 2020
\nJ U D G M E N T
\nARUN MISHRA, J.
\n1. The question concerning the interpretation of section 6 of the
\nHindu Succession Act, 1956 (in short, ‘the Act of 1956’) as amended
\nby Hindu Succession (Amendment) Act, 2005 (in short, ‘the Act of
\n2
\n2005’) has been referred to a larger Bench in view of the conflicting
\nverdicts rendered in two Division Bench judgments of this Court in
\nPrakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @
\nSuman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343. In other
\nconnected matters, the question involved is similar; as such, they have
\nalso been referred for hearing along.
\n2. In the case of Lokmani & Ors. v. Mahadevamma & Ors., [S.L.P.(C)
\nNo.6840 of 2016] the High Court held that section 6, as amended by
\nthe Act of 2005, is deemed to be there since 17.6.1956 when the Act of
\n1956 came into force, the amended provisions are given retrospective
\neffect, when the daughters were denied right in the coparcenary
\nproperty, pending proceedings are to be decided in the light of the
\namended provisions. Inequality has been removed. The High Court
\nheld that the oral partition and unregistered partition deeds are
\nexcluded from the definition of ‘partition’ used in the Explanation to
\namended Section 6(5).
\n3. In Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994\/2015],
\nthe question raised is about the retrospectivity of section 6 as
\nsubstituted by Amendment Act, 2005 and in case the father who was
\na coparcener in the joint Hindu family, was not alive when the Act of
\n3
\n2005 came into force, whether daughter would become a coparcener of
\njoint Hindu family property.
\n4. In the matter of Sistia Sarada Devi v. Uppaluri Hari Narayana &
\nOrs. [SLP [C] No.38542\/2016], the question raised is where the final
\ndecree has not been passed in a suit for partition, whether the redistribution
\nof shares can be claimed by the daughters by amended
\nsection 6, as substituted.
\n5. In Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C]
\nNo.6403\/2019], the question raised is whether section 6, as
\nsubstituted, is prospective as the father died in the year 1994 and,
\nthus, no benefit could be drawn by the daughters.
\n6. In Smt. V.L. Jayalakshmi v. V.L. Balakrishna & Ors. [SLP [C] No.
\n14353\/2019], the petitioner sought partition of his father’s ancestral
\nproperties, and suit was filed in 2001. The trial court granted 1\/7th
\nshare to all the parties. The same was modified. It was held petitioner,
\nand daughters were entitled to only 1\/35th share in the light of the
\ndecision of this Court in Prakash v. Phulavati (supra).
\n7. In Indubai v. Yadavrao [SLP [C] No.24901\/2019], a similar
\nquestion has been raised. In B.K. Venkatesh v. B.K. Padmavathi [SLP
\n4
\n[C] Nos. 176667\/
\n2020], the daughters have been accorded equal
\nshares in Item No. 1 of Schedule A property, that has been questioned.
\n8. A Division Bench of this Court in Prakash v. Phulavati (supra)
\nheld that section 6 is not retrospective in operation, and it applies
\nwhen both coparceners and his daughter were alive on the date of
\ncommencement of Amendment Act, 9.9.2005. This Court further
\nopined that the provision contained in the Explanation to section 6(5)
\nprovides for the requirement of partition for substituted section 6 is to
\nbe a registered one or by a decree of a court, can have no application
\nto a statutory notional partition on the opening of succession as
\nprovided in the unamended Section 6. The notional statutory partition
\nis deemed to have taken place to ascertain the share of the deceased
\ncoparcener which is not covered either under the proviso to section
\n6(1) or section 6(5), including its Explanation. The registration
\nrequirement is inapplicable to partition of property by operation of
\nlaw, which has to be given full effect. The provisions of section 6 have
\nbeen held to be prospective.
\n9. In Danamma (supra), this Court held that the amended
\nprovisions of section 6 confer full rights upon the daughter
\ncoparcener. Any coparcener, including a daughter, can claim a
\npartition in the coparcenary property. Gurunalingappa died in the
\n5
\nyear 2001, leaving behind two daughters, two sons, and a widow.
\nCoparcener’s father was not alive when the substituted provision of
\nsection 6 came into force. The daughters, sons and the widow were
\ngiven 1\/5th share apiece.
\nArguments:
\n10. Shri Tushar Mehta, learned Solicitor General of India, appearing
\non behalf of Union of India, raised the following arguments:
\n(i) The daughters have been given the right of a coparcener, to bring
\nequality with sons, and the exclusion of daughter from coparcenary
\nwas discriminatory and led to oppression and negation of fundamental
\nrights. The Amendment Act, 2005, is not retrospective but retroactive
\nin operation since it enables the daughters to exercise their
\ncoparcenary rights on the commencement of the Amendment Act.
\nEven though the right of a coparcener accrued to the daughter by
\nbirth, coparcenary is a birthright.
\n(ii) The conferment of coparcenary status on daughters would not
\naffect any partition that may have occurred before 20.12.2004 when
\nthe Bill was tabled before Rajya Sabha as contained in the proviso to
\nsection 6(1). Hence, the conferment of right on the daughter did not
\ndisturb the rights which got crystallised by partition before
\n20.12.2004.
\n6
\n(iii) Unamended Section 6 provided that if a male coparcener had left
\nbehind on death a female relative specified in Class I of the Schedule
\nor male relative claiming through such female relative, the daughter
\nwas entitled to limited share in the coparcenary interest of her father
\nnot share as a coparcener in her rights. They were unable to inherit
\nthe ancestral property like sons\/male counterparts. The Mitakshara
\ncoparcenary law not only contributed to discrimination on the ground
\nof gender but was oppressive and negated the fundamental right of
\nequality guaranteed by the Constitution of India.
\n(iv) With effect from 9.9.2005, the date of enforcement of Amendment
\nAct, the daughters became coparceners by birth, in their own right
\nwith the same liability in the coparcenary property as if she had been
\na son.
\n(v) The Explanation contained under Section 6(1) concerning conferral
\nof rights as coparcener, daughter as coparcener, shall not affect or
\ninvalidate any disposition or alienation including any partition or
\ntestamentary disposition of the property which had taken place before
\n20.12.2004.
\n(vi) After substitution of the provisions of section 6, the devolution of
\ncoparcenary by survivorship has been abrogated. Now in case of death
\n7
\nof coparcener, male\/female, the coparcenary interest would not
\ndevolve by survivorship but by intestate succession under the
\nprovisions of the Hindu Succession Act or based on testamentary
\nsuccession.
\n(vii) The decision in Prakash v. Phulavati to the effect that there
\nshould be a living daughter of a living coparcener on the date of
\ncommencement of the Act of 2005 fails to appreciate that coparcenary
\nrights are by birth. The death of a Hindu coparcener father or any
\nother coparcener is only relevant for the succession of his coparcenary
\ninterest under section 6(3) of the Act of 2005. The death of any
\ncoparcener does not bring to an end any coparcenary. An increase or
\ndecrease in the coparcenary interest independently held by each
\ncoparcener may occur by birth or death. On the coparcener’s death,
\nthe notional partition is drawn only to determine his coparcenary’s
\ninterest. It does not disturb the other incidents of the coparcenary, it
\ncan continue without disruption with other coparceners, and even new
\ncoparceners can be added on account of birth till the time an actual
\npartition takes place. Coparcenary interest becomes definite only when
\na partition is effected.
\n(viii) The daughter of a coparcener in section 6 does not imply the
\ndaughter of a living coparcener or father, as the death of the
\n8
\ncoparcener\/father does not automatically lead to the end of
\ncoparcenary, which may continue with other coparceners alive. Thus,
\nthe coparcener, from whom the daughter is inheriting by her being
\ncoparcener, needs not to be alive as on the commencement of the
\nAmendment Act of 2005.
\n(ix) The Explanation to Section 6(5) was not provided in the original
\namendment Bill moved before the Rajya Sabha on 20.12.2004, which
\ncame to be added later.
\n(x) Often, coparceners enter into a family arrangement or oral
\npartition, and it may not be necessary to register such a partition.
\nExplanation to section 6(5) of the Amendment Act requires the
\npartition to be registered, was inserted to avoid any bogus or sham
\ntransactions. Considering the entire scheme of the Amendment Act,
\nthe requirement of registered partition deed is directory and not
\nmandatory. Any coparcener relying upon any family arrangement or
\noral partition must prove the same by leading proper documentary
\nevidence.
\n11. Shri R. Venkataramani, learned senior counsel\/amicus curiae,
\nargued as under:
\n9
\n(a) There is no conflict between the decisions in Prakash v.
\nPhulavati (supra) and Danamma v. Suman (supra). In both the
\ndecisions, the provisions of section 6 have been held to be of
\nprospective application. The amendment is a prospective one. The
\ndeclaration by the law that the daughter of a coparcener has certain
\nentitlements and be subject to certain liabilities is prospective. The
\ndaughter is treated as a coparcener under the amendment Act and not
\nbecause of the daughter’s birth prior to the amendment.
\n(b) Unlike the joint tenancy principle in English law, a joint Hindu
\nfamily stands on a different footing. Every son by birth became a
\ncoparcener, and because of birth, the son became entitled to be a
\ncoparcener in the joint Hindu family property entitled to claim
\npartition with or without reference to the death of the Karta of a joint
\nHindu family. Like a son born into the family, an adopted son is also
\nentitled to succeed to the joint family property. He becomes a
\ncoparcener with adoptive father, but his relationship with the natural
\nfamily is severed, including his status as a coparcener in the family of
\nbirth as laid down in Nagindas Bhagwandas v. Bachoo Hurkissondas,
\nAIR 1915 PC 41 and Nanak Chand & Ors. v. Chander Kishore & Ors.,
\nAIR 1982 Del. 520.
\n10
\n(c) A Hindu joint family consists of male members descended
\nlineally from a common male ancestor, together with their mothers,
\nwives or widows, and unmarried daughters bound together by the
\nfundamental principle of a Sapindaship of family relationship is the
\nessence and distinguishing feature of the institution of the
\ncoparcenary. A joint family may consist of a single male member and
\nwidows of deceased male members. This body is purely a creature of
\nlaw and cannot be created by an act of parties, as observed in G.
\nNarasimulu & Ors. v. P. Basava Sankaram & Ors., AIR 1925 Mad. 249;
\nand State Bank of India v. Ghamandi Ram (dead) through Gurbax Rai,
\n(1969) 2 SCC 33. An undivided family which is the normal condition of
\nHindu society is ordinarily joint not only in the estate but in food and
\nworship, and, therefore, not only the concerns of the joint family but
\nwhatever relates to their commensality and their religious duties are
\nregulated by the member or by the manager to whom they have
\nexpressly or by implication delegated the task of regulation as held in
\nRaghunadha v. Brozo Kishore, 3 IA 154 (PC). The coparcener status
\nbeing the result of birth; possession of the joint property is only an
\nadjunct of the joint family and is not necessary for its constitution, as
\ndiscussed in Haridas Narayandas Bhatia v. Devkuvarbai Mulji, AIR
\n1926 Bom. 408.
\n11
\n(d) A Hindu coparcenary is said to have seven essential
\ncharacteristics, which include that the interest of a deceased member
\nsurvives on his death and merges in the coparcenary property as
\nobserved in Controller of Estate Duty, Madras v. Alladi Kuppuswamy,
\n(1977) 3 SCC 385. As a result, if father or any other coparcener has
\ndied before the Amendment Act, 2005, the interest of father or another
\ncoparcener would have already merged in the surviving coparcenary.
\nConsequently, there will be no coparcener alive, from whom the
\ndaughter will succeed. Thus, the daughter can succeed only in the
\ninterest of living coparcener as on the date of enforcement of the
\nAmendment Act.
\n(e) In Anthonyswamy v. Chhinnaswamy, (1969) 3 SCC 15, it was
\nobserved that as a logical corollary and counterbalance
\nto the
\nprinciple before the amendment, that the son from the moment of his
\nbirth, acquires an interest in the coparcener, a pious obligation is
\nimposed on him to pay his father’s debts incurred for the purpose
\nwhich is not illegal or immoral.
\n(f) In Baijnath Prasad Singh & Ors. v. Tej Bali Singh, AIR 1921 PC
\n62, it was observed that there is a difference between coparcenary in
\nHindu law, which is not identical with coparcenary as understood
\nunder the English law. In the case of death of a member of a
\n12
\ncoparcenary under the Mitakshara law, his right accretes to other
\nmembers by survivorship while under the English law if one of the coheirs
\njointly inheriting property dies, his or her right goes to his or her
\nrelations without accreting to surviving coparceners.
\n(g) By birth and adoption, a male becomes a coparcener. The
\ncustom of adoption is of ancient origin, as observed in Amarendra Man
\nSingh Bhramarbar & Anr. v. Sanatan Singh & Ors., AIR 1933 PC 155,
\nand Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma &
\nOrs., 26 IA 113. The adoption at the relevant time was only of male
\nand not of a female as the custom related to succession to the
\nproperty, as discussed in Bireswar Mookerji & Ors. v. Shib Chunder
\nRoy, 19 IA 101.
\n(h) By the expression used in the amended section 6, the daughter
\nbecomes coparcener by birth. The retrospective effect is not intended
\nto be given to the provisions of section 6. Though equality has been
\nbrought in, w.e.f. 2005, the incidence of birth of a daughter before
\n2005 is of no consequence and not to reopen the past transactions.
\n(i) The oral partition and family settlement are not intended to be
\nreopened by section 6(1) and 6(5).
\n(j) If the daughter is treated as coparcener at any point of time in
\nthe past before the amendment, the same will bring in enormous
\n13
\nuncertainty in the working of the law. It can be stated that the
\nParliament has not intended to scramble the unscrambled egg or to
\nresurrect the past.
\n(k) Challenges to partition had always come when any member of a
\ncoparcenary, including an adopted son, stood deprived of the
\nentitlement to succeed to the joint family property.
\n(l) The scheme of section 6 is future and forwardlooking,
\nand it
\nhas to be interpreted in such a manner that its relevance is not
\ndiluted. Now the rights of a coparcener have been enlarged, and the
\nprovision has disabled it from defeating the right of a daughter from
\nbeing treated equally.
\n(m) In the light of the decision in Shashikalabai (Smt) v. the State of
\nMaharashtra & Anr., (1998) 5 SCC 332, the past transactions cannot
\nbe reopened. Thus, the daughter, whose coparcener father, was alive
\non the date of incorporation of provisions of section 6, will be treated
\nas a coparcener. Any other interpretation would cause unjust
\nconsequences.
\n12. Shri V.V.S. Rao learned amicus curiae\/senior counsel, argued
\nthat:
\n14
\n(a) the logic of Prakash v. Phulavati has been upheld in Mangammal
\nv. T.B. Raju, (2018) 15 SCC 662. It was held that there should be a
\nliving daughter of a living coparcener to inherit the property on the
\ndate of enforcement of the amended provisions of the 2005 Act.
\n(b) Section 6(1)(a) declares a daughter to be a coparcener by birth.
\nBy the declaration, a daughter stands included in coparcenary. As the
\ndeclaration is to the effect that the daughter is to become coparcener
\nby birth, the question of prospectivity or retrospectivity will not arise\u2014
\ndaughter, whether born before 2005 or after that, is considered a
\ncoparcener.
\n(c) Section 6(1)(b) and (c) deal with the effects of inclusion of
\ndaughter as a coparcener. Having regard to the plain language and
\nfuture perfect tense “shall have the same rights,” the only conclusion
\nis that the daughters who are included in the coparcenary will have
\nthe same rights after coming into force of the Amendment Act. The
\nfuture perfect tense indicates that an action will have been completed
\n(finished or perfected) at some point in the future. This tense is formed
\nwith “will” plus “have” plus the past participle of the verb. If the
\nParliament had intended to mean as conferring the same rights in the
\ncoparcenary, anterior to the amendment, the language would have
\nbeen different. The future perfect tense indicates that action will have
\n15
\nto be completed at some point in time in the future. The tense is
\nformed with \u201cwill\u201d plus “have” plus the past participle of the verb. If
\nthe Parliament intended to mean conferring the same rights in the
\ncoparcenary, anterior to the amendment, the language would have
\nbeen different. If the daughter is now made a coparcener, she would
\nnow have the same rights as she is a son.
\n(d) The legislative history of section 6 throws light in understanding
\nthe provision before the Act of 1956 was enacted. Women were not
\nhaving any interest in the coparcenary properties, and on the demise
\nof a coparcener, the share of the deceased coparcener devolved on the
\nsurviving coparceners. Hindu Succession Act made inroads into the
\nsystem. It provided that on the demise of a coparcener, his interest in
\nthe coparcenary properties would not devolve on other coparceners by
\nsurvivorship, and the share of the deceased coparcener was to be
\nascertained by way of notional partition as on the date of death. To
\nthat limited extent, the women did not become a coparcener, but they
\ncould inherit the property.
\n(e) The 174th Report of Law Commission of India recommended the
\nadoption of the Kerala Model, and the amendments were effected in
\nKerala, Andhra Pradesh, Karnataka, and in several States, giving
\ncoparcenary rights to the daughters.
\n16
\n(f) The Parliament Standing Committee report indicates that the
\nMinistry proposed giving the benefit of the provision of this Bill to
\nmarried daughters after the commencement of the proposed amending
\nlegislation.
\n(g) It was proposed in the report that nothing in the amended
\nsection 6 shall apply to a partition that has been effected before the
\ncommencement of the Amendment Act.
\n(h) Deliberations by the Committee also indicate that concerning the
\npartition effected through oral means, it was opined that it would
\ndepend upon the facts of a particular case. As per the prevailing law, it
\nwas not necessary that a partition should be registered. There can be
\nan oral partition also, as the law does not prohibit it. At the same
\ntime, the Committee observed that the term ‘partition’ should be
\ndefined appropriately, and for all practical purposes, should be
\nregistered or should have been effected by a decree of the Court. In
\ncase where oral partition is recognised, it should be backed by proper
\nevidentiary support.
\n(i) The Parliament intended to confer the status of a coparcener
\nfrom the birth of a daughter. However, it was never intended to confer
\n17
\nher the rights in the coparcenary property retrospectively, for the
\nfollowing reasons:
\na. Section 6(1)(a) deals with the inclusion of a daughter in the
\ncoparcenary “on and from the commencement of amendment
\nAct 2005, w.e.f. 9.9.2005;
\nb. The operating part of section 6(1) controls not only clause (a)
\nbut also clauses (b) and (c);
\nc. Hence the daughter who is declared as coparcener from
\n9.9.205 would have the right in a coparcenary property only
\nfrom 9.9.2005;
\nd. Equally, a daughter who is now coparcener will be subject to
\nthe same liabilities in respect of property only from 9.9.2005.
\n(j) Conferment of coparcenary status shall take effect on and from
\nthe commencement “of the Amendment Act.” The use of the words “on
\nand from” in section 6(1) indicates that the daughter becomes
\ncoparcener from the commencement of the Act. The daughter of a
\ncoparcener shall by birth become a coparcener, have the same rights
\nand be subject to the same liabilities. The word “shall” indicates the
\ndue status of the daughter as coparcener is created only for the future
\nand would not affect the existing rights of a male coparcener. The use
\nof the words “become,” “have,” and “be” are all present tenses, and
\nthey reiterate to support the abovesuggested
\ninterpretation.
\n(k) In the Bill recommended by the Law Commission and the Bill
\nintroduced, the Explanation to section 6(5) was not mentioned. It was
\nintroduced only on the recommendations of the Parliamentary
\nCommittee. Thus, the concept of partition by registered deed and
\n18
\ndecree of the Court were introduced. It follows that on a daughter
\nbecoming coparcener from a particular date, she cannot prospectively
\naffect the share of a coparcener, which was already fixed as held in
\nPrakash v. Phulavati.
\n(l) The essential condition for conferring the status of coparcener on
\nthe daughter is that there should be a coparcenary on the date of
\ncoming into force of the Act in 2005. If the coparcenary was disrupted
\nby the act of the parties or by the death of parties, in partition or sale,
\nthe daughter could not get the status of a coparcener in coparcenary.
\nThe status conferred cannot affect the past transactions of alienation,
\ndisposition, partition \u2013 oral or written.
\n(m) Partition could be in the form of a memorandum of partition, or
\nit could also be made orally. In most of the families, there used to be
\nan oral partition. Once parties settle their rights, the partition effected
\norally cannot be ignored to give shares to the daughters. Such legal
\ntransactions cannot be unsettled; the Explanation safeguards all
\ngenuine transactions of the past, including oral partition effected by
\nthe parties. The Explanation should not be understood as invalidating
\nall other documents recording partition or oral partition in respect of
\ncoparcenary property before 20.12.2004.
\n19
\n(n) Daughters conferred with the status of coparcener under the
\nAmendment Act cannot challenge past transactions that took place
\nbefore 20.12.2004, and the daughter should be alive as on the date of
\namendment. There should be ‘living coparcener’ to whom the daughter
\ncan inherit to become a coparcener.
\n13. Shri Sridhar Potaraju, learned counsel, vociferously argued that:
\n(a) The decision in Prakash v. Phulavati adopted the correct
\ninterpretation of the provision. Married daughters are not considered
\nas part of the father’s joint family. They were recognised as Class I
\nheirs that, by itself, did not make them part of their father’s joint
\nHindu family. He has relied upon Surjit Lal Chhabda v. Commissioner
\nof Income Tax, (1976) 3 SCC 142. A married daughter ceases to be a
\nmember of the father’s family and becomes a member of her
\nhusband’s family.
\n(b) As considered by P. Ramanatha Aiyar in Major Law Lexicon, the
\nland is held in coparcenary when there is the unity of title, possession,
\nand interest. A Hindu coparcenary is a narrower body than the joint
\nfamily. A coparcener shares (equally) with others in inheritance in the
\nestate of a common ancestor. Otherwise called parceners are such as
\nhave an equal portion in the inheritance of an ancestor. The share of a
\ncoparcener is undefined and keeps fluctuating with the birth and
\n20
\ndeath of a coparcener. When a male is born, he becomes a coparcener,
\nthereby decreasing the share of other coparceners. In the event of the
\ndeath of a coparcener, the rule of survivorship comes into play, and
\nthe estate devolves on the surviving coparceners to the exclusion of
\nheirs of the deceased coparcener. Status of a coparcener is a creation
\nof law commencing with birth and ending with death or by severance
\nof such status by way of partition or statutory fiction. The status of
\ncoparcenary ceases on death.
\n(c) “Daughter of a coparcener” means the daughter of an alive
\nperson and has the status of a coparcener on the date of
\ncommencement of the Amendment Act. In case a statutory partition
\nhas taken place, the same is required to be recognised. It would bring
\nseverance of jointness of status and settle the share.
\n(d) If a preliminary decree of partition has been passed and has
\nattained finality, it must be given effect. The mere filing of a suit for
\npartition is sufficient to effect a partition. On separation of status, the
\ndecree is passed by a court as held in Puttrangamma & Ors. v. M.S.
\nRanganna & Ors., AIR 1968 SC 1018.
\n21
\n(e) What rights have been conferred by way of survivorship are not
\nintended to be taken away except as provided by the amended proviso
\nin section 6(3) of the Amendment Act.
\n(f) A legal fiction created in law cannot be stretched beyond the
\npurpose for which the fiction has been created, as held in Mancheri
\nPuthusseri Ahmed & Ors. v. Kuthiravattam Estate Receiver, (1996) 6
\nSCC 185.
\n(g) Statutory partition leads to disruption. A statutory partition, as
\nprovided in section 6(3), is to be given full effect. The same leads to
\nseverance of status of jointness of the deceased coparcener and his
\nlegal heirs, which shall include the right of maintenance from the joint
\nfamily of the widow of the deceased coparcener and such other rights.
\nSuch partition brings an end to the joint family. In the case of death of
\nthe father of petitioner in 1963, notional partition would occur and the
\nconsequences laid down in Anar Devi & Ors. v. Parmeshwari Devi &
\nOrs., (2006) 8 SCC 656 would follow.
\n(h) The married daughters on the death of father in 1963 were not
\nentitled to a share in the coparcenary property. Only sons were
\nentitled to equal shares, and sons obtained the property by way of
\nsurvivorship. The statutory partition under unamended Section 6 was
\n22
\nconsidered in Gurupad Khandappa Magdum v. Hirabai Khandappa
\nMagdum & Ors., (1978) 3 SCC 383. Statutory partition has been in
\nexistence in section 6 since 1956 and is continued by the 2005
\nAmendment.
\n(i) Section 6, as amended, is not applicable in the case of a
\ndaughter whose father is not alive at the time of the introduction of
\nprovisions of section 6. Every member of a joint Hindu family is not
\nentitled to be a coparcener either under the traditional Hindu law or
\nunder the Hindu Succession Act, 1956 or the Amendment Act, 2005.
\nUnder Section 29A introduced in the State of Andhra Pradesh,
\nunmarried daughters were given the rights of a coparcener while
\nexcluding married daughters. The Central Amendment has not made a
\ndistinction based on the daughter’s marital status expressly but has
\nmade it evident by the use of the expression ‘joint Hindu family’ and
\n‘daughter of a coparcener.’ The provisions should be read to exclude
\nmarried daughters. The provisions of section 6, as amended, are
\nprospective. It was not intended to unsettle the settled affairs.
\n(j) The Explanation to section 6(5) cannot be interpreted to take
\naway the rights crystallised upon the surviving coparceners of the
\njoint family under the statutory partition. The purpose of the
\n23
\nExplanation was considered in S. Sundaram Pillai & Ors. v. V. R.
\nPattabiraman & Ors., (1985) 1 SCC 591 thus:
\n\u201c53. Thus, from a conspectus of the authorities referred to above, it
\nis manifest that the object of an Explanation to a statutory provision
\nis\u2014
\n\u201c(a) to explain the meaning and intendment of the Act itself,
\n(b) where there is any obscurity or vagueness in the main
\nenactment, to clarify the same to make it consistent with the
\ndominant object it seems to subserve,
\n(c) to provide an additional support to the dominant object of the
\nAct in order to make it meaningful and purposeful,
\n(d) an Explanation cannot in any way interfere with or change the
\nenactment or any part thereof but where some gap is left which is
\nrelevant for the Explanation, in order to suppress the mischief and
\nadvance the object of the Act it can help or assist the Court in
\ninterpreting the true purport and intendment of the enactment, and
\n(e) it cannot, however, take away a statutory right with which any
\nperson under a statute has been clothed or set at naught the working
\nof an Act by becoming an hindrance in the interpretation of the
\nsame.\u201d
\n(k) A preliminary decree determines the shares. Section 2(2) of the
\nCode of Civil Procedure defines ‘decree’ to mean the formal expression,
\nwhich clarifies that a decree is preliminary when further proceedings
\nhave to be taken before the suit can be decided entirely. In so far as
\nthe determination of individual shares to be allotted to parties to the
\nsuit is concerned, the preliminary decree is final. After the dismissal of
\nSpecial Leave Petition (C) No.38542\/2016 in Sistla Sarada Devi v.
\nUppaluri Hari Narayana & Ors., the only step required to be taken is to
\napportion the shares by metes and bounds in terms of the preliminary
\ndecree which was passed. The daughters born after the
\n24
\ncommencement of the Amendment Act become coparceners, and
\ndaughters born before the commencement of the Amendment Act have
\nbeen covered under section 6(1)(b) and granted the same rights in
\ncoparcenary as given to a son. The daughters born before and after the
\namendment covered under section 6 are given the status of a
\ncoparcener. The status of a coparcener to daughters cannot be given
\nfrom the date of birth, and they cannot be made liable for all the
\nliabilities of coparcenary property. The benefit cannot be conferred
\nfrom the date of birth as it would relate in several cases to date of
\nbirth even in the year 1925. All liabilities are to be borne only from the
\namendment; as such, the provisions are not retrospective.
\n(l) Even alternatively, if the status of coparcenary on the daughter
\nis to be conferred retrospectively, the limitations governing such legal
\nfiction will have to take into consideration the implications of (i)
\nstatutory partition; (ii) court’s decree; and (iii) legitimate alienation of
\nthe property by Karta\/coparceners, prior to commencement of the
\nAmendment Act. All other dispositions or alienations, including any
\npartition or testamentary disposition of property made before
\n20.12.2004, are required to be saved as earlier the daughters were not
\ncoparceners. On a statutory partition, the property becomes the selfacquired
\nproperty and is no more a coparcenary property.
\n25
\n(m) Even in a case of adoption, the past transactions are saved while
\napplying the theory of relation back as laid down in Sripad Gajanan
\nSuthankar v. Dattaram Kashinath Suthankar & Ors., (1974) 2 SCC
\n156.
\nThus, the provisions of section 6 are to be construed
\nprospectively.
\n14. Shri Amit Pai, learned counsel, strenuously urged that:
\n(a) The golden rule of interpretation is required to be adopted as laid
\ndown in Kanai Lal Sur v. Paramnidhi Sadhukhan, (1958) SCR 360. The
\nrule of literal construction is relied upon, as observed in Lt. Amrendra
\nCol. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140.
\n(b) The substitution of the provision of section 6 dates back to the
\ncommencement of the Principal Act of 1956. A notional partition on
\nthe death of a coparcener to ascertain his share is not an actual
\npartition. The same is not saved by the proviso contained in section 6.
\nA daughter cannot be deprived of the right to equality as per the
\nStatement of Objects and Reasons. The provision of section 6 is
\nrequired to be given full effect.
\n(c) The decision in Prakash v. Phulavati cannot be said to be laying
\ndown the law correctly. The concept of living daughter of a living
\n26
\ncoparcener is adding to the text of provisions of section 6, whereas no
\nword can be added or read into a statute by the Court. It can only
\nrepair errors or supply omissions. It is for the legislature to provide
\nsuch a concept of a daughter of a living coparcener. Thus, it was
\nargued that section 6 includes all living daughters of coparceners,
\nirrespective of whether such coparceners are deceased or alive at the
\ncommencement of the 2005 Amendment.
\n15. Shri Sameer Shrivastava, learned counsel, urged that:
\n(a) The term ‘coparcener’ is not defined in the Succession Act. This
\nCourt considered it in Sathyaprema Manjunatha Gowda (Smt) v.
\nController of Estate Duty, Karnataka, (1997) 10 SCC 684. It is a
\nnarrower body than a joint family and consists of only those persons
\nwho have taken by birth, an interest in the property, and can enforce
\na partition, whenever they like. The daughter is entitled to share in the
\nproperty subject to the restrictions provided under subsection
\n(1) and
\nsubsection
\n(5) of amended section 6.
\n(b) Section 6(3) provides a consequence of the death of a coparcener,
\ndevolution on the death of a coparcener after the commencement of
\nthe Amendment Act. The concept of survivorship has been done away.
\nTestamentary or intestate succession has been provided where a
\nHindu dies before the commencement of the Amendment Act. The
\n27
\nrelevant provisions are section 6(1)(2), where male Hindus are given
\nthe right by birth to become a coparcener, and they have the right to
\ntake a partition with coparcenary property.
\n(c) The decision in Prakash v. Phulavati, laying down that section 6
\nas amended applies in case of living daughters of a living coparcener,
\nis arbitrary and nonest
\nin the eye of law. Both sons and daughters of
\ncoparceners are conferred the right of becoming coparcener by birth.
\nBirth in coparcenary creates interest. The only other exception is by
\nway of adoption. Coparcenary incident is the right to the severance of
\nthe status of partition.
\n16. Ms. Anagha S. Desai, learned counsel, strenuously urged that
\nsection 6 provides parity of rights in coparcenary property among male
\nand female members of a joint Hindu family on and from 9.9.2005.
\nThe declaration in section 6 that the daughter of a coparcener shall
\nhave the same rights and liabilities as she would have been a son is
\nunambiguous and unequivocal. The daughter is entitled to a share in
\nthe ancestral property. She has relied upon Ganduri Koteshwaramma
\n& Anr. v. Chakiri Yanadi & Anr., (2011) 9 SCC 788.
\n17. When a daughter, who is claiming and demanding a share in the
\ncoparcenary, is alive, there is no difficulty of interpretation,
\nirrespective of the fact whether a coparcener has died before the
\n28
\ncommencement of the Amendment Act. The coparcener and the
\ndaughter do not need to be alive as on the date of the amendment. If it
\nis to be interpreted that coparcener and daughter both should be
\nalive, it will defeat the very purpose and objective of the amended
\nprovisions. Earlier, the provisions of Hindu law treated a son as a
\ncoparcener by birth; now, daughters are given the same rights since
\nbirth. In case partition has been effected by metes and bounds and is
\nadequately proved, then the daughter of coparcenary cannot seek
\npartition of already divided property.
\nIn Ref. Historical Background
\n18. The Hindu branch of dharma is influenced by the theological
\ntenets of the Vedic Aryans. What is not modified or abrogated by the
\nlegislation or constitutional provisions still prevails, the basic Hindu
\nlaw emanates from Vedas and past shrutis\/smritis. Various dharma
\nshastras regard custom as the basis of Hindu law as administered
\nfrom time to time. Law has advanced and made progress as per the
\nrequirements of the society and the prevailing ethos. The justice used
\nto be administered by the emperors resolving the conflicts. The
\nbuilding of law has taken place over time. There are two main schools
\nof Hindu law, i.e., Mitakshara and Dayabhaga. Mitakshara has further
\nbeen subdivided
\ninto four schools, i.e., Benares, Mithila, Maharashtra
\n29
\nor Bombay, and Dravida or Madras school. Benares, Mithila, Dravida,
\nand Maharashtra denote old names of the territories.
\n19. The application of schools of Mitakshara is regionwise.
\nThere
\nhas been reorganization
\nof States in 1956, and after that, some
\nconfusion has arisen concerning the administration of Bombay school
\nand Benares School. Benares school practically governs the whole of
\nNorthern India. The Bombay school covers Western India and various
\nother territories. The certain States were reorganized
\nby the State
\nReorganisation Act of 1956. In some regions of reorganised States,
\ngiven the common name, different schools apply. Take, for example,
\nMadhya Pradesh. It consists of territories to which both Bombay and
\nBenares schools are applicable. However, various authors of Hindu
\nlaw have failed to note the fact in which parts of the State of M.P. after
\nreorganisation which school is applicable. A reference is found to
\ntenets of Bombay school of Hindu law in the entire State of M.P.,
\nwhereas Benares school is applicable in various parts of Madhya
\nPradesh. It was clarified by a Full Bench of Madhya Pradesh High
\nCourt in Diwan Singh v. Bhaiya Lal, (1997) 2 MP LJ202,
\nand a
\nDivision Bench decision was relied on in FA No.31\/1968 decided on
\n14.12.1976. In integrating State of Madhya Bharat and some other
\nparts of Madhya Pradesh, Benares school is applicable, not Bombay.
\n30
\n20. Mitakshara law applies to most parts of India except Bengal.
\nMaharashtra school prevailed in North India, Bombay school, in
\nWestern India. However, certain areas in Southern India are governed
\nby Marumakkatayam, Aliyasantana, and Nambudiri systems of law.
\n21. Besides the various sources, custom, equity, justice, and
\nconscience have also played a pivotal role in the development of Hindu
\nlaw, which prevailed. When the law was silent on certain aspects,
\nJudicial decisions also acted as a source of law. Hindu law was not
\nstatic but always progressive. Slowly necessity was felt for the
\ncodification of Hindu law. In particular, women’s rights were taken
\ncare of, and attempts were made to remove the anomalies and
\nunscrupulous practices. Necessity was also felt after the
\nindependence, given the constitutional imperatives to bring about
\nequality of status, the codified law has been amended from time to
\ntime. The latest attempt has been made by way of amending the Hindu
\nSuccession Act concerning rights of daughter to be a coparcener in
\nMitakshara coparcenary and has been given the rights equal to that of
\na son.
\nIn Ref. Coparcenary and Joint Hindu Family
\n31
\n22. A joint Hindu family is a larger body than a Hindu coparcenary.
\nA joint Hindu family consists of all persons lineally descended from a
\ncommon ancestor and include their wives and unmarried daughters. A
\njoint Hindu family is one in worship and holds joint assets. After
\nseparation of assets, the family ceases to be joint. Mere severance in
\nfood and worship is not treated as a separation, as observed in Sri
\nRaghunadha v. Sri Brozo Kishore, 1876 (1) Mad. 69 = 3 IA 154.
\n23. Hindu coparcenary is a much narrower body. It consists of
\npropositus and three lineal descendants. Before 2005, it included only
\nthose persons like sons, grandsons, and greatgrandsons
\nwho are the
\nholders of joint property. For example, in case A is holding the
\nproperty, B is his son, C is his grandson, D is greatgrandson,
\nand E
\nis a greatgreatgrandson.
\nThe coparcenary will be formed up to D, i.e.,
\ngreatgrandsons,
\nand only on the death of A, holder of the property,
\nthe right of E would ripen in coparcenary as coparcenary is confined
\nto three lineal descendants. Since grandsons and greatgrandsons
\nbecome coparceners by birth, they acquired an interest in the
\nproperty.
\n24. Coparcenary property is the one which is inherited by a Hindu
\nfrom his father, grandfather, or great grandfather. Property inherited
\nfrom others is held in his rights and cannot be treated as forming part
\n32
\nof the coparcenary. The property in coparcenary is held as joint
\nowners.
\n25. Coparcener heirs get right by birth. Another method to be a
\ncoparcener is by way of adoption. As earlier, a woman could not be a
\ncoparcener, but she could still be a joint family member. By
\nsubstituted section 6 with effect from 9.9.2005 daughters are
\nrecognised as coparceners in their rights, by birth in the family like a
\nson. Coparcenary is the creation of law. Only a coparcener has a right
\nto demand partition. Test is if a person can demand a partition, he is a
\ncoparcener not otherwise. Great greatgrandson
\ncannot demand a
\npartition as he is not a coparcener. In a case out of three male
\ndescendants, one or other has died, the last holder, even a fifth
\ndescendant, can claim partition. In case they are alive, he is excluded.
\nIn Ref. Formation of Coparcenary
\n26. For interpreting the provision of section 6, it is necessary to
\nponder how coparcenary is formed. The basic concept of coparcenary
\nis based upon common ownership by coparceners. When it remains
\nundivided, the share of the coparcener is not certain. Nobody can
\nclaim with precision the extent of his right in the undivided property.
\nCoparcener cannot claim any precise share as the interest in
\n33
\ncoparcenary is fluctuating. It increases and diminishes by death and
\nbirth in the family.
\n27. In Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988) 2 SCC 77,
\nthe Court discussed essential features of coparcenary of birth and
\nsapindaship thus:
\n\u201c17. Those who are of individualistic attitude and separate
\nownership may find it hard to understand the significance of a
\nHindu joint family and joint property. But it is there from the
\nancient time perhaps, as a social necessity. A Hindu joint family
\nconsists of male members descended lineally from a common male
\nancestor, together with their mothers, wives or widows and
\nunmarried daughters. They are bound together by the fundamental
\nprinciple of sapindaship or family relationship, which is the
\nessential feature of the institution. The cord that knits the members
\nof the family is not property but the relationship of one another.
\n18. The coparcenary consists of only those persons who have taken
\nby birth an interest in the property of the holder and who can
\nenforce a partition whenever they like. It is a narrower body than a
\njoint family. It commences with a common ancestor and includes a
\nholder of joint property and only those males in his male line who
\nare not removed from him by more than three degrees. The reason
\nwhy coparcenership is so limited is to be found in the tenet of the
\nHindu religion that only male descendants up to three degrees can
\noffer spiritual ministration to an ancestor. Only males can be
\ncoparceners. [See: Hindu Law by N.R. Raghavachariar, 8th Edn., p.
\n202]\u201d
\n(emphasis supplied)
\n28. In case coparcenary property comes to the hands of a ‘single
\nperson’ temporarily, it would be treated as his property, but once a
\nson is born, coparcenary would revive in terms of the Mitakshara law.
\nIn Sheela Devi v. Lal Chand, (2006) 8 SCC 581, it was observed:
\n34
\n\u201c12. The principle of law applicable in this case is that so long a
\nproperty remains in the hands of a single person, the same was to
\nbe treated as separate property, and thus such a person would be
\nentitled to dispose of the coparcenary property as the same were his
\nseparate property, but, if a son is subsequently born to him or
\nadopted by him, the alienation whether it is by way of sale,
\nmortgage or gift, will nevertheless stand, for a son cannot object to
\nalienations so made by his father before he was born or begotten
\n(See C. Krishna Prasad v. CIT, (1975) 1 SCC 160). But once a son
\nis born, it becomes a coparcenary property, and he would acquire an
\ninterest therein.\u201d
\nIn M. Yogendra & Ors. v. Leelamma N. & Ors., (2009) 15 SCC
\n184, similar opinion was expressed thus:
\n\u201c29. It is now well settled in view of several decisions of this Court
\nthat the property in the hands of a sole coparcener allotted to him in
\npartition shall be his separate property for the same shall revive
\nonly when a son is born to him. It is one thing to say that the
\nproperty remains a coparcenary property but it is another thing to
\nsay that it revives. The distinction between the two is absolutely
\nclear and unambiguous. In the case of former any sale or alienation
\nwhich has been done by the sole survivor coparcener shall be valid
\nwhereas in the case of a coparcener any alienation made by the
\nkarta would be valid.\u201d
\n(emphasis supplied)
\nIn Smt. Sitabai & Anr. v. Ramchandra, AIR 1970 SC 343, it was
\nheld:
\n\u201c3. x x x under the Hindu system of law a joint family may consist
\nof a single male member and widows of deceased male members
\nand that the property of a joint family did not cease to belong to a
\njoint family merely because the family is represented by a single
\ncoparcener who possesses rights which an absolute owner of
\nproperty may possess\u2026..\u201d
\n35
\nIn Dharma Shamrao Agalawe v. Pandurang Miragu Agalwe &
\nOrs., (1988) 2 SCC 126, it was held that joint family property retains
\nits character even after its passing on to the hands of a sole surviving
\ncoparcener. If a son is subsequently born or adopted, the coparcenary
\nwill survive, subject to saving the alienations made in the
\ninterregnum.
\n29. In Ghamandi Ram (supra), the formation, concept and incidents
\nof the coparcenary were discussed thus:
\n\u201c5. According to the Mitakshara School of Hindu Law all the
\nproperty of a Hindu joint family is held in collective ownership by
\nall the coparceners in a quasi-corporate capacity. The textual
\nauthority of the Mitakshara lays down in express terms that the
\njoint family property is held in trust for the joint family members
\nthen living and thereafter to be born (see Mitakshara, Ch. I, 1-27).
\nThe incidents of co-parcenership under the Mitakshara law are:
\nfirst, the lineal male descendants of a person up to the third
\ngeneration, acquire on birth ownership in the ancestral properties of
\nsuch person; secondly, that such descendants can at any time work
\nout their rights by asking for partition; thirdly, that till partition each
\nmember has got ownership extending over the entire property,
\nconjointly with the rest; fourthly, that as a result of such coownership
\nthe possession and enjoyment of the properties is
\ncommon; fifthly, that no alienation of the property is possible
\nunless it be for necessity, without the concurrence of the
\ncoparceners, and sixthly, that the interest of a deceased member
\nlapses on his death to the survivors. A coparcenary under the
\nMitakshara School is a creature of law and cannot arise by Act of
\nparties except in so far that on adoption the adopted son becomes a
\ncoparcener with his adoptive father as regards the ancestral
\nproperties of the latter. In Sundaranam Maistri v. Harasimbhulu
\nMaistri and Another, ILR 25 Mad 149 at 154.
\nMr Justice Bhashyam Ayyangar stated the legal position thus:
\n36
\n\u201cThe Mitakshara doctrine of joint family property is
\nfounded upon the existence of an undivided family, as a
\ncorporate body (Gan Savant Bal Savant v. Narayan Bhond
\nSavant) [ILR 7 Bom 467] and Mayne\u2019s \u2018Hindu Law and
\nUsage\u2019, (6th edition, Paragraph 270) and the possession of
\nproperty by such corporate body. The first requisite therefore
\nis the family unit; and the possession by it of property is the
\nsecond requisite. For the present purpose, female members of
\nthe family may be left out of consideration and the conception
\nof a Hindu family is a common male ancestor with his lineal
\ndescendants in the male line, and so long as that family is in
\nits normal condition viz. the undivided state \u2014 it forms a
\ncorporate body. Such corporate body, with its heritage, is
\npurely a creature of law and cannot be created by Act of
\nparties, save in so far that, by adoption, a stranger may be
\naffiliated as a member of that corporate family.”
\n6. Adverting to the nature of the property owned by such a
\nfamily the learned Judge proceeded to state:
\n\u201cAs regards the property of such family, the \u2018unobstructed
\nheritage\u2019 devolving on such family, with its accretions, is
\nowned by the family, as a corporate body, and one or more
\nbranches of that family, each forming a corporate body within
\na larger corporate body, may possess separate \u2018unobstructed
\nheritage\u2019 which, with its accretions, may be exclusively
\nowned by such branch as a corporate body.\u201d
\n(emphasis supplied)
\n30. Essential characteristics of coparcenary, as discussed in the
\nabovementioned
\ndecision in Ghamandi Ram (supra), were analysed in
\nController of Estate Duty v. Alladi Kuppuswamy, (supra), thus:
\n\u201c8. \u2026.
\n“Thus analysing the ratio of the aforesaid case regarding the
\nincidents of a Hindu coparcenary it would appear that a Hindu
\ncoparcenary has six essential characteristics, namely, (1) that
\nthe lineal male descendants up to the third generation acquire
\nan independent right of ownership by birth and not as
\nrepresenting their ancestors; (2) that the members of the
\ncoparcenary have the right to work out their rights by
\ndemanding partition; (3) that until partition, each member has
\ngot ownership extending over the entire property conjointly
\n37
\nwith the rest and so long as no partition takes place, it is
\ndifficult for any coparcener to predicate the share which he
\nmight receive; (4) that as a result of such co-ownership the
\npossession and enjoyment of the property is common; (5) that
\nthere can be no alienation of the property without the
\nconcurrence of the other coparceners unless it be for legal
\nnecessity; and (6) that the interest of a deceased member
\nlapses on his death and merges in the coparcenary property.
\nApplying these tests to the interest of a Hindu widow who has
\nbeen introduced into a coparcenary by virtue of the Act of
\n1937, we find that, excepting Condition (1), all other
\nconditions are fully satisfied in case of a Hindu widow
\nsucceeding to the interest of her husband in a Hindu
\ncoparcenary. In other words, after her husband\u2019s death the
\nHindu widow under the Act of 1937 has got the right to
\ndemand partition, she cannot predicate the exact share which
\nshe might receive until partition is made, her dominion
\nextends to the entire property conjointly with the other
\nmembers of the coparcenary, her possession and enjoyment is
\ncommon, the property cannot be alienated without
\nconcurrence of all the members of the family, except for legal
\nnecessity, and like other coparceners she has a fluctuating
\ninterest in the property which may be increased or decreased
\nby deaths or additions in the family. It is manifest that she
\ncannot fulfil the first condition, because she enters the
\ncoparcenary long after she is born and after she is married to
\nher husband and acquires his interest on his death. Thus, short
\nof the first condition, she possesses all the necessary indicia of
\na coparcenary interest. The fact that before the Act of 1956,
\nshe had the characteristic of a widow-estate in her interest in
\nthe property does not detract any the less from this position. It
\nmust follow as a logical corollary that though a Hindu widow
\ncannot be a coparcener, she has coparcenary interest and she
\nis also a member of the coparcenary by virtue of the rights
\nconferred on her under the Act of 1937.\u201d
\n31. In Controller of Estate Duty (supra), it has also been laid down
\nthat if a widow does not exercise her right of partition, there is no
\nseverance of the Hindu coparcenary and on her death, the interest of
\nthe widow merges in the coparcenary property or lapses to the other
\ncoparceners. It was observed that the male issue of coparcener
\n38
\nacquires an interest in the coparcenary by birth, not as representing
\nhis father.
\n32. This Court in Controller of Estate Duty (supra), placed reliance on
\nSatrughan Isser v. Sabujpari, & Ors., AIR 1967 SC 272. In case the
\nright to partition by a widow has not been exercised, there is no
\nseverance of Hindu coparcenary, and on death of coparcener, there is
\nno dissolution of coparcenary. In Satrughan (supra), it was held:
\n\u201c7. By the Act certain antithetical concepts are sought to be
\nreconciled. A widow of a coparcener is invested by the Act with the
\nsame interest which her husband had at the time of his death in the
\nproperty of the coparcenary. She is thereby introduced into the
\ncoparcenary, and between the surviving coparceners of her husband
\nand the widow so introduced, there arises community of interest
\nand unity of possession. But the widow does not on that account
\nbecome a coparcener: though invested with the same interest which
\nher husband had in the property she does not acquire the right
\nwhich her husband could have exercised over the interest of the
\nother coparceners. Because of statutory substitution of her interest
\nin the coparcenary property in place of her husband, the right which
\nthe other coparceners had under the Hindu law of the Mitakshara
\nschool of taking that interest by the rule of survivorship remains
\nsuspended so long as that estate enures. But on the death of a
\ncoparcener there is no dissolution of the coparcenary so as to carve
\nout a defined interest in favour of the widow in the coparcenary
\nproperty: Lakshmi Perumallu v. Krishnavanamma. The interest
\nacquired by her under Section 3(2) is subject to the restrictions on
\nalienation which are inherent in her estate. She has still power to
\nmake her interest definite by making a demand for partition, is a
\nmale owner may. If the widow after being introduced into family to
\nwhich her husband belonged does not seek partition, on the
\ntermination of her estate her interest will merge into the
\ncoparcenary property. But if she claims partition, she is severed
\nfrom the other members and her interest becomes a defined interest
\nin the coparcenary property, and the right of the other coparceners
\nto take that interest by survivorship will stand extinguished. If she
\ndies after partition or her estate is otherwise determined, the interest
\n39
\nin coparcenary property which has vested in her will devolve upon
\nthe heirs of her husband. It is true that a widow obtaining an
\ninterest in coparcenary property by Section 3(2) does not inherit
\nthat interest but once her interest has ceased to have the character of
\nundivided interest in the property, it will upon termination of her
\nestate devolve upon her husband\u2019s heirs. To assume as has been
\ndone in some decided cases that the right of the coparceners to take
\nher interest on determination of the widow\u2019s interest survives even
\nafter the interest has become definite, because of a claim for
\npartition, is to denude the right to claim partition of all reality.\u201d
\n33. In Bhagwan Dayal (since deceased) & Anr. v. Mst. Reoti Devi, AIR
\n1962 SC 287, it was held that coparcenary is a creature of law and
\nbranch of the family was a subordinate corporate body and discussed
\nthe proposition thus:
\n\u201c47. x x x Coparcenary is a creature of Hindu law and cannot be
\ncreated by agreement of parties except in the case of reunion. It is a
\ncorporate body or a family unit. The law also recognizes a branch
\nof the family as a subordinate corporate body. The said family unit,
\nwhether the larger one or the subordinate one, can acquire, hold and
\ndispose of family property subject to the limitations laid down by law.
\nOrdinarily, the manager, or by consent, express or implied, of the
\nmembers of the family, any other member or members can carry on
\nbusiness or acquire property, subject to the limitations laid down by the
\nsaid law, for or on behalf of the family. Such business or property would
\nbe the business or property of the family. The identity of the members of
\nthe family is not completely lost in the family. One or more members of
\nthat family can start a business or acquire property without the aid of the
\njoint family property, but such business or acquisition would be his or
\ntheir acquisition. The business so started or property so acquired can be
\nthrown into the common stock or blended with the joint family property
\nin which case the said property becomes the estate of the joint family.
\nBut he or they need not do so, in which case the said property would be
\nhis or their self-acquisition, and succession to such property would be
\ngoverned not by the law of joint family but only by the law of
\ninheritance. In such a case, if a property was jointly acquired by them, it
\nwould not be governed by the law of joint family; for Hindu law does not
\nrecognize some of the members of a joint family belonging to different
\nbranches, or even to a single branch, as a corporate unit. Therefore, the
\nrights inter se between the members who have acquired the said property
\nwould be subject to the terms of the agreement whereunder it was
\nacquired. The concept of joint tenancy known to English law with the
\n40
\nright of survivorship is unknown to Hindu law except in regard to cases
\nspecially recognized by it. In the present case, the uncle and the two
\nnephews did not belong to the same branch. The acquisitions made by
\nthem jointly could not be impressed with the incidents of joint family
\nproperty. They can only be co-sharers or co-tenants, with the result that
\ntheir properties passed by inheritance and not by survivorship.\u201d
\n(emphasis supplied)
\n34. In Kalyanji Vithaldas & Ors. v. Commissioner of Income Tax,
\nBengal, AIR 1937 PC 36, the concept of Hindu Undivided Family was
\nconsidered thus:
\n\u201c \u2026\u2026.. The phrase “Hindu undivided family” is used in the statute
\nwith reference, not to one school only of Hindu law, but to all
\nschools; and their Lordships think it a mistake in method to begin
\nby pasting over the wider phrase of the Act the words “Hindu
\ncoparcenary”-all the more that it is not possible to say on the face of
\nthe Act that no female can be a member. \u2026..\u201d
\n(emphasis supplied)
\nIn Gowli Buddanna v. Commissioner of Income Tax, Mysore, AIR
\n1966 SC 1523, it was held that coparcenary is narrower body than
\njoint family thus:
\n\u201c6. x x x A Hindu joint family consists of all persons lineally
\ndescended from a common ancestor and includes their wives and
\nunmarried daughters. A Hindu coparcenary is a much narrower
\nbody than the joint family: it includes only those persons who
\nacquire by birth an interest in the joint or coparcenary property,
\nthese being the sons, grandsons, and great-grandsons of the holder
\nof the joint property for the time being. Therefore there may be a
\njoint Hindu family consisting of a single male member and widows
\nof deceased coparceners. x x x\u201d
\n(emphasis supplied)
\n41
\nThe difference between joint Hindu family and coparcenary was
\nconsidered in Surjit Lal Chhabda v. The Commissioner of Income Tax,
\nBombay, (supra) thus:
\n\u201c13. Outside the limits of coparcenary, there is a fringe of persons,
\nmales and females, who constitute an undivided or joint family.
\nThere is no limit to the number of persons who can compose it nor
\nto their remoteness from the common ancestor and to their
\nrelationship with one another. A joint Hindu family consists of
\npersons lineally descended from a common ancestor and includes
\ntheir wives and unmarried daughters. The daughter, on marriage,
\nceases to be a member of her father\u2019s family and becomes a
\nmember of her husband\u2019s family. The joint Hindu family is thus a
\nlarger body consisting of a group of persons who are united by the
\ntie of sapindaship arising by birth, marriage or adoption:
\n\u201cThe fundamental principle of the Hindu joint family is the
\nsapindaship. Without that it is impossible to form a joint
\nHindu family. With it as long as a family is living together, it
\nis almost impossible not to form a joint Hindu family. It is the
\nfamily relation, the sapinda relation, which distinguishes the
\njoint family, and is of its very essence, (1908) 32 Bom. 479.\u201d\u201d
\n(emphasis supplied)
\n35. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh &
\nOrs., (1985) 2 SCC 321, characteristics of joint family and coparcenary
\nwere culled out. It was also held that interest of a female member of a
\njoint Hindu family getting fixed, on her inheriting interest of a
\ndeceased male member of the family. She would not cease to be a
\nmember of family unless she chooses to become separate by partition,
\nthus:
\n\u201c8. A Hindu coparcenary is, however, a narrower body than the
\njoint family. Only males who acquire by birth an interest in the joint
\nor coparcenary property can be members of the coparcenary or
\ncoparceners. A male member of a joint family and his sons,
\ngrandsons and great grandsons constitute a coparcenary, A
\n42
\ncoparcener acquires right in the coparcenary property by birth but
\nhis right can be definitely ascertained only when a partition takes
\nplace. When the family is joint, the extent of the share of a
\ncoparcener cannot be definitely predicated since it is always
\ncapable of fluctuating. It increases by the death of a coparcener and
\ndecreases on the birth of a coparcener. A joint family, however, may
\nconsist of female members. It may consist of a male member, his
\nwife, his mother and his unmarried daughters. The property of a
\njoint family does not cease to belong to the family merely because
\nthere is only a single male member in the family. (See Gowli
\nBuddanna v. CIT, AIR 1966 SC 1523 and Sitabai v. Ram Chandra,
\n(1969) 2 SCC 544). A joint family may consist of a single male
\nmember and his wife and daughters. It is not necessary that there
\nshould be two male members to constitute a joint family. (See N.V.
\nNarendranath v. C.W.T., (1969) 1 SCC 748). While under the
\nMitakshara Hindu law there is community of ownership and unity
\nof possession of joint family property with all the members of the
\ncoparcenary, in a coparcenary governed by the Dayabhaga law,
\nthere is no unity of ownership of coparcenary property with the
\nmembers thereof. Every coparcener takes a defined share in the
\nproperty and he is the owner of that share. But there is, however,
\nunity of possession. The share does not fluctuate by births and
\ndeaths. Thus it is seen that the recognition of the right to a definite
\nshare does not militate against the owners of the property being
\ntreated as belonging to a family in the Dayabhaga law.
\n10. We have carefully considered the above decision and we feel
\nthat this case has to be treated as an authority for the position that
\nwhen a female member who inherits an interest in the joint family
\nproperty under Section 6 of the Act files a suit for partition
\nexpressing her willingness to go out of the family she would be
\nentitled to get both the interest she has inherited and the share
\nwhich would have been notionally allotted to her, as stated in
\nExplanation I to Section 6 of the Act. But it cannot be an authority
\nfor the proposition that she ceases to be a member of the family on
\nthe death of a male member of the family whose interest in the
\nfamily property devolves on her without her volition to separate
\nherself from the family. A legal fiction should no doubt ordinarily
\nbe carried to its logical end to carry out the purposes for which it is
\nenacted but it cannot be carried beyond that. It is no doubt true that
\nthe right of a female heir to the interest inherited by her in the
\nfamily property gets fixed on the death of a male member under
\nSection 6 of the Act but she cannot be treated as having ceased to
\nbe a member of the family without her volition as otherwise it will
\nlead to strange results which could not have been in the
\n43
\ncontemplation of Parliament when it enacted that provision and
\nwhich might also not be in the interest of such female heirs. To
\nillustrate, if what is being asserted is accepted as correct it may
\nresult in the wife automatically being separated from her husband
\nwhen one of her sons dies leaving her behind as his heir. Such a
\nresult does not follow from the language of the statute. In such an
\nevent she should have the option to separate herself or to continue
\nin the family as long as she wishes as its member though she has
\nacquired an indefeasible interest in a specific share of the family
\nproperty which would remain undiminished whatever may be the
\nsubsequent changes in the composition of the membership of the
\nfamily. As already observed the ownership of a definite share in the
\nfamily property by a person need not be treated as a factor which
\nwould militate against his being a member of a family. We have
\nalready noticed that in the case of a Dayabhaga family, which
\nrecognises unity of possession but not community of interest in the
\nfamily properties amongst its members, the members thereof do
\nconstitute a family. That might also be the case of families of
\npersons who are not Hindus. In the instant case the theory that there
\nwas a family settlement is not pressed before us. There was no
\naction taken by either of the two females concerned in the case to
\nbecome divided from the remaining members of the family. It
\nshould, therefore, be held that notwithstanding the death of Sham
\nRao the remaining members of the family continued to hold the
\nfamily properties together though the individual interest of the
\nfemale members thereof in the family properties had become
\nfixed.\u201d
\n(emphasis supplied)
\n36. The essential feature is aggregate ownership, i.e., \u2018Samudavika
\nSwatwa\u2019 in coparcenary and the share keeps on fluctuating, was
\nobserved in Commissioner of Income Tax, Poona v. H.H. Raja of Bhor,
\n(1967) (65) ITR 634 thus:
\n\u201c\u2026\u2026 no individual member of a Hindu coparcenary, while it
\nremains undivided, can predicate of the joint and undivided
\nproperty, that he, or any particular member, has a definite share,
\none-third or one-fourth \u2013 (Lord Westbury in Approvier v. Rama
\nSubha Aiyan , (1866 11 MIA 75). His interest in the coparcenary
\nproperty is a fluctuating interest which is capable of being enlarged
\nby death in the family. It is only on partition that the coparcener is
\nentitled to a definite share. But the important thing to notice is that
\n44
\nthe theory of ownership being acquired by birth has given rise to
\nthe doctrine of Samudavika swatwa or aggregate ownership in the
\nMitakshara school. Till partition therefore all the coparceners have
\ngot rights extending over the entirety of the coparcenary
\nproperty\u2026\u2026\u201d
\n(emphasis supplied)
\n37. In Vellikannu v. R. Singaperumal & Anr., (2005) 6 SCC 622, this
\nCourt restated that the share of a member of a coparcenary fluctuates
\nfrom time to time is a settled proposition of law. It was held:
\n\u201c11. So far as the property in question is concerned, there is a
\nfinding of the courts below that the property is a coparcenary
\nproperty and if that being so, if Defendant 1 had not murdered his
\nfather then perhaps things would have taken a different shape. But
\nwhat is the effect on the succession of the property of the deceased
\nfather when the son has murdered him? If he had not murdered his
\nfather he would have along with his wife succeeded in the matter.
\nSo far as the rights of coparceners in the Mitakshara law are
\nconcerned, the son acquires by birth or adoption a vested interest in
\nall coparcenary property whether ancestral or not and whether
\nacquired before or after his birth or adoption, as the case may be, as
\na member of a joint family. This is the view which has been
\naccepted by all the authors of the Hindu law. In the famous
\nprinciples of Mulla, 15th Edn. (1982) at pp. 284 and 285, the
\nlearned author has stated thus:
\n\u201cThe essence of a coparcenary under the Mitakshara law is
\nunity of ownership. The ownership of the coparcenary
\nproperty is in the whole body of coparceners. According to the
\ntrue notion of an undivided family governed by the
\nMitakshara law, no individual member of that family, whilst it
\nremains undivided, can predicate, of the joint and undivided
\nproperty, that he, that particular member, has a definite share,
\none-third or one-fourth. His interest is a fluctuating interest,
\ncapable of being enlarged by deaths in the family, and liable to
\nbe diminished by births in the family. It is only on a partition
\nthat he becomes entitled to a definite share. The most
\nappropriate term to describe the interest of a coparcener in
\ncoparcenary property is \u2018undivided coparcenary interest\u2019. The
\nnature and extent of that interest is defined in Section 235.
\nThe rights of each coparcener until a partition takes place
\nconsist in a common possession and common enjoyment of
\n45
\nthe coparcenary property. As observed by the Privy Council in
\nKatama Natchiar v. Rajah of Shivagunga, (1863) 9 MIA 543,
\n\u2018there is community of interest and unity of possession
\nbetween all the members of the family, and upon the death of
\nany one of them the others may well take by survivorship that
\nin which they had during the deceased\u2019s lifetime a common
\ninterest and a common possession\u2019.\u201d
\n13. In N.R. Raghavachariar\u2019s Hindu Law \u2014 Principles and
\nPrecedents, 8th Edn. (1987) at p. 230 under the heading \u201cRights of
\nCoparceners\u201d it is said thus:
\n\u201cThe following are the rights of a coparcener .\u2014( 1 ) Right
\nby birth, ( 2 ) Right of survivorship, ( 3 ) Right to partition, ( 4 )
\nRight to joint possession and enjoyment, ( 5 ) Right to restrain
\nunauthorised acts, ( 6 ) Right of alienation, ( 7 ) Right to
\naccounts, and ( 8 ) Right to make self-acquisition.\u201d
\nWhile dealing with \u201cRight by Birth\u201d learned author says thus:
\n\u201cEvery coparcener gets an interest by birth in the
\ncoparcenary property. This right by birth relates back to the
\ndate of conception. This, however, must not be held to
\nnegative the position that coparcenary property may itself
\ncome into existence after the birth of the coparcener
\nconcerned.\u201d
\nWhile dealing with right of survivorship, it is said thus:
\n\u201cThe system of a joint family with its incident of
\nsuccession by survivorship is a peculiarity of the Hindu law.
\nIn such a family no member has any definite share and his
\ndeath or somehow ceasing to be a member of the family
\ncauses no change in the joint status of the family. Where a
\ncoparcener dies without male issue his interest in the joint
\nfamily property passes to the other coparceners by
\nsurvivorship and not by succession to his own heir. Even
\nwhere a coparcener becomes afflicted with lunacy subsequent
\nto his birth, he does not lose his status as a coparcener which
\nhe has acquired by his birth, and although his lunacy may
\nunder the Hindu law disqualify him from demanding a share
\nin a partition in his family, yet where all the other coparceners
\ndie and he becomes the sole surviving member of the
\ncoparcenary, he takes the whole joint family property by
\nsurvivorship, and becomes a fresh stock of descent to the
\nexclusion of the daughter of the last predeceased coparcener, a
\ncase of leprosy of the last surviving coparcener. The beneficial
\ninterest of each coparcener is liable to fluctuation, increasing
\n46
\nby the death of another coparcener and decreasing by the birth
\nof a new coparcener.\u201d
\nTherefore, it is now settled that a member of a coparcenary
\nacquires a right in the property by birth. His share may
\nfluctuate from time to time but his right by way of
\nsurvivorship in coparcenary property in Mitakshara law is a
\nsettled proposition.
\n(emphasis supplied)\u201d
\n38. In Rohit Chauhan v. Surinder Singh & Ors., (2013) 9 SCC 419,
\nthe concept of coparcenary of sharing equally with others and no
\ndefinite share, was discussed thus:
\n\u201c11. We have bestowed our consideration to the rival submissions
\nand we find substance in the submission of Mr Rao. In our opinion
\ncoparcenary property means the property which consists of
\nancestral property and a coparcener would mean a person who
\nshares equally with others in inheritance in the estate of common
\nancestor. Coparcenary is a narrower body than the joint Hindu
\nfamily and before the commencement of the Hindu Succession
\n(Amendment) Act, 2005, only male members of the family used to
\nacquire by birth an interest in the coparcenary property. A
\ncoparcener has no definite share in the coparcenary property but he
\nhas an undivided interest in it and one has to bear in mind that it
\nenlarges by deaths and diminishes by births in the family. It is not
\nstatic. We are further of the opinion that so long, on partition an
\nancestral property remains in the hand of a single person, it has to
\nbe treated as a separate property and such a person shall be entitled
\nto dispose of the coparcenary property treating it to be his separate
\nproperty but if a son is subsequently born, the alienation made
\nbefore the birth cannot be questioned. But, the moment a son is
\nborn, the property becomes a coparcenary property and the son
\nwould acquire interest in that and become a coparcener.\u201d
\n(emphasis supplied)\u201d
\n39. A similar view was taken in Thamma Venkata Subramma (dead)
\nby LR v. Thamnma Ratamma & Ors., (1987) 3 SCC 294, that the share
\n47
\nis not defined in coparcenary. It keeps on fluctuating on death and
\nbirth in the family.
\n40. It is only on actual partition a coparcener becomes entitled to a
\ndefinite share. The interest of a coparcener is called “undivided
\ncoparcenary interest,” which remains undivided as held by the Privy
\nCouncil in Katama Natchiar v. Srimat Rajah Moottoo Vijaya
\nRaganadha Bodha Gooroo Swamy Periya Odaya Taver, (1863) 9 MIA
\n543.
\nIn Shankara Cooperative Housing Society Ltd. v. M. Prabhakar &
\nOrs., (2011) 5 SCC 607, it was observed that coparcenary be collective
\nownership. If a suit for recovery of property is filed, it is for the benefit
\nof all coowners.
\nThe position of ownership of coownership
\nproperty
\nindicates a change when actual division takes place, and coowner’s
\nshare becomes identifiable. In Shankara Cooperative, it was observed:
\n\u201c85. Shri Ranjit Kumar, learned Senior Counsel, contends that
\nthe writ petition was filed by one of the co-owners of late
\nMandal Buchaiah and judgment and order passed would not bind
\nthe other parties. We cannot agree. It is a settled law that no coowner
\nhas a definite right, title and interest in any particular item
\nor portion thereof. On the other hand, he has right, title and
\ninterest in every part and parcel of the joint property or
\ncoparcenary under Hindu law by all the coparceners. Our
\nconclusion is fortified by the view expressed by this Court in A.
\nViswanatha Pillai v. Tahsildar (LA), (1991) 4 SCC 17 in which
\nthis Court observed: (SCC p. 21, para 2)
\n\u201c2. \u2026 It is settled law that one of the co-owners can file a
\nsuit and recover the property against strangers and the decree
\nwould enure to all the co-owners. It is equally settled law that no
\n48
\nco-owner has a definite right, title and interest in any particular
\nitem or a portion thereof. On the other hand he has right, title and
\ninterest in every part and parcel of the joint property or
\ncoparcenary under Hindu law by all the coparceners. In Kanta
\nGoel v. B.P. Pathak, (1977) 2 SCC 814, this Court upheld an
\napplication by one of the co-owners for eviction of a tenant for
\npersonal occupation of the co-owners as being maintainable. The
\nsame view was reiterated in Sri Ram Pasricha v. Jagannath,
\n(1976) 4 SCC 184, and Pal Singh v. Sunder Singh, (1989) 1 SCC
\n444. A co-owner is as much an owner of the entire property as a
\nsole owner of the property. It is not correct to say that a coowner\u2019s
\nproperty was not its own. He owns several parts of the
\ncomposite property along with others and it cannot be said that
\nhe is only a part owner or a fractional owner in the property. That
\nposition will undergo a change only when partition takes place
\nand division was effected by metes and bounds. Therefore, a coowner
\nof the property is an owner of the property acquired but
\nentitled to receive compensation pro rata.\u201d\u201d
\n(emphasis supplied)
\n41. In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, (1986) 1
\nSCC 366, a 3Judge
\nBench of this Court held that character of a joint
\nfamily property does not change with the severance in the status of
\nthe joint family before an actual partition takes place. It was observed
\nthus:
\n\u201c14. \u2026The character of any joint family property does not
\nchange with the severance of the status of the joint family and a
\njoint family property continues to retain its joint family character
\nso long as the joint family property is in existence and is not
\npartitioned amongst the co-sharers. By a unilateral act it is not
\nopen to any member of the joint family to convert any joint
\nfamily property into his personal property.\u201d
\n42. In Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari Kuer &
\nAnr., AIR 1952 SC 72, it was held that once a coparcener separates
\n49
\nhimself from other members of the joint family, there is no
\npresumption that rest of the coparceners continued to be joint, it
\nwould be a question of fact in each case. Following discussion was
\nmade:
\n\u201c7. x x x The general principle undoubtedly is that a Hindu family
\nis presumed to be joint unless the contrary is proved, but \u2026\u2026
\nwhere it is admitted that one of the coparceners did separate himself
\nfrom the other members of the joint family and had his share in the
\njoint property partitioned off for him, there is no presumption that
\nthe rest of the coparceners continued to be joint. There is no
\npresumption on the plaintiff\u2019s side too that because one member of
\nthe family separated himself, there has been separation with regard
\nto all. It would be a question of fact to be determined in each case
\nupon the evidence relating to the intention of the parties whether
\nthere was a separation amongst the other coparceners or that they
\nremained united. The burden would undoubtedly lie on the party
\nwho asserts the existence of a particular state of things on the basis
\nof which he claims relief\u2026.\u201d
\nIn Ref. Unobstructed and obstructed heritage
\n43. In Mitakshara coparcenary, there is unobstructed heritage, i.e.,
\napratibandha daya and obstructed heritage i.e., sapratibandha daya.
\nWhen right is created by birth is called unobstructed heritage. At the
\nsame time, the birthright is acquired in the property of the father,
\ngrandfather, or great grandfather. In case a coparcener dies without
\nleaving a male issue, right is acquired not by birth, but by virtue of
\nthere being no male issue is called obstructed heritage. It is
\nobstructed because the accrual of right to it is obstructed by the
\n50
\nowner’s existence. It is only on his death that obstructed heritage
\ntakes place. Mulla on Hindu Law has discussed the concept thus:
\n\u201c216. Obstructed and unobstructed heritage. \u2013 Mitakshara
\ndivides property into two classes, namely, apratibandha daya or
\nunobstructed heritage, and sapratibandha daya or obstructed
\nheritage.
\n(1) Property in which a person acquires an interest by birth is called
\nunobstructed heritage, because the accrual of the right to it is not
\nobstructed by the existence of the owner.
\nThus, property inherited by a Hindu from his father, father’s
\nfather, or father’s father’s father, but not from his maternal
\ngrandfather, 1 is unobstructed heritage as regards his own male
\nissue, i.e., his son, grandson, and great-grandson.2 His male issues
\nacquire an interest in it from the moment of their birth. Their right
\nto it arises from the mere fact of their birth in the family, and they
\nbecome coparceners with their paternal ancestor in such property
\nimmediately on their birth, and in such cases ancestral property is
\nunobstructed heritage.
\nProperty, the right to which accrues not by birth but on the
\ndeath of the last owner without leaving a male issue, is called
\nobstructed heritage. It is called obstructed, because the accrual of
\nright to it is obstructed by the existence of the owner.
\nThus, property which devolves on parents, brothers, nephews,
\nuncles, etc. upon the death of the last owner, is obstructed heritage.
\nThese relations do not take a vested interest in the property by birth.
\nTheir right to it arises for the first time on the death of the owner.
\nUntil then, they have a mere spes successionis, or a bare chance of
\nsuccession to the property, contingent upon their surviving the
\nowner.3
\n(2) Unobstructed heritage devolves by survivorship; obstructed
\nheritage, by succession. There are, however, some cases in which
\nobstructed heritage is also passed by survivorship.\u201d
\n44. It is apparent that unobstructed heritage takes place by birth,
\nand the obstructed heritage takes place after the death of the owner. It
\n1 Muhamad Hussain v. Babu Kishava Nandan Sahai , (1937) 64 IA 250 : (1937) All 655: 39
\nBom LR 979: 169 IC 1: AIR 1937 PC 223; Om Prakash v. Sarvjit Singh, AIR 1995 MP 92
\n(property inherited from person other than father, father’s father, or father’s father’s
\nfather is obstructed heritage).
\n2 Sirtaji v. Algu Upadhiya, (1937) 12 Luck 237: 163 IC 935: AIR 1936 Ori 331.
\n3 Mitakshara, Ch.I, S 1, v 3.
\n51
\nis significant to note that under section 6 by birth, right is given that
\nis called unobstructed heritage. It is not the obstructed heritage
\ndepending upon the owner’s death. Thus, coparcener father need not
\nbe alive on 9.9.2005, date of substitution of provisions of Section 6.
\nIn Ref. Section 6 of the Act of 1956
\n45. Section 6 of the Act of 1956 before the substitution by
\nAmendment Act, 2005 is reproduced hereunder :
\n\u201c6. Devolution of interest in coparcenary property.\u2014When a
\nmale
\nHindu dies after the commencement of this Act, having at the
\ntime of his death an interest in a Mitakshara coparcenary
\nproperty, his interest in the property shall devolve by
\nsurvivorship upon the surviving members of the coparcenary and
\nnot in accordance with this Act:
\nProvided that, if the deceased had left him surviving a female
\nrelative specified in Class I of the Schedule or a male relative
\nspecified in that Class who claims through such female relative,
\nthe interest of the deceased in the Mitakshara coparcenary
\nproperty shall devolve by testamentary or intestate succession, as
\nthe case may be, under this Act and not by survivorship.
\nExplanation I.\u2014For the purposes of this section, the interest of a
\nHindu Mitakshara coparcener shall be deemed to be the share in
\nthe property that would have been allotted to him if a partition of
\nthe property had taken place immediately before his death,
\nirrespective of whether he was entitled to claim partition or not.\u201d
\n46. The substituted provision of section 6 by the Amendment Act,
\n2005 is extracted hereunder:
\n\u201c6. Devolution of interest in coparcenary property.-
\n(1) On and from the commencement of the Hindu Succession
\n(Amendment) Act, 2005 , in a Joint Hindu family governed by the
\nMitakshara law, the daughter of a coparcener shall,-
\n(a) by birth become a coparcener in her own right in the same
\nmanner as the son;
\n52
\n(b) have the same rights in the coparcenary property as she would
\nhave had if she had been a son;
\n(c) be subject to the same liabilities in respect of the said
\ncoparcenary property as that of a son, and any reference to a Hindu
\nMitakshara coparcener shall be deemed to include a reference to a
\ndaughter of a coparcener:
\nProvided that nothing contained in this sub- section shall affect or
\ninvalidate any disposition or alienation including any partition or
\ntestamentary disposition of property which had taken place before
\nthe 20th day of December, 2004 .
\n(2) Any property to which a female Hindu becomes entitled by
\nvirtue of sub- section (1) shall be held by her with the incidents of
\ncoparcenary ownership and shall be regarded, notwithstanding
\nanything contained in this Act, or any other law for the time being
\nin force, as property capable of being disposed of by her by
\ntestamentary disposition.
\n(3) Where a Hindu dies after the commencement of the Hindu
\nSuccession (Amendment) Act, 2005 , his interest in the property of
\na Joint Hindu family governed by the Mitakshara law, shall devolve
\nby testamentary or intestate succession, as the case may be, under
\nthis Act and not by survivorship, and the coparcenary property shall
\nbe deemed to have been divided as if a partition had taken place
\nand,-
\n(a) the daughter is allotted the same share as is allotted to a son;
\n(b) the share of the pre- deceased son or a pre- deceased daughter,
\nas they would have got had they been alive at the time of partition,
\nshall be allotted to the surviving child of such pre- deceased son or
\nof such pre- deceased daughter; and
\n(c) the share of the pre-deceased child of a pre- deceased son or of a
\npre- deceased daughter, as such child would have got had he or she
\nbeen alive at the time of the partition, shall be allotted to the child
\nof such pre- deceased child of the pre- deceased son or a predeceased
\ndaughter, as the case may be.
\nExplanation.- For the purposes of this sub- section, the interest of a
\nHindu Mitakshara coparcener shall be deemed to be the share in the
\nproperty that would have been allotted to him if a partition of the
\nproperty had taken place immediately before his death, irrespective
\nof whether he was entitled to claim partition or not.
\n53
\n(4) After the commencement of the Hindu Succession
\n(Amendment) Act, 2005 , no court shall recognise any right to
\nproceed against a son, grandson or great- grandson for the recovery
\nof any debt due from his father, grandfather or great- grandfather
\nsolely on the ground of the pious obligation under the Hindu law, of
\nsuch son, grandson or great- grandson to discharge any such debt:
\nProvided that in the case of any debt contracted before the
\ncommencement of the Hindu Succession (Amendment) Act, 2005 ,
\nnothing contained in this sub- section shall affect-
\n(a) the right of any creditor to proceed against the son, grandson or
\ngreat- grandson, as the case may be; or
\n(b) any alienation made in respect of or in satisfaction of, any such
\ndebt, and any such right or alienation shall be enforceable under the
\nrule of pious obligation in the same manner and to the same extent
\nas it would have been enforceable as if the Hindu Succession
\n(Amendment) Act, 2005 had not been enacted.
\nExplanation.- For the purposes of clause (a), the expression” son”,”
\ngrandson” or” great- grandson” shall be deemed to refer to the son,
\ngrandson or great- grandson, as the case may be, who was born or
\nadopted prior to the commencement of the Hindu Succession
\n(Amendment) Act, 2005 .
\n(5) Nothing contained in this section shall apply to a partition,
\nwhich has been effected before the 20th day of December, 2004.
\nExplanation.- For the purposes of this section” partition” means any
\npartition made by execution of a deed of partition duly registered
\nunder the Registration Act, 1908 (16 of 1908 ) or partition effected
\nby a decree of a court.’.\u201d
\n47. Statement of Objects and Reasons behind the introduction of Bill
\nis reproduced as under:
\n\u201cSTATEMENT OF OBJECTS AND REASONS
\nThe Hindu Succession Act, 1956 has amended and codified
\nthe law relating to intestate succession among Hindus. The Act
\nbrought about changes in the law of succession among Hindus and
\ngave rights which were till then unknown in relation to women\u2019s
\nproperty. However, it does not interfere with the special rights of
\n54
\nthose who are members of Hindu Mitakshara coparcenary except to
\nprovide rules for devolution of the interest of a deceased male in
\ncertain cases. The Act lays down a uniform and comprehensive
\nsystem of inheritance and applies, inter alia, to persons governed by
\nthe Mitakshara and Dayabhaga schools and also to those governed
\npreviously by the Murumakkattayam, Aliyasantana and Nambudri
\nlaws. The Act applies to every person who is a Hindu by religion in
\nany of its forms or developments including a Virashaiva, a Lingayat
\nor a follower of the Brahmo, Pararthana or Arya Samaj; or to any
\nperson who is Buddhist, Jain or Sikh by religion; or to any other
\nperson who is not a Muslim, Christian, Parsi or Jew by religion. In
\nthe case of a testamentary disposition, this Act does not apply and
\nthe interest of the deceased is governed by the Indian Succession
\nAct, 1925.
\n2. Section 6 of the Act deals with devolution of interest of a male
\nhindu in coparcenary property and recognises the rule of devolution
\nby survivorship among the members of the coparcenary. The
\nretention of the Mitakashara coparcenary property without
\nincluding the females in it means that the females cannot inherit in
\nancestral property as their male counterparts do. The law by
\nexcluding the daughter from participating in the coparcenary
\nownership not only contributes to her discrimination on the ground
\nof gender but also has led to oppression and negation of her
\nfundamental right of equality guaranteed by the Constitution.
\nhaving regard to the need to render social justice to women, the
\nStates of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra
\nhave made necessary changes in the law giving equal right to
\ndaughters in Hindu Mitakshara coparcenary property. The Kerala
\nLegislature has enacted the Kerala Joint Hindu Family System
\n(Abolition) Act, 1975.
\n3. It is proposed to remove the discrimination as contained in
\nsection 6 of the Hindu Succession Act, 1956 by giving equal rights
\nto daughters in the Hindu Mitakshara coparcenary property as the
\nsons have. Section 23 of the Act disentitles a female heir to ask for
\npartition in respect of a dwelling house wholly occupied by a joint
\nfamily until the male heirs choose to divide their respective shares
\ntherein. It is also proposed to omit the said section so as to remove
\nthe disability on female heirs contained in that section.
\n4. The above proposals are based on the recommendations of the
\nLaw Commission of India as contained in its 174th Report on
\n55
\n\u201cProperty Rights of Women: Proposed Reform under the Hindu
\nLaw\u201d.
\n5. The Bill seeks to achieve the above objects.
\nNEW DELHI;
\nThe 16th December, 2004.\u201d
\n48. Section 6 deals with devolution of interest in coparcenary
\nproperty of a joint Hindu family governed by the Mitakshara law. The
\noriginally enacted provision of section 6 excluded the rule of
\nsuccession concerning Mitakshara coparcenary property. It provided
\nthe interest of a coparcener male Hindu who died after the
\ncommencement of Act of 1956, shall be governed by survivorship upon
\nthe surviving members of the coparcenary. The exception was provided
\nthat if the deceased had left surviving a female relative specified in
\nClass I of the Schedule or a male relative specified in that Class who
\nclaims through such female relative, the interest of such coparcener
\nshall devolve by testamentary or intestate succession, as the case may
\nbe, in order to ascertain the share of deceased coparcener, the
\npartition has to be deemed before his death. Explanation 2 disentitled
\nthe separated person to make any claim in case of intestate
\nsuccession.
\n49. Though the widow or daughter could claim a share, being a
\nClass I heir in the property left by the deceased coparcener, and a
\nwidow was entitled, having a right to claim a share in the event of
\n56
\npartition daughter was not treated as a coparcener. The goal of gender
\njustice as constitutionally envisaged is achieved though belatedly, and
\nthe discrimination made is taken care of by substituting the provisions
\nof section 6 by Amendment Act, 2005.
\n50. Concerning gender discrimination to a daughter who always
\nremains a loving daughter, we quote Savita Samvedi (Ms) & Anr. v.
\nUnion of India & Ors., 1996 (2) SCC 380, thus:
\n\u201c6. A common saying is worth pressing into service\u2026.
\n\u201cA son is a son until he gets a wife. A daughter is a daughter
\nthroughout her life.\u201d
\n7. \u2026The eligibility of a married daughter must be placed on a par
\nwith an unmarried daughter (for she must have been once in that
\nstate), \u2026..to claim the benefit\u2026..
\n\u2026(Otherwise, it would be) unfair, gender-biased and unreasonable,
\nliable to be struck down under Article 14 of the Constitution. \u2026 It
\nsuffers from twin vices of gender discrimination inter se among
\nwomen on account of marriage.”
\n51. The daughter is treated as a coparcener in the same manner as a
\nson by birth with the same rights in coparcenary property and
\nliabilities. However, the proviso of subsection
\n(1) contains a nonobstante
\nclause providing that nothing contained in the subsection
\nshall affect or invalidate any disposition or alienation including any
\npartition or testamentary disposition of the property which had taken
\nplace before 20.12.2004.
\n52. It is apparent from the provisions of section 6 that the
\ndiscrimination with the daughter has been done away with, and they
\n57
\nhave been provided equal treatment in the matter of inheritance with
\nMitakshara coparcenary. In several States viz., Andhra Pradesh, Tamil
\nNadu, Karnataka, and Maharashtra, the State Amendments in the Act
\nof 1956 were made to extend equal rights to daughters in Hindu
\nMitakshara coparcenary property. An amendment was made on
\n30.7.1994 by the insertion of Section 6A by Karnataka Act 23 of 1994
\nin the Act of 1956. InState
\nof Andhra Pradesh, the amendment was
\nmade, w.e.f. 5.9.1985, Tamil Nadu w.e.f 25.3.1989 and Maharashtra
\nw.e.f. 26.9.1994 by the addition of Section 29A in the Act of 1956. In
\nKerala, the Act was enacted in 1975.
\n53. Before the amendment, section 6 provided that on the death of a
\nmale Hindu, a coparcener’s interest in Mitakshara coparcenary shall
\ndevolve by survivorship upon the surviving members of the
\ncoparcenary under the uncodified Hindu law and not in accordance
\nwith the mode of succession provided under the Act of 1956. It was
\nprovided by the proviso to section 6, in case a male Hindu of
\nMitakshara coparcenary has left surviving a female relative of Class I
\nheir or a male relative who claims through such female relative of
\nClass I. The Schedule containing categories of Class I heirs is
\nextracted hereunder:
\n\u201cTHE SCHEDULE
\n(See section 8)
\n58
\nHEIRS IN CLASS I AND CLASS II
\nClass I
\nSon, daughter, widow; mother; son of a pre-deceased son; daughter
\nof a pre-deceased son, son of a pre-deceased daughter, daughter of a
\npre-deceased daughter; widow of a pre-deceased son, son of a predeceased
\nson of a pre-deceased son; daughter of a pre-deceased son
\nof a pre-deceased son; widow of a pre-deceased son of a predeceased
\nson; [son of a pre-deceased daughter of a pre-deceased
\ndaughter, daughter of a pre-deceased daughter of a pre-deceased
\ndaughter, daughter of a pre-deceased son of a pre-deceased
\ndaughter, daughter of a pre-deceased daughter of a pre-deceased
\nso.\u201d
\n54. In view of the provisions contained in section 6 when a
\ncoparcener is survived by a female heir of Class I or male relative of
\nsuch female, it was necessary to ascertain the share of the deceased,
\nas such, a legal fiction was created. The Explanation I provided legal
\nfiction of partition as if it had taken place immediately before his
\ndeath, notwithstanding whether he had the right to claim it or not.
\nHowever, a separated Hindu could not claim an interest in the
\ncoparcenary based on intestacy in the interest left by the deceased.
\n55. The amended provisions of section 6(1) provide that on and from
\nthe commencement of the Amendment Act, the daughter is conferred
\nthe right. Section 6(1)(a) makes daughter by birth a coparcener “in her
\nown right” and “in the same manner as the son.” Section 6(1)(a)
\ncontains the concept of the unobstructed heritage of Mitakshara
\ncoparcenary, which is by virtue of birth. Section 6(1)(b) confers the
\nsame rights in the coparcenary property “as she would have had if she
\n59
\nhad been a son”. The conferral of right is by birth, and the rights are
\ngiven in the same manner with incidents of coparcenary as that of a
\nson and she is treated as a coparcener in the same manner with the
\nsame rights as if she had been a son at the time of birth. Though the
\nrights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive
\napplication; they confer benefits based on the antecedent event, and
\nthe Mitakshara coparcenary law shall be deemed to include a
\nreference to a daughter as a coparcener. At the same time, the
\nlegislature has provided savings by adding a proviso that any
\ndisposition or alienation, if there be any testamentary disposition of
\nthe property or partition which has taken place before 20.12.2004, the
\ndate on which the Bill was presented in the Rajya Sabha, shall not be
\ninvalidated.
\n56. The prospective statute operates from the date of its enactment
\nconferring new rights. The retrospective statute operates backward
\nand takes away or impairs vested rights acquired under existing laws.
\nA retroactive statute is the one that does not operate retrospectively. It
\noperates in futuro. However, its operation is based upon the character
\nor status that arose earlier. Characteristic or event which happened
\nin the past or requisites which had been drawn from antecedent
\nevents. Under the amended section 6, since the right is given by birth,
\n60
\nthat is an antecedent event, and the provisions operate concerning
\nclaiming rights on and from the date of Amendment Act.
\n57. The concept of retrospective and retroactive statute was stated
\nby this Court in Darshan Singh etc. v. Ram Pal Singh & Anr., (1992
\nSupp. (1) SCC 191, thus:
\n\u201c35. Mr Sachar relies on Thakur Gokulchand v. Parvin Kumari,
\nAIR 1952 SC 231, Garikapatti Veeraya v. N. Subbiah Choudhury,
\nAIR 1957 SC 540, Jose Da Costa v. Bascora Sadasiva Sinai
\nNarcornim, (1976) 2 SCC 917, Govind Das v. ITO, (1976) 1 SCC
\n906, Henshall v. Porter, (1923) 2 KBD 193, United Provinces v.
\nMst. Atiga Begum, AIR 1941 FC 16, in support of his submission
\nthat the Amendment Act was not made retrospective by the
\nlegislature either expressly or by necessary implication as the Act
\nitself expressly provided that it shall be deemed to have come into
\nforce on January 23, 1973; and therefore there would be no
\njustification to giving it retrospective operation. The vested right to
\ncontest which was created on the alienation having taken place and
\nwhich had been litigated in the court, argues Mr Sachar, could not
\nbe taken away. In other words, the vested right to contest in appeal
\nwas not affected by the Amendment Act. However, to appreciate
\nthis argument we have to analyse and distinguish between the two
\nrights involved, namely, the right to contest and the right to appeal
\nagainst lower court\u2019s decision. Of these two rights, while the right
\nto contest is a customary right, the right to appeal is always a
\ncreature of statute. The change of the forum for appeal by
\nenactment may not affect the right of appeal itself. In the instant
\ncase we are concerned with the right to contest and not with the
\nright to appeal as such. There is also no dispute as to the
\npropositions of law regarding vested rights being not taken away by
\nan enactment which is ex facie or by implication not retrospective.
\nBut merely because an Act envisages a past act or event in the
\nsweep of its operation, it may not necessarily be said to be
\nretrospective. Retrospective, according to Black\u2019s Law Dictionary,
\nmeans looking backward; contemplating what is past; having
\nreference to a statute or things existing before the Act in question.
\nRetrospective law, according to the same dictionary, means a law
\nwhich looks backward or contemplates the past; one which is made
\nto affect acts or facts occurring, or rights occurring, before it came
\ninto force. Every statute which takes away or impairs vested rights
\nacquired under existing laws, or creates a new obligation, imposes a
\n61
\nnew duty, or attaches a new disability in respect to transactions or
\nconsiderations already past. Retroactive statute means a statute
\nwhich creates a new obligation on transactions or considerations
\nalready past or destroys or impairs vested rights.
\n36. In Halsbury\u2019s Laws of England (4th edn., Vol. 44, at
\nparagraph 921) we find:
\n\u201c921. Meaning of \u2018retrospective\u2019.\u2014 It has been said that
\n\u2018retrospective\u2019 is somewhat ambiguous and that a good deal of
\nconfusion has been caused by the fact that it is used in more
\nsenses than one. In general, however, the courts regard as
\nretrospective any statute which operates on cases or facts
\ncoming into existence before its commencement in the sense
\nthat it affects, even if for the future only, the character or
\nconsequences of transactions previously entered into or of
\nother past conduct. Thus a statute is not retrospective merely
\nbecause it affects existing rights; or is it retrospective merely
\nbecause a part of the requisites for its action is drawn from a
\ntime antecedent to its passing.\u201d
\n37. We are inclined to take the view that in the instant case
\nlegislature looked back to January 23, 1973 and not beyond to put
\nan end to the custom and merely because on that cut off date some
\ncontests were brought to abrupt end would not make the
\nAmendment Act retrospective. In other words, it would not be
\nretrospective merely because a part of the requisites for its action
\nwas drawn from a time antecedent to the Amendment Act coming
\ninto force. We are also of the view that while providing that \u201cno
\nperson shall contest any alienation of immovable property whether
\nancestral or non-ancestral or any appointment of an heir to such
\nproperty\u201d, without preserving any right to contest such alienations
\nor appointments as were made after the coming into force of the
\nPrincipal Act and before the coming into force of the Amendment
\nAct, the intention of the legislature was to cut off even the vested
\nright; and that it was so by implication as well. There is no dispute
\nas to the proposition that retrospective effect is not to be given to an
\nAct unless, the legislature made it so by express words or necessary
\nimplication. But in the instant case it appears that this was the
\nintention of the legislature. Similarly courts will construe a
\nprovision as conferring power to act retroactively when clear words
\nare used. We find both the intention and language of the
\nAmendment Act clear in these respects.\u201d
\n62
\n58. In G. Sekar v. Geetha & Ors., (2009) 6 SCC 99 with respect to the
\noperation of Amendment Act, 2005, it was observed that the same is
\nprospective in nature and not retrospective thus:
\n\u201c30. Neither the 1956 Act nor the 2005 Act seeks to reopen
\nvesting of a right where succession had already been taken place.
\nThe operation of the said statute is no doubt prospective in nature.
\nThe High Court might have committed a mistake in opining that the
\noperation of Section 3 of the 2005 Act is retrospective in character,
\nbut, for the reasons aforementioned, it does not make any
\ndifference. What should have been held was that although it is not
\nretrospective in nature, its application is prospective.\u201d
\n59. The decision in G. Sekar (supra) concerned with the provisions of
\nsection 23 of the Hindu Succession Act prior to its deletion, w.e.f.
\n9.9.2005. The question involved therein was the effect of the deletion
\nby Amendment Act of 2005. The suit for partition of the residential
\ndwelling house was not maintainable under section 23. In that
\ncontext, the observations were made by this Court. In Sheela
\nDevi (supra), the question was whether Section 8 of the Act of 1956
\nwould apply or the law applicable prior to the Act of 1956.
\n60. Section 6(2) provides when the female Hindu shall hold the
\nproperty to which she becomes entitled under section 6(1), she will be
\nbound to follow rigors of coparcenary ownership, and can dispose of
\nthe property by testamentary mode.
\n63
\n61. With respect to a Hindu who dies after the commencement of the
\nAmendment Act, 2005, as provided in section 6(3) his interest shall
\npass by testamentary or intestate succession and not by survivorship,
\nand there is a deemed partition of the coparcenary property in order to
\nascertain the shares which would have been allotted to his heirs had
\nthere been a partition. The daughter is to be allotted the same share
\nas a son; even surviving child of predeceased
\ndaughter or son are
\ngiven a share in case child has also died then surviving child of such
\npredeceased
\nchild of a predeceased
\nson or predeceased
\ndaughter
\nwould be allotted the same share, had they been alive at the time of
\ndeemed partition. Thus, there is a seachange
\nin substituted section 6.
\nIn case of death of coparcener after 9.9.2005, succession is not by
\nsurvivorship but in accordance with section 6(3)(1). The Explanation
\nto section 6(3) is the same as Explanation I to section 6 as originally
\nenacted. Section 6(4) makes a daughter liable in the same manner as
\nthat of a son. The daughter, granddaughter,
\nor greatgranddaughter,
\nas the case may be, is equally bound to follow the pious obligation
\nunder the Hindu Law to discharge any such debt. The proviso saves
\nthe right of the creditor with respect to the debt contracted before the
\ncommencement of Amendment Act, 2005. The provisions contained in
\nsection 6(4) also make it clear that provisions of section 6 are not
\n64
\nretrospective as the rights and liabilities are both from the
\ncommencement of the Amendment Act.
\n62. The proviso to section 6(1) and section 6(5) saves any partition
\neffected before 20.12.2004. However, Explanation to section 6(5)
\nrecognises partition effected by execution of a deed of partition duly
\nregistered under the Registration Act, 1908 or by a decree of a court.
\nOther forms of partition have not been recognised under the definition
\nof ‘partition’ in the Explanation.
\n63. Considering the principle of coparcenary that a person is
\nconferred the rights in the Mitakshara coparcenary by birth, similarly,
\nthe daughter has been recognised and treated as a coparcener, with
\nequal rights and liabilities as of that of a son. The expression used in
\nsection 6 is that she becomes coparcener in the same manner as a
\nson. By adoption also, the status of coparcener can be conferred. The
\nconcept of uncodified Hindu law of unobstructed heritage has been
\ngiven a concrete shape under the provisions of section 6(1)(a) and 6(1)
\n(b). Coparcener right is by birth. Thus, it is not at all necessary that
\nthe father of the daughter should be living as on the date of the
\namendment, as she has not been conferred the rights of a coparcener
\nby obstructed heritage. According to the Mitakshara coparcenary
\nHindu law, as administered which is recognised in section 6(1), it is
\n65
\nnot necessary that there should be a living, coparcener or father as on
\nthe date of the amendment to whom the daughter would succeed. The
\ndaughter would step into the coparcenary as that of a son by taking
\nbirth before or after the Act. However, daughter born before can claim
\nthese rights only with effect from the date of the amendment, i.e.,
\n9.9.2005 with saving of past transactions as provided in the proviso to
\nsection 6(1) read with section 6(5).
\n64. The effect of the amendment is that a daughter is made
\ncoparcener, with effect from the date of amendment and she can claim
\npartition also, which is a necessary concomitant of the coparcenary.
\nSection 6(1) recognises a joint Hindu family governed by Mitakshara
\nlaw. The coparcenary must exist on 9.9.2005 to enable the daughter of
\na coparcener to enjoy rights conferred on her. As the right is by birth
\nand not by dint of inheritance, it is irrelevant that a coparcener whose
\ndaughter is conferred with the rights is alive or not. Conferral is not
\nbased on the death of a father or other coparcener. In case living
\ncoparcener dies after 9.9.2005, inheritance is not by survivorship but
\nby intestate or testamentary succession as provided in substituted
\nsection 6(3).
\nIn ref: Effect of enlargement of daughter\u2019s rights
\n66
\n65. Under the proviso to section 6 before the amendment made in
\nthe year 2005 in case a coparcener died leaving behind female relative
\nof Class I heir or a male descendant claiming through such Class I
\nfemale heir, the daughter was one of them. Section 6, as substituted,
\npresupposes the existence of coparcenary. It is only the case of the
\nenlargement of the rights of the daughters. The rights of other
\nrelatives remain unaffected as prevailed in the proviso to section 6 as
\nit stood before amendment.
\n66. As per the Mitakshara law, no coparcener has any fixed share. It
\nkeeps on fluctuating by birth or by death. It is the said principle of
\nadministration of Mitakshara coparcenary carried forward in statutory
\nprovisions of section 6. Even if a coparcener had left behind female
\nheir of Class I or a male claiming through such female Class I heir,
\nthere is no disruption of coparcenary by statutory fiction of partition.
\nFiction is only for ascertaining the share of a deceased coparcener,
\nwhich would be allotted to him as and when actual partition takes
\nplace. The deemed fiction of partition is for that limited purpose. The
\nclassic Shastric Hindu law excluded the daughter from being
\ncoparcener, which injustice has now been done away with by
\namending the provisions in consonance with the spirit of the
\nConstitution.
\n67
\n67. There can be a sole surviving coparcener in a given case the
\nproperty held by him is treated individual property till a son is born.
\nIn case there is a widow or daughter also, it would be treated as joint
\nfamily property. If the son is adopted, he will become a coparcener. An
\nadoption by a widow of a deceased coparcener related to the date of
\nher husband’s death, subject to saving the alienations made in the
\nintermittent period.
\nIn Ref. Acquisition of Rights in Coparcenary Property
\n68. It is by birth that interest in the property is acquired. Devolution
\non the death of a coparcener before 1956 used to be only by
\nsurvivorship. After 1956, women could also inherit in exigencies,
\nmentioned in the proviso to unamended section 6. Now by legal fiction,
\ndaughters are treated as coparceners. No one is made a coparcener by
\ndevolution of interest. It is by virtue of birth or by way of adoption
\nobviously within the permissible degrees; a person is to be treated as
\ncoparcener and not otherwise.
\n69. The argument raised that if the father or any other coparcener
\ndied before the Amendment Act, 2005, the interest of the father or
\nother coparcener would have already merged in the surviving
\ncoparcenary, and there was no coparcener alive from whom the
\ndaughter would succeed. We are unable to accept the submission
\n68
\nbecause it is not by the death of the father or other coparcener that
\nrights accrue. It is by the factum of birth. It is only when a female of
\nClass I heir is left, or in case of her death, male relative is left, the
\nshare of the deceased coparcener is fixed to be distributed by a
\ndeemed partition, in the event of an actual partition, as and when it
\ntakes place as per the proviso to unamended section 6. The share of
\nthe surviving coparcener may undergo change till the actual partition
\nis made. The proviso to section 6 does not come in the way of
\nformation of a coparcenary, and who can be a coparcener. The proviso
\nto section 6 as originally stood, contained an exception to the
\nsurvivorship right. The right conferred under substituted section 6(1)
\nis not by survivorship but by birth. The death of every coparcener is
\ninevitable. How the property passes on death is not relevant for
\ninterpreting the provisions of section 6(1). Significant is how right of a
\ncoparcener is acquired under Mitakshara coparcenary. It cannot be
\ninferred that the daughter is conferred with the right only on the death
\nof a living coparcener, by declaration contained in section 6, she has
\nbeen made a coparcener. The precise declaration made in section 6 (1)
\nhas to be taken to its logical end; otherwise, it would amount to a
\ndenial of the very right to a daughter expressly conferred by the
\nlegislature. Survivorship as a mode of succession of property of a
\n69
\nMitakshara coparcener, has been abrogated with effect from 9.9.2005
\nby section 6(3).
\n70. The decision in Bireswar Mookerji & Ors. v. Shib Chunder Roy
\n(supra), was relied upon to contend that adoption is only of a male and
\nnot a female as held in Amarendra Man Singh Bhramarbar & Anr. v.
\nSanatan Singh & Ors., (supra), a male becomes a coparcener by birth
\nor adoption. There is no dispute with the custom, which was prevalent
\nearlier that there could be the adoption of a male child and not that of
\nfemales. There is no dispute with the proposition that a coparcenary
\nright accrued to males under the prevalent law by birth or adoption. In
\nthe same manner, right is accrued by birth to the daughter under the
\nprovisions of section 6. The legislature in section 6 used the term that
\na daughter becomes coparcener by birth. The claim based on birth is
\ndistinguishable and is different from modes of succession.
\n71. It was argued that in case Parliament intended that the incident
\nof birth prior to 2005 would be sufficient to confer the status of a
\ncoparcener, Parliament would need not have enacted the proviso to
\nsection 6(1). When we read the provisions conjointly, when right is
\ngiven to the daughter of a coparcener in the same manner as a son by
\nbirth, it became necessary to save the dispositions or alienations,
\nincluding any partition or testamentary succession, which had taken
\n70
\nplace before 20.12.2004. A daughter can assert the right on and from
\n9.9.2005, and the proviso saves from invalidation above transactions.
\n72. It was argued that in the eventuality of the death of a father or
\nother coparcener, the parties would have not only partitioned their
\nassets but also acted in pursuance of such partition. However,
\npartitions have been taken care of by the proviso to section 6(1) and
\n6(5). Parliament has not intended to upset all such transactions as
\nspecified in the proviso to section 6(1).
\n73. It was vehemently argued that if the daughter is given the right
\nto be a coparcener by birth and deemed to become a coparcener at any
\npoint in the past, in the normal working of the law, uncertainty would
\nbe caused. In our opinion, no uncertainty is brought about by the
\nprovisions of section 6 as the law of Mitakshara coparcenary makes
\nthe share of surviving coparceners uncertain till actual partition takes
\nplace. Uncertainty in the right of share in a Mitakshara coparcenary is
\ninhered in its underlying principles, and there is no question of
\nupturning it when the daughter is treated like a son and is given the
\nright by birth; to be exercised from a particular date, i.e., 9.9.2005. It
\nis not to resurrect the past but recognising an antecedent event for
\nconferral of rights, prospectively. There is no doubt about it that
\nadvancement brings about the enlargement of the size of the
\n71
\ncoparcenary and disabling it from treating the daughter unequally.
\nEven otherwise, its size could be enlarged by the birth of a son also.
\nBy applying section 8, the joint possession was not repudiated by the
\nfact that a female, whether a wife or daughter, inherited the share of
\ncoparcener under the proviso to original section 6. She was an equal
\nmember of the joint Hindu family and deemed statutory partition did
\nnot bring disruption of the coparcenary.
\n74. In Prakash v. Phulavati, father died in the year 1988, daughters
\nfiled a suit for partition in 1992, same was dismissed in 2007,
\nentitlement was given to the daughters to a share on a notional
\npartition under the proviso to section 6 in the share of the coparcener
\nfather. However, the High Court applied the amended provisions of
\nsection 6 to the pending proceedings and treated daughters equally
\nwith sons. As such, the matter travelled to this Court. It was held that
\nthe proviso is not retrospective. The requirement of partition being
\nregistered can have no application to statutory notional partition, on
\nthe opening of succession as per the unamended proviso to section 6,
\nhaving regard to the nature of such partition, which is by operation of
\nlaw. It was opined:
\n\u201c17. The text of the amendment itself clearly provides that the
\nright conferred on a \u201cdaughter of a coparcener\u201d is \u201con and from the
\ncommencement of the Hindu Succession (Amendment) Act, 2005\u201d.
\nSection 6(3) talks of death after the amendment for its applicability.
\n72
\nIn view of plain language of the statute, there is no scope for a
\ndifferent interpretation than the one suggested by the text of the
\namendment. An amendment of a substantive provision is always
\nprospective unless either expressly or by necessary intendment it is
\nretrospective. [Shyam Kumar v. Ram Kumar, (2001) 8 SCC 24,
\nparas 22 to 27] In the present case, there is neither any express
\nprovision for giving retrospective effect to the amended provision
\nnor necessary intendment to that effect. Requirement of partition
\nbeing registered can have no application to statutory notional
\npartition on opening of succession as per unamended provision,
\nhaving regard to nature of such partition which is by operation of
\nlaw. The intent and effect of the amendment will be considered a
\nlittle later. On this finding, the view of the High Court cannot be
\nsustained.
\n18. The contention of the respondents that the amendment
\nshould be read as retrospective being a piece of social legislation
\ncannot be accepted. Even a social legislation cannot be given
\nretrospective effect unless so provided for or so intended by the
\nlegislature. In the present case, the legislature has expressly made
\nthe amendment applicable on and from its commencement and only
\nif death of the coparcener in question is after the amendment. Thus,
\nno other interpretation is possible in view of the express language
\nof the statute. The proviso keeping dispositions or alienations or
\npartitions prior to 20-12-2004 unaffected can also not lead to the
\ninference that the daughter could be a coparcener prior to the
\ncommencement of the Act. The proviso only means that the
\ntransactions not covered thereby will not affect the extent of
\ncoparcenary property which may be available when the main
\nprovision is applicable. Similarly, Explanation has to be read
\nharmoniously with the substantive provision of Section 6(5) by
\nbeing limited to a transaction of partition effected after 20-12-2004.
\nNotional partition, by its very nature, is not covered either under the
\nproviso or under sub-section (5) or under the Explanation.
\nx x x
\n23. Accordingly, we hold that the rights under the amendment
\nare applicable to living daughters of living coparceners as on 9-9-
\n2005 irrespective of when such daughters are born. Disposition or
\nalienation including partitions which may have taken place before
\n20-12-2004 as per law applicable prior to the said date will remain
\nunaffected. Any transaction of partition effected thereafter will be
\ngoverned by the Explanation.
\nx x x
\n73
\n27.2. In Gurupad Khandappa Magdum v. Hirabai Khandappa
\nMagdum (1978) 3 SCC 383, Shyama Devi v. Manju Shukla (1994)
\n6 SCC 342 and Anar Devi v. Parmeshwari Devi (2006) 8 SCC 656
\ncases this Court interpreted Explanation 1 to Section 6 (prior to the
\n2005 Amendment) of the Hindu Succession Act. It was held that the
\ndeeming provision referring to partition of the property
\nimmediately before the death of the coparcener was to be given due
\nand full effect in view of settled principle of interpretation of a
\nprovision incorporating a deeming fiction. In Shyama Devi (supra)
\nand Anar Devi (supra) cases, same view was followed.
\n27.3. In Vaishali Satish Ganorkar v. Satish Keshaorao
\nGanorkar, AIR 2012 Bom. 101, the Bombay High Court held that
\nthe amendment will not apply unless the daughter is born after the
\n2005 Amendment, but on this aspect a different view has been
\ntaken in the later larger Bench judgment [AIR 214 Bom 151]. We
\nare unable to find any reason to hold that birth of the daughter after
\nthe amendment was a necessary condition for its applicability. All
\nthat is required is that daughter should be alive and her father
\nshould also be alive on the date of the amendment.\u201d
\n75. A finding has been recorded in Prakash v. Phulavati that the
\nrights under the substituted section 6 accrue to living daughters of
\nliving coparceners as on 9.9.2005 irrespective of when such daughters
\nare born. We find that the attention of this Court was not drawn to the
\naspect as to how a coparcenary is created. It is not necessary to form a
\ncoparcenary or to become a coparcener that a predecessor coparcener
\nshould be alive; relevant is birth within degrees of coparcenary to
\nwhich it extends. Survivorship is the mode of succession, not that of
\nthe formation of a coparcenary. Hence, we respectfully find ourselves
\nunable to agree with the concept of “living coparcener”, as laid down in
\nPrakash v. Phulavati. In our opinion, the daughters should be living on
\n9.9.2005. In substituted section 6, the expression ‘daughter of a living
\n74
\ncoparcener’ has not been used. Right is given under section 6(1)(a) to
\nthe daughter by birth. Declaration of right based on the past event
\nwas made on 9.9.2005 and as provided in section 6(1(b), daughters by
\ntheir birth, have the same rights in the coparcenary, and they are
\nsubject to the same liabilities as provided in section 6(1)(c). Any
\nreference to the coparcener shall include a reference to the daughter of
\na coparcener. The provisions of section 6(1) leave no room to entertain
\nthe proposition that coparcener should be living on 9.9.2005 through
\nwhom the daughter is claiming. We are unable to be in unison with
\nthe effect of deemed partition for the reasons mentioned in the latter
\npart.
\n76. In Mangammal v. T.B. Raju & Ors. (supra), the Court considered
\nthe provisions made in the State of Tamil Nadu, the State Government
\nenacted the Hindu Succession (Tamil Nadu Amendment) Act, 1989,
\nmade effective from 25.3.1989, adding section 29A
\nin the Hindu
\nSuccession Act, 1956. Section 29A was held to be valid regarding
\nsuccession by survivorship. Section 29A provided equal rights to
\ndaughters in coparcenary property. The provisions were more or less
\nsimilar, except section 29A(iv) treated a married daughter differently.
\nThe provisions were not applicable to the daughters married before the
\ndate of commencement of Amendment Act, 1989. Thus, married
\ndaughters were not entitled to equal rights. That too, has been taken
\n75
\ncare of in section 6, as substituted by Act of 2005, and no
\ndiscrimination is made against married daughters. In the said case,
\nMangammal got married in 1981, and Indira got married in or about
\n1984, i.e., before the 1989 Amendment. Therefore, it was held that
\nbecause of section 29A(
\niv) of the Amendment Act, the appellant could
\nnot institute a suit for partition and separate possession as they were
\nnot coparceners. The decisions in Prakash v. Phulavati and Danamma
\nwere referred, and it was opined that Prakash v. Phulavati would still
\nhold the value of precedent for right of a daughter in ancestral
\nproperty and only “living daughters of living coparceners” as on
\n9.9.2005 would be entitled to claim a share in the coparcenary
\nproperty. In Mangammal, the Court opined thus:
\n\u201c15. Moreover, under Section 29-A of the Act, the legislature
\nhas used the word “the daughter of a coparcener.” Here, the
\nimplication of such wordings mean both the coparcener as well as
\ndaughter should be alive to reap the benefits of this provision at the
\ntime of commencement of the amendment of 1989. The similar
\nissue came up for the consideration before this Court in Prakash v.
\nPhulavati, (2016) 2 SCC 36, wherein this Court while dealing with
\nthe identical matter held at para 23 as under (SCC p. 49)
\n\u201c23. Accordingly, we hold that the rights under the amendment
\nare applicable to living daughters of living coparceners as on 9-9-
\n2005 irrespective of when such daughters are born.\u201d
\n(emphasis supplied)
\n16. It is pertinent to note here that recently, this Court in
\nDanamma v. Amar, (2018) 3 SCC 343, dealt, inter alia, with the
\ndispute of daughter’s right in the ancestral property. In the above
\ncase, father of the daughter died in 2001, yet court permitted the
\ndaughter to claim the right in ancestral property in view of the
\namendment in 2005. On a perusal of the judgment and after having
\n76
\nregard to the peculiar facts of the Danamma (supra), it is evident
\nthat the Division Bench of this Court primarily did not deal with the
\nissue of death of the father rather it was mainly related to the
\nquestion of law whether daughter who was born prior to 2005
\namendment would be entitled to claim a share in ancestral property
\nor not? In such circumstances, in our view, Prakash, (2016) 2 SCC
\n36, would still hold precedent on the issue of death of coparcener
\nfor the purpose of right of daughter in ancestral property. Shortly
\nput, only living daughters of living coparceners would be entitled to
\nclaim a share in the ancestral property.
\n17. Hence, without touching any other aspect in the present
\ncase, we are of the view that the appellants were not the
\ncoparceners in the Hindu joint family property in view of the 1989
\namendment, hence, they had not been entitled to claim partition and
\nseparate possession at the very first instance. At the most, they
\ncould claim maintenance and marriage expenses if situation
\nwarranted.\u201d
\nIt is apparent that the question of living daughter of a living
\ncoparcener was not involved in the matter, once this Court held that
\nthe married daughters were not entitled to claim partition and
\nseparate possession as marriage had taken place prior to the
\nenforcement of the 1989 amendment, as observed in para 17 quoted
\nabove. However, this Court opined that the decision in Prakash v.
\nPhulavati, laying down that only living daughters of living coparceners
\nwould be entitled to claim a share in the ancestral property under
\nsection 6 of the Act of 1956. The opinion expressed cannot be accepted
\nfor the reasons mentioned above. Moreover, it was not necessary to go
\ninto the aforesaid question.
\n77. In Danamma, a Division Bench of this Court dealt with the
\ninterpretation of amended provisions of section 6. The decision in
\n77
\nAnar Devi v. Parmeshwari Devi (supra) was relied upon. It was
\nobserved that the controversy concerning the interpretation of section
\n6 now stands settled with authoritative pronouncement in Prakash v.
\nPhulavati which affirmed the view taken by the High Court as well as a
\nFull Bench in Badrinarayan Shankar Bhandari v. Omprakash Shankar
\nBhandari, AIR 2014 Bom. 151. In Danamma, the Court further opined:
\n\u201c23. Section 6, as amended, stipulates that on and from the
\ncommencement of the amended Act, 2005, the daughter of a
\ncoparcener shall by birth become a coparcener in her own right in
\nthe same manner as the son. It is apparent that the status conferred
\nupon sons under the old section and the old Hindu Law was to treat
\nthem as coparceners since birth. The amended provision now
\nstatutorily recognises the rights of coparceners of daughters as well
\nsince birth. The section uses the words in the same manner as the
\nson. It should therefore be apparent that both the sons and the
\ndaughters of a coparcener have been conferred the right of
\nbecoming coparceners by birth. It is the very factum of birth in a
\ncoparcenary that creates the coparcenary, therefore the sons and
\ndaughters of a coparcener become coparceners by virtue of birth.
\nDevolution of coparcenary property is the later stage of and a
\nconsequence of death of a coparcener. The first stage of a
\ncoparcenary is obviously its creation as explained above, and is
\nwell recognised. One of the incidents of coparcenary is the right of
\na coparcener to seek a severance of status. Hence, the rights of
\ncoparceners emanate and flow from birth (now including
\ndaughters) as is evident from sub-sections (1)(a) and (b).
\n25. Hence, it is clear that the right to partition has not been
\nabrogated. The right is inherent and can be availed of by any
\ncoparcener, now even a daughter who is a coparcener.
\n26. In the present case, no doubt, suit for partition was filed in
\nthe year 2002. However, during the pendency of this suit, Section 6
\nof the Act was amended as the decree was passed by the trial court
\nonly in the year 2007. Thus, the rights of the appellants got
\ncrystallised in the year 2005 and this event should have been kept
\nin mind by the trial court as well as by the High Court. This Court
\nin Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788,
\nheld that the rights of daughters in coparcenary property as per the
\namended Section 6 are not lost merely because a preliminary decree
\n78
\nhas been passed in a partition suit. So far as partition suits are
\nconcerned, the partition becomes final only on the passing of a final
\ndecree. Where such situation arises, the preliminary decree would
\nhave to be amended taking into account the change in the law by
\nthe amendment of 2005.
\n27. On facts, there is no dispute that the property which was the
\nsubject-matter of partition suit belongs to joint family and
\nGurulingappa Savadi was propositus of the said joint family
\nproperty. In view of our aforesaid discussion, in the said partition
\nsuit, share will devolve upon the appellants as well. Since, Savadi
\ndied leaving behind two sons, two daughters and a widow, both the
\nappellants would be entitled to 1\/5th share each in the said property.
\nThe plaintiff (Respondent 1) is son of Arun Kumar (Defendant 1).
\nSince, Arun Kumar will have 1\/5th share, it would be divided into
\nfive shares on partition i.e. between Defendant 1 Arun Kumar, his
\nwife Defendant 2, his two daughters Defendants 3 and 4 and
\nson\/plaintiff (Respondent 1). In this manner, Respondent 1-plaintiff
\nwould be entitled to 1\/25th share in the property.\u201d
\n78. In Danamma, it is pertinent to mention that Gurulingappa,
\npropositus of a Hindu joint family and the father of living daughter
\ncoparcener died in 2001, before the Amendment Act, 2005 came into
\nforce, leaving behind two daughters, son and a widow. Daughters were
\ngiven equal rights by this Court. We agree with certain observations
\nmade in paras 23 and 25 to 27 (supra) but find ourselves unable to
\nagree with the earlier part approving the decision in Prakash v.
\nPhulavati and the discussion with respect to the effect of the statutory
\npartition. As a matter of fact, in substance, there is a divergence of
\nopinion in Prakash v. Phulavati and Danamma with respect to the
\naspect of living daughter of a living coparcener. In the latter case, the
\nproposition of the living daughter of a living coparcener was not dealt
\nwith specifically. However, the effect of reasons given in para 23 had
\n79
\nbeen carried out to logical end by giving an equal share to the
\ndaughter.
\nIn Ref. Partition and Effect of Statutory Fiction
\n79. The right to claim partition is a significant basic feature of the
\ncoparcenary, and a coparcener is one who can claim partition. The
\ndaughter has now become entitled to claim partition of coparcenary
\nw.e.f. 9.9.2005, which is a vital change brought about by the statute.
\nA coparcener enjoys the right to seek severance of status. Under
\nsection 6(1) and 6(2), the rights of a daughter are pari passu with a
\nson. In the eventuality of a partition, apart from sons and daughters,
\nthe wife of the coparcener is also entitled to an equal share. The right
\nof the wife of a coparcener to claim her right in property is in no way
\ntaken away.
\n80. We deem it appropriate to refer to the decision in Hardeo Rai v.
\nSakuntala Devi & Ors., (2008) 7 SCC 46 laying down that when an
\nintention is expressed to partition the coparcenary property, the share
\nof each of the coparceners becomes clear and ascertainable. Once the
\nshare of a coparcener is determined, it ceases to be a coparcenary
\nproperty. After taking a definite share in the property, a coparcener
\nbecomes the owner of that share, and, as such, he can alienate the
\nsame by sale or mortgage in the same manner as he can dispose of his
\nseparate property. It was observed:
\n80
\n\u201c22. For the purpose of assigning one\u2019s interest in the property, it
\nwas not necessary that partition by metes and bounds amongst the
\ncoparceners must take place. When an intention is expressed to
\npartition the coparcenary property, the share of each of the
\ncoparceners becomes clear and ascertainable. Once the share of a
\ncoparcener is determined, it ceases to be a coparcenary property.
\nThe parties in such an event would not possess the property as
\n\u201cjoint tenants\u201d but as \u201ctenants-in-common\u201d. The decision of this
\nCourt in SBI, (1969) 2 SCC 33, therefore, is not applicable to the
\npresent case.
\n23. Where a coparcener takes definite share in the property, he is
\nowner of that share and as such he can alienate the same by sale or
\nmortgage in the same manner as he can dispose of his separate
\nproperty.\u201d
\n81. It is settled proposition of law that without partition, only
\nundivided share can be sold but not specific property, nor joint
\npossession can be disrupted by such alienation. Whether the consent
\nof other coparcener is required for sale or not, depends upon by which
\nSchool of Mitakshara law, parties are governed, to say, in Benares
\nSchool, there is a prohibition on the sale of property without the
\nconsent of other coparceners. The Court in the abovesaid decision
\nmade general observation but was not concerned with the aspect when
\nthe partition was completed, the effect of intervening events and effect
\nof statutory provisions as to partition, as such, it cannot be said to be
\nan authority as to provisions of section 6 as substituted and as to
\nenlargement of the right by operation of law achieved thereunder.
\nShares of coparceners can undergo a change in coparcenary by birth
\nand death unless and until the final division is made. The body of
\n81
\ncoparcenary is increased by the operation of law as daughters have
\nbeen declared as a coparcener, full effect is required to be given to the
\nsame. The above decision cannot be said to be an authority for the
\nquestion involved in the present matters.
\n82. In Man Singh (D) by LRs. v. Ram Kala (D) by LRs., AIR 2011 SC
\n1542, the question of devolution of interest in coparcenary property
\narose on the death of male Hindu leaving behind wife, son and three
\ndaughters, and determination of their shares. It was observed that
\nuntil the disruption of joint family status occurs, the definite share
\ncannot be claimed with certainty, and share cannot be predicated in
\njoint and undivided property. The question of disruption of joint family
\nstatus by a definite and unequivocal declaration of intention to
\nseparate himself from the family was also considered. The question in
\nthe present case is when the partition has not taken place whether the
\nstatutory fiction contained in the proviso to section 6 with respect to
\nthe determination of shares of a deceased coparcener and its
\ndevolution thereunder would disrupt coparcenary. The answer is in
\nthe negative. In Man Singh (supra), it was observed that the wife has a
\nright to claim an equal share in the husband’s property as that of a
\nson, and she can enjoy the share separately even from her husband
\nthus:
\n82
\n\u201c12. \u2026 Till disruption of joint family status takes place, neither
\ncoparcener nor the other heirs entitled to share in the joint family
\nproperty can claim with certainty the exact share in that property. In
\nthe case of Appovier Alias Seetaramier v. Rama Subba Aiyan &
\nOrs., (1866) 11 MIA 75, Lord Westbury speaking for the Judicial
\nCommittee (Privy Council) observed, \u2018According to the true notion
\nof an undivided family in Hindoo law, no individual member of that
\nfamily, whilst it remains undivided, can predicate of the joint and
\nundivided property, that he, that particular member, has a certain
\ndefinite share.\u2019
\n15. In Principles of Hindu Law by Mulla, Vol. I (17th Edition) as
\nregards the right of wife, it is stated that a wife cannot herself
\ndemand a partition, but if a partition does take place between her
\nhusband and his sons, she is entitled (except in Southern India) to
\nreceive a share equal to that of a son and to hold and enjoy that
\nshare separately even from her husband (Article 315 at Page 506).\u201d
\n83. In Girja Bai v. Sadashiv, AIR 1916 PC 104, Kawal Nain v.
\nPrabhulal, AIR 1917 PC 39 and Ramalinga v. Narayana, AIR 1922 PC
\n201, it was laid that the institution of a suit for partition by a member
\nof a joint family is a clear intimation of his intention to separate and
\nthe decisions indicate that there was consequential severance of joint
\nstatus from the date when the suit was filed though there was an
\nassertion of his right to separate by filing of the suit whether the
\nconsequential judgment is passed or not. However, we add a rider
\nthat if subsequently, the law confers a right, or such other event takes
\nplace, its effect has to be worked out even after passing of the
\npreliminary decree.
\n84. In Kedar Nath v. Ratan Singh, (1910) 37 IA 161 and Palani
\nAmmal v. Muthuvenkatachala, AIR 1925 PC 49, it was observed that if
\n83
\nthe suit is withdrawn before trial and passing of the decree, the
\nplaintiff ultimately has not chosen to go for separation. It was laid
\ndown that there was no severance of the joint status of the family by
\nfiling of the suit.
\n85. In Joala Prasad Singh v. Chanderjet Kuer, AIR 1938 Pat 278, it
\nwas held that the filing of a suit is a shred of strong evidence, but not
\nconclusive evidence of an intention to separate. However, in our
\nopinion, the intention to separate need not be confused with the
\nchange of rights during the pendency of the suit, which has to be
\ngiven full effect, to do complete justice.
\n86. In Chokalingam v. Muthukaruppan, AIR 1938 Mad 849, it was
\nlaid down that even a decree passed by consent does not affect a
\nseverance; it had no validity if its terms were not executed and the
\nmembers continue to live together having abandoned their decision to
\nseparate.
\n87. In Mukund Dharman Bhoir & Ors. v. Balkrishna Padmanji & Ors.,
\nAIR 1927 PC 224, a distinction was made between severance of the
\njoint status, which is a matter of individual decision and the division
\nof the property where the allotment of shares may be effected by
\n84
\nprivate arrangements, by arbitrators or as a last resort, by the Court.
\nIt was observed:
\n“In the first place, there is separation, which means the
\nseverance of the status of jointness. That is matter of
\nindividual volition; and it must be shown that an intention to
\nbecome divided has been clearly and unequivocally
\nexpressed, it may be by explicit declaration or by conduct.
\nSecondly, there is the partition or division of the joint
\nestate, comprising the allotment of shares, which may be
\neffected by different methods.\u201d
\n88. In Palani Ammal (supra), Ramabadra v. Gopalaswami, AIR 1931
\nMad 404 and Gangabai v. Punau Rajwa, AIR 1956 Nag 261, it was laid
\ndown that joint family does not get disrupted merely by ascertainment
\nof the shares of the coparcener. In order to constitute a partition, the
\nshares should be defined with the intention of an immediate
\nseparation.
\n89. In Poornandachi v. Gopalasami, AIR 1936 PC 281, only one of the
\nmembers was given the share by way of instrument of partition. It
\nwas also provided that the rest of the property was to remain joint. It
\nwas held that there was no partition between the other members. In
\nI.T. Officer, Calicut v. N.K. Sarada Thampatty, AIR 1991 SC 2035, it
\nwas held that if a preliminary decree for partition is passed, it will not
\namount to a partition unless an actual physical partition is carried out
\npursuant to a final decree.
\n85
\n90. In S. Sai Reddy v. S. Narayana Reddy & Ors. (1991) 3 SCC 647,
\na suit for partition, was filed. A preliminary decree determining the
\nshares was passed. The final decree was yet to be passed. It was
\nobserved that unless and until the final decree is passed and the
\nallottees of the shares are put in possession of the respective property,
\nthe partition is not complete. A preliminary decree does not bring
\nabout the final partition. For, pending the final decree, the shares
\nthemselves are liable to be varied on account of the intervening events,
\nand the preliminary decree does not bring about any irreversible
\nsituation. The concept of partition that the legislature had in mind
\ncould not be equated with a mere severance of the status of the joint
\nfamily, which could be effected by an expression of a mere desire by a
\nfamily member to do so. The benefit of the provision of section 29A
\ncould not have been denied to women whose daughters were entitled
\nto seek shares equally with sons in the family. In S. Sai Reddy (supra),
\nit was held:
\n\u201c7. The question that falls for our consideration is whether the
\npreliminary decree has the effect of depriving respondents 2 to 5 of
\nthe benefits of the amendment. The learned counsel placed reliance
\non clause (iv) of Section 29-A to support his contention that it does.
\nClause (ii) of the section provides that a daughter shall be allotted
\nshare like a son in the same manner treating her to be a son at the
\npartition of the joint family property. However, the legislature was
\nconscious that prior to the enforcement of the amending Act,
\npartitions will already have taken place in some families and
\narrangements with regard to the disposition of the properties would
\nhave been made and marriage expenses would have been incurred
\netc. The legislature, therefore, did not want to unsettle the settled
\n86
\npositions. Hence, it enacted clause (iv) providing that clause (ii)
\nwould not apply to a daughter married prior to the partition or to a
\npartition which had already been effected before the
\ncommencement of the amending Act. Thus if prior to the partition
\nof family property a daughter had been married, she was disentitled
\nto any share in the property. Similarly, if the partition had been
\neffected before September 5, 1985 the date on which the amending
\nAct came into force, the daughter even though unmarried was not
\ngiven a share in the family property. The crucial question, however,
\nis as to when a partition can be said to have been effected for the
\npurposes of the amended provision. A partition of the joint Hindu
\nfamily can be effected by various modes, viz., by a family
\nsettlement, by a registered instrument of partition, by oral
\narrangement by the parties, or by a decree of the Court. When a suit
\nfor partition is filed in a court, a preliminary decree is passed
\ndetermining shares of the members of the family. The final decree
\nfollows, thereafter, allotting specific properties and directing the
\npartition of the immovable properties by metes and bounds. Unless
\nand until the final decree is passed and the allottees of the shares
\nare put in possession of the respective property, the partition is not
\ncomplete. The preliminary decree which determines shares does not
\nbring about the final partition. For, pending the final decree the
\nshares themselves are liable to be varied on account of the
\nintervening events. In the instant case, there is no dispute that only
\na preliminary decree had been passed and before the final decree
\ncould be passed the amending Act came into force as a result of
\nwhich clause ( ii ) of Section 29-A of the Act became applicable.
\nThis intervening event which gave shares to respondents 2 to 5 had
\nthe effect of varying shares of the parties like any supervening
\ndevelopment. Since the legislation is beneficial and placed on the
\nstatute book with the avowed object of benefitting women which is
\na vulnerable section of the society in all its stratas, it is necessary to
\ngive a liberal effect to it. For this reason also, we cannot equate the
\nconcept of partition that the legislature has in mind in the present
\ncase with a mere severance of the status of the joint family which
\ncan be effected by an expression of a mere desire by a family
\nmember to do so. The partition that the legislature has in mind in
\nthe present case is undoubtedly a partition completed in all respects
\nand which has brought about an irreversible situation. A
\npreliminary decree which merely declares shares which are
\nthemselves liable to change does not bring about any irreversible
\nsituation. Hence, we are of the view that unless a partition of the
\nproperty is effected by metes and bounds, the daughters cannot be
\ndeprived of the benefits conferred by the Act. Any other view is
\nlikely to deprive a vast section of the fair sex of the benefits
\n87
\nconferred by the amendment. Spurious family settlements,
\ninstruments of partitions not to speak of oral partitions will spring
\nup and nullify the beneficial effect of the legislation depriving a
\nvast section of women of its benefits.
\n8. Hence, in our opinion, the High Court has rightly held that since
\nthe final decree had not been passed and the property had not been
\ndivided by metes and bounds, clause (iv) to Section 29-A was not
\nattracted in the present case and the respondent-daughters were
\nentitled to their share in the family property.\u201d
\n(emphasis supplied)
\n91. In Prema v. Nanje Gowda, AIR 2011 SC 2077, insertion of
\nsection 6A by the amendment made by the State of Karnataka in the
\nHindu Succession Act, 1956, was considered. Equal rights were given
\nto the daughter in coparcenary property in a suit for partition. A
\npreliminary decree was passed. Amendment in the Act was made
\nduring the final decree proceedings. It was held that the
\ndiscrimination practiced against the unmarried daughter was
\nremoved. Unmarried daughters had equal rights in the coparcenary
\nproperty. The amendment’s effect was that the unmarried daughter
\ncould claim an equal share in the property in terms of section 6A
\ninserted in Karnataka. In Prema (supra), the Court opined:
\n\u201c11. \u2026 in R. Gurubasaviah v. Rumale Karibasappa and others,
\nAIR 1955 Mysore 6, Parshuram Rajaram Tiwari v. Hirabai
\nRajaram Tiwari, AIR 1957 Bombay 59 and Jadunath Roy and
\nothers v. Parameswar Mullick and others, AIR 1940 PC 11, and
\nheld that if after passing of preliminary decree in a partition suit but
\nbefore passing of final decree, there has been enlargement or
\ndiminution of the shares of the parties or their rights have been
\naltered by statutory amendment, the Court is duty-bound to decide
\n88
\nthe matter and pass final decree keeping in view of the changed
\nscenario.\u201d
\n\u201c14. We may add that by virtue of the preliminary decree passed by
\nthe trial court, which was confirmed by the lower appellate Court
\nand the High Court, the issues decided therein will be deemed to
\nhave become final but as the partition suit is required to be decided
\nin stages, the same can be regarded as fully and completely decided
\nonly when the final decree is passed. If in the interregnum any party
\nto the partition suit dies, then his\/her share is required to be allotted
\nto the surviving parties and this can be done in the final decree
\nproceedings. Likewise, if law governing the parties is amended
\nbefore the conclusion of the final decree proceedings, the party
\nbenefited by such amendment can make a request to the Court to
\ntake cognizance of the amendment and give effect to the same. If
\nthe rights of the parties to the suit change due to other reasons, the
\nCourt seized with the final decree proceedings is not only entitled
\nbut is duty-bound to take notice of such change and pass
\nappropriate order\u2026\u201d
\n(emphasis supplied)
\nIt was held that if after passing of a preliminary decree in a
\npartition suit but before passing of the final decree, there has been
\nenlargement or diminution of the shares of the parties or their rights
\nhave been altered by statutory amendment; the Court is dutybound
\nto decide the matter and pass final decree keeping in view the changed
\nscenario. In Prema (supra), the Court further opined:
\n\u201c20. In our view, neither of the aforesaid three judgments can be
\nread as laying down a proposition of law that in a partition suit,
\npreliminary decree cannot be varied in the final decree proceedings
\ndespite amendment of the law governing the parties by which the
\ndiscrimination practiced against unmarried daughter was removed
\nand the statute was brought in conformity with Articles 14 and 15
\nof the Constitution. We are further of the view that the ratio of
\nPhoolchand v. Gopal Lal, (AIR 1967 SC 1470) (supra) and S. Sai
\nReddy v. S. Narayana Reddy, (1991 AIR SCW 488) (supra) has
\ndirect bearing on this case and the trial court and the High Court
\ncommitted serious error by dismissing the application filed by the
\n89
\nappellant for grant of equal share in the suit property in terms of
\nSection 6A of the Karnataka Act No.23 of 1994.\u201d
\nIt was laid down that by the change of law, the share of daughter
\ncan be enlarged even after passing a preliminary decree, the effect can
\nbe given to in final decree proceedings.
\n92. In Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr.,
\n(supra), this Court considered the amendment made in section 6 of
\nthe Hindu Succession Act in 2005 and held that the right of a
\ndaughter in coparcenary property is not lost bypassing of a
\npreliminary decree for partition before stipulated date i.e., 20th
\nDecember, 2004. A partition suit does not stand disposed of bypassing
\na preliminary decree. Relying inter alia, on S. Sai Reddy (supra), it was
\nheld that the preliminary decree can be amended in order to fully
\nrecognise the rights of a daughter:
\n“16. The legal position is settled that partition of a joint Hindu
\nfamily can be effected by various modes, inter alia, two of these
\nmodes are (one) by a registered instrument of a partition and (two)
\nby a decree of the Court. In the present case, admittedly, the
\npartition has not been effected before 20-12-2004 either by a
\nregistered instrument of partition or by a decree of the Court. The
\nonly stage that has reached in the suit for partition filed by
\nRespondent 1 is the determination of shares vide preliminary decree
\ndated 19-3-1999, which came to be amended on 27-9-2003 and the
\nreceipt of the report of the Commissioner.
\n17. A preliminary decree determines the rights and interests of the
\nparties. The suit for partition is not disposed of by passing of the
\npreliminary decree. It is by a final decree that the immovable
\nproperty of joint Hindu family is partitioned by metes and bounds.
\nAfter the passing of the preliminary decree, the suit continues until
\nthe final decree is passed. If in the interregnum i.e. after passing of
\n90
\nthe preliminary decree and before the final decree is passed, the
\nevents and supervening circumstances occur necessitating change
\nin shares, there is no impediment for the Court to amend the
\npreliminary decree or pass another preliminary decree
\nredetermining the rights and interests of the parties having regard to
\nthe changed situation. We are fortified in our view by a three-Judge
\nBench decision of this Court in Phoolchand & Anr. v. Gopal Lal,
\nAIR 1967 SC 1470, wherein this Court stated as follows:
\n“We are of opinion that there is nothing in the Code of Civil
\nProcedure which prohibits the passing of more than one
\npreliminary decree if circumstances justify the same and that
\nit may be necessary to do so particularly in partition suits
\nwhen after the preliminary decree some parties die and shares
\nof other parties are thereby augmented. \u2026 So far therefore as
\npartition suits are concerned we have no doubt that if an event
\ntranspires after the preliminary decree which necessitates a
\nchange in shares, the Court can and should do so; \u2026 there is
\nno prohibition in the Code of Civil Procedure against passing
\na second preliminary decree in such circumstances and we do
\nnot see why we should rule out a second preliminary decree in
\nsuch circumstances only on the ground that the Code of Civil
\nProcedure does not contemplate such a possibility. \u2026 for it
\nmust not be forgotten that the suit is not over till the final
\ndecree is passed and the Court has jurisdiction to decide all
\ndisputes that may arise after the preliminary decree,
\nparticularly in a partition suit due to deaths of some of the
\nparties. \u2026 a second preliminary decree can be passed in
\npartition suits by which the shares allotted in the preliminary
\ndecree already passed can be amended and if there is dispute
\nbetween surviving parties in that behalf and that dispute is
\ndecided the decision amounts to a decree\u2026..”
\n19. The above legal position is wholly and squarely applicable to
\nthe present case. It surprises us that the High Court was not
\napprised of the decisions of this Court in Phoolchand, (AIR 1967
\nSC 1470) and S. Sai Reddy, (1991 AIR SCW 488). High Court
\nconsidered the matter as follows:
\n\u201c x x x.\u201d
\n20. The High Court was clearly in error in not properly
\nappreciating the scope of Order XX Rule 18 of CPC. In a suit for
\npartition of immovable property, if such property is not assessed to
\nthe payment of revenue to the Government, ordinarily passing of a
\npreliminary decree declaring the share of the parties may be
\nrequired. The Court would thereafter proceed for preparation of
\n91
\nfinal decree. In Phoolchand, this Court has stated the legal position
\nthat CPC creates no impediment for even more than one
\npreliminary decree if after passing of the preliminary decree events
\nhave taken place necessitating the readjustment of shares as
\ndeclared in the preliminary decree. The Court has always power to
\nrevise the preliminary decree or pass another preliminary decree if
\nthe situation in the changed circumstances so demand. A suit for
\npartition continues after the passing of the preliminary decree and
\nthe proceedings in the suit get extinguished only on passing of the
\nfinal decree. It is not correct statement of law that once a
\npreliminary decree has been passed, it is not capable of
\nmodification. It needs no emphasis that the rights of the parties in a
\npartition suit should be settled once for all in that suit alone and no
\nother proceedings.
\n21. Section 97 of C.P.C. that provides that where any party
\naggrieved by a preliminary decree passed after the commencement
\nof the Code does not appeal from such decree, he shall be precluded
\nfrom disputing its correctness in any appeal which may be preferred
\nfrom the final decree does not create any hindrance or obstruction
\nin the power of the Court to modify, amend or alter the preliminary
\ndecree or pass another preliminary decree if the changed
\ncircumstances so require.
\n22. It is true that final decree is always required to be in conformity
\nwith the preliminary decree but that does not mean that a
\npreliminary decree, before the final decree is passed, cannot be
\naltered or amended or modified by the trial court in the event of
\nchanged or supervening circumstances even if no appeal has been
\npreferred from such preliminary decree.\u201d
\n(emphasis supplied)
\nThe effect of the legislative provision concerning partition was
\nconsidered, and it was held that a preliminary decree merely declares
\nthe shares and on which law confers equal rights upon the daughter
\nthat is required to be recognised.
\n92
\n93. The concept of partition and its effect was considered by this
\nCourt in Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita
\nSaran Bubna and Ors., (2009) 9 SCC 689 thus:
\n\u201cThe issue
\n5. \u201cPartition\u201d is a redistribution or adjustment of pre-existing
\nrights, among co-owners\/coparceners, resulting in a division
\nof lands or other properties jointly held by them into different
\nlots or portions and delivery thereof to the respective
\nallottees. The effect of such division is that the joint
\nownership is terminated and the respective shares vest in
\nthem in severalty.
\n6. A partition of a property can be only among those having a
\nshare or interest in it. A person who does not have a share in
\nsuch property cannot obviously be a party to a partition.
\n\u201cSeparation of share\u201d is a species of \u201cpartition\u201d. When all coowners
\nget separated, it is a partition. Separation of share(s)
\nrefers to a division where only one or only a few among
\nseveral co-owners\/coparceners get separated, and others
\ncontinue to be joint or continue to hold the remaining
\nproperty jointly without division by metes and bounds. For
\nexample, where four brothers owning a property divide it
\namong themselves by metes and bounds, it is a partition. But
\nif only one brother wants to get his share separated and other
\nthree brothers continue to remain joint, there is only a
\nseparation of the share of one brother.
\n***
\n18. The following principles emerge from the above
\ndiscussion regarding partition suits:
\n18.3. As the declaration of rights or shares is only the first
\nstage in a suit for partition, a preliminary decree does not
\nhave the effect of disposing of the suit. The suit continues to
\nbe pending until partition , that is, division by metes and
\nbounds takes place by passing a final decree. An application
\nrequesting the Court to take necessary steps to draw up a final
\ndecree effecting a division in terms of the preliminary decree,
\nis neither an application for execution (falling under Article
\n136 of the Limitation Act) nor an application seeking a fresh
\nrelief (falling under Article 137 of the Limitation Act). It is
\nonly a reminder to the Court to do its duty to appoint a
\n93
\nCommissioner, get a report, and draw a final decree in the
\npending suit so that the suit is taken to its logical conclusion.
\n20. On the other hand, in a partition suit the preliminary
\ndecrees only decide a part of the suit and therefore an
\napplication for passing a final decree is only an application in
\na pending suit, seeking further progress. In partition suits,
\nthere can be a preliminary decree followed by a final decree,
\nor there can be a decree which is a combination of
\npreliminary decree and final decree or there can be merely a
\nsingle decree with certain further steps to be taken by the
\nCourt. In fact, several applications for final decree are
\npermissible in a partition suit. A decree in a partition suit
\nenures to the benefit of all the co-owners and therefore, it is
\nsometimes said that there is really no judgment-debtor in a
\npartition decree.\u201d
\n(emphasis supplied)
\n94. In Laxmi Narayan Guin & Ors. v. Niranjan Modak, (1985) 1 SCC
\n270, it was laid down that change in law during the pendency of the
\nappeal has to be taken into consideration thus:
\n\u201c9. That a change in the law during the pendency of an appeal has
\nto be taken into account and will govern the rights of the parties
\nwas laid down by this Court in Ram Sarup v. Munshi, AIR 1963 SC
\n553 which was followed by this Court in Mula v. Godhu, (1969) 2
\nSCC 653. We may point out that in Dayawati v. Inderjit, AIR 1966
\nSC 1423 this Court observed:
\n\u201cIf the new law speaks in language, which, expressly or by clear
\nintendment, takes in even pending matters, the Court of trial as well
\nas the court of appeal must have regard to an intention so
\nexpressed, and the court of appeal may give effect to such a law
\neven after the judgment of the court of first instance.\u201d
\nReference may also be made to the decision of this Court in
\nAmarjit Kaur v. Pritam Singh, (1974) 2 SCC 363 where effect was
\ngiven to a change in the law during the pendency of an appeal,
\nrelying on the proposition formulated as long ago as Kristnama
\nChariar v. Mangammal, ILR (1902) 26 Mad 91 (FB) by Bhashyam
\nAyyangar, J., that the hearing of an appeal was, under the
\nprocessual law of this country, in the nature of a re-hearing of the
\nsuit. In Amarjit Kaur, (1974) 2 SCC 363 this Court referred also to
\n94
\nLachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941
\nFC 5 in which the Federal Court had laid down that once a decree
\npassed by a court had been appealed against the matter became sub
\njudice again and thereafter the appellate court acquired seisin of the
\nwhole case, except that for certain purposes, for example,
\nexecution, the decree was regarded as final and the Court below
\nretained jurisdiction.”
\n95. In United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. &
\nOrs., AIR 2000 SC 2957, with respect to change in law during the
\npendency of proceedings, it was observed:
\n\u201c20. Now, it is well settled that it is the duty of a court, whether it is
\ntrying original proceedings or hearing an appeal, to take notice of
\nthe change in law affecting pending actions and to give effect to the
\nsame. (See G.P. Singh: Interpretation of Statutes, 7th Edn., p. 406).
\nIf, while a suit is pending, a law like the 1993 Act that the Civil
\nCourt shall not decide the suit, is passed, the Civil Court is bound to
\ntake judicial notice of the statute and hold that the suit \u2014 even after
\nits remand \u2014 cannot be disposed of by it.\u201d
\n96. In Gurupad Khandappa Magdum (supra), the question of
\nExplanation I to section 6 of the Hindu Succession Act, 1956 came up
\nfor consideration with respect to the determination of widow’s interest
\nin the coparcenary property. Court held that a widow’s share in the
\ncoparcenary property must be ascertained by adding the share to
\nwhich she is entitled at a notional partition during her husband’s
\nlifetime and the share she would have obtained in her husband’s
\ninterest upon his death. The first step is to ascertain the share of the
\ndeceased in the coparcenary property that would be worked out
\nultimately, and that shall be deemed to be the share in the property
\nthat should have been allotted to the deceased. What is therefore
\n95
\nrequired to be assumed is that a partition had, in fact, taken place
\nbetween the deceased and his coparceners immediately before his
\ndeath. The assumption must permeate the entire process of
\nascertainment of the ultimate share of the heirs. All the consequences
\nmust be taken to a logical end. It was opined:
\n\u201c13. In order to ascertain the share of heirs in the property of a
\ndeceased coparcener it is necessary in the very nature of things, and
\nas the very first step, to ascertain the share of the deceased in the
\ncoparcenary property. For, by doing that alone can one determine
\nthe extent of the claimant\u2019s share. Explanation 1 to Section 6 resorts
\nto the simple expedient, undoubtedly fictional, that the interest of a
\nHindu Mitakshara coparcener \u201cshall be deemed to be\u201d the share in
\nthe property that would have been allotted to him if a partition of
\nthat property had taken place immediately before his death. What is
\ntherefore required to be assumed is that a partition had in fact taken
\nplace between the deceased and his coparceners immediately before
\nhis death. That assumption, once made, is irrevocable. In other
\nwords, the assumption having been made once for the purpose of
\nascertaining the share of the deceased in the coparcenary property,
\none cannot go back on that assumption and ascertain the share of
\nthe heirs without reference to it. The assumption which the statute
\nrequires to be made that a partition had in fact taken place must
\npermeate the entire process of ascertainment of the ultimate share
\nof the heirs, through all its stages. To make the assumption at the
\ninitial stage for the limited purpose of ascertaining the share of the
\ndeceased and then to ignore it for calculating the quantum of the
\nshare of the heirs is truly to permit one\u2019s imagination to boggle. All
\nthe consequences which flow from a real partition have to be
\nlogically worked out, which means that the share of the heirs must
\nbe ascertained on the basis that they had separated from one another
\nand had received a share in the partition which had taken place
\nduring the lifetime of the deceased. The allotment of this share is
\nnot a processual step devised merely for the purpose of working out
\nsome other conclusion. It has to be treated and accepted as a
\nconcrete reality, something that cannot be recalled just as a share
\nallotted to a coparcener in an actual partition cannot generally be
\nrecalled. The inevitable corollary of this position is that the heir will
\nget his or her share in the interest which the deceased had in the
\ncoparcenary property at the time of his death, in addition to the
\n96
\nshare which he or she received or must be deemed to have received
\nin the notional partition.\u201d
\nThe only question involved in the aforesaid matter was with
\nrespect to the Explanation of section 6 and the determination of the
\nwidow’s share. In that case, the question was not of fluctuation in the
\ncoparcenary body by a legal provision or otherwise. Everything
\nremained static. No doubt about it, the share of the deceased has to be
\nworked out as per the statutory fiction of partition created. However,
\nin case of change of body of the coparceners by a legal provision or
\notherwise, unless and until the actual partition is finally worked out,
\nrights have to be recognised as they exist at the time of the final
\ndecree. It is only the share of the deceased coparcener, and his heirs
\nare ascertained under the Explanation to section 6 and not that of
\nother coparceners, which keep on changing with birth and death.
\n97. In Anar Devi & Ors. v. Parmeshwari Devi & Ors (supra), the
\ndecision in Gurupad (supra) was considered, and it was held that
\nwhen a coparcener dies leaving behind any female relative specified in
\nClass I of the Schedule to the Act or male relative claiming through
\nsuch female relative, his undivided interest is not devolved by
\nsurvivorship but upon his heir by intestate succession thus:
\n\u201c8. According to the learned author, at page 253, the
\nundivided interest \u201cof the deceased coparcener for the purpose
\nof giving effect to the rule laid down in the proviso, as already
\npointed out, is to be ascertained on the footing of a notional
\npartition as of the date of his death. The determination of that
\n97
\nshare must depend on the number of persons who would have
\nbeen entitled to a share in the coparcenary property if a
\npartition had in fact taken place immediately before his death
\nand such person would have to be ascertained according to the
\nlaw of joint family and partition. The rules of Hindu law on
\nthe subject in force at the time of the death of the coparcener
\nmust, therefore, govern the question of ascertainment of the
\npersons who would have been entitled to a share on the
\nnotional partition\u201d.
\n11. Thus we hold that according to Section 6 of the Act when a
\ncoparcener dies leaving behind any female relative specified in
\nClass I of the Schedule to the Act or male relative specified in that
\nclass claiming through such female relative, his undivided interest
\nin the Mitakshara coparcenary property would not devolve upon the
\nsurviving coparcener, by survivorship but upon his heirs by
\nintestate succession. Explanation 1 to Section 6 of the Act provides
\na mechanism under which undivided interest of a deceased
\ncoparcener can be ascertained and i.e. that the interest of a Hindu
\nMitakshara coparcener shall be deemed to be the share in the
\nproperty that would have been allotted to him if a partition of the
\nproperty had taken place immediately before his death, irrespective
\nof whether he was entitled to claim partition or not. It means for the
\npurposes of finding out undivided interest of a deceased coparcener,
\na notional partition has to be assumed immediately before his death
\nand the same shall devolve upon his heirs by succession which
\nwould obviously include the surviving coparcener who, apart from
\nthe devolution of the undivided interest of the deceased upon him
\nby succession, would also be entitled to claim his undivided interest
\nin the coparcenary property which he could have got in notional
\npartition.\u201d
\nIn Anar Devi (supra), the question of enlargement of right by a
\nlegal provision or otherwise change in the coparcener’s share was not
\ninvolved. The decision cannot help the cause set up of partition
\ncreated by statutory fiction. Statutory fiction is with respect to the
\nextent of the share of deceased coparcener in exigency provided in the
\nproviso to section 6. Coparcenary
\nor HUF, as the case may be, does
\nnot come to an end by statutory fiction. Disruption of coparcenary by
\n98
\nstatutory fiction takes place, is not the proposition laid down in the
\naforesaid decision.
\n98. In Puttrangamma & Ors. v. M.S. Rangamma & Ors., AIR 1968 SC
\n1018, this Court considered the doctrine of Hindu law, separation in
\nstatus by a definite, unequivocal and unilateral declaration thus:
\n“(4) It is now a settled doctrine of Hindu Law that a member of a
\njoint Hindu family can bring about his separation in status by a
\ndefinite, unequivocal and unilateral declaration of his intention to
\nseparate himself from the family and enjoy his share in severalty.
\nThere does not need to be an agreement between all the coparceners
\nfor the disruption of the joint status. It is immaterial in such a case
\nwhether the other coparceners give their assent to the separation or
\nnot. The jural basis of this doctrine has been expounded by the
\nearly writers of Hindu Law. The relevant portion of the
\ncommentary of Vijnaneswara states as follows:
\n\u201cx x x x x \u201c
\n[And thus though the mother is having her menstrual courses (has
\nnot lost the capacity to bear children) and the father has attachment
\nand does not desire a partition, yet by the will (or desire) of the son
\na partition of the grandfather\u2019s wealth does take place]\u201d
\nSaraswathi Vilasa, placitum 28 states:
\n[From this it is known that without any speech (or Explanation)
\neven by means of a determination (or resolution) only, partition is
\neffected, just an appointed daughter is constituted by mere intention
\nwithout speech.]
\nViramitrodaya of Mitra Misra (Ch. 11. pl. 23) is to the following
\neffect:
\n[Here too there is no distinction between a partition during the
\nlifetime of the father or after his death and partition at the desire of
\nthe sons may take place or even by the desire (or at the will) of a
\nsingle (coparcener)].
\n99
\nVyavahara Mayukha of Nilakantabhatta also states:
\n[Even in the absence of any common (joint family) property,
\nseverance does indeed result by the mere declaration \u2018I am separate
\nfrom thee\u2019 because severance is a particular state (or condition) of
\nthe mind and the declaration is merely a manifestation of this
\nmental state (or condition).]\u201d (Ch. IV, S. III-I).
\nEmphasis is laid on the \u201cbudhivisesha\u201d (particular state or condition
\nof the mind) as the decisive factor in producing a severance in
\nstatus and the declaration is stated to be merely \u201cabhivyanjika\u201d or
\nmanifestation which might vary according to circumstances. In
\nSuraj Narain v. Iqbal Narain, (1913) ILR 35 All 80 the Judicial
\nCommittee made the following categorical statement of the legal
\nposition:
\n\u201cA definite and unambiguous indication by one member of
\nintention to separate himself and to enjoy his share in severalty may
\namount to separation. But to have that effect the intention must be
\nunequivocal and clearly expressed \u2026 Suraj Narain alleged that he
\nseparated a few months later; there is, however, no writing in
\nsupport of his allegation, nothing to show that at that time he gave
\nexpression to an unambiguous intention on his part to cut himself
\noff from the joint undivided family.\u201d
\nIn a later case \u2014 Girja Bai v. Sadashiv Dhundiraj, ILR 42 Cal
\n1031, the Judicial Committee examined the relevant texts of Hindu
\nLaw and referred to the well-marked distinction that exists in Hindu
\nlaw between a severance in status so far as the separating member
\nis concerned and a de facto division into specific shares of the
\nproperty held until then jointly, and laid down the law as follows:
\n\u201cOne is a matter of individual decision, the desire on the part of
\nany one member to sever himself from the joint family and to enjoy
\nhis hitherto undefined or unspecified share separately from the
\nothers without being subject to the obligations which arise from the
\njoint status; whilst the other is the natural resultant from his
\ndecision, the division and separation of his share which may be
\narrived at either by private agreement among the parties, or on
\nfailure of that, by the intervention of the Court. Once the decision
\nhas been unequivocally expressed and clearly intimated to his cosharers,
\nhis right to obtain and possess the share to which he
\nadmittedly has a title is unimpeachable; neither the co-sharers can
\nquestion it nor can the Court examine his conscience to find out
\nwhether his reasons for separation were well-founded or sufficient;
\n100
\nthe Court has simply to give effect to his right to have his share
\nallocated separately from the others.\u201d
\nIn Syed Kasam v. Jorawar Singh, ILR 50 Cal 84, Viscount Cave, in
\ndelivering the judgment of the Judicial Committee, observed:
\n\u201cIt is settled law that in the case of a joint Hindu family subject
\nto the law of the Mitakshara, a severance of estate is effected by an
\nunequivocal declaration on the part of one of the joint holders of his
\nintention to hold his share separately, even though no actual
\ndivision takes place; and the commencement of a suit for partition
\nhas been held to be sufficient to effect a severance in interest even
\nbefore decree.\u201d
\n(emphasis supplied)
\n99. Once the constitution of coparcenary changes by birth or death,
\nshares have to be worked out at the time of actual partition. The
\nshares will have to be determined in changed scenario. The severance
\nof status cannot come in the way to give effect to statutory provision
\nand change by subsequent event. The statutory fiction of partition is
\nfar short of actual partition, it does not bring about the disruption of
\nthe joint family or that of coparcenary is a settled proposition of law.
\nFor the reasons mentioned above, we are also of the opinion that mere
\nseverance of status by way of filing a suit does not bring about the
\npartition and till the date of the final decree, change in law, and
\nchanges due to the subsequent event can be taken into consideration.
\n100. As to the effect of legal fiction, reliance was placed on
\nCommissioner of Income Tax, Delhi v. S Teja Singh, AIR 1959 SC 352,
\nin which it was laid down that in construing the scope of legal fiction,
\nit would be proper and even necessary to assume all those facts on
\n101
\nwhich alone the fiction can operate. There is no dispute with the
\naforesaid proposition, but the purpose of fiction is limited so as to
\nwork out the extent of the share of the deceased at the time of his
\ndeath, and not to affect the actual partition in case it has not been
\ndone by metes and bounds.
\n101. When the proviso to unamended section 6 of the Act of 1956
\ncame into operation and the share of the deceased coparcener was
\nrequired to be ascertained, a deemed partition was assumed in the
\nlifetime of the deceased immediately before his death. Such a concept
\nof notional partition was employed so as to give effect to Explanation
\nto section 6. The fiction of notional partition was meant for an
\naforesaid specific purpose. It was not to bring about the real partition.
\nNeither did it affect the severance of interest nor demarcated the
\ninterest of surviving coparceners or of the other family members, if
\nany, entitled to a share in the event of partition but could not have
\nclaimed it. The entire partition of the coparcenary is not provided by
\ndeemed fiction; otherwise, coparcenary could not have continued
\nwhich is by birth, and the death of one coparcener would have
\nbrought an end to it. Legal fiction is only for a purpose it serves, and it
\ncannot be extended beyond was held in State of TravancoreCochin
\n&
\nOrs. v. Shanmugha Vilas Cashew Nut Factory & Ors., (1954) SCR 53;
\nBengal Immunity Co. Ltd. v. State of Bihar & Ors., AIR 1955 SC 661;
\n102
\nand Controller of Estate Duty v. Smt. S. Harish Chandra, (1987) 167
\nITR 230. A legal fiction created in law cannot be stretched beyond the
\npurpose for which it has been created, was held in Mancheri
\nPuthusseri Ahmed (supra) thus:
\n\u201c8. xxx In the first place the section creates a legal fiction.
\nTherefore, the express words of the section have to be given their
\nfull meaning and play in order to find out whether the legal fiction
\ncontemplated by this express provision of the statute has arisen or
\nnot in the facts of the case. Rule of construction of provisions
\ncreating legal fictions is well settled. In interpreting a provision
\ncreating a legal fiction the Court is to ascertain for what purpose the
\nfiction is created, and after ascertaining this, the Court is to assume
\nall those facts and consequences which are incidental or inevitable
\ncorollaries to the giving effect to the fiction. But in so construing
\nthe fiction it is not to be extended beyond the purpose for which it
\nis created, or beyond the language of the section by which it is
\ncreated. It cannot also be extended by importing another fiction. x x
\nx\u201d
\n102. It is apparent that the right of a widow to obtain an equal share
\nin the event of partition with the son was not deprived under old
\nsection 6. Unamended Section 6 provided that the interest of a
\ncoparcener could be disposed of by testamentary or intestate
\nsuccession on happening of exigency under the proviso. Under the old
\nlaw before 1956 devise by a coparcener of Hindu Mitakshara family
\nproperty was wholly invalid. Section 30 of the Act of 1956 provided
\ncompetence for a male Hindu in Mitakshara coparcenary to dispose of
\nhis interest in the coparcenary property by a testament.
\n103. In Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055, it was held
\nthat the shares of all coparceners should be ascertained in order to
\n103
\nwork out the share of the deceased coparcener, partition to be
\nassumed and given effect to when the question of allotment comes,
\nbut this Court did not lay down in the said decision that the deeming
\nfiction and notional partition brought an end to the joint family or
\ncoparcenary.
\n104. In case coparcenary is continued, and later on between the
\nsurviving coparceners partition takes place, it would be necessary to
\nfind out the extent of the share of the deceased coparcener. That has
\nto be worked out with reference to the property which was available at
\nthe time of death of deceased coparcener whose share devolved as per
\nthe proviso and Explanation I to section 6 as in case of intestate
\nsuccession.
\n105. In Hari Chand Roach v. Hem Chand & Ors., (2010) 14 SCC 294, a
\nwidow inherited the estate of her husband and had an undivided
\ninterest in the property. The subsequent family arrangement was
\nentered into whereby she exchanged her share for another property.
\nThis Court held that though her share was definite, the interest
\ncontinued undivided, and there was a further family arrangement that
\nwill have the effect of giving her disposition over the property in
\nquestion, which was given to her in the subsequent family
\narrangement. It is apparent that under an undivided interest, as
\n104
\nprovided under section 6, the shares are definite, but the interest in
\nthe property can continue undivided.
\n106. In the instant case, the question is different. What has been
\nrecognised as partition by the legislation under section 6, accordingly,
\nrights are to be worked out. This Court consistently held in various
\ndecisions mentioned above that when the rights are subsequently
\nconferred, the preliminary decree can be amended, and the benefit of
\nlaw has to be conferred. Hence, we have no hesitation to reject the
\neffect of statutory fiction of proviso to section 6 as discussed in
\nPrakash v. Phulavati (supra) and Danamma (supra). If a daughter is
\nalive on the date of enforcement of the Amendment Act, she becomes a
\ncoparcener with effect from the date of the Amendment Act,
\nirrespective of the date of birth earlier in point of time.
\nIn Ref. Section 6(5)
\n107. The Explanation to Section 6(5) provides that for the purposes of
\nSection 6, \u2018partition\u2019 means effected by any registered partition deed or
\neffected by a decree of a court. It is pertinent to mention that
\nExplanation did not find place in the original Amendment Bill moved
\nbefore the Rajya Sabha on 20.12.2004. The same was added
\nsubsequently. In the initial Note, it was mentioned that partition
\nshould be properly defined, leaving any arbitrary interpretation, and
\n105
\nfor all practical purposes, the partition should be evinced by a
\nregistered public document or have been affected by a decree of a
\ncourt. In a case partition is oral, it should be supported by
\ndocumentary evidence. Initially, it was proposed to recognise the oral
\npartition also, in case the same is supported by contemporaneous
\ndocumentary evidence. The intention was to avoid any sham or bogus
\ntransactions in order to defeat the rights of coparcener conferred upon
\ndaughters by the Amendment Act, 2005. In this regard, Note for
\nCabinet issued by the Legislative Department, Ministry of Law &
\nJustice, Government of India, suggested as under:
\n“As regards sub section 5 of the proposed new section 6, the
\ncommittee vide paragraph has recommended that the term
\n“partition” should be properly defined, leaving any arbitrary
\ninterpretation. Partition for all practical purposes should be
\nregistered have been effected by a decree of the Court. In case
\nwhere oral partition is recognised, be backed by proper
\ndocumentary evidence. It is proposed to accept this
\nrecommendation and make suitable changes in the Bill.”
\n108. Learned Solicitor General argued that the requirement of a
\nregistered partition deed may be interpreted as the only directory and
\nnot mandatory in nature considering its purposes. However, any
\ncoparcener relying upon any such family arrangements or oral
\npartition so arrived must prove the same by leading proper
\ndocumentary evidence.
\n109. The Cabinet note made on 29.7.2005 with respect to \u2018partition\u2019 is
\nquoted hereunder:
\n106
\n\u201c5.2 In this connection it may be noted that the amendments
\nmade in the Hindu Succession Act, 1956 by the States of
\nAndhra Pradesh, Karnataka, Maharashtra and Tamil Nadu and
\nthe Kerala Joint Hindu Family System (Abolition) Act, 1975
\nwill be superseded by any subsequent Central enactment
\ncontaining provisions to the contrary as the Central legislation
\nwill prevail over the State enactments by virtue of operation
\nof doctrine of repugnancy enunciated in article 254 of the
\nConstitution. Innumerable settled transactions and partitions
\nwhich have taken place hitherto will also become disturbed
\nby the proposed course of action. Further, there could be
\nheartburning from the majority of the Hindu population. In
\nthe circumstances, it is proposed that we may remove the
\ndistinction between married and unmarried daughters and at
\nthe same time clearly lay down that alienation or disposition
\nof property made at any time before the 20th day of
\nDecember, 2004, that is, the date on which the Hindu
\nSuccession (Amendment) Bill, 2004 was introduced in the
\nRajya Sabha will not be affected or invalidated.
\nConsequential changes are also suggested in sub-section (5)
\nof proposed section 6.\u201d
\n110. Section 6(5) as proposed in the original Bill of 2004 read thus:
\n\u201c(5) Nothing contained in this section shall apply to a
\npartition, which has been effected before the commencement
\nof the Hindu Succession (Amendment) Act, 2004.\u201d
\n111. Shri R. Venkataramani, Amicus Curiae, argued that proviso to
\nSection 6 is plain and clear. All dispositions, alienations,
\ntestamentary depositions, including partition effected prior to
\n20.12.2004, shall not be reopened. There may be a partition of
\ncoparcenary property, and they would have also acted in pursuance of
\nsuch partition. There could be any number of instances where parties
\nwould have entered into family settlements or division of properties on
\n107
\nthe basis of respective shares or entitlement to succeed on a partition.
\nIn many of those cases, a simple mutation in revenue entries would
\nhave been considered as sufficient for severance of status. The
\nParliament did not intend to upset all such cases, complete
\ntransactions, and open them for a new order of succession. The
\npartition effected merely to avoid any obligation under any law, for
\nexample, the law relating to taxation or land ceiling legislation, are not
\nexamples relevant for understanding the objects and scheme of
\nSection 6. Therefore, the proviso to subSection
\n(1) of Section 6 and
\nsubSection
\n5 of Section 6 is required to be given such meaning and
\nextent to not dilute the relevance in the forward and futurelooking
\nscheme of Section 6. The past cases shall not be reopened for this
\npurpose. He has relied upon Shashika Bai (supra).
\n112. Shri V.V.S. Rao, learned senior counsel appearing as Amicus
\nCuriae, pointed out that under Section 6(5), as proposed in the Bill
\nmentioned that nothing contained in the amended Section 6 should
\napply to a partition, which has been effected before the
\ncommencement of the Amendment Act. Following deliberation was
\nmade by the Committee:
\n\u201cDeliberation by the Committee
\n35. During its deliberation on the Bill, the Committee
\npondered on the concept of \u2018partition\u2019 as referred to in the
\naforesaid sub section. When the Secretary (Legislative
\nDepartment) was asked as to the validity of partition effected
\n108
\nthrough oral means, he replied that it depends upon the facts
\nof the particular case. The Secretary stated as below:
\n“Sub clause (5) (of the Bill) says that nothing contained in
\nthis section shall apply to a partition, which has been effected
\nbefore the commencement of the Act. So, people may not
\nhave a chance of effecting registered partition or going to the
\ncourt and getting it registered.”
\n36. Further, the Legal Secretary stated as below:
\n\u201c\u2026. under the present legal position, it is not necessary that a
\npartition should be registered. There is no legal requirement.
\nThere can be oral partition also.\u201d
\nGeneral observation by the Committee
\n37. The Committee recommends that the term ‘partition’
\nshould be properly defined leaving no scope for any arbitrary
\ninterpretation. Partition, for all practical purposes should be
\nregistered or should have been effected by a decree of the
\ncourt. In cases, where oral partition is recognised, it should
\nbe backed by proper evidentiary support.
\nSubject to above, clause 2 of the Bill is adopted.\u201d
\n113. Shri V.V.S. Rao argued that the status of coparcener conferred
\non daughters cannot affect the partition made orally, and the
\nexplanation at the end of Section 6 was added after receiving report of
\nthe Parliamentary Committee. The partition may be effected orally
\nand later on memorandum can be created for memory purposes.
\nSuch a document containing memorandum of partition is not required
\nto be registered. The parties may settle their rights and enter into
\nsubsequent transactions based upon such a partition. It is not to
\nunsettle the completed property transactions that had already taken
\nplace. The explanation should not be understood as invalidating all
\n109
\nthe documents or oral partition in respect of the coparcenary property.
\nIn case genuineness of such document is questioned, it has to be
\nproved to the satisfaction of the Court. The saving of transactions
\nwould safeguard the genuine past transaction and prevent unrest in
\nthe family system. Similar proposal was made by the Law Commission
\nof India.
\n114. The learned counsel, Shri Sridhar Potaraju, argued that
\nignoring statutory fiction of partition under proviso to section 6, which
\nprovision had been incorporated in 1956 and continued till 2005, is
\nnot warranted.
\n115. Ms. Anagha S. Desai, learned counsel, argued that in the
\nabsence of partition deed also, partition could be effected by metes
\nand bounds, and if it is proved properly, the daughters will not open
\nthese concluded transactions of coparcenary property.
\n116. The intendment of amended Section 6 is to ensure that
\ndaughters are not deprived of their rights of obtaining share on
\nbecoming coparcener and claiming a partition of the coparcenary
\nproperty by setting up the frivolous defence of oral partition and\/or
\nrecorded in the unregistered memorandum of partition. The Court
\nhas to keep in mind the possibility that a plea of oral partition may be
\nset up, fraudulently or in collusion, or based on unregistered
\n110
\nmemorandum of partition which may also be created at any point of
\ntime. Such a partition is not recognized under Section 6(5).
\n117. How family settlement is effected was considered in Kale v.
\nDeputy Director of Consolidation, (1976) 3 SCC 119, thus:
\n\u201c10. In other words to put the binding effect and the essentials
\nof a family settlement in a concretised form, the matter may
\nbe reduced into the form of the following propositions:
\n\u201c(1) The family settlement must be a bona fide one so as
\nto resolve family disputes and rival claims by a fair and
\nequitable division or allotment of properties between the
\nvarious members of the family;
\n(2) The said settlement must be voluntary and should not
\nbe induced by fraud, coercion or undue influence;
\n(3) The family arrangement may be even oral in which
\ncase no registration is necessary;
\n(4) It is well settled that registration would be necessary
\nonly if the terms of the family arrangement are reduced into
\nwriting. Here also, a distinction should be made between a
\ndocument containing the terms and recitals of a family
\narrangement made under the document and a mere
\nmemorandum prepared after the family arrangement had
\nalready been made either for the purpose of the record or for
\ninformation of the Court for making necessary mutation. In
\nsuch a case the memorandum itself does not create or
\nextinguish any rights in immovable properties and therefore
\ndoes not fall within the mischief of Section 17(2) of the
\nRegistration Act and is, therefore, not compulsorily
\nregistrable;
\n(5) The members who may be parties to the family
\narrangement must have some antecedent title, claim or
\ninterest even a possible claim in the property which is
\nacknowledged by the parties to the settlement. Even if one of
\nthe parties to the settlement has no title but under the
\narrangement the other party relinquishes all its claims or titles
\nin favour of such a person and acknowledges him to be the
\nsole owner, then the antecedent title must be assumed and the
\nfamily arrangement will be upheld and the courts will find no
\ndifficulty in giving assent to the same;
\n(6) Even if bona fide disputes, present or possible, which
\nmay not involve legal claims are settled by a bona fide family
\n111
\narrangement which is fair and equitable the family
\narrangement is final and binding on the parties to the
\nsettlement.\u201d
\n15. In Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC
\n292, 295, it was pointed out by this Court that a family
\narrangement could be arrived at even orally and registration
\nwould be required only if it was reduced into writing. It was
\nalso held that a document which was no more than a
\nmemorandum of what had been agreed to did not require
\nregistration. This Court had observed thus:
\n\u201cFamily arrangement as such can be arrived at orally.
\nIts terms may be recorded in writing as a memorandum of
\nwhat had been agreed upon between the parties. The
\nmemorandum need not be prepared for the purpose of
\nbeing used as a document on which future title of the
\nparties be founded. It is usually prepared as a record of
\nwhat had been agreed upon so that there be no hazy
\nnotions about it in future. It is only when the parties reduce
\nthe family arrangement in writing with the purpose of
\nusing that writing as proof of what they had arranged and,
\nwhere the arrangement is brought about by the document
\nas such, that the document would require registration as it
\nis then that it would be a document of title declaring for
\nfuture what rights in what properties the parties possess.\u201d\u201d
\n(emphasis supplied)
\nIt is settled law that family arrangements can be entered into to
\nkeep harmony in the family.
\n118. Reliance has been placed on Shripad Gajanan Suthankar v.
\nDattaram Kashinath Suthankar, (1974) 2 SCC 156, in which effect of
\nadoption by a widow and its effect on partition and other alienation
\nmade before adoption was considered. , the following observations
\nwere made:
\n\u201c11. Two crucial questions then arise. One-third share out of
\nwhat? Should the gift by Mahadev of what was under the then
\ncircumstances his exclusive property be ignored in working
\n112
\nout the one-third share? Two principles compete in this
\njurisdiction and judges have struck a fair balance between the
\ntwo, animated by a sense of realism, impelled by desire to do
\nequity and to avoid unsettling vested rights and concluded
\ntransactions, lest a legal fiction should by invading actual
\nfacts of life become an instrumentality of instability. Law and
\norder are jurisprudential twins and this perspective has
\ninarticulately informed judicial pronouncements in this
\nbranch of Hindu law.
\n18. We reach the end of the journey of precedents, ignoring as
\ninessential other citations. The balance sheet is clear. The
\npropositions that emerge are that: ( i ) A widow\u2019s adoption
\ncannot be stultified by an anterior partition of the joint family
\nand the adopted son can claim a share as if he were begotten
\nand alive when the adoptive father breathed his last; ( ii )
\nNevertheless, the factum of partition is not wiped out by the
\nlater adoption; ( iii ) Any disposition testamentary or inter
\nvivos lawfully made antecedent to the adoption is immune to
\nchallenge by the adopted son; ( iv ) Lawful alienation in this
\ncontext means not necessarily for a family necessity but
\nalienation made competently in accordance with law; ( v ) A
\nwidow\u2019s power of alienation is limited and if \u2014 and only if
\n\u2014 the conditions set by the Hindu Law are fulfilled will the
\nalienation bind a subsequently adopted son. So also alienation
\nby the Karta of an undivided Hindu family or transfer by a
\ncoparcener governed by the Benares school; (vi) Once
\npartitioned validly, the share of a member of a Mitakshara
\nHindu family in which his own issue have no right by birth
\ncan be transferred by him at his will and such transfers, be
\nthey by will, gift or sale, bind the adopted son who comes
\nlater on the scene. Of course, the position of a void or
\nvoidable transfer by such a sharer may stand on a separate
\nfooting but we need not investigate it here.\u201d
\n(emphasis supplied)
\n119. In Chinthamani Ammal v. Nandgopal Gounder, (2007) 4 SCC 163,
\nit was observed that a plea of partition was required to be
\nsubstantiated as under law, there is a presumption as to jointness.
\n113
\nEven separate possession by cosharers
\nmay not, by itself, lead to a
\npresumption of partition.
\n120. In Rukhmabai v. Laxminarayan, AIR 1960 SC 335 and
\nMudigowda Gowdappa Sankh & Ors. v. Ramchandra Revgowda Sankh
\n(dead) by his LRs. & Anr., AIR 1969 SC 1076, it was observed that
\nprima facie a document expressing the intention to divide brings about
\na division in status, however, it is open to prove that the document
\nwas a sham or a nominal one and was not intended to be acted upon
\nand executed for some ulterior purpose. The relations with the estate
\nis the determining factor in the statement made in the document. The
\nstatutory requirement of substituted Section 6(5) is stricter to rule out
\nunjust deprivation to the daughter of the coparcener’s right.
\n121. In Kalwa Devdattam v. Union of India, AIR 1964 SC 880, it was
\nlaid down that when a purported petition is proved to be a sham, the
\neffect would be that the family is considered joint.
\n122. Earlier, an oral partition was permissible, and at the same time,
\nthe burden of proof remained on the person who asserted that there
\nwas a partition. It is also settled law that Cesser of Commonality is
\nnot conclusive proof of partition, merely by the reason that the
\nmembers are separated in food and residence for the convenience, and
\nseparate residence at different places due to service or otherwise does
\nnot show separation. Several acts, though not conclusive proof of
\n114
\npartition, may lead to that conclusion in conjunction with various
\nother facts. Such as separate occupation of portions, division of the
\nincome of the joint property, definement of shares in the joint property
\nin the revenue of land registration records, mutual transactions, as
\nobserved in Bhagwani v. Mohan Singh, AIR 1925 PC 132, and
\nDigambar Patil v. Devram, AIR 1995 SC 1728.
\n123. There is a general presumption that every Hindu family is
\npresumed to be joint unless the contrary is proved. It is open even if
\none coparcener has separated, to the nonseparating
\nmembers to
\nremain joint and to enjoy as members of a joint family. No express
\nagreement is required to remain joint. It may be inferred from how
\ntheir family business was carried on after one coparcener was
\nseparated from them. Whether there was a separation of one
\ncoparcener from all other members of a joint family by a decree of
\npartition, the decree alone should be looked at to determine the
\nquestion was laid down in Palani Ammal (supra) and Girijanandini
\nDevi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124. In
\nPalani Ammal (supra), it was held:
\n\u201c\u2026\u2026 It is also now beyond doubt that a member of such a
\njoint family can separate himself from the other members of
\nthe joint family and is on separation entitled to have his share
\nin the property of the joint family ascertained and partitioned
\noff for him, and that the remaining coparceners, without any
\nspecial agreement amongst themselves, may continue to be
\n115
\ncoparceners and to enjoy as members of a joint family what
\nremained after such a partition of the family property. That
\nthe remaining members continued to be joint may, if disputed,
\nbe inferred from the way in which their family business was
\ncarried on after their previous coparcener had separated from
\nthem. It is also quite clear that if a joint Hindu family
\nseparates, the family or any members of it may agree to
\nreunite as a joint Hindu family, but such a reuniting is for
\nobvious reasons, which would apply in many cases under the
\nlaw of the Mitakshara, of very rare occurrence, and when it
\nhappens it must be strictly proved as any other disputed fact
\nis proved\u2026.\u201d
\n124. In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laid down
\nthat in case there are two coparcener brothers, it is not necessary that
\nthere would be a separation inter se family of the two brothers. The
\nfamily of both the brothers may continue to be joint.
\n125. The severance of status may take place from the date of filing of
\na suit; however, a decree is necessary for working out the results of
\nthe same, and there may be a change of rights during the pendency of
\nthe suit for allotting definite shares till final decree is passed. There
\nare cases in which partition can be reopened on the ground of fraud or
\nmistake, etc. or on certain other permissible grounds. In appropriate
\ncases, it can be reopened at the instance of minor also.
\n126. The protection of rights of daughters as coparcener is envisaged
\nin the substituted Section 6 of the Act of 1956 recognises the partition
\nbrought about by a decree of a court or effected by a registered
\ninstrument. The partition so effected before 20.12.2004 is saved.
\n116
\n127. A special definition of partition has been carved out in the
\nexplanation. The intendment of the provisions is not to jeopardise the
\ninterest of the daughter and to take care of sham or frivolous
\ntransaction set up in defence unjustly to deprive the daughter of her
\nright as coparcener and prevent nullifying the benefit flowing from the
\nprovisions as substituted. The statutory provisions made in section
\n6(5) change the entire complexion as to partition. However, under the
\nlaw that prevailed earlier, an oral partition was recognised. In view of
\nchange of provisions of section 6, the intendment of legislature is clear
\nand such a plea of oral partition is not to be readily accepted. The
\nprovisions of section 6(5) are required to be interpreted to cast a heavy
\nburden of proof upon proponent of oral partition before it is accepted
\nsuch as separate occupation of portions, appropriation of the income,
\nand consequent entry in the revenue records and invariably to be
\nsupported by other contemporaneous public documents admissible in
\nevidence, may be accepted most reluctantly while exercising all
\nsafeguards. The intendment of Section 6 of the Act is only to accept
\nthe genuine partitions that might have taken place under the
\nprevailing law, and are not set up as a false defence and only oral ipse
\ndixit is to be rejected outrightly. The object of preventing, setting up of
\nfalse or frivolous defence to set at naught the benefit emanating from
\namended provisions, has to be given full effect. Otherwise, it would
\n117
\nbecome very easy to deprive the daughter of her rights as a
\ncoparcener. When such a defence is taken, the Court has to be very
\nextremely careful in accepting the same, and only if very cogent,
\nimpeccable, and contemporaneous documentary evidence in shape of
\npublic documents in support are available, such a plea may be
\nentertained, not otherwise. We reiterate that the plea of an oral
\npartition or memorandum of partition, unregistered one can be
\nmanufactured at any point in time, without any contemporaneous
\npublic document needs rejection at all costs. We say so for
\nexceptionally good cases where partition is proved conclusively and we
\ncaution the courts that the finding is not to be based on the
\npreponderance of probabilities in view of provisions of gender justice
\nand the rigor of very heavy burden of proof which meet intendment of
\nExplanation to Section 6(5). It has to be remembered that courts
\ncannot defeat the object of the beneficial provisions made by the
\nAmendment Act. The exception is carved out by us as earlier
\nexecution of a registered document for partition was not necessary,
\nand the Court was rarely approached for the sake of family prestige. It
\nwas approached as a last resort when parties were not able to settle
\ntheir family dispute amicably. We take note of the fact that even
\nbefore 1956, partition in other modes than envisaged under Section
\n6(5) had taken place.
\n118
\n128. The expression used in Explanation to Section 6(5) \u2018partition
\neffected by a decree of a court\u2019 would mean giving of final effect to
\nactual partition by passing the final decree, only then it can be said
\nthat a decree of a court effects partition. A preliminary decree
\ndeclares share but does not effect the actual partition, that is effected
\nby passing of a final decree; thus, statutory provisions are to be given
\nfull effect, whether partition is actually carried out as per the
\nintendment of the Act is to be found out by Court. Even if partition is
\nsupported by a registered document it is necessary to prove it had
\nbeen given effect to and acted upon and is not otherwise sham or
\ninvalid or carried out by a final decree of a court. In case partition, in
\nfact, had been worked out finally in toto as if it would have been
\ncarried out in the same manner as if affected by a decree of a court, it
\ncan be recognized, not otherwise. A partition made by execution of
\ndeed duly registered under the Registration Act, 1908, also refers to
\ncompleted event of partition not merely intendment to separate, is to
\nbe borne in mind while dealing with the special provisions of Section
\n6(5) conferring rights on a daughter. There is a clear legislative
\ndeparture with respect to proof of partition which prevailed earlier;
\nthus, the Court may recognise the other mode of partition in
\nexceptional cases based upon continuous evidence for a long time in
\nthe shape of public document not mere stray entries then only it
\n119
\nwould not be in consonance with the spirit of the provisions of Section
\n6(5) and its Explanation.
\n129. Resultantly, we answer the reference as under:
\n(i) The provisions contained in substituted Section 6 of the Hindu
\nSuccession Act, 1956 confer status of coparcener on the daughter
\nborn before or after amendment in the same manner as son with same
\nrights and liabilities.
\n(ii) The rights can be claimed by the daughter born earlier with
\neffect from 9.9.2005 with savings as provided in Section 6(1) as to the
\ndisposition or alienation, partition or testamentary disposition which
\nhad taken place before 20th day of December, 2004.
\n(iii) Since the right in coparcenary is by birth, it is not necessary that
\nfather coparcener should be living as on 9.9.2005.
\n(iv) The statutory fiction of partition created by proviso to Section 6
\nof the Hindu Succession Act, 1956 as originally enacted did not bring
\nabout the actual partition or disruption of coparcenary. The fiction
\nwas only for the purpose of ascertaining share of deceased coparcener
\nwhen he was survived by a female heir, of ClassI
\nas specified in the
\nSchedule to the Act of 1956 or male relative of such female. The
\nprovisions of the substituted Section 6 are required to be given full
\neffect. Notwithstanding that a preliminary decree has been passed the
\ndaughters are to be given share in coparcenary equal to that of a son
\n120
\nin pending proceedings for final decree or in an appeal.
\n(v) In view of the rigor of provisions of Explanation to Section 6(5) of
\nthe Act of 1956, a plea of oral partition cannot be accepted as the
\nstatutory recognised mode of partition effected by a deed of partition
\nduly registered under the provisions of the Registration Act, 1908 or
\neffected by a decree of a court. However, in exceptional cases where
\nplea of oral partition is supported by public documents and partition
\nis finally evinced in the same manner as if it had been affected by a
\ndecree of a court, it may be accepted. A plea of partition based on oral
\nevidence alone cannot be accepted and to be rejected outrightly.
\n130. We understand that on this question, suits\/appeals are
\npending before different High Courts and subordinate courts. The
\nmatters have already been delayed due to legal imbroglio caused by
\nconflicting decisions. The daughters cannot be deprived of their right
\nof equality conferred upon them by Section 6. Hence, we request that
\nthe pending matters be decided, as far as possible, within six months.
\nIn view of the aforesaid discussion and answer, we overrule the
\nviews to the contrary expressed in Prakash v. Phulavati and
\nMangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @
\nSuman Surpur & Anr. v. Amar is partly overruled to the extent it is
\n121
\ncontrary to this decision. Let the matters be placed before appropriate
\nBench for decision on merits.
\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J.
\n(Arun Mishra)
\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J.
\n(S. Abdul Nazeer)
\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.J.
\n(M.R. Shah)
\nNew Delhi:
\nAugust 11, 2020.<\/p>\n","protected":false},"excerpt":{"rendered":"
The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. 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<\/p>\n