PRAKASH & ORS. versus PHULAVATI & ORS.

PRAKASH & ORS.

PHULAVATI & ORS.

(Civil Appeal No.7217 of2013) OCTOBER 16, 2015

[ANIL R. DAVE AND ADARSH KUMAR GOEL, JJ.]

Hindu Succession (Amendment) Act, 2005:

Whether the Act will have

ss. 6(1 ), 6(3), 6(5) -Whether the Act will have retrospective operation - Held: No - The legislature has. expressly made the Amendment applicable on and from its. commencement.

s. 6(1 ), (5), proviso - Right of daughter of coparcener in coparcenery properties - Held: Rights under the amendment are applicable to Jiving daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born - Proviso to s. 6(1) and s. 6(5) clearly intend to exclude the transactions referred to therein which may have taken place prior to 2Qth December, 2004 on which date the Bill was introduced - Therefore, disposition or alienation including partitions which may have taken place before 20th. December, 2004 as per law applicable prior to the said date to remain unaffected.

Interpretation of statutes:

Harmonious construction - Held: Normal rule is to read the words of statute in ordinary sense - In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given.

Proviso - Significance of - Held: Normal rule is that proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require different rule may apply.

Explanation - Significance of- Held: Is to explain the meaning of words of the section but if the language or purpose so require, the explanation can be so interpreted.

Prospective operation:

Held: An amendment of substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective - Even social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature.

Disposing of the appeal, the Court

HELD: 1. The text of the amendment itself clearly

provides that the right conferred on 'daughter of coparcener' is 'on and from the commencement of Hindu Succession (Amendment) Act, 2005'. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there· is no scope for different interpretation than the one suggested by the text of the amendment. An amendment of substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case, there is neither any express provision for . giving retrospective effect to the amended provision nor necessary intendment to. that effect. Requirement of partition being registered can have no applicat!on to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. [Para 17]

[595-F-H; 596-A-B] .

2. Contention of the respondents that the

Amendment should be read as retrospective being piece of social legislation cannot be accepted. Even social legislation cannot be given retrospective effect

unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20th December, 2004 unaffected can also not lead to the inference that the daughter could be coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation. has to be read harmoniously with the 0 substantive provision of Section 6(5) by being limited to transaction of partition effected after 20th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under sub-section 5 or under the Explanation. [Para 18] [596-C-G]

· 3. Interpretation of provision depends on the text and the context. Normal rule is to read the words of statute in ordinary sense. In case of ambiguity, rational meaning has to be given. In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given. Normal rule is that proviso excepts something out of the enactmen_t which would otherwise be within the purview of the enactment but if the text, context or purpose so require different rule may apply. Similarly, an explanation is to explain the meaning of words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult masters. Object of interpretation is

to discover the intention of legislature. In this background, the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20[1]h December, 2004 on which date the Bill ·was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is 0 [not ][in ][any ][manner ][intended ][to ][be ][affected ][but ]strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20[1]h December, 2004. In no case statutory notional partition even after 20[1]h December, 2004 could be covered by the Explanation or the proviso in question. Accordingly, the rights under the amendment are applicable to living daughters of living coparceners as on 9[1]h September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20[1]h December, 2004 as per law applicable prior to the said date will remain· unaffected. Any transaction of partition effected thereafter will be governed by the Explanation. [Paras 19, 21 to 23] [596-G G-H; 597-A, C-G; 598-A-D]

Prema vs. Nanje Gowda 2011 (8) SCR 55: (2011) 6 SCC 462; Ganduri Koteshwaramma vs. Chakiri Yanadi2011 (12) SCR 968: (2011) 9 SCC 788; V.K. Surendra vs. V.K. Thimmaiah 2013 (5)

SCR 386: (2013) 10 SCC 211; Ram Sarup vs. Munshi (1963) 3 SCR 858; Dayawati vs. /nderjit (1966) 3 SCR 275; Amarjit Kaur vs. Pritam Singh 1975 (1) SCR 606: (1974) 2 SCC 363; Lakshmi Narayan Guin vs. Niranjan Modak 1985 (2) SCR 202: (1985) 1 sec 210; s. Sai Reddy vs. s. Narayana Reddy (1991) 3 SCC 647; State of Maharashtra vs. Narayan Rao 1985 (3) SCR 358: (1985) 2 SCC 321; State of Rajasthan vs. Mangi/al Pindwal 1996 (3) Suppl. SCR 98 : (1996) 5 SCC 60; West U.P. Sugar Mills Asson. vs. State of U.P. 2002 (1) scR 897: (2002) 2 sec 645 - held inapplicable.

M. Prithviraj vs. Nee/amma N. ILR 2009 Kar. 3612 - referred to.

From the Judgment and Order dated 16.04.2010 of the Division Bench of the High Court of Karnataka, Circuit Bench at Dharwad in Regular First Appeal No. 743 of 2007.

WITH

SLP (C)NOS. 21814 OF 2008, 18744 OF 2010, 28702-287030F 2010, 28471OF2011,4217-42180F2012,1299-1300 OF 2013, 17577-17578 OF 2013, 19816 OF 2014, 5619 OF 2015, 3805 OF 2008, 9390 OF 2015, 5680 OF 2015, 35209 OF 2011 AND 15557-15558 OF 2015 AND SLP (C) NO. 15560 OF 2015

R. Basant, R. Venkataramani, HuzefaAhmadi, S. N. Bhat, Ravi Panwar, D. P. Chaturvedi, Sushil Karanjkar, KarthikAshok (forK. N. Hai),Aljo K. Joseph, Neelam Singh, Shelna K., Rohan Sharma, Yashraj Bundela (for Mrs. Sud ha Gupta), Azeem A. Kalebudde, Ankolekar Gurudatta, Charudatta Mahindrakar, A. Selvin Raja (for Aniruddha P. Mayee), P. R. Kovilan Poongkuntran, Nanda Kishore, GirishAnanthamurthi (for Mrs. Vaijay9nthi Girish), S. Usha Reddy, Rajesh Mahale, Raghavendra S. Srivatsa, P. R. Ramasesh, G. Balaji for the Appellants.

Basava Prabhu S. Patil, Sushil Kumar Jain, P. Vishwanatha Shetty, B. Subrahmanya Prasad, Anirudh Sanganeria. Chinmay Deshpande, Amjid Maqbool, S. M. Jadhav, Puneet Jain, Ms. Astha Deep, Anish R. Shah, Ms. Ankita Gupta, Manu Maheshwari, Abhinav Gupta, Ashwin Kotemath, (for Mis. S. M. Jadhav & Company), Mahesh Thakur, Deepak S. Shetty (for G. N. Reddy), T. N. Raghupathy, G. V. Chandrashekhar, Alakh Alok Srivastava, Kedar Nath Tripathy, Manjunath Meled, Anil Kumar, Nivedita Sharma, (for Ms. Garima Prashad), M. Y. Deshmukh, Manu Mridul, Ms. Priyambada Sharma, (for Surya Kant), Mayank Kshirsagar, Balaji Srinivasan, Vaishnavi Subrahmanyam, Ms. Srishti Govil, Virendra Sharma, Tushar Singh,Alok Krishna Agarwal, Mayank

Bughani, T. Mahipal, Rauf Rahim, Shashibhushan P. Adgaonkar, Somiran Sharma, Sumeet Lall, Rajinder Mathur, Shankar Divate, Mrs. K. Sarada Devi, Ashok Kumar Gupta, Ms. E. R. Sumathy for the Respondents.

The Judgment of the Court was delivered by

ADARSH KUMAR GOEL, J. 1. The only issue which has been raised in this batch of matters is whether Hindu Succession (Amendment) Act, 2005 ('the Amendment Act') will have retrospective effect. In the impugned judgment (reported in AIR 2011 Kar. 78 Phulavati vs. Prakash), plea of restrospectivity has been upheld in favour of the respondents by which the appellants are aggrieved.

2. Connected matters have been entertained in this Court mainly on account of the said tegal issue particularly when there are said to be differing views of High Courts which makes it necessary that the issue is decided by this Court. It is not necessary to go into the' facts of the individual case or the correctness of the findings recorded by the courts below on various other issues. It was made clear during the hearing that after deciding the legal issue, all other aspects may be decided separately in the light of the judgment of this Court.3. Only for the purpose of deciding the above legal question, we refer to the brief facts in Civil Appeal No.7217 of 2013. The respondent-plaintiff, Phulavati filed suit being O.S. No.12/1992 before Additional Civil Judge (Senior Division), Belgaum for partition and separate possession to the extent of 1 f7th share in the suit properties in Schedule 'P\ to 'G' except property bearing CTS No.3241 mentioned in Schedule 'A' in which the share sought was 1 /28th.

4. According to the case of the plaintiff, the suit properties were acquired by her _late father Yeshwanth Chandrakant Upadhye by inheritance from his adoptive mother Smt

Sunanda Bai. After-the death of her father on .18[1]h February, 1988, she acquired the share in the property as claitned.

5. The suit was conte~ted mainly with the plea that the plaintiff could claim share only in the self acquired property of her deceased father and not in the entire property. During pendency of the suit, the plaintiff amended the plaint so as to claim share as per the Amended Act 39 of 2005. The trial court partly decreed the suit to the extent of 1/28[1]h share in certain properties on the basis of notional partition on the death of her father and in some of the items of property, no share was given, while 1f7[1]h share was given in some other properties as mentioned in detail in the judgment of the trial court.

6. The respondent-plaintiff preferred first appeal before o the High Court with the grievance that the plaintiff became coparcener under the Amendment Act 39 of 2005 and was entitled to inherit the coparcenary property equal to her brothers, apart from contentions based on individual claims in certain items of property.

7. The stand of the defendants-appellants was that the

plaintiff could not claim any share in self acquired property of the members of the joint family and that the claim of the plaintiff had to be dealt with only under Section 6 of the Hindu Succession Act, 1956 as it stood prior to the amendment by Act 39 of 2005. The defendants relied upon division bench judgment of the High Court in M. Prithviraj vs. Neelamma N.[1 ]laying down that if father of plaintiff had died prior to commencement of Act 39 of 2005, the amended provision could not apply. It was only the law applicable on the date of opening of succession which was to ~pply.

8. The High Court framed following question for consideration on this aspect:

[ADARSH KUMAR GOEL, J.]

"(ii) Whether the plaintiff is entitled to share in terms of Section 6 of the Hindu Succession Act as amended by Act No.39 of 2005?"

9. It was held that the amendment was applicable to

pending proceedings even if it is taken to be prospective. The 8 High Court held that:

"61. The law in this regard is too well settled in terms of

the judgment of the Supreme Court in the case of G. Sekar Vs. Geetha and others reported in (2009) 6 SCC 99. Any development of law inevitably applies to pending proceeding and in fact it is not even to be taken as retrospective applicability of the law but only the law as it stands on the day being made applicable.

62. The suit, no doubt, might have been instituted in the year 1992 and even assuming that it was four years after the demise ofYeshwanth Chandrakant Upadhye, the position so far as the parties are concerned who are all members of the joint family, in terms of Section 6 as amended by Act No.39 of 2005 is that female member is, by fiction of law created in terms of the amended provision also becomes coparcener and has right in joint family property by birth. They are also sharer members of the coparcenary property at par with all male members. When partition takes place, coparceners succeed to the property in equal measure. Such is the legal position in terms of Section 6 of the Hindu Succession Act as amended by Act No.39 of 2005 and as declared by the Supreme Court in the case of G. S. Sekar (supra). The only exception carved out to the applicability and operation of Section 6 of the Hindu Succession Act as amended by Act No. 39 of 2005 being situation or factual position where there was partition which had been effected by

registered partition deed or by decree of the court which has attained finality prior to 20. 12. 2004 in terms of sub-section (5) to Section 6.

63. In the present case such being not the factual position, the exception available under sub-section (5) to Section 6 cannot be called in aid by the defendants and therefore, the liability in terms of the amended provisions operates. It is not necessary for us to multiply the judgment by going into details or discussing other judgments referred to and relied upon by the learned counsel for the parties at the Bar as one judgment of the Supreme Court if clinches the issue on the point, it is good enough for us, as bihding authority to apply that law and dispose of the case as declared in that judgment."

10. The respondent-plaintiff was accordingly held entitled to 1/?th share in all items in Schedules'/:\ to 'D'. In respect of Schedule 'F', first item was given up by the plaintiff. Out of the other two items, she was held entitled to 1/?th share in Item No.2 and 1/7[1]h share in 40% ownership in Item No.3.

11. The defendants-appellants have questioned the judgment and order of the High Court with the contention that the amended provision of Section 6 has no application in ~he present case. Father of the plaintiff died on 18th February, 1988 and was thus, not coparcener on the date of commencement oftheAmendmentAct. The plaintiff could not claim to be "the daughter of coparcener" at the time of commencement of the Act which was the necessary condition for claiming the benefit. On the death of plaintiff's father on 18th February, 1988, notional partition took place and shares of the heirs were crystallized which created vested right in the parties. Such vested right could not have been taken away by subsequent amendment in absence of express provision or

necessary intendment to that effect. Moreover, the amending provision itself was expressly applicable "on and from" the commencement of the Amendment Act, i.e., gth September, 2005. The High Court held that even if the provision was prospective, it could certainly apply to pending proceec:lings as has been held in some decisions of this Court. It is pointed out that the amendment could apply to pending proceedings, only if the amendment was applicable at all.

12. Learned counsel for the respondents would support the view taken by the High Court.

13. We have heard learned counsel for the parties in the present appeal as well as in connected matters for the rival view points which will be noticed hereinafter.

14. The contention raised on behalf of the appellants and

other learned counsel supporting the said view is that the 2005 Amendment was not applicable to the claim of daughter when her father who was coparcener in the joint hindu family died prior to 9[1]h September, 2005. This submission is based on the plain language of the statute and the established principle that in absence of express provision or implied intention to the contrary, an amendment dealing with substantive right is prospective and does not affect the vested rights[2]. If such coparcener had died prior to the commencement of the AmendmentAct, succession opens out on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystalised even if partition by metes and bounds does not take place. It was pointed out that apparently conflicting provision in Explanation to Section 6(5) and the said Section was required to be given harmonious construction with the main provision. The explanation could not be read in conflict with the main provision. Main provision of Section 6( 1) confers right of coparcener on daughter only

2 Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27

from commencement of the Act and not for any period prior to that. The proviso to Section 6(1) also applies only where the main provision of Section 6(5) applies. Since Section 6(5) applies to partition effected after 20[1]h December, 2004, the said. proviso and the Explanation also applies only when Section 6(1) applies. It is also submitted thatthe Explanation was merely rule of evidence and not substantive provision determining the rights of the parties. Date of daughter becoming coparcener is on and from the commencement of the Act. Partitions effected before 2ot11 December, 2004 remain unaffected as expressly provided. The Explanation defines partition, as partition made by registered deed or effected by decree of court. Its effect is not to wipe out legal and valid partition prior to the said date, but to place burden of proof of genuineness of such partition on the party alleging it. In any case, statutory notional partition remailJ~lid and effective.

15. On the contrary, stand on behalf of the respondents

is that the amendment being piece of social legislation to remove discriminatiqn'°aga~st women in the light of 174[1]h Report of the Law Co_mmlssion, the amendment should be read as being retrospective as interpreted by the High Court in the impugned judgment. daughter acquired right by birth and even if her father, who was coparcener, had died prior to coming into force of the amendment, the shares of the parties were required to be redefined. It was submitted that any partition which may have taken place even prior to 20[1]h December, 2004 was liable to be ignored unless it was by registered deed of partition or by decree of the Court. If no registered partition had taken place, share of the daughter will stand enhanced by virtue of the amendment.

16. We have given due consideration to the rival submissions. We may refer to the provision of Section 6 of the

Hindu Succession Act as it stood prior to the 2005Amendment and as amended :

17. The text of the amendment itself clearly provides that the right conferred on 'daughter of coparcener' is 'on and from the commencement of Hindu Succession (Amendment) Act, 2005'. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for different interpretation than the one suggested by the text of the amendment. An amendment of substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective[3]. In

' Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27

the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition · being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be considered little later. On this finding, the view of the High Court cannot be sustained.

18. Contention of the respondents that theAmendment should be read as retrospective being piece of social legislation cannofbe accepted. Even social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from expressly made the Amendment applicable on and from made the Amendment applicable on and from the Amendment applicable on and from Amendment applicable on and from on and from and from from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20th December, 2004 unaffected can also not lead to the inference that the daughter could be coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to transaction of partition effected after 20th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under sub-section 5 or under either under proviso or under sub-section 5 or under proviso or under sub-section 5 or under or under sub-section 5 or under under sub-section 5 or under or under under the Explanation.

has expressly made the Amendment applicable on and from expressly made the Amendment applicable on and from made the Amendment applicable on and from the Amendment applicable on and from Amendment applicable on and from on and from and from from

covered either under proviso or under sub-section 5 or under either under proviso or under sub-section 5 or under proviso or under sub-section 5 or under or under sub-section 5 or under under sub-section 5 or under or under under

19. Interpretation of provision depends on the text and the context[4 ]. Normal rule is to read the words of statute in

' RBI vs. Peerless (1987) 1 SCC 424, para 33

[ADARSH KUMAR GOEL, J.]

ordinary sense. In case of ambiguity, rational meaning has to be given[5]. In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given[6].

20. There have been number of occasions when proviso

or an explanation came up for interpretation. Depending on the text, context and the purpose, different rules of interpretation have been applied[7].

21. Normal rule is that proviso excepts something out

of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require different rule may apply. Similarly, an explanation is to explain the meaning of words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult masters[8]. Object of interpretation is to discover the intention of legislature.

22. In this background, we find that the proviso to Section

6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 2Qth December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6( 1) and (3) is not in any manner intended to be affected but

5 Kehar Singh vs. State (1988) 3 SCC 609

6 District Mining Officer vs. Tata Iron and Steel Co. (2001) 7 SCC 358

7 S. Sundaram Pillai vs. R. Pattabiraman (1985) 1 SCC 591

' Keshavji Ravji & Co. vs. CIT (1990) 2 SCC 231

strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to IJe done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 2Qth December, 2004 could be covered by the Explanation or the proviso in

question.

23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20lh December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.

24. On above interpretation, Civil Appeal No.7217 of 2013 is allowed. The order of the High Court is set aside. The matter is remanded to the High Court for fresh decision in accordance with law. All other matters may be listed for

hearing separately for consideration on 24th November, 2015.

25. The view which we have taken above is consistent with and not in conflict with any of the earlier decisions. We may now refer to the decisions cited by the parties. Main dec:isbns c:i1Bd by the respondents are: Prema VS. Nanje Gowda[9], Ganduri Koteshwaramma vs. Chakiri Yanadi[10], V. K. Surendra vs. V.K. Thimmaiah[11], Ram Sarup vs. Munshi[12], Dayawati vs. lnderjit[13], Amarjit Kaur vs. Pritam Singh[14], Lakshmi Narayan Guin vs. Niranjan Modak[15], S. Sai Reddy vs. S. Narayana Reddy[16 ]and State of Maharashtra vs. Narayan Rao[17]• Many of these decisions

"(1974) 2 sec 363

'(2011)6 sec 462

10 (2011) 9 sec 788

" (1985) 1 sec 270

11 (2013)10 sec 211, para 18

" (1991) 3 sec 647 17 (1985) 2 sec 321, paras 8 to 10

12 (1963) 3 SCR 858

" ( 1966) 3 SCR 275

deal with situations where change in law is held to be applicable to pending proceedings having regard to intention of legislature in particular law. There is no dispute with the propositions laid down in the said decisions. Question is of application of the said principle in the light of particular amending law. The decisions relied upon do not apply to the present case to support the stand of the respondents.

25.1.· In Ram Sarup case (supra), the question for

consid~{,ation was of amendment to the Punjab Pre-emption Act, 1 ~Q.by Punjab Act 10of1960 restricting the pre-emption right. · $ection 31 inserted by way of amendment prohibited passing bf decree which was inconsistent with the amended provisions, It was held that the amendment was retrospective and had retrospective operation in view of language employed in the said provision.

25.2. In Dayawati case (supra), Section 6 of the Punjab

Relief of Indebtedness Act, 1956 expressly gave retrospective effect and made the statute applicable to all p~f1ding suits on the commencement of the Act. The Act soug~ to reduce the rate of interest in certain transactions to give relief against indebtedness to certain specified persons.

25.3. In Lakshmi Narayan Guin case (supra), the question was of applicability of Section 13 of the West Bengal Premises Tenancy Act, 1956 which expressly provided that no order could be passed by the Court contrary to the scheme of the new law.

25.4. In Amarjit Kaur case (supra), Section 3 of the

Punjab Pre-emption (Repeal) Act, 1973 was considered which expressly prohibited the Court from passing any pre-emption decree after the commencement of the Act.

25.5. There is also no conflict with the principle laid down

in V.K. Surendra case (supra) which deals with presumption about the nature of joint family property and burden of proof being on the person claiming such property to be separate. The said decision only lays down rule of evidence.

25.6. In S. Sai Reddy case (supra), the question for consideration was whether even after preliminary decree is passed determining the shares in partition, such shares could be varied on account of intervening events at the time of passing of the final decree. In the said case, partition suit was filed by son against his father in which preliminary decree was passed determining share of the parties. Before final decree could be passed, there was an amendment in the Hindu Succession Act (vide A. P. Amendment Act, 1986) allowing share to the unmarried daughters. Accordingly, the unmarried daughters applied to the court for their shares which plea was upheld. The said judgment does not deal with the issue involved in the present matter. It was not case where the coparcener whose daughter claimed right was not alive on the date of the commencement of the Act nor case where shares of the parties stood already crystal1sed by operation of law to which the amending law had no application. Same is the position in Prema and Ganduri cases (supra).

25.7. In Narayan Rao case (supra), it was observed that even after notional partition, the joint family continues. The proposition laid down in this judgment is also not helpful in deciding the question involved herein. The text of the Amendment itself shows that the right conferred by the Amendment is on 'daughter of coparcener' who is member of coparcenary and alive on commencement of the Act.

25.8. We also do not find any relevance of decisions in State of Rajasthan vs. Mangila/ Pindwa/[18 ]and West U.P. " (1996) s sec 60

Sugar Mills Asson. vs. State of U.P.[19 ]or other similar decisions for deciding the issue involved herein. The said decisions deal with the effect of repeal of provision and not the issue of restrospectivity with which the Court is concerned in the present case.

26. We now come to the decisions relied upon by the

appellants. In M. Prithviraj cast,) (supra), the view taken appears to be consistent with what has been said above. It appears that this was binding precedent before the Bench of the High Court which passed the impugned order but does not appear to have been referred to in the impugned judgment. Judgments of this Court in Sheela Devi vs. Lal ChancP[0 ]and Sekarvs. Geetha[21 ]and the judgment of Madras High Court in Bagirathi vs. S. Manivanan[22 ]have been relied upon therein. In Sheela Devi case (supra), this Court observed: 21. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with view to. confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of coparcener in the event the· heirs are only male descendants. But, the proviso appended to Sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal, viz., Lal Chand, was, thus, coparcener. Section 6 is exception to the general rules.

1• (2002) 2 sec 645

20 (2006) s sec 581

22 AIR 2005 Mad 250 (DB}

It was, therefore, obligatory on the part of the respondents-plaintiffs to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the Second son, Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956."

Full Bench judgment of Bombay High Court in Badrinarayan Shankar Bhandari Vs. Ompraskash Shankar Bhandari[23 ]also appears to be consistent with the view taken hereinabove.

26.1. In Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum[24 ], Sh ya ma Devi vs. Man ju Shukla[25 ], and Anar Devi vs. Parmeshwari Devi[26 ]cases this Court interpre.ted the Explanation 1 to Section 6 (prior to 2005 Amendment) of the Hindu Succession Act. It was held that the deeming provision referring to partition of the property immediately before the death of the coparcenerwas to be given due and full effect in view of settled principle of interpretation of provision incorporating deeming fiction. In Shyama Devi and Anar Devi cases, same view was followed.

26.2. In Vaishali Satish Ganorkar vs. Satish

Keshaorao Ganorkar[7], the Bombay High Court held that the amendment will not apply unless the daughter .is born after the 2005Amendment, but on this aspect different view has been taken in the later larger Bench judgment. We are unable to find any reason to hold that birth of the daughter after the amendment was necessary condition for its applicability. All that is required is that daughter should be alive and her father

23 AIR 2014, BOM 151. paras 40-57

24 (1978) 3 sec 383, paras 6, 11 and 13

25 (1994) 6 sec 342, para 7

26 (2006) 8 sec 656, paras 10,11

27 AIR 2012, SOM 101, paras 13 to 37

should also be alive on the date of the amendment.

26.3. Kale vs. Dy. Director of Conso/idation[28 ]and Digambar AdharP.atil vs. Devram Girdhar Patil[29 ]have been cited to submit that the family settlement was not required to be registered. Santosh Hazari vs. Purushottam Tiwari3° lays down that the Appellate Court must deal with reasons of the trial court while reversing its findings.

26.4 Kannaiyan vs. The Assistant Collector of Central Excise[31], C.I. T. Gujarat vs. Keshavlal Lallubhai Pate/3[2], Umayal Achi vs. Lakshmi Achi3[3 ]and Shivappa Laxman vs. Yellawa Shivappa Shivagannavaf3[4 ]have been cited to canvass that partition was recognition of pre-existing rights and did not create new rights.

26.5 This would normally have ended our order with the [D ]

operative part being in para 24 which disposes of Civil Appeal No.7217 of 2013 and directs listing of other matters for being dealt with separately. However, one more aspect relating to gender discrimination against muslim women which came up for consideration needs to be gone into as Part II of this order.

Part II

27. An important issue of gender discrimination which though not directly involved in this appeal, has been raised by some of the learned counsel for the parties which concerns rights to muslim women. Discussions on gender discrimination ·Jed to this issue also. It was pointed out that inspite of guarantee of the Constitution, muslim women are subjected to

"(1976) 3 sec 119, para 9

29 (1995) Supp. 2 SCC 428 at page 430

30 (2001) 3 sec 179, para 15.

31 1969 (2) MLJ 277,

32 (1965) 2 SCR 100

33 AIR 1945 FC 25 at 31 (d)

"AIR 1954 BOM 47, para 4

discrimination. There is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage, resulting in denial of dignity and security to her. Although the issue was raised before this Court in Ahmedabad Women Action Group(AWAG) vs. Union of lndia[35], this Court did not go into the merits of the discrimination with the observation that the issue involved state policy to be dealt with by the legislature[36]. It was observed that challenge to the Muslim Women (Protection of Rights on Divorce) Act, 1986 was pending before the Constitution Bench and there was no rea~on to multiply proceedings on such an issue.

28. It is pointed out that the matter needs consideration by this Court as the issue relates not merely to policy matter but to fundamental rights of women under Articles 14, 15 and 21 and international conventions and covenants. One of the reasons for the court having not gone into the matter was pendency of an issue before the Constitution Bench which has since been decided by this Court in Danial Latifi vs. Union of /ndia[37]• The Constitution Bench did not address the -said issue but the Court held that Article 21 held that Article 21 that Article 21 21 included right to to live with dignity[38 ]which supports the plea that muslim woman

issue but the Court held that Article 21 held that Article 21 that Article 21 21 included right to to live

"(1997) 3 sec 573

36 This Court referred to the observations of Sahai. J. in Sarla Mudgal vs. Union of India (1995) 3 sec 635 that climate wa~ required to be built for uniform civil code. Reference was also made to observations in Madhu l<ishwar vs. State of Bihar (1996 (5) sec 125 to the effect that the court could at best advise and focus attention to the problem instead of playing an activist role.

" (2001 l 7 sec 740

""Para 33 ....... This Court in Olga Tellis v. Bombay Municipal Corpn. [1985(3} SCC 545] and Maneka Gandhi v. Union of India [1978 (1) SCC 248] held that the concept of"right to life and personal liberty" guaranteed under Article 21 of the Constitution would include the "right to live with dignity". Before the Act, Muslim woman who was divorced by her husband was granted right to maintenance from her husband under the provisions of Section 125 CrPC until she may remarry and such right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act depriving the divorced Muslim women of such right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddatcould invoke fundamental rights in such matters. In Javed vs. State of Haryana[39], Bench of three judges observed that practice of polygamy is injurious to public morals and can be superseded by the State just as practice of 'sati'[40]. It was further observed that conduct rules providing for monogamy irrespective of religion are valid and could not be struck down on the ground of violation of personal law of muslims[41]. In John Vallamattom vs. U0/[42], it was observed that Section 118 ·of Indian Succession Act, 1925 restricting right of christians to make Will for charitable purpose was without any rational basis, was discriminatory against christians and violated Article 14[43]. Laws dealing with marriage and succession are not part of religion[44 ]. Law has to change with time[45 ]. International covenants and treaties could be referred to examine validity and reasonableness of provision[46].

and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair' substitute of the provisions of Section 125 CrPC. Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India cannot be stated to have been effected by reasonable, right, just and fair law and. if these provisions are less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure. divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law as indicated under the ~ode which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion."

"(2003) sec 369

" Para 46

" Paras 54 to 59

"(2003) 6 sec 611

43 Paras 28 and 29

44 Para 44

" Paras 33 to 36

46 Paras 30 to 32

29. In Charu Khurana vs. U0/[47], this Court considered

the issue of gender discrimination in the matter of denial of membership of "Cine Costume Make-up Artists and Hair Dressers Association" in film industry. It was held that such discrimination violates basic constitutional rights.

30. It was thus submitted that this aspect of the matter may be gone into by separately registering the matter as Public Interest Litigation (PIL). We are of the view that the suggestion needs consideration in view of earlier decisions of this Court.

The issue has also been highlighted in recentArticles appearing

in the press on this subject[48 ]•

31. For this purpose, PIL be separately registered and

put up before the appropriate Bench as per orders of Hon'ble o the Chief Justice of India.

32. Notice be issued to learned Attorney General and

National Legal Services Authority, New Delhi returnable on 23rct November, 2015. We give liberty to learned counsel already appearing in this matter to assist the Court on this aspect of the matter, if they wish to volunteer, for either view point.

Devika Gujral

Appeal disposed of.