VINEETA SHARMA versus RAKESH SHARMA & ORS.

[2020] 10 S.C.R. 135

VINEETA SHARMA

RAKESH SHARMA & ORS.

(Civil Appeal No. Diary No.32601 of 2018)

AUGUST 11, 2020

[ARUN MISHRA, S.ABDUL NAZEER AND M. R. SHAH, JJ.]

Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 – Interpretation of – Held: Theprovisions contained in substituted s.6 of the Hindu Succession Act,1956 confer status of coparcener on the daughter born before orafter amendment in the same manner as son with same rights andliabilities – The effect of the amendment is that daughter is madecoparcener, with effect from the date of amendment i.e. 09.09.2005and she can claim partition also, which is necessary concomitantof the coparcenary – s.6(1) recognises Joint Hindu familygoverned by Mitakshara law – The coparcenary must exist on09.09.2005 to enable the daughter of coparcener to enjoy rightsconferred on her – As the right is by birth and not by dint ofinheritance, it is irrelevant that coparcener whose daughter isconferred with the rights is alive or not – Conferral is not based ondeath of father or other Coparcener – In case living coparcenerdies after 09.09.2005, inheritance is not by survivorship but byintestate or testamentary succession as provided in substituteds.6(3).

Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 and proviso to s.6 as originallyenacted – Held: The statutory fiction of partition created by provisoto s.6 of the Hindu Succession Act, 1956 as originally enacted didnot bring about the actual partition or disruption of coparcenary –The fiction was only for the purpose of ascertaining share ofdeceased coparcener when he was survived by female heir, ofclass-I as specified in the Schedule to the Act of 1956 or male relativeof such female – The provisions of the substituted s.6 are requiredto be given full effect – Notwithstanding, that preliminary decreehas been passed the daughters are to be given share in coparcenaryequal to that of son in pending proceedings for final decree or inan appeal.

CDE

AHindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 – Explanation to s.6(5) – Pleaof oral partition – Held: In view of the rigor of provisions ofExplanation to s.6(5) of the Act of 1956, plea of oral partitioncannot be accepted as the statutory recognised mode of partitioneffected by deed of partition fully registered under the provisionsBof the Registration Act, 1908 or effected by decree of Court –However, in exceptional cases where plea of oral partition issupported by public documents and partition is finally evinced inthe same manner as if it had been affected by decree of Court,

it may be accepted – plea of partition based on oral evidenceCalone cannot be accepted and to be rejected outrightly.

Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 – Enlargement of daughter’srights – Held: Under the proviso to s.6 before the amendment madein the year 2005 in case coparcener died leaving behind femaleDrelative of class-I heir or male descendant claiming through suchclass-I female heir, the daughter was one of them – s.6, as substituted,presupposes the existence of coparcenary – It is only the case ofthe enlargement of the rights of the daughters – The rights of otherrelatives remain unaffected as prevailed in the proviso to s.6 as itstood before amendment – The classic shastric Hindu Law excludedEthe daughter from being coparcener, which injustice has now beendone away with by amending the provisions in consonance with thespirit of the Constitution.Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 – Retroactive application – Held:FThough the rights can be claimed, w.e.f. 09.09.2005, the provisionsare of retroactive application; they confer benefits based on theantecedent event, and the Mitakshara coparcenary law shall bedeemed to include reference to daughter as coparcener – Aretroactive statute is the one that does not operate retrospectively –GIt operates in futuro – However, its operation is based upon thecharacter or status that arose earlier – Characteristic or event whichhappened in the past or requisites which had been drawn fromantecedent events – Under the amended s.6, since the right is givenby birth, that is an antecedent event, and the provisions operateconcerning claiming rights on and from the date of Amendment Act.H

Hindu Succession Act, 1956 – s.6 as amended by HinduSuccession (Amendment) Act, 2005 – Obstructed and unobstructedheritage – Unobstructed heritage takes place by birth, and theobstructed heritage takes place after the death of the owner – It issignificant to note that u/s. 6 by birth, right is given that is calledunobstructed heritage – It is not the obstructed heritage dependingupon the owner’s death – Thus, coparcener father need not be aliveon 09.09.2005, date of substitution of provisions of s.6.

Answering the reference, the Court

HELD: 1. The amended provisions of section 6(1) providethat on and from the commencement of the Amendment Act, thedaughter is conferred the right. Section 6(1)(a) makes daughterby birth coparcener “in her own right” and “in the same manneras the son.” Section 6(1)(a) contains the concept of theunobstructed heritage of Mitakshara coparcenary, which is byvirtue of birth. Section 6(1)(b) confers the same rights in thecoparcenary property “as she would have had if she had been ason”. The conferral of right is by birth, and the rights are givenin the same manner with incidents of coparcenary as that of sonand she is treated as coparcener in the same manner with thesame rights as if she had been son at the time of birth. Thoughthe rights can be claimed, w.e.f. 09.09.2005, the provisions are ofretroactive application; they confer benefits based on theantecedent event, and the Mitakshara coparcenary law shall bedeemed to include reference to daughter as coparcener. Atthe same time, the legislature has provided savings by adding aproviso that any disposition or alienation, if there be anytestamentary disposition of the property or partition which hastaken place before 20.12.2004, the date on which the Bill waspresented in the Rajya Sabha, shall not be invalidated. [Para55][190-H; 191-A-C]

2. The prospective statute operates from the date of itsenactment conferring new rights. The retrospective statuteoperates backward and takes away or impairs vested rightsacquired under existing laws. retroactive statute is the onethat does not operate retrospectively. It operates in futuro.However, its operation is based upon the character or status thatarose earlier. Characteristic or event which happened in the past

Aor requisites which had been drawn from antecedent events. Underthe amended section 6, since the right is given by birth, that is anantecedent event, and the provisions operate concerning claimingrights on and from the date of Amendment Act. [Para 56][191-D-E]

B3. Section 6(2) provides when the female Hindu shall holdthe property to which she becomes entitled under section 6(1),she will be bound to follow rigors of coparcenary ownership, andcan dispose of the property by testamentary mode. [Para 60][194-C-D]

C4. With respect to Hindu who dies after thecommencement of the Amendment Act, 2005, as provided insection 6(3) his interest shall pass by testamentary or intestatesuccession and not by survivorship, and there is deemedpartition of the coparcenary property in order to ascertain theshares which would have been allotted to his heirs had thereDbeen partition. The daughter is to be allotted the same share asa son; even surviving child of pre-deceased daughter or son aregiven share in case child has also died then surviving child ofsuch pre-deceased child of pre-deceased son or pre-deceaseddaughter would be allotted the same share, had they been aliveEat the time of deemed partition. Thus, there is sea-change insubstituted section 6. In case of death of coparcener after9.9.2005, succession is not by survivorship but in accordancewith section 6(3)(1). The Explanation to section 6(3) is the sameas Explanation I to section 6 as originally enacted. Section 6(4)makes daughter liable in the same manner as that of son. TheFdaughter, grand-daughter, or great-grand-daughter, as the casemay be, is equally bound to follow the pious obligation under theHindu Law to discharge any such debt. The proviso saves theright of the creditor with respect to the debt contracted beforethe commencement of Amendment Act, 2005. The provisionsGcontained in section 6(4) also make it clear that provisions ofsection 6 are not retrospective as the rights and liabilities areboth from the commencement of the Amendment Act. [Para61][194-D-H]

5. The proviso to section 6(1) and section 6(5) saves anyHpartition effected before 20.12.2004. However, Explanation to

section 6(5) recognises partition effected by execution of deedof partition duly registered under the Registration Act, 1908 orby decree of court. Other forms of partition have not beenrecognised under the definition of ‘partition’ in the Explanation.[Para 62][195-A-B]

6. Considering the principle of coparcenary that personis conferred the rights in the Mitakshara coparcenary by birth,similarly, the daughter has been recognised and treated as acoparcener, with equal rights and liabilities as of that of son.The expression used in section 6 is that she becomes coparcenerin the same manner as son. By adoption also, the status ofcoparcener can be conferred. The concept of uncodified Hindulaw of unobstructed heritage has been given concrete shapeunder the provisions of section 6(1)(a) and 6(1)(b). Coparcenerright is by birth. Thus, it is not at all necessary that the father ofthe daughter should be living as on the date of the amendment,as she has not been conferred the rights of coparcener byobstructed heritage. According to the Mitakshara coparcenaryHindu law, as administered which is recognised in section 6(1), itis not necessary that there should be living, coparcener or fatheras on the date of the amendment to whom the daughter wouldsucceed. The daughter would step into the coparcenary as thatof son by taking birth before or after the Act. However, daughterborn before can claim these rights only with effect from the dateof the amendment, i.e., 09.09.2005 with saving of past transactionsas provided in the proviso to section 6(1) read with section 6(5).[Para 63][195-B-E]7. The effect of the amendment is that daughter is madecoparcener, with effect from the date of amendment and she canclaim partition also, which is necessary concomitant of thecoparcenary. Section 6(1) recognises joint Hindu familygoverned by Mitakshara law. The coparcenary must exist on09.09.2005 to enable the daughter of coparcener to enjoy rightsconferred on her. As the right is by birth and not by dint ofinheritance, it is irrelevant that coparcener whose daughter isconferred with the rights is alive or not. Conferral is not basedon the death of father or other coparcener. In case livingcoparcener dies after 09.09.2005, inheritance is not by

Asurvivorship but by intestate or testamentary succession asprovided in substituted section 6(3). [Para 64][195-F-H]

8. Under the proviso to section 6 before the amendmentmade in the year 2005 in case coparcener died leaving behindfemale relative of Class I heir or male descendant claimingBthrough such Class I female heir, the daughter was one of them.Section 6, as substituted, presupposes the existence ofcoparcenary. It is only the case of the enlargement of the rightsof the daughters. The rights of other relatives remain unaffectedas prevailed in the proviso to section 6 as it stood beforeamendment. [Para 65][196-A-B]C

9. As per the Mitakshara law, no coparcener has any fixedshare. It keeps on fluctuating by birth or by death. It is the saidprinciple of administration of Mitakshara coparcenary carriedforward in statutory provisions of section 6. Even if coparcenerhad left behind female heir of Class I or male claiming throughDsuch female Class I heir, there is no disruption of coparcenary bystatutory fiction of partition. Fiction is only for ascertaining theshare of deceased coparcener, which would be allotted to himas and when actual partition takes place. The deemed fiction ofpartition is for that limited purpose. The classic Shastric HinduElaw excluded the daughter from being coparcener, which injusticehas now been done away with by amending the provisions inconsonance with the spirit of the Constitution. [Para 66][196-C-D]

10. special definition of partition has been carved out inFthe explanation to section 6(5). The intendment of the provisionsis not to jeopardise the interest of the daughter and to take careof sham or frivolous transaction set up in defence unjustly todeprive the daughter of her right as coparcener and preventnullifying the benefit flowing from the provisions as substituted.The statutory provisions made in section 6(5) change the entireGcomplexion as to partition. However, under the law that prevailedearlier, an oral partition was recognised. In view of change ofprovisions of section 6, the intendment of legislature is clear andsuch plea of oral partition is not to be readily accepted. Theprovisions of section 6(5) are required to be interpreted to cast aHheavy burden of proof upon proponent of oral partition before itis accepted such as separate occupation of portions, appropriationof the income, and consequent entry in the revenue records andinvariably to be supported by other contemporaneous publicdocuments admissible in evidence, may be accepted mostreluctantly while exercising all safeguards. The intendment ofSection 6 of the Act is only to accept the genuine partitions thatmight have taken place under the prevailing law, and are not setup as false defence and only oral ipse dixit is to be rejectedoutrightly. The object of preventing, setting up of false or frivolousdefence to set at naught the benefit emanating from amendedprovisions, has to be given full effect. Otherwise, it would becomevery easy to deprive the daughter of her rights as coparcener.When such defence is taken, the Court has to be very extremelycareful in accepting the same, and only if very cogent, impeccable,and contemporaneous documentary evidence in shape of publicdocuments in support are available, such plea may beentertained, not otherwise. This Court reiterates that the plea ofan oral partition or memorandum of partition, unregistered onecan be manufactured at any point in time, without anycontemporaneous public document needs rejection at all costs.This Court says so for exceptionally good cases where partitionis proved conclusively and the courts are cautioned that thefinding is not to be based on the preponderance of probabilitiesin view of provisions of gender justice and the rigor of very heavyburden of proof which meet intendment of Explanation to Section6(5). It has to be remembered that courts cannot defeat the objectof the beneficial provisions made by the Amendment Act. Theexception is carved out as earlier execution of registereddocument for partition was not necessary, and the Court was rarelyapproached for the sake of family prestige. It was approached asa last resort when parties were not able to settle their familydispute amicably. It is also taken note of the fact that even before1956, partition in other modes than envisaged under Section 6(5)had taken place. [Para 127][234-D-H; 235-A-C]

11. The expression used in Explanation to Section 6(5)‘partition effected by decree of court’ would mean giving offinal effect to actual partition by passing the final decree, onlythen it can be said that decree of court effects partition. Apreliminary decree declares share but does not effect the actual

DEF

Apartition, that is effected by passing of final decree; thus,statutory provisions are to be given full effect, whether partitionis actually carried out as per the intendment of the Act is to befound out by Court. Even if partition is supported by registereddocument it is necessary to prove it had been given effect to andacted upon and is not otherwise sham or invalid or carried out byBa final decree of court. In case partition, in fact, had been workedout finally in toto as if it would have been carried out in the samemanner as if affected by decree of court, it can be recognized,not otherwise. partition made by execution of deed dulyregistered under the Registration Act, 1908, also refers toCcompleted event of partition not merely intendment to separate,is to be borne in mind while dealing with the special provisions ofSection 6(5) conferring rights on daughter. There is clearlegislative departure with respect to proof of partition whichprevailed earlier; thus, the Court may recognise the other modeof partition in exceptional cases based upon continuous evidenceDfor long time in the shape of public document not mere strayentries then only it would not be in consonance with the spirit ofthe provisions of Section 6(5) and its Explanation. [Para 128][235-D-G]

12. Resultantly, the reference is answered as under:E

(i) The provisions contained in substituted Section 6 of theHindu Succession Act, 1956 confer status of coparcener on thedaughter born before or after amendment in the same manner asson with same rights and liabilities.F(ii) The rights can be claimed by the daughter born earlierwith effect from 09.09.2005 with savings as provided inSection 6(1) as to the disposition or alienation, partition ortestamentary disposition which had taken place before 20[th] dayof December, 2004.

G(iii) Since the right in coparcenary is by birth, it is notnecessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso toSection 6 of the Hindu Succession Act, 1956 as originally enacteddid not bring about the actual partition or disruption ofcoparcenary. The fiction was only for the purpose of ascertainingH

share of deceased coparcener when he was survived by femaleheir, of Class-I as specified in the Schedule to the Act of 1956 ormale relative of such female. The provisions of the substitutedSection 6 are required to be given full effect. Notwithstandingthat preliminary decree has been passed the daughters are tobe given share in coparcenary equal to that of son in pendingproceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section6(5) of the Act of 1956, plea of oral partition cannot be acceptedas the statutory recognised mode of partition effected by deedof partition duly registered under the provisions of theRegistration Act, 1908 or effected by decree of court.However, in exceptional cases where plea of oral partition issupported by public documents and partition is finally evinced inthe same manner as if it had been affected by decree of court,it may be accepted. plea of partition based on oral evidencealone cannot be accepted and to be rejected outrightly.[Para 129][235-H; 236-E-F]

Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36:[2015] 12 SCR 579 – overruled.

Danamma @ Suman Surpur & Anr. v. Amar & Ors.,(2018) 3 SCC 343 : [2018] 2 SCR 553 –partly overruled.

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Lokmani & Ors. v. Mahadevamma & Ors. [S.L.P.(C)No.6840 of 2016] Balchandra v. Smt. Poonam & Ors.[SLP (C) No.35994/2015]; Sistia Sarada Devi v.Uppaluri Hari Narayana & Ors. [SLP (C) No.38542/2016]; Girijavva v. Kumar Hanmantagouda & Ors.[SLP (C) No.6403/2019]; Smt. V.L. Jayalakshmi v. V.L.Balakrishna & Ors. [SLP (C) No. 14353/2019]; Indubaiv. Yadavrao [SLP (C) No.24901/2019]; B.K. Venkateshv. B.K. Padmavathi [SLP (C) Nos. 1766-67/2020]; –referred to.

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Case Law Reference

148SUPREME COURT REPORTS

CIVIL APPELLATE JURISDICTION: Civil Appeal Diary No.32601 of 2018.

From the Judgment and Order dated 15.05.2018 of the High Courtof Delhi at New Delhi in R.F.A. No. 301 of 2017.

With

Special Leave Petition (Civil) Nos. 684 of 2016, 35994 of 2015,38542 of 2016, 6403, 14353. 24901 of 2019, 1766-1767 of 2020.

Tushar Mehta, SG, R. Venkatramani, V.V.S. Rao, Ranjit Kumar,Sr. Advs. (ACs), Biswajit Bhattacharya, Sr. Adv., Ms. Swati Ghildiyal,A.K. Sharma, Ms. Rashmi Nandakumar, Byrapaneni Suyodhan,Ms. Tatini Basu, Rupesh Kumar, Rajeev Sharma, Ms Neelam Sharma,Ms Pankhuri Shrivastava, Rohit Rathi, Sameer Shrivastava, I.V. Kasyap,Krishna Kumar, Dr (Mrs) Vipin Gupta, V.N. Raghupathy, RaghavendraS. Srivatsa, Pai Amit, Poonacha C.M., Rahat Bansal, Ms. PankhuriBhardwaj, Sridhar Potaraju, Ms. Shivani Tushir, Ms. G. Usha Sri, VishnuTulashi Menon, Rajesh Mahale, Ankolekar Gurudatta, SubhasishMohanty, Ms. Anagha S. Desai, Irshad Ahmad, Shree Pal Singh, Manu

AMridul, Surya Kant, Satya Kam Sharma, Ms. Apeksha D., Advs. for theappearing parties.

The Judgment of the Court was delivered by

ARUN MISHRA, J.

B1. The question concerning the interpretation of section 6 of theHindu Succession Act, 1956 (in short, ‘the Act of 1956’) as amended byHindu Succession (Amendment) Act, 2005 (in short, ‘the Act of 2005’)hasbeen referred to larger Bench in view of the conflicting verdicts renderedin two Division Bench judgments of this Court in Prakash & Ors. v.Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ SumanCSurpur&Anr. v. Amar & Ors., (2018) 3 SCC 343. In other connectedmatters, the question involved is similar; as such, they have also beenreferred for hearing along.2. In the case of Lokmani & Ors. v. Mahadevamma & Ors.,[S.L.P.(C) No.6840 of 2016] the High Court held that section 6, asDamended by the Act of 2005, is deemed to be there since 17.6.1956when the Act of 1956 came into force, the amended provisions are givenretrospective effect, when the daughters were denied right in thecoparcenary property, pending proceedings are to be decided in the lightof the amended provisions. Inequality has been removed. The High CourtEheld that the oral partition and unregistered partition deeds are excludedfrom the definition of ‘partition’ used in the Explanation to amendedSection 6(5).

3. In Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/2015], the question raised is about the retrospectivity of section 6 asFsubstituted by Amendment Act, 2005 and in case the father who was acoparcener in the joint Hindu family, was not alive when the Act of 2005came into force, whether daughter would become coparcener of jointHindu family property.

4. In the matter of Sistia Sarada Devi v. Uppaluri HariNarayana & Ors. [SLP [C] No.38542/2016], the question raised isGwhere the final decree has not been passed in suit for partition, whetherthe re-distribution of shares can be claimed by the daughters by amendedsection 6, as substituted.

5. In Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C]No.6403/2019], the question raised is whether section 6, as substituted,H

is prospective as the father died in the year 1994 and, thus, no benefitcould be drawn by the daughters.

6. In Smt. V.L. Jayalakshmi v. V.L. Balakrishna &Ors. [SLP[C] No. 14353/2019], the petitioner sought partition of his father’sancestral properties, and suit was filed in 2001. The trial court granted1/7[th] share to all the parties. The same was modified. It was held petitioner,and daughters were entitled to only 1/35[th] share in the light of the decisionof this Court in Prakash v. Phulavati (supra).

7. In Indubai v. Yadavrao [SLP [C] No.24901/2019], similarquestion has been raised. In B.K. Venkatesh v. B.K. Padmavathi [SLP[C] Nos. 1766-67/2020], the daughters have been accorded equal sharesin Item No. 1 of Schedule property, that has been questioned.

8. Division Bench of this Court in Prakash v. Phulavati (supra)held that section 6 is not retrospective in operation, and it applies whenboth coparceners and his daughter were alive on the date ofcommencement of Amendment Act, 9.9.2005. This Court further opinedthat the provision contained in the Explanation to section 6(5) providesfor the requirement of partition for substituted section 6 is to be aregistered one or by decree of court, can have no application to astatutory notional partition on the opening of succession as provided inthe unamended Section 6. The notional statutory partition is deemed tohave taken place to ascertain the share of the deceased coparcenerwhich is not covered either under the proviso to section 6(1) or section6(5), including its Explanation. The registration requirement is inapplicableto partition of property by operation of law, which has to be given fulleffect. The provisions of section 6 have been held to be prospective.

9. In Danamma (supra), this Court held that the amendedprovisions of section 6 confer full rights upon the daughter coparcener.Any coparcener, including daughter, can claim partition in thecoparcenary property. Gurunalingappa died in the year 2001, leavingbehind two daughters, two sons, and widow. Coparcener’s fatherwas not alive when the substituted provision of section 6 came into force.The daughters, sons and the widow were given 1/5[th] share apiece.

Arguments:

10. Shri Tushar Mehta, learned Solicitor General of India, appearingon behalf of Union of India, raised the following arguments:

A(i) The daughters have been given the right of coparcener, tobring equality with sons, and the exclusion of daughter from coparcenarywas discriminatory and led to oppression and negation of fundamentalrights. The Amendment Act, 2005, is not retrospective but retroactive inoperation since it enables the daughters to exercise their coparcenaryrights on the commencement of the Amendment Act. Even though theBright of coparcener accrued to the daughter by birth, coparcenary is abirthright.

(ii) The conferment of coparcenary status on daughters wouldnot affect any partition that may have occurred before 20.12.2004 whenthe Bill was tabled before Rajya Sabha as contained in the proviso toCsection 6(1). Hence, the conferment of right on the daughter did notdisturb the rights which got crystallised by partition before 20.12.2004.

(iii) Unamended Section 6 provided that if male coparcener hadleft behind on death female relative specified in Class I of the Scheduleor male relative claiming through such female relative, the daughter wasDentitled to limited share in the coparcenary interest of her father notshare as coparcener in her rights. They were unable to inherit theancestral property like sons/male counterparts. The Mitaksharacoparcenary law not only contributed to discrimination on the ground ofgender but was oppressive and negated the fundamental right of equalityEguaranteed by the Constitution of India.

(iv) With effect from 9.9.2005, the date of enforcement ofAmendment Act, the daughters became coparceners by birth, in theirown right with the same liability in the coparcenary property as if shehad been son.F

(v) The Explanation contained under Section 6(1) concerningconferral of rights as coparcener, daughter as coparcener, shall not affector invalidate any disposition or alienation including any partition ortestamentary disposition of the property which had taken place before20.12.2004.

(vi) After substitution of the provisions of section 6, the devolutionof coparcenary by survivorship has been abrogated. Now in case ofdeath of coparcener, male/female, the coparcenary interest would notdevolve by survivorship but by intestate succession under the provisionsof the Hindu Succession Act or based on testamentary succession.

(vii) The decision in Prakash v. Phulavati to the effect that thereshould be living daughter of living coparcener on the date ofcommencement of the Act of 2005 fails to appreciate that coparcenaryrights are by birth. The death of Hindu coparcener father or any othercoparcener is only relevant for the succession of his coparcenary interestunder section 6(3) of the Act of 2005. The death of any coparcenerdoes not bring to an end any coparcenary. An increase or decrease inthe coparcenary interest independently held by each coparcener mayoccur by birth or death. On the coparcener’s death, the notional partitionis drawn only to determine his coparcenary’s interest. It does not disturbthe other incidents of the coparcenary, it can continue without disruptionwith other coparceners, and even new coparceners can be added onaccount of birth till the time an actual partition takes place. Coparcenaryinterest becomes definite only when partition is effected.

(viii) The daughter of coparcener in section 6 does not imply thedaughter of living coparcener or father, as the death of the coparcener/father does not automatically lead to the end of coparcenary, which maycontinue with other coparceners alive. Thus, the coparcener, from whomthe daughter is inheriting by her being coparcener, needs not to be aliveas on the commencement of the Amendment Act of 2005.

(ix) The Explanation to Section 6(5) was not provided in the originalamendment Bill moved before the Rajya Sabha on 20.12.2004, whichcame to be added later.

(x) Often, coparceners enter into family arrangement or oralpartition, and it may not be necessary to register such partition.Explanation to section 6(5) of the Amendment Act requires the partitionto be registered, was inserted to avoid any bogus or sham transactions.Considering the entire scheme of the Amendment Act, the requirementof registered partition deed is directory and not mandatory. Anycoparcener relying upon any family arrangement or oral partition mustprove the same by leading proper documentary evidence.

11. Shri R. Venkataramani, learned senior counsel/amicus curiae,argued as under:

(a) There is no conflict between the decisions in Prakash v.Phulavati (supra) and Danamma v. Suman (supra). In both thedecisions, the provisions of section 6 have been held to be of prospectiveapplication. The amendment is prospective one. The declaration by

Athe law that the daughter of coparcener has certain entitlements andbe subject to certain liabilities is prospective. The daughter is treated asa coparcener under the amendment Act and not because of thedaughter’s birth prior to the amendment.

(b) Unlike the joint tenancy principle in English law, joint HinduBfamily stands on different footing. Every son by birth became acoparcener, and because of birth, the son became entitled to be acoparcener in the joint Hindu family property entitled to claim partitionwith or without reference to the death of the Karta of joint Hindufamily. Like son born into the family, an adopted son is also entitled tosucceed to the joint family property. He becomes coparcener withCadoptive father, but his relationship with the natural family is severed,including his status as coparcener in the family of birth as laid down inNagindas Bhagwandas v. Bachoo Hurkissondas, AIR 1915 PC 41and Nanak Chand & Ors. v. Chander Kishore & Ors., AIR 1982Del. 520.D

(c) Hindu joint family consists of male members descendedlineally from common male ancestor, together with their mothers, wivesor widows, and unmarried daughters bound together by the fundamentalprinciple of Sapindaship of family relationship is the essence anddistinguishing feature of the institution of the coparcenary. joint familyEmay consist of single male member and widows of deceased malemembers. This body is purely creature of law and cannot be createdby an act of parties, as observed in G. Narasimulu & Ors. v. P. BasavaSankaram & Ors., AIR 1925 Mad. 249; and State Bank of India v.Ghamandi Ram (dead) through Gurbax Rai, (1969) 2 SCC 33. Anundivided family which is the normal condition of Hindu society isFordinarily joint not only in the estate but in food and worship, and, therefore,not only the concerns of the joint family but whatever relates to theircommensality and their religious duties are regulated by the member orby the manager to whom they have expressly or by implication delegatedthe task of regulation as held in Raghunadha v. Brozo Kishore, 3 IAG154 (PC). The coparcener status being the result of birth; possession ofthe joint property is only an adjunct of the joint family and is not necessaryfor its constitution, as discussed in Haridas Narayandas Bhatia v.Devkuvarbai Mulji, AIR 1926 Bom. 408.

(d) Hindu coparcenary is said to have seven essentialHcharacteristics, which include that the interest of deceased member

survives on his death and merges in the coparcenary property as observedin Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977)3 SCC 385. As result, if father or any other coparcener has died beforethe Amendment Act, 2005, the interest of father or another coparcenerwould have already merged in the surviving coparcenary. Consequently,there will be no coparcener alive, from whom the daughter will succeed.Thus, the daughter can succeed only in the interest of living coparceneras on the date of enforcement of the Amendment Act.(e) In Anthonyswamy v. Chhinnaswamy, (1969) 3 SCC 15, itwas observed that as logical corollary and counter-balance to theprinciple before the amendment, that the son from the moment of hisbirth, acquires an interest in the coparcener, pious obligation is imposedon him to pay his father’s debts incurred for the purpose which is notillegal or immoral.

(f) In Baijnath Prasad Singh & Ors. v. Tej Bali Singh, AIR1921 PC 62, it was observed that there is difference betweencoparcenary in Hindu law, which is not identical with coparcenary asunderstood under the English law. In the case of death of member ofa coparcenary under the Mitakshara law, his right accretes to othermembers by survivorship while under the English law if one of the co-heirs jointly inheriting property dies, his or her right goes to his or herrelations without accreting to surviving coparceners.

(g) By birth and adoption, male becomes coparcener. Thecustom of adoption is of ancient origin, as observed in Amarendra ManSingh Bhramarbar & Anr. v. Sanatan Singh & Ors., AIR 1933 PC155, and Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma& Ors., 26 IA 113. The adoption at the relevant time was only of maleand not of female as the custom related to succession to the property,as discussed in Bireswar Mookerji & Ors. v. Shib Chunder Roy, 19IA 101.

(h) By the expression used in the amended section 6, the daughterbecomes coparcener by birth. The retrospective effect is not intendedto be given to the provisions of section 6. Though equality has beenbrought in, w.e.f. 2005, the incidence of birth of daughter before 2005is of no consequence and not to reopen the past transactions.

(i) The oral partition and family settlement are not intended to bereopened by section 6(1) and 6(5).

A(j) If the daughter is treated as coparcener at any point of time inthe past before the amendment, the same will bring in enormousuncertainty in the working of the law. It can be stated that the Parliamenthas not intended to scramble the unscrambled egg or to resurrect thepast.B(k) Challenges to partition had always come when any member

(k) Challenges to partition had always come when any memberof coparcenary, including an adopted son, stood deprived of theentitlement to succeed to the joint family property.

(l) The scheme of section 6 is future and forward-looking, and ithas to be interpreted in such manner that its relevance is not diluted.CNow the rights of coparcener have been enlarged, and the provisionhas disabled it from defeating the right of daughter from being treatedequally.

(m) In the light of the decision in Shashikalabai (Smt) v. theState of Maharashtra & Anr., (1998) 5 SCC 332, the past transactionsDcannot be reopened. Thus, the daughter, whose coparcener father, wasalive on the date of incorporation of provisions of section 6, will be treatedas coparcener. Any other interpretation would cause unjustconsequences.

12. Shri V.V.S. Rao learned amicus curiae/senior counsel, arguedthat:E

(a) the logic of Prakash v. Phulavati has been upheld inMangammal v. T.B. Raju, (2018) 15 SCC 662. It was held that thereshould be living daughter of living coparcener to inherit the propertyon the date of enforcement of the amended provisions of the 2005 Act.

F(b) Section 6(1)(a) declares daughter to be coparcener bybirth. By the declaration, daughter stands included in coparcenary. Asthe declaration is to the effect that the daughter is to become coparcenerby birth, the question of prospectivity or retrospectivity will not arise —daughter, whether born before 2005 or after that, is considered acoparcener.G

(c) Section 6(1)(b) and (c) deal with the effects of inclusion ofdaughter as coparcener. Having regard to the plain language and futureperfect tense “shall have the same rights,” the only conclusion is that thedaughters who are included in the coparcenary will have the same rightsafter coming into force of the Amendment Act. The future perfect tenseH

indicates that an action will have been completed (finished or perfected)at some point in the future. This tense is formed with “will” plus “have”plus the past participle of the verb. If the Parliament had intended tomean as conferring the same rights in the coparcenary, anterior to theamendment, the language would have been different. The future perfecttense indicates that action will have to be completed at some point intime in the future. The tense is formed with “will” plus “have” plus thepast participle of the verb. If the Parliament intended to mean conferringthe same rights in the coparcenary, anterior to the amendment, thelanguage would have been different. If the daughter is now made acoparcener, she would now have the same rights as she is son.

(d) The legislative history of section 6 throws light in understandingthe provision before the Act of 1956 was enacted. Women were nothaving any interest in the coparcenary properties, and on the demise ofa coparcener, the share of the deceased coparcener devolved on thesurviving coparceners. Hindu Succession Act made inroads into thesystem. It provided that on the demise of coparcener, his interest in thecoparcenary properties would not devolve on other coparceners bysurvivorship, and the share of the deceased coparcener was to beascertained by way of notional partition as on the date of death. To thatlimited extent, the women did not become coparcener, but they couldinherit the property.

(e) The 174[th] Report of Law Commission of India recommendedthe adoption of the Kerala Model, and the amendments were effected inKerala, Andhra Pradesh, Karnataka, and in several States, givingcoparcenary rights to the daughters.

(f) The Parliament Standing Committee report indicates that theMinistry proposed giving the benefit of the provision of this Bill to marrieddaughters after the commencement of the proposed amending legislation.

(g) It was proposed in the report that nothing in the amendedsection 6 shall apply to partition that has been effected before thecommencement of the Amendment Act.

(h) Deliberations by the Committee also indicate that concerningthe partition effected through oral means, it was opined that it woulddepend upon the facts of particular case. As per the prevailing law, itwas not necessary that partition should be registered. There can be anoral partition also, as the law does not prohibit it. At the same time, the

ACommittee observed that the term ‘partition’ should be definedappropriately, and for all practical purposes, should be registered or shouldhave been effected by decree of the Court. In case where oral partitionis recognised, it should be backed by proper evidentiary support.

(i) The Parliament intended to confer the status of coparcenerBfrom the birth of daughter. However, it was never intended to conferher the rights in the coparcenary property retrospectively, for the followingreasons:

a. Section 6(1)(a) deals with the inclusion of daughter in thecoparcenary “on and from the commencement of amendmentCAct 2005, w.e.f. 9.9.2005;

b. The operating part of section 6(1) controls not only clause (a)but also clauses (b) and (c);

c. Hence the daughter who is declared as coparcener from9.9.205 would have the right in coparcenary property onlyDfrom 9.9.2005;

d. Equally, daughter who is now coparcener will be subject tothe same liabilities in respect of property only from 9.9.2005.

(j) Conferment of coparcenary status shall take effect on andfrom the commencement “of the Amendment Act.” The use of the wordsE“on and from” in section 6(1) indicates that the daughter becomescoparcener from the commencement of the Act. The daughter of acoparcener shall by birth become coparcener, have the same rightsand be subject to the same liabilities. The word “shall” indicates the duestatus of the daughter as coparcener is created only for the future andFwould not affect the existing rights of male coparcener. The use of thewords “become,” “have,” and “be” are all present tenses, and theyreiterate to support the above-suggested interpretation.

(k) In the Bill recommended by the Law Commission and the Billintroduced, the Explanation to section 6(5) was not mentioned. It wasGintroduced only on the recommendations of the Parliamentary Committee.Thus, the concept of partition by registered deed and decree of the Courtwere introduced. It follows that on daughter becoming coparcenerfrom particular date, she cannot prospectively affect the share of acoparcener, which was already fixed as held in Prakash v. Phulavati.

(l) The essential condition for conferring the status of coparceneron the daughter is that there should be coparcenary on the date ofcoming into force of the Act in 2005. If the coparcenary was disruptedby the act of the parties or by the death of parties, in partition or sale, thedaughter could not get the status of coparcener in coparcenary. Thestatus conferred cannot affect the past transactions of alienation,disposition, partition – oral or written.

(m) Partition could be in the form of memorandum of partition,or it could also be made orally. In most of the families, there used to bean oral partition. Once parties settle their rights, the partition effectedorally cannot be ignored to give shares to the daughters. Such legaltransactions cannot be unsettled; the Explanation safeguards all genuinetransactions of the past, including oral partition effected by the parties.The Explanation should not be understood as invalidating all otherdocuments recording partition or oral partition in respect of coparcenaryproperty before 20.12.2004.

(n) Daughters conferred with the status of coparcener under theAmendment Act cannot challenge past transactions that took place before20.12.2004, and the daughter should be alive as on the date of amendment.There should be ‘living coparcener’ to whom the daughter can inherit tobecome coparcener.

13. Shri Sridhar Potaraju, learned counsel, vociferously arguedthat:

(a) The decision in Prakash v. Phulavati adopted the correctinterpretation of the provision. Married daughters are not considered aspart of the father’s joint family. They were recognised as Class I heirsthat, by itself, did not make them part of their father’s joint Hindu family.He has relied upon Surjit Lal Chhabda v. Commissioner of IncomeTax, (1976) 3 SCC 142. married daughter ceases to be member ofthe father’s family and becomes member of her husband’s family.

(b) As considered by P. Ramanatha Aiyar in Major Law Lexicon,the land is held in coparcenary when there is the unity of title, possession,and interest. Hindu coparcenary is narrower body than the jointfamily. coparcener shares (equally) with others in inheritance in theestate of common ancestor. Otherwise called parceners are such ashave an equal portion in the inheritance of an ancestor. The share of acoparcener is undefined and keeps fluctuating with the birth and death

Aof coparcener. When male is born, he becomes coparcener, therebydecreasing the share of other coparceners. In the event of the death ofa coparcener, the rule of survivorship comes into play, and the estatedevolves on the surviving coparceners to the exclusion of heirs of thedeceased coparcener. Status of coparcener is creation of lawcommencing with birth and ending with death or by severance of suchBstatus by way of partition or statutory fiction. The status of coparcenaryceases on death.

(c) “Daughter of coparcener” means the daughter of an aliveperson and has the status of coparcener on the date of commencementof the Amendment Act. In case statutory partition has taken place, theCsame is required to be recognised. It would bring severance of jointnessof status and settle the share.

(d) If preliminary decree of partition has been passed and hasattained finality, it must be given effect. The mere filing of suit forpartition is sufficient to effect partition. On separation of status, theDdecree is passed by court as held in Puttrangamma & Ors. v. M.S.Ranganna & Ors., AIR 1968 SC 1018.

(e) What rights have been conferred by way of survivorship arenot intended to be taken away except as provided by the amended provisoin section 6(3) of the Amendment Act.E

(f) legal fiction created in law cannot be stretched beyond thepurpose for which the fiction has been created, as held in MancheriPuthusseri Ahmed & Ors. v. Kuthiravattam Estate Receiver, (1996) 6SCC 185.

F(g) Statutory partition leads to disruption. statutory partition, asprovided in section 6(3), is to be given full effect. The same leads toseverance of status of jointness of the deceased coparcener and hislegal heirs, which shall include the right of maintenance from the jointfamily of the widow of the deceased coparcener and such other rights.Such partition brings an end to the joint family. In the case of death ofGthe father of petitioner in 1963, notional partition would occur and theconsequences laid down in Anar Devi & Ors. v. Parmeshwari Devi &Ors., (2006) 8 SCC 656 would follow.

(h) The married daughters on the death of father in 1963 werenot entitled to share in the coparcenary property. Only sons wereHentitled to equal shares, and sons obtained the property by way of

survivorship. The statutory partition under unamended Section 6 wasconsidered in Gurupad Khandappa Magdum v. Hirabai KhandappaMagdum & Ors., (1978) 3 SCC 383. Statutory partition has been inexistence in section 6 since 1956 and is continued by the 2005Amendment.

(i) Section 6, as amended, is not applicable in the case of daughterwhose father is not alive at the time of the introduction of provisions ofsection 6. Every member of joint Hindu family is not entitled to be acoparcener either under the traditional Hindu law or under the HinduSuccession Act, 1956 or the Amendment Act, 2005. Under Section 29Aintroduced in the State of Andhra Pradesh, unmarried daughters weregiven the rights of coparcener while excluding married daughters. TheCentral Amendment has not made distinction based on the daughter’smarital status expressly but has made it evident by the use of theexpression ‘joint Hindu family’ and ‘daughter of coparcener.’ Theprovisions should be read to exclude married daughters. The provisionsof section 6, as amended, are prospective. It was not intended to unsettlethe settled affairs.(j) The Explanation to section 6(5) cannot be interpreted to takeaway the rights crystallised upon the surviving coparceners of the jointfamily under the statutory partition. The purpose of the Explanation wasconsidered in S. Sundaram Pillai & Ors. v. V. R. Pattabiraman &Ors., (1985) 1 SCC 591 thus:

“53. Thus, from conspectus of the authorities referred to above,it is manifest that the object of an Explanation to statutory provisionis—

“(a) to explain the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the mainenactment, to clarify the same to make it consistent with thedominant object it seems to subserve,

(c) to provide an additional support to the dominant object of theAct in order to make it meaningful and purposeful,

(d) an Explanation cannot in any way interfere with or change theenactment or any part thereof but where some gap is left which isrelevant for the Explanation, in order to suppress the mischief andadvance the object of the Act it can help or assist the Court in

162SUPREME COURT REPORTS

[2020] 10 S.C.R.

Ainterpreting the true purport and intendment of the enactment,and

(e) it cannot, however, take away statutory right with which anyperson under statute has been clothed or set at naught theworking of an Act by becoming an hindrance in the interpretationBof the same.”

(k) preliminary decree determines the shares. Section 2(2) ofthe Code of Civil Procedure defines ‘decree’ to mean the formalexpression, which clarifies that decree is preliminary when furtherproceedings have to be taken before the suit can be decided entirely. InCso far as the determination of individual shares to be allotted to parties tothe suit is concerned, the preliminary decree is final. After the dismissalof Special Leave Petition (C) No.38542/2016 in Sistla Sarada Devi v.Uppaluri Hari Narayana & Ors., the only step required to be taken isto apportion the shares by metes and bounds in terms of the preliminarydecree which was passed. The daughters born after the commencementDof the Amendment Act become coparceners, and daughters born beforethe commencement of the Amendment Act have been covered undersection 6(1)(b) and granted the same rights in coparcenary as given to ason. The daughters born before and after the amendment covered undersection 6 are given the status of coparcener. The status of coparcenerEto daughters cannot be given from the date of birth, and they cannot bemade liable for all the liabilities of coparcenary property. The benefitcannot be conferred from the date of birth as it would relate in severalcases to date of birth even in the year 1925. All liabilities are to be borneonly from the amendment; as such, the provisions are not retrospective.

F(l) Even alternatively, if the status of coparcenary on the daughteris to be conferred retrospectively, the limitations governing such legalfiction will have to take into consideration the implications of (i) statutorypartition; (ii) court’s decree; and (iii) legitimate alienation of the propertyby Karta/coparceners, prior to commencement of the Amendment Act.All other dispositions or alienations, including any partition or testamentaryGdisposition of property made before 20.12.2004, are required to be savedas earlier the daughters were not coparceners. On statutory partition,the property becomes the self-acquired property and is no more acoparcenary property.

(m) Even in case of adoption, the past transactions are savedHwhile applying the theory of relation back as laid down in Sripad Gajanan

Suthankar v. Dattaram Kashinath Suthankar & Ors., (1974) 2 SCC156.

Thus, the provisions of section 6 are to be construed prospectively.

14. Shri Amit Pai, learned counsel, strenuously urged that:

(a) The golden rule of interpretation is required to be adopted aslaid down in Kanai Lal Sur v. Paramnidhi Sadhukhan, (1958) SCR360. The rule of literal construction is relied upon, as observed in Lt.Amrendra Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3SCC 140.

(b) The substitution of the provision of section 6 dates back to thecommencement of the Principal Act of 1956. notional partition on thedeath of coparcener to ascertain his share is not an actual partition.The same is not saved by the proviso contained in section 6. daughtercannot be deprived of the right to equality as per the Statement of Objectsand Reasons. The provision of section 6 is required to be given fulleffect.

(c) The decision in Prakash v. Phulavati cannot be said to belaying down the law correctly. The concept of living daughter of livingcoparcener is adding to the text of provisions of section 6, whereas noword can be added or read into statute by the Court. It can only repairerrors or supply omissions. It is for the legislature to provide such aconcept of daughter of living coparcener. Thus, it was argued thatsection 6 includes all living daughters of coparceners, irrespective ofwhether such coparceners are deceased or alive at the commencementof the 2005 Amendment.

15. Shri Sameer Shrivastava, learned counsel, urged that:

(a) The term ‘coparcener’ is not defined in the Succession Act.This Court considered it in SathyapremaManjunatha Gowda (Smt) v.Controller of Estate Duty, Karnataka, (1997) 10 SCC 684. It is anarrower body than joint family and consists of only those personswho have taken by birth, an interest in the property, and can enforce apartition, whenever they like. The daughter is entitled to share in theproperty subject to the restrictions provided under sub-section (1) andsub-section (5) of amended section 6.

(b) Section 6(3) provides consequence of the death of acoparcener, devolution on the death of coparcener after the

Acommencement of the Amendment Act. The concept of survivorshiphas been done away. Testamentary or intestate succession has beenprovided where Hindu dies before the commencement of theAmendment Act. The relevant provisions are section 6(1)(2), wheremale Hindus are given the right by birth to become coparcener, andthey have the right to take partition with coparcenary property.B

(c) The decision in Prakash v. Phulavati, laying down that section6 as amended applies in case of living daughters of living coparcener,is arbitrary and non-est in the eye of law. Both sons and daughters ofcoparceners are conferred the right of becoming coparcener by birth.Birth in coparcenary creates interest. The only other exception is byCway of adoption. Coparcenary incident is the right to the severance ofthe status of partition.

16. Ms. Anagha S. Desai, learned counsel, strenuously urged thatsection 6 provides parity of rights in coparcenary property among maleand female members of joint Hindu family on and from 9.9.2005. TheDdeclaration in section 6 that the daughter of coparcener shall have thesame rights and liabilities as she would have been son is unambiguousand unequivocal. The daughter is entitled to share in the ancestralproperty. She has relied upon Ganduri Koteshwaramma & Anr. v.Chakiri Yanadi & Anr., (2011) 9 SCC 788.

17. When daughter, who is claiming and demanding share inthe coparcenary, is alive, there is no difficulty of interpretation, irrespectiveof the fact whether coparcener has died before the commencement ofthe Amendment Act. The coparcener and the daughter do not need tobe alive as on the date of the amendment. If it is to be interpreted thatFcoparcener and daughter both should be alive, it will defeat the verypurpose and objective of the amended provisions. Earlier, the provisionsof Hindu law treated son as coparcener by birth; now, daughters aregiven the same rights since birth. In case partition has been effected bymetes and bounds and is adequately proved, then the daughter ofcoparcenary cannot seek partition of already divided property.G

In Ref. Historical Background

18. The Hindu branch of dharma is influenced by the theologicaltenets of the Vedic Aryans. What is not modified or abrogated by thelegislation or constitutional provisions still prevails, the basic Hindu lawemanates from Vedas and past shrutis/smritis. Various dharma shastrasH

regard custom as the basis of Hindu law as administered from time totime. Law has advanced and made progress as per the requirements ofthe society and the prevailing ethos. The justice used to be administeredby the emperors resolving the conflicts. The building of law has takenplace over time. There are two main schools of Hindu law, i.e., Mitaksharaand Dayabhaga. Mitakshara has further been sub-divided into fourschools, i.e., Benares, Mithila, Maharashtra or Bombay, and Dravida orMadras school. Benares, Mithila, Dravida, and Maharashtra denote oldnames of the territories.

19. The application of schools of Mitakshara is region-wise. Therehas been re-organization of States in 1956, and after that, some confusionhas arisen concerning the administration of Bombay school and BenaresSchool. Benares school practically governs the whole of Northern India.The Bombay school covers Western India and various other territories.The certain States were re-organized by the State Reorganisation Actof 1956. In some regions of reorganised States, given the common name,different schools apply. Take, for example, Madhya Pradesh. It consistsof territories to which both Bombay and Benares schools are applicable.However, various authors of Hindu law have failed to note the fact inwhich parts of the State of M.P. after reorganisation which school isapplicable. reference is found to tenets of Bombay school of Hindulaw in the entire State of M.P., whereas Benares school is applicable invarious parts of Madhya Pradesh. It was clarified by Full Bench ofMadhya Pradesh High Court in Diwan Singh v. Bhaiya Lal, (1997) 2MP LJ-202, and Division Bench decision was relied on in FA No.31/1968 decided on 14.12.1976. In integrating State of Madhya Bharat andsome other parts of Madhya Pradesh, Benares school is applicable, notBombay.

20. Mitakshara law applies to most parts of India except Bengal.Maharashtra school prevailed in North India, Bombay school, in WesternIndia. However, certain areas in Southern India are governed byMarumakkatayam, Aliyasantana, and Nambudiri systems of law.

21. Besides the various sources, custom, equity, justice, andconscience have also played pivotal role in the development of Hindulaw, which prevailed. When the law was silent on certain aspects, Judicialdecisions also acted as source of law. Hindu law was not static butalways progressive. Slowly necessity was felt for the codification ofHindu law. In particular, women’s rights were taken care of, and attempts

Awere made to remove the anomalies and unscrupulous practices.Necessity was also felt after the independence, given the constitutionalimperatives to bring about equality of status, the codified law has beenamended from time to time.The latest attempt has been made by way ofamending the Hindu Succession Act concerning rights of daughter to bea coparcener in Mitakshara coparcenary and has been given the rightsBequal to that of son.

In Ref.Coparcenary and Joint Hindu Family

22. joint Hindu family is larger body than Hindu coparcenary.A joint Hindu family consists of all persons lineally descended from aCcommon ancestor and include their wives and unmarried daughters. Ajoint Hindu family is one in worship and holds joint assets. After separationof assets, the family ceases to be joint. Mere severance in food andworship is not treated as separation, as observed in Sri Raghunadhav. Sri Brozo Kishore, 1876 (1) Mad. 69 = 3 IA 154.

D23. Hindu coparcenary is much narrower body. It consists ofpropositus and three lineal descendants. Before 2005, it included onlythose persons like sons, grandsons, and great-grandsons who are theholders of joint property. For example, in case is holding the property,B is his son, is his grandson, is great-grandson, and is great-great-grandson. The coparcenary will be formed up to D, i.e., great-Egrandsons, and only on the death of A, holder of the property, the right ofE would ripen in coparcenary as coparcenary is confined to three linealdescendants. Since grandsons and great-grandsons become coparcenersby birth, they acquired an interest in the property.

24. Coparcenary property is the one which is inherited by HinduFfrom his father, grandfather, or great grandfather. Property inheritedfrom others is held in his rights and cannot be treated as forming part ofthe coparcenary. The property in coparcenary is held as joint owners.

25. Coparcener heirs get right by birth. Another method to be acoparcener is by way of adoption. As earlier, woman could not be aGcoparcener, but she could still be joint family member. By substitutedsection 6 with effect from 09.09.2005 daughters are recognised ascoparceners in their rights, by birth in the family like son. Coparcenaryis the creation of law. Only coparcener has right to demand partition.Test is if person can demand partition, he is coparcener nototherwise. Great great-grandson cannot demand partition as he is notH

coparcener. In case out of three maledescendants, one or other hasdied, the last holder, even fifth descendant, can claim partition. In casethey are alive, he is excluded.

In Ref. Formation of Coparcenary

26. For interpreting the provision of section 6, it is necessary toponder how coparcenary is formed. The basic concept of coparcenaryis based upon common ownership by coparceners. When it remainsundivided, the share of the coparcener is not certain. Nobody can claimwith precision the extent of his right in the undivided property. Coparcenercannot claim any precise share as the interest in coparcenary isfluctuating. It increases and diminishes by death and birth in the family.

27. In Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988) 2SCC 77, the Court discussed essential features of coparcenary of birthand sapindaship thus:

“17. Those who are of individualistic attitude and separateownership may find it hard to understand the significance of aHindu joint family and joint property. But it is there from the ancienttime perhaps, as social necessity. Hindu joint family consistsof male members descended lineally from common maleancestor, together with their mothers, wives or widows andunmarried daughters. They are bound together by the fundamentalprinciple of sapindaship or family relationship, which is the essentialfeature of the institution. The cord that knits the members of thefamily is not property but the relationship of one another.18.The coparcenary consists of only those persons who have takenby birth an interest in the property of the holderand who canenforce partition whenever they like. It is narrower body thana joint family. It commences with common ancestor and includesa holder of joint property and only those males in his male linewho are not removed from him by more than three degrees. Thereason why coparcenership is so limited is to be found in the tenetof the Hindu religion that only male descendants up to three degreescan offer spiritual ministration to an ancestor. Only males can becoparceners. [See: Hindu Law by N.R. Raghavachariar, 8th Edn.,p. 202]”

(emphasis supplied)

168SUPREME COURT REPORTS

[2020] 10 S.C.R.

A28. In case coparcenary property comes to the hands of ‘singleperson’ temporarily, it would be treated as his property, but once son isborn, coparcenary would revive in terms of the Mitakshara law. In SheelaDevi v. Lal Chand, (2006) 8 SCC 581, it was observed:

“12. The principle of law applicable in this case is that so long aBproperty remains in the hands of single person, the same was tobe treated as separate property, and thus such person would beentitled to dispose of the coparcenary property as the same werehis separate property, but, if son is subsequently born to him oradopted by him, the alienation whether it is by way of sale,mortgage or gift, will nevertheless stand, for son cannot objectCto alienations so made by his father before he was born or begotten(See C. Krishna Prasad v. CIT, (1975) 1 SCC 160). But once ason is born, it becomes coparcenary property, and he wouldacquire an interest therein.”

In M. Yogendra & Ors. v. Leelamma N. & Ors., (2009) 15 SCCD184, similar opinion was expressed thus:

“29. It is now well settled in view of several decisions of thisCourt that the property in the hands of sole coparcener allottedto him in partition shall be his separate property for the same shallrevive only when son is born to him. It is one thing to say thatEthe property remains coparcenary property but it is another thingto say that it revives. The distinction between the two is absolutelyclear and unambiguous. In the case of former any sale or alienationwhich has been done by the sole survivor coparcener shall bevalid whereas in the case of coparcener any alienation made bythe karta would be valid.”F

(emphasis supplied)

In Smt. Sitabai & Anr. v. Ramchandra, AIR 1970 SC 343, it was

held:

“3. x x x under the Hindu system of law joint family may consistGof single male member and widows of deceased male membersand that the property of joint family did not cease to belong to ajoint family merely because the family is represented by singlecoparcener who possesses rights which an absolute owner ofproperty may possess…..”H

In Dharma ShamraoAgalawe v. Pandurang Miragu Agalwe& Ors., (1988) 2 SCC 126, it was held that joint family property retainsits character even after its passing on to the hands of sole survivingcoparcener. If son is subsequently born or adopted, the coparcenarywill survive, subject to saving the alienations made in the interregnum.

29. In Ghamandi Ram (supra), the formation, concept andincidents of the coparcenary were discussed thus:

“5. According to the Mitakshara School of Hindu Law all theproperty of Hindu joint family is held in collective ownership byall the coparceners in quasi-corporate capacity. The textualauthority of the Mitakshara lays down in express terms that thejoint family property is held in trust for the joint family membersthen living and thereafter to be born (see Mitakshara, Ch. I, 1-27). The incidents of co-parcenership under the Mitakshara laware: first, the lineal male descendantsof person up to the thirdgeneration, acquire on birth ownership in the ancestral propertiesof such person; secondly, that such descendants can at any timework out their rights by asking for partition; thirdly, that till partitioneach member has got ownership extending over the entire property,conjointly with the rest; fourthly, that as result of such co-ownership the possession and enjoyment of the properties iscommon; fifthly, that no alienation of the property is possible unlessit be for necessity, without the concurrence of the coparceners,and sixthly, that the interest of deceased member lapses on hisdeath to the survivors. coparcenary under the Mitakshara Schoolis creature of law and cannot arise by Act of parties except inso far that on adoption the adopted son becomes coparcenerwith his adoptive father as regards the ancestral properties of thelatter. In Sundaranam Maistri v. Harasimbhulu Maistri andAnother, ILR 25 Mad 149 at 154.

Mr Justice Bhashyam Ayyangar stated the legal position thus:

“The Mitakshara doctrine of joint family property is foundedupon the existence of an undivided family, as corporate body(Gan Savant Bal Savant v. Narayan Bhond Savant) [ILR 7Bom 467] and Mayne’s ‘Hindu Law and Usage’, (6thedition,Paragraph 270) and the possession of property by suchcorporate body. The first requisite therefore is the family unit;and the possession by it of property is the second requisite. For

Athe present purpose, female members of the family may be leftout of consideration and the conception of Hindu family is acommon male ancestor with his lineal descendants in the maleline, and so long as that family is in its normal condition viz. theundivided state — it forms corporate body. Such corporate body,with its heritage, is purely creature of law and cannot be createdBby Act of parties, save in so far that, by adoption, stranger maybe affiliated as member of that corporate family.”

6. Adverting to the nature of the property owned by such familythe learned Judge proceeded to state:

C“As regards the property of such family, the ‘unobstructed’heritage devolving on such family, with its accretions, is ownedby the family, as corporate body, and one or more branches ofthat family, each forming corporate body within largercorporate body, may possess separate ‘unobstructed heritage’which, with its accretions, may be exclusively owned by suchDbranch as corporate body.”

(emphasis supplied)

30. Essential characteristics of coparcenary, as discussed in theabove-mentioned decision in Ghamandi Ram (supra), were analysed inEController of Estate Duty v. Alladi Kuppuswamy, (supra), thus:

“Thus analysing the ratio of the aforesaid case regarding theincidents of Hindu coparcenary it would appear that Hinducoparcenary has six essential characteristics, namely, (1) thatthe lineal male descendants up to the third generation acquirean independent right of ownership by birth and not asrepresenting their ancestors; (2) that the members of thecoparcenary have the right to work out their rights by demandingpartition; (3) that until partition, each member has got ownershipextending over the entire property conjointly with the rest andso long as no partition takes place, it is difficult for anycoparcener to predicate the share which he might receive; (4)that as result of such co-ownership the possession andenjoyment of the property is common; (5) that there can be noalienation of the property without the concurrence of the othercoparceners unless it be for legal necessity; and (6) that the

interest of deceased member lapses on his death and mergesin the coparcenary property. Applying these tests to the interestof Hindu widow who has been introduced into coparcenaryby virtue of the Act of 1937, we find that, excepting Condition(1), all other conditions are fully satisfied in case of Hinduwidow succeeding to the interest of her husband in Hinducoparcenary. In other words, after her husband’s death theHindu widow under the Act of 1937 has got the right to demandpartition, she cannot predicate the exact share which she mightreceive until partition is made, her dominion extends to theentire property conjointly with the other members of thecoparcenary, her possession and enjoyment is common, theproperty cannot be alienated without concurrence of all themembers of the family, except for legal necessity, and like othercoparceners she has fluctuating interest in the property whichmay be increased or decreased by deaths or additions in thefamily. It is manifest that she cannot fulfil the first condition,because she enters the coparcenary long after she is born andafter she is married to her husband and acquires his interest onhis death. Thus, short of the first condition, she possesses allthe necessary indicia of coparcenary interest. The fact thatbefore the Act of 1956, she had the characteristic of widow-estate in her interest in the property does not detract any theless from this position. It must follow as logical corollary thatthough Hindu widow cannot be coparcener, she hascoparcenary interest and she is also member of thecoparcenary by virtue of the rights conferred on her under theAct of 1937.”

31. In Controller of Estate Duty (supra), it has also been laiddown that if widow does not exercise her right of partition, there is noseverance of the Hindu coparcenary and on her death, the interest ofthe widow merges in the coparcenary property or lapses to the othercoparceners. It was observed that the male issue of coparcener acquiresan interest in the coparcenary by birth, not as representing his father.

32. This Court in Controller of Estate Duty (supra), placed relianceon Satrughan Isser v. Sabujpari, & Ors., AIR 1967 SC 272. In casethe right to partition by widow has not been exercised, there is noseverance of Hindu coparcenary, and on death of coparcener, there isno dissolution of coparcenary. In Satrughan (supra), it was held:

“7. By the Act certain antithetical concepts are sought to bereconciled. widow of coparcener is invested by the Act withthe same interest which her husband had at the time of his deathin the property of the coparcenary. She is thereby introduced intothe coparcenary, and between the surviving coparceners of herhusband and the widow so introduced, there arises community ofinterest and unity of possession. But the widow does not on thataccount become coparcener: though invested with the sameinterest which her husband had in the property she does not acquirethe right which her husband could have exercised over the interestof the other coparceners. Because of statutory substitution of herinterest in the coparcenary property in place of her husband, theright which the other coparceners had under the Hindu law of theMitakshara school of taking that interest by the rule of survivorshipremains suspended so long as that estate enures. But on the deathof coparcener there is no dissolution of the coparcenary so as tocarve out defined interest in favour of the widow in thecoparcenary property: Lakshmi Perumallu v. Krishnavanamma.The interest acquired by her under Section 3(2) is subject to therestrictions on alienation which are inherent in her estate. She hasstill power to make her interest definite by making demand forpartition, is male owner may. If the widow after being introducedinto family to which her husband belonged does not seek partition,on the termination of her estate her interest will merge into thecoparcenary property. But if she claims partition, she is severedfrom the other members and her interest becomes definedinterest in the coparcenary property, and the right of the othercoparceners to take that interest by survivorship will standextinguished. If she dies after partition or her estate is otherwisedetermined, the interest in coparcenary property which has vestedin her will devolve upon the heirs of her husband. It is true that awidow obtaining an interest in coparcenary property by Section3(2) does not inherit that interest but once her interest has ceasedto have the character of undivided interest in the property, it willupon termination of her estate devolve upon her husband’s heirs.To assume as has been done in some decided cases that the rightof the coparceners to take her interest on determination of thewidow’s interest survives even after the interest has becomedefinite, because of claim for partition, is to denude the right toclaim partition of all reality.”

33. In Bhagwan Dayal (since deceased) & Anr. v. Mst. ReotiDevi, AIR 1962 SC 287, it was held that coparcenary is creature oflaw and branch of the family was subordinate corporate body anddiscussed the proposition thus:

“47. x xxCoparcenary is creature of Hindu law and cannot becreated by agreement of parties except in the case of reunion. Itis corporate body or family unit. The law also recognizes abranch of the family as subordinate corporate body.The saidfamily unit, whether the larger one or the subordinate one, canacquire, hold and dispose of family property subject to the limitationslaid down by law. Ordinarily, the manager, or by consent, expressor implied, of the members of the family, any other member ormembers can carry on business or acquire property, subject tothe limitations laid down by the said law, for or on behalf of thefamily. Such business or property would be the business or propertyof the family. The identity of the members of the family is notcompletely lost in the family. One or more members of that familycan start business or acquire property without the aid of thejoint family property, but such business or acquisition would be hisor their acquisition. The business so started or property so acquiredcan be thrown into the common stock or blended with the jointfamily property in which case the said property becomes the estateof the joint family. But he or they need not do so, in which casethe said property would be his or their self-acquisition, andsuccession to such property would be governed not by the law ofjoint family but only by the law of inheritance. In such case, if aproperty was jointly acquired by them, it would not be governedby the law of joint family; for Hindu law does not recognize someof the members of joint family belonging to different branches,or even to single branch, as corporate unit. Therefore, therights inter se between the members who have acquired the saidproperty would be subject to the terms of the agreementwhereunder it was acquired. The concept of joint tenancy knownto English law with the right of survivorship is unknown to Hindulaw except in regard to cases specially recognized by it. In thepresent case, the uncle and the two nephews did not belong to thesame branch. The acquisitions made by them jointly could not beimpressed with the incidents of joint family property. They can

Aonly be co-sharers or co-tenants, with the result that their propertiespassed by inheritance and not by survivorship.”

(emphasis supplied)

34. In Kalyanji Vithaldas & Ors. v. Commissioner of IncomeTax, Bengal, AIR 1937 PC 36, the concept of Hindu Undivided FamilyBwas considered thus:

“ …….. The phrase “Hindu undivided family”is used in the statutewith reference, not to one school only of Hindu law, but to allschools; and their Lordships think it mistake in method to beginby pasting over the wider phrase of the Act the words “HinduCcoparcenary”-all the more that it is not possible to say on the faceof the Act that no female can be member. …..”

(emphasis supplied)

In Gowli Buddanna v. Commissioner of Income Tax, Mysore,DAIR 1966 SC 1523, it was held that coparcenary is narrower body thanjoint family thus:

“6. x x x Hindu joint family consists of all persons lineallydescended from common ancestor and includes their wives andunmarried daughters. Hindu coparcenary is much narrowerbody than the joint family: it includes only those persons whoEacquire by birth an interest in the joint or coparcenary property,-these being the sons, grandsons, and greatgrandsons of the holderof the joint property for the time being.Therefore there may be ajoint Hindu family consisting of single male member and widowsof deceased coparceners. x xx”

(emphasis supplied)

The difference between joint Hindu family and coparcenary wasconsidered in Surjit Lal Chhabda v. The Commissioner of IncomeTax, Bombay, (supra) thus:

G“13. Outside the limits of coparcenary, there is fringe of persons,males and females, who constitute an undivided or joint family.There is no limit to the number of persons who can compose itnor to their remoteness from the common ancestor and to theirrelationship with one another. joint Hindu family consists ofpersons lineally descended from common ancestor and includes

their wives and unmarried daughters.The daughter, on marriage,ceases to be member of her father’s family and becomes amember of her husband’s family. The joint Hindu family is thus alarger body consisting of group of persons who are united bythe tie of sapindaship arising by birth, marriage or adoption:

“The fundamental principle of the Hindu joint family isthe sapindaship. Without that it is impossible to form jointHindu family. With it as long as family is living together, it isalmost impossible not to form joint Hindu family. It is thefamily relation, the sapinda relation, which distinguishes thejoint family, and is of its very essence, (1908) 32 Bom. 479.””

(emphasis supplied)

35. In State of Maharashtra v. Narayan Rao Sham RaoDeshmukh & Ors., (1985) 2 SCC 321, characteristics of joint familyand coparcenary were culled out. It was also held that interest of afemale member of joint Hindu family getting fixed, on her inheritinginterest of deceased male member of the family. She would not ceaseto be member of family unless she chooses to become separate bypartition, thus:

“8. Hindu coparcenary is, however, narrower body than thejoint family. Only males who acquire by birth an interest in thejoint or coparcenary property can be members of the coparcenaryor coparceners. male member of joint family and his sons,grandsons and great grandsons constitute coparcenary, Acoparcener acquires right in the coparcenary property by birthbut his right can be definitely ascertained only when partitiontakes place. When the family is joint, the extent of the share of acoparcener cannot be definitely predicated since it is alwayscapable of fluctuating. It increases by the death of coparcenerand decreases on the birth of coparcener. joint family, however,may consist of female members. It may consist of male member,his wife, his mother and his unmarried daughters. The property ofa joint family does not cease to belong to the family merely becausethere is only single male member in the family. (SeeGowliBuddanna v. CIT, AIR 1966 SC 1523 and Sitabai v. RamChandra, (1969) 2 SCC 544). joint family may consist of asingle male member and his wife and daughters. It is not necessary

that there should be two male members to constitute joint family.(See N.V. Narendranath v. C.W.T., (1969) 1 SCC 748). Whileunder the Mitakshara Hindu law there is community of ownershipand unity of possession of joint family property with all the membersof the coparcenary, in coparcenary governed by the Dayabhagalaw, there is no unity of ownership of coparcenary property withthe members thereof. Every coparcener takes defined share inthe property and he is the owner of that share. But there is,however, unity of possession. The share does not fluctuate bybirths and deaths. Thus it is seen that the recognition of the rightto definite share does not militate against the owners of theproperty being treated as belonging to family in the Dayabhagalaw.10. We have carefully considered the above decision and we feelthat this case has to be treated as an authority for the position thatwhen female member who inherits an interest in the joint familyproperty under Section 6 of the Act files suit for partitionexpressing her willingness to go out of the family she would beentitled to get both the interest she has inherited and the sharewhich would have been notionally allotted to her, as stated inExplanation I to Section 6 of the Act.But it cannot be an authorityfor the proposition that she ceases to be member of the familyon the death of male member of the family whose interest in thefamily property devolves on her without her volition to separateherself from the family. legal fiction should no doubt ordinarilybe carried to its logical end to carry out the purposes for which itis enacted but it cannot be carried beyond that.It is no doubt truethat the right of female heir to the interest inherited by her in thefamily property gets fixed on the death of male member underSection 6 of the Act but she cannot be treated as having ceasedto be member of the family without her volition as otherwise itwill lead to strange results which could not have been in thecontemplation of Parliament when it enacted that provision andwhich might also not be in the interest of such female heirs. Toillustrate, if what is being asserted is accepted as correct it mayresult in the wife automatically being separated from her husbandwhen one of her sons dies leaving her behind as his heir. Such aresult does not follow from the language of the statute.In such anevent she should have the option to separate herself or to continue

in the family as long as she wishes as its member though she hasacquired an indefeasible interest in specific share of the familyproperty which would remain undiminished whatever may be thesubsequent changes in the composition of the membership of thefamily. As already observed the ownership of definite share inthe family property by person need not be treated as factorwhich would militate against his being member of family. Wehave already noticed that in the case of Dayabhaga family, whichrecognises unity of possession but not community of interest inthe family properties amongst its members, the members thereofdo constitute family. That might also be the case of families ofpersons who are not Hindus. In the instant case the theory thatthere was family settlement is not pressed before us. Therewas no action taken by either of the two females concerned inthe case to become divided from the remaining members of thefamily. It should, therefore, be held that notwithstanding the deathof Sham Rao the remaining members of the family continued tohold the family properties together though the individual interestof the female members thereof in the family properties had becomefixed.”

(emphasis supplied)

36. The essential feature is aggregate ownership, i.e., ‘SamudavikaSwatwa’ in coparcenary and the share keeps on fluctuating, wasobserved in Commissioner of Income Tax, Poona v. H.H. Raja ofBhor, (1967) (65) ITR 634 thus:

“…… no individual member of Hindu coparcenary, while itremains undivided, can predicate of the joint and undividedproperty, that he, or any particular member, has definite share,one-third or one-fourth – (Lord Westbury in Approvier v. RamaSubha Aiyan, (1866 11 MIA 75). His interest in the coparcenaryproperty is fluctuating interest which is capable of being enlargedby death in the family. It is only on partition that the coparcener isentitled to definite share. But the important thing to notice isthat the theory of ownership being acquired by birth has givenrise to the doctrine of Samudavika swatwaor aggregateownership in the Mitakshara school. Till partition therefore all thecoparceners have got rights extending over the entirety of thecoparcenary property……”

(emphasis supplied)

37. In Vellikannu v. R. Singaperumal & Anr., (2005) 6 SCC622, this Court restated that the share of member of coparcenaryfluctuates from time to time is settled proposition of law. It was held:

“11. So far as the property in question is concerned, there is afinding of the courts below that the property is coparcenaryBproperty and if that being so, if Defendant 1 had not murdered hisfather then perhaps things would have taken different shape.But what is the effect on the succession of the property of thedeceased father when the son has murdered him? If he had notmurdered his father he would have along with his wife succeededin the matter. So far as the rights of coparceners in the MitaksharaClaw are concerned, the son acquires by birth or adoption vestedinterest in all coparcenary property whether ancestral or not andwhether acquired before or after his birth or adoption, as the casemay be, as member of joint family. This is the view which hasbeen accepted by all the authors of the Hindu law. In the famousDprinciples of Mulla, 15th Edn. (1982) at pp. 284 and 285, thelearned author has stated thus:

“The essence of coparcenary under the Mitaksharalaw is unity of ownership. The ownership of the coparcenaryproperty is in the whole body of coparceners. According to thetrue notion of an undivided family governed by the Mitaksharalaw, no individual member of that family, whilst it remainsundivided, can predicate, of the joint and undivided property,that he, that particular member, has definite share, one-thirdor one-fourth. His interest is fluctuating interest, capable ofbeing enlarged by deaths in the family, and liable to be diminishedby births in the family. It is only on partition that he becomesentitled to definite share. The most appropriate term to describethe interest of coparcener in coparcenary property is‘’undivided coparcenary interest. The nature and extent of thatinterest is defined in Section 235. The rights of each coparceneruntil partition takes place consist in common possessionand common enjoyment of the coparcenary property. Asobserved by the Privy Council in Katama Natchiar v. Rajahof Shivagunga, (1863) 9 MIA 543, ‘there is community ofinterest and unity of possession between all the members ofthe family, and upon the death of any one of them the others

may well take by survivorship that in which they had duringthe deceased’s lifetime common interest and commonpossession’.”

13. In N.R. Raghavachariar’s Hindu Law — Principles andPrecedents, 8th Edn. (1987) at p. 230 under the heading “Rights ofCoparceners” it is said thus:

“The following are the rights of coparcener.—(1) Rightby birth, (2) Right of survivorship, (3) Right to partition, (4) Rightto joint possession and enjoyment, (5) Right to restrain unauthorisedacts, (6) Right of alienation, (7) Right to accounts, and (8) Rightto make self-acquisition.”

While dealing with “Right by Birth” learned author says thus:

“Every coparcener gets an interest by birth in thecoparcenary property. This right by birth relates back to the dateof conception. This, however, must not be held to negative theposition that coparcenary property may itself come into existenceafter the birth of the coparcener concerned.”

While dealing with right of survivorship, it is said thus:

“The system of joint family with its incident of successionby survivorship is peculiarity of the Hindu law. In such familyno member has any definite share and his death or somehowceasing to be member of the family causes no change in thejoint status of the family. Where coparcener dies without maleissue his interest in the joint family property passes to the othercoparceners by survivorship and not by succession to his ownheir. Even where coparcener becomes afflicted with lunacysubsequent to his birth, he does not lose his status as coparcenerwhich he has acquired by his birth, and although his lunacy mayunder the Hindu law disqualify him from demanding share in apartition in his family, yet where all the other coparceners die andhe becomes the sole surviving member of the coparcenary, hetakes the whole joint family property by survivorship, and becomesa fresh stock of descent to the exclusion of the daughter of thelast predeceased coparcener, case of leprosy of the last survivingcoparcener. The beneficial interest of each coparcener is liable tofluctuation, increasing by the death of another coparcener anddecreasing by the birth of new coparcener.”

ATherefore, it is now settled that member of coparcenaryacquires right in the property by birth. His share may fluctuatefrom time to time but his right by way of survivorship incoparcenary property in Mitakshara law is settled proposition.

(emphasis supplied)”

B38. In Rohit Chauhan v. Surinder Singh & Ors., (2013) 9 SCC419, the concept of coparcenary of sharing equally with others and nodefinite share, was discussed thus:

“11. We have bestowed our consideration to the rival submissionsand we find substance in the submission of Mr Rao. In our opinionCcoparcenary property means the property which consists ofancestral property and coparcener would mean person whoshares equally with others in inheritance in the estate of commonancestor. Coparcenary is narrower body than the joint Hindufamily and before the commencement of the Hindu SuccessionD(Amendment) Act, 2005, only male members of the family usedto acquire by birth an interest in the coparcenary property. Acoparcener has no definite share in the coparcenary property buthe has an undivided interest in it and one has to bear in mind thatit enlarges by deaths and diminishes by births in the family. It isnot static.We are further of the opinion that so long, on partitionEan ancestral property remains in the hand of single person, ithas to be treated as separate property and such person shallbe entitled to dispose of the coparcenary property treating it to behis separate property but if son is subsequently born, the alienationmade before the birth cannot be questioned. But, the moment aFson is born, the property becomes coparcenary property andthe son would acquire interest in that and become coparcener.”

(emphasis supplied)”

39. similar view was taken in Thamma Venkata Subramma(dead) by LR v. Thamnma Ratamma & Ors., (1987) 3 SCC 294, thatGthe share is not defined in coparcenary. It keeps on fluctuating on deathand birth in the family.

40. It is only on actual partition coparcener becomes entitled toa definite share. The interest of coparcener is called “undividedcoparcenary interest,” which remains undivided as held by the PrivyHCouncil in Katama Natchiar v. Srimat Rajah Moottoo Vijaya

Raganadha Bodha Gooroo Swamy Periya Odaya Taver, (1863) 9MIA 543.

In Shankara Cooperative Housing Society Ltd. v. M.Prabhakar &Ors., (2011) 5 SCC 607, it was observed that coparcenarybe collective ownership. If suit for recovery of property is filed, it isfor the benefit of all co-owners. The position of ownership of co-ownership property indicates change when actual division takes place,and co-owner’s share becomes identifiable. In Shankara Cooperative,it was observed:

“85. Shri Ranjit Kumar, learned Senior Counsel, contends thatthe writ petition was filed by one of the co-owners of late MandalBuchaiah and judgment and order passed would not bind the otherparties. We cannot agree. It is settled law that no co-owner hasa definite right, title and interest in any particular item or portionthereof. On the other hand, he has right, title and interest in everypart and parcel of the joint property or coparcenary under Hindulaw by all the coparceners. Our conclusion is fortified by the viewexpressed by this Court in A. Viswanatha Pillai v. Tahsildar(LA), (1991) 4 SCC 17 in which this Court observed: (SCC p. 21,para 2)

“2. … It is settled law that one of the co-owners can file asuit and recover the property against strangers and the decreewould enure to all the co-owners. It is equally settled law that noco-owner has definite right, title and interest in any particularitem or portion thereof. On the other hand he has right, title andinterest in every part and parcel of the joint property or coparcenaryunder Hindu law by all the coparceners. In KantaGoel v. B.P.Pathak, (1977) 2 SCC 814, this Court upheld an application byone of the co-owners for eviction of tenant for personal occupationof the co-owners as being maintainable. The same view wasreiterated in Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184,and Pal Singh v. Sunder Singh, (1989) 1 SCC 444. co-owneris as much an owner of the entire property as sole owner of theproperty. It is not correct to say that co-owner’s property wasnot its own. He owns several parts of the composite propertyalong with others and it cannot be said that he is only part owneror fractional owner in the property. That position will undergo achange only when partition takes place and division was effected

by metes and bounds. Therefore, co-owner of the property isan owner of the property acquired but entitled to receivecompensation pro rata.””

(emphasis supplied)

41. In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, (1986)B1 SCC 366, 3-Judge Bench of this Court held that character of jointfamily property does not change with the severance in the status of thejoint family before an actual partition takes place. It was observed thus:

“14. …The character of any joint family property does not changewith the severance of the status of the joint family and jointCfamily property continues to retain its joint family character solong as the joint family property is in existence and is not partitionedamongst the co-sharers. By unilateral act it is not open to anymember of the joint family to convert any joint family propertyinto his personal property.”

D42. In Bhagwati Prasad Sah & Ors. v. Dulhin RameshwariKuer & Anr., AIR 1952 SC 72, it was held that once coparcenerseparates himself from other members of the joint family, there is nopresumption that rest of the coparceners continued to be joint, it wouldbe question of fact in each case. Following discussion was made:

E“7. x xx The general principle undoubtedly is that Hindu familyis presumed to be joint unless the contrary is proved, but ……whereit is admitted that one of the coparceners did separate himselffrom the other members of the joint family and had his share inthe joint property partitioned off for him, there is no presumptionFthat the rest of the coparceners continued to be joint. There is nopresumption on the plaintiff’s side too that because one memberof the family separated himself, there has been separation withregard to all. It would be question of fact to be determined ineach case upon the evidence relating to the intention of the partieswhether there was separation amongst the other coparcenersGor that they remained united. The burden would undoubtedly lieon the party who asserts the existence of particular state ofthings on the basis of which he claims relief….”

In Ref. Unobstructed and obstructed heritage

43. In Mitakshara coparcenary, there is unobstructed heritage,i.e., apratibandhadaya and obstructed heritage i.e., sapratibandhadaya.When right is created by birth is called unobstructed heritage. At thesame time, the birthright is acquired in the property of the father,grandfather, or great grandfather. In case coparcener dies withoutleaving male issue, right is acquired not by birth, but by virtue of therebeing no male issue is called obstructed heritage. It is obstructed becausethe accrual of right to it is obstructed by the owner’s existence. It is onlyon his death that obstructed heritage takes place. Mulla on Hindu Lawhas discussed the concept thus:

“216. Obstructed and unobstructed heritage. – Mitaksharadivides property into two classes, namely, apratibandha daya orunobstructed heritage, and sapratibandha daya or obstructedheritage.

(1) Property in which person acquires an interest by birthis called unobstructed heritage, because the accrual of the right toit is not obstructed by the existence of the owner.

Thus, property inherited by Hindu from his father, father’sfather, or father’s father’s father, but not from his maternalgrandfather,[1] is unobstructed heritage as regards his own maleissue, i.e., his son, grandson, and great-grandson.[2] His male issuesacquire an interest in it from the moment of their birth. Their rightto it arises from the mere fact of their birth in the family, and theybecome coparceners with their paternal ancestor in such propertyimmediately on their birth, and in such cases ancestral property isunobstructed heritage.

Property, the right to which accrues not by birth but on thedeath of the last owner without leaving male issue, is calledobstructed heritage. It is called obstructed, because the accrualof right to it is obstructed by the existence of the owner.

Thus, property which devolves on parents, brothers,nephews, uncles, etc. upon the death of the last owner, is obstructed

1Muhamad Hussain v. Babu Kishava Nandan Sahai, (1937) 64 IA 250 : (1937) All 655:39 Bom LR 979: 169 IC 1: AIR 1937 PC 223; Om Prakash v. Sarvjit Singh, AIR 1995MP 92 (property inherited from person other than father, father’s father, or father’sfather’s father is obstructed heritage).

2Sirtaji v. Algu Upadhiya, (1937) 12 Luck 237: 163 IC 935: AIR 1936 Ori 331.

Aheritage. These relations do not take vested interest in theproperty by birth. Their right to it arises for the first time on thedeath of the owner. Until then, they have mere spes successionis,or bare chance of succession to the property, contingent upontheir surviving the owner.[3]

(2) Unobstructed heritage devolves by survivorship;obstructed heritage, by succession. There are, however, somecases in which obstructed heritage is also passed by survivorship.”

44. It is apparent that unobstructed heritage takes place by birth,and the obstructed heritage takes place after the death of the owner. ItCis significant to note that under section 6 by birth, right is given that iscalled unobstructed heritage. It is not the obstructed heritage dependingupon the owner’s death. Thus, coparcener father need not be alive on9.9.2005, date of substitution of provisions of Section 6.

In Ref. Section 6 of the Act of 1956

D45. Section 6 of the Act of 1956 before the substitution byAmendment Act, 2005 is reproduced hereunder :

“6. Devolution of interest in coparcenary property.—When amale Hindu dies after the commencement of this Act, havingat the time of his death an interest in MitaksharaEcoparcenary property, his interest in the property shall devolveby survivorship upon the surviving members of thecoparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving femalerelativespecified in Class I of the Schedule or male relativeFspecified in that Class who claims through such femalerelative, the interest of the deceased in the Mitaksharacoparcenary property shall devolve by testamentary orintestate succession, as the case may be, under this Act andnot by survivorship.

GExplanation I.—For the purposes of this section, the interestof HinduMitakshara coparcener shall be deemed to be theshare in the property that would have been allotted to him if apartition of the property had taken place immediately before

H3Mitakshara, Ch.I, S 1, v 3.

his death, irrespective of whether he was entitled to claimpartition or not.”

46. The substituted provision of section 6 by the Amendment Act,2005 is extracted hereunder:

“6. Devolution of interest in coparcenary property.-

(1) On and from the commencement of the Hindu Succession(Amendment) Act, 2005 , in Joint Hindu family governed by theMitakshara law, the daughter of coparcener shall,-

(a) by birth become coparcener in her own right in the samemanner as the son;

(b) have the same rights in the coparcenary property as she wouldhave had if she had been son;

(c) be subject to the same liabilities in respect of the saidcoparcenary property as that of son, and any reference to aHindu Mitakshara coparcener shall be deemed to include areference to daughter of coparcener:

Provided that nothing contained in this sub- section shall affect orinvalidate any disposition or alienation including any partition ortestamentary disposition of property which had taken place beforethe 20th day of December, 2004 .

(2) Any property to which female Hindu becomes entitled byvirtue of sub- section (1) shall be held by her with the incidents ofcoparcenary ownership and shall be regarded, notwithstandinganything contained in this Act, or any other law for the time beingin force, as property capable of being disposed of by her bytestamentary disposition.

(3) Where Hindu dies after the commencement of the HinduSuccession (Amendment) Act, 2005 , his interest in the propertyof Joint Hindu family governed by the Mitakshara law, shalldevolve by testamentary or intestate succession, as the case maybe, under this Act and not by survivorship, and the coparcenaryproperty shall be deemed to have been divided as if partitionhad taken place and,-

(a) the daughter is allotted the same share as is allotted to son;

(b) the share of the pre- deceased son or pre- deceased daughter,as they would have got had they been alive at the time of partition,shall be allotted to the surviving child of such pre- deceased sonor of such pre- deceased daughter; and

(c) the share of the pre-deceased child of pre- deceased son orBof pre- deceased daughter, as such child would have got had heor she been alive at the time of the partition, shall be allotted to thechild of such pre- deceased child of the pre- deceased son or apre- deceased daughter, as the case may be.

Explanation.- For the purposes of this sub- section, the interest ofCa Hindu Mitakshara coparcener shall be deemed to be the sharein the property that would have been allotted to him if partitionof the property had taken place immediately before his death,irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu SuccessionD(Amendment) Act, 2005 , no court shall recognise any right toproceed against son, grandson or great- grandson for therecovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under theHindu law, of such son, grandson or great- grandson to dischargeany such debt: Provided that in the case of any debt contractedEbefore the commencement of the Hindu Succession (Amendment)Act, 2005 , nothing contained in this sub- section shall affect-

(a) the right of any creditor to proceed against the son, grandsonor great- grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, anysuch debt, and any such right or alienation shall be enforceableunder the rule of pious obligation in the same manner and to thesame extent as it would have been enforceable as if the HinduSuccession (Amendment) Act, 2005 had not been enacted.

Explanation.- For the purposes of clause (a), the expression” son”,”Ggrandson” or” great- grandson” shall be deemed to refer to theson, grandson or great- grandson, as the case may be, who wasborn or adopted prior to the commencement of the HinduSuccession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to partition,which has been effected before the 20th day of December, 2004.

Explanation.- For the purposes of this section” partition” meansany partition made by execution of deed of partition duly registeredunder the Registration Act, 1908 (16 of 1908 ) or partition effectedby decree of court.’.”

47. Statement of Objects and Reasons behind the introduction ofBill is reproduced as under:

“STATEMENT OF OBJECTS AND REASONS

The Hindu Succession Act, 1956 has amended and codifiedthe law relating to intestate succession among Hindus. The Actbrought about changes in the law of succession among Hindusand gave rights which were till then unknown in relation to women’sproperty. However, it does not interfere with the special rights ofthose who are members of Hindu Mitakshara coparcenary exceptto provide rules for devolution of the interest of deceased malein certain cases. The Act lays down uniform and comprehensivesystem of inheritance and applies, inter alia, to persons governedby the Mitakshara and Dayabhaga schools and also to thosegoverned previously by the Murumakkattayam, Aliyasantana andNambudri laws. The Act applies to every person who is Hinduby religion in any of its forms or developments including aVirashaiva, Lingayat or follower of the Brahmo, Pararthanaor Arya Samaj; or to any person who is Buddhist, Jain or Sikh byreligion; or to any other person who is not Muslim, Christian,Parsi or Jew by religion. In the case of testamentary disposition,this Act does not apply and the interest of the deceased is governedby the Indian Succession Act, 1925.

2. Section 6 of the Act deals with devolution of interest of malehindu in coparcenary property and recognises the rule of devolutionby survivorship among the members of the coparcenary. Theretention of the Mitakashara coparcenary property withoutincluding the females in it means that the females cannot inherit inancestral property as their male counterparts do. The law byexcluding the daughter from participating in the coparcenaryownership not only contributes to her discrimination on the groundof gender but also has led to oppression and negation of her

CDEF

Afundamental right of equality guaranteed by the Constitution. havingregard to the need to render social justice to women, the States ofAndhra Pradesh, Tamil Nadu, Karnataka and Maharashtra havemade necessary changes in the law giving equal right to daughtersin Hindu Mitakshara coparcenary property. The Kerala Legislaturehas enacted the Kerala Joint Hindu Family System (Abolition)BAct, 1975.

3. It is proposed to remove the discrimination as contained insection 6 of the Hindu Succession Act, 1956 by giving equal rightsto daughters in the Hindu Mitakshara coparcenary property asthe sons have. Section 23 of the Act disentitles female heir toCask for partition in respect of dwelling house wholly occupiedby joint family until the male heirs choose to divide their respectiveshares therein. It is also proposed to omit the said section so as toremove the disability on female heirs contained in that section.

4. The above proposals are based on the recommendations of theLaw Commission of India as contained in its 174th Report on“Property Rights of Women: Proposed Reform under the HinduLaw”.

5. The Bill seeks to achieve the above objects.

ENEW DELHI;

The 16th December, 2004.”

48. Section 6 deals with devolution of interest in coparcenaryproperty of joint Hindu family governed by the Mitakshara law. Theoriginally enacted provision of section 6 excluded the rule of successionFconcerning Mitakshara coparcenary property. It provided the interest ofa coparcener male Hindu who died after the commencement of Act of1956, shall be governed by survivorship upon the surviving members ofthe coparcenary. The exception was provided that if the deceased hadleft surviving female relative specified in Class I of the Schedule or amale relative specified in that Class who claims through such femaleGrelative, the interest of such coparcener shall devolve by testamentaryor intestate succession, as the case may be, in order to ascertain theshare of deceased coparcener, the partition has to be deemed before hisdeath. Explanation 2 disentitled the separated person to make any claimin case of intestate succession.H

49. Though the widow or daughter could claim share, being aClass I heir in the property left by the deceased coparcener, and widowwas entitled, having right to claim share in the event of partitiondaughter was not treated as coparcener. The goal of gender justice asconstitutionally envisaged is achieved though belatedly, and thediscrimination made is taken care of by substituting the provisions ofsection 6 by Amendment Act, 2005.

50. Concerning gender discrimination to daughter who alwaysremains loving daughter, we quoteSavita Samvedi (Ms) & Anr. v.Union of India & Ors., 1996 (2) SCC 380, thus:

“6. common saying is worth pressing into service….

“A son is son until he gets wife. daughter is daughterthroughout her life.”

7. …The eligibility of married daughter must be placed on parwith an unmarried daughter (for she must have been once in thatstate), …..to claim the benefit…..

…(Otherwise, it would be) unfair, gender-biased and unreasonable,liable to be struck down under Article 14 of the Constitution. … Itsuffers from twin vices of gender discrimination inter se amongwomen on account of marriage.”

51. The daughter is treated as coparcener in the same manneras son by birth with the same rights in coparcenary property andliabilities. However, the proviso of sub-section (1) contains non-obstanteclause providing that nothing contained in the sub-section shall affect orinvalidate any disposition or alienation including any partition ortestamentary disposition of the property which had taken place before20.12.2004.

52. It is apparent from the provisions of section 6 that thediscrimination with the daughter has been done away with, and theyhave been provided equal treatment in the matter of inheritance withMitakshara coparcenary. In several States viz., Andhra Pradesh, TamilNadu, Karnataka, and Maharashtra, the State Amendments in the Actof 1956 were made to extend equal rights to daughters in HinduMitakshara coparcenary property. An amendment was made on30.7.1994 by the insertion of Section 6A by Karnataka Act 23 of 1994 inthe Act of 1956. In-State of Andhra Pradesh, the amendment was made,

Aw.e.f. 5.9.1985, Tamil Nadu w.e.f 25.3.1989 and Maharashtra w.e.f.26.9.1994 by the addition of Section 29A in the Act of 1956. In Kerala,the Act was enacted in 1975.

53. Before the amendment, section 6 provided that on the deathof male Hindu, coparcener’s interest in Mitakshara coparcenaryBshall devolve by survivorship upon the surviving members of thecoparcenary under the uncodified Hindu law and not in accordance withthe mode of succession provided under the Act of 1956. It was providedby the proviso to section 6, in case male Hindu of Mitaksharacoparcenary has left surviving female relative of Class I heir or malerelative who claims through such female relative of Class I. The ScheduleCcontaining categories of Class I heirs is extracted hereunder:

“THE SCHEDULE

(See section 8)

HEIRS IN CLASS I AND CLASS II

Class I

Son, daughter, widow; mother; son of pre-deceased son; daughterof pre-deceased son, son of pre-deceased daughter, daughterof pre-deceased daughter; widow of pre-deceased son, sonof pre-deceased son of pre-deceased son; daughter of pre-Edeceased son of pre-deceased son; widow of pre-deceasedson of pre-deceased son; [son of pre-deceased daughter of apre-deceased daughter, daughter of pre-deceased daughter ofa pre-deceased daughter, daughter of pre-deceased son of apre-deceased daughter, daughter of pre-deceased daughter ofFa pre-deceased so.”

54. In view of the provisions contained in section 6 when acoparcener is survived by female heir of Class I or male relative ofsuch female, it was necessary to ascertain the share of the deceased, assuch, legal fiction was created. The Explanation I provided legal fictionGof partition as if it had taken place immediately before his death,notwithstanding whether he had the right to claim it or not. However, aseparated Hindu could not claim an interest in the coparcenary based onintestacy in the interest left by the deceased.

55. The amended provisions of section 6(1) provide that on andHfrom the commencement of the Amendment Act, the daughter is conferred

the right. Section 6(1)(a) makes daughter by birth coparcener “in herown right” and “in the same manner as the son.” Section 6(1)(a) containsthe concept of the unobstructed heritage of Mitakshara coparcenary,which is by virtue of birth. Section 6(1)(b) confers the same rights in thecoparcenary property “as she would have had if she had been son”.The conferral of right is by birth, and the rights are given in the samemanner with incidents of coparcenary as that of son and she is treatedas coparcener in the same manner with the same rights as if she hadbeen son at the time of birth. Though the rights can be claimed, w.e.f.9.9.2005, the provisions are of retroactive application; they confer benefitsbased on the antecedent event, and the Mitakshara coparcenary lawshall be deemed to include reference to daughter as coparcener.At the same time, the legislature has provided savings by adding provisothat any disposition or alienation, if there be any testamentary dispositionof the property or partition which has taken place before 20.12.2004, thedate on which the Bill was presented in the Rajya Sabha, shall not beinvalidated.

56. The prospective statute operates from the date of its enactmentconferring new rights. The retrospective statute operates backward andtakes away or impairs vested rights acquired under existing laws. Aretroactive statute is the one that does not operate retrospectively. Itoperates in futuro. However, its operation is based upon the characteror status that arose earlier. Characteristic or event which happened inthe past or requisites which had been drawn from antecedent events.Under the amended section 6, since the right is given by birth, that is anantecedent event, and the provisions operate concerning claiming rightson and from the date of Amendment Act.57. The concept of retrospective and retroactive statute was statedby this Court in Darshan Singh etc. v. Ram Pal Singh &Anr., (1992Supp. (1) SCC 191, thus:

“35. Mr Sachar relies on Thakur Gokulchand v. Parvin Kumari,AIR 1952 SC 231, Garikapatti Veeraya v. N. SubbiahChoudhury, AIR 1957 SC 540, Jose Da Costa v. BascoraSadasiva Sinai Narcornim, (1976) 2 SCC 917, Govind Das v.ITO, (1976) 1 SCC 906, Henshall v. Porter, (1923) 2 KBD 193,United Provinces v. Mst. Atiga Begum, AIR 1941 FC 16, insupport of his submission that the Amendment Act was not maderetrospective by the legislature either expressly or by necessary

Aimplication as the Act itself expressly provided that it shall bedeemed to have come into force on January 23, 1973; and thereforethere would be no justification to giving it retrospective operation.The vested right to contest which was created on the alienationhaving taken place and which had been litigated in the court, arguesMr Sachar, could not be taken away. In other words, the vestedBright to contest in appeal was not affected by the AmendmentAct. However, to appreciate this argument we have to analyseand distinguish between the two rights involved, namely, the rightto contest and the right to appeal against lower court’s decision.Of these two rights, while the right to contest is customary right,Cthe right to appeal is always creature of statute. The change ofthe forum for appeal by enactment may not affect the right ofappeal itself. In the instant case we are concerned with the rightto contest and not with the right to appeal as such. There is alsono dispute as to the propositions of law regarding vested rightsbeing not taken away by an enactment which is ex facie or byDimplication not retrospective. But merely because an Act envisagesa past act or event in the sweep of its operation, it may notnecessarily be said to be retrospective. Retrospective, accordingto Black’s Law Dictionary, means looking backward;contemplating what is past; having reference to statute or thingsEexisting before the Act in question. Retrospective law, accordingto the same dictionary, means law which looks backward orcontemplates the past; one which is made to affect acts or factsoccurring, or rights occurring, before it came into force. Everystatute which takes away or impairs vested rights acquired underexisting laws, or creates new obligation, imposes new duty, orFattaches new disability in respect to transactions or considerationsalready past. Retroactive statute means statute which creates anew obligation on transactions or considerations already past ordestroys or impairs vested rights.

36. In Halsbury’s Laws of England (4th edn., Vol. 44, at paragraphG921) we find:

“921. Meaning of ‘retrospective’.— It has been said that‘retrospective’ is somewhat ambiguous and that good deal ofconfusion has been caused by the fact that it is used in moresenses than one. In general, however, the courts regard as

retrospective any statute which operates on cases or facts cominginto existence before its commencement in the sense that it affects,even if for the future only, the character or consequences oftransactions previously entered into or of other past conduct. Thusa statute is not retrospective merely because it affects existingrights; or is it retrospective merely because part of the requisitesfor its action is drawn from time antecedent to its passing.”

37. We are inclined to take the view that in the instantcase legislature looked back to January 23, 1973 and not beyondto put an end to the custom and merely because on that cut offdate some contests were brought to abrupt end would not makethe Amendment Act retrospective. In other words, it wouldnot be retrospective merely because part of the requisitesfor its action was drawn from time antecedent to theAmendment Act coming into force. We are also of the viewthat while providing that “no person shall contest any alienationof immovable property whether ancestral or non-ancestral orany appointment of an heir to such property”, without preservingany right to contest such alienations or appointments as weremade after the coming into force of the Principal Act and beforethe coming into force of the Amendment Act, the intention ofthe legislature was to cut off even the vested right; and that itwas so by implication as well. There is no dispute as to theproposition that retrospective effect is not to be given to anAct unless, the legislature made it so by express words ornecessary implication. But in the instant case it appears thatthis was the intention of the legislature. Similarly courts will

construe provision as conferring power to act retroactivelywhen clear words are used. We find both the intention andlanguage of the Amendment Act clear in these respects.”

58. In G. Sekar v. Geetha &Ors., (2009) 6 SCC 99 with respectto the operation of Amendment Act, 2005, it was observed that the sameis prospective in nature and not retrospective thus:

“30. Neither the 1956 Act nor the 2005 Act seeks to reopen vestingof right where succession had already been taken place. Theoperation of the said statute is no doubt prospective in nature.The High Court might have committed mistake in opining thatthe operation of Section 3 of the 2005 Act is retrospective in

Acharacter, but, for the reasons aforementioned, it does not makeany difference. What should have been held was that although itis not retrospective in nature, its application is prospective.”

59. The decision in G. Sekar (supra) concerned with the provisionsof section 23 of the Hindu Succession Act prior to its deletion, w.e.f.B9.9.2005. The question involved therein was the effect of the deletion byAmendment Act of 2005. The suit for partition of the residential dwellinghouse was not maintainable under section 23. In that context, theobservations were made by this Court. In Sheela Devi (supra), thequestion was whether Section 8 of the Act of 1956 would apply or thelaw applicable prior to the Act of 1956.C60. Section 6(2) provides when the female Hindu shall hold theproperty to which she becomes entitled under section 6(1), she will bebound to follow rigors of coparcenary ownership, and can dispose of theproperty by testamentary mode.D61. With respect to Hindu who dies after the commencement ofthe Amendment Act, 2005, as provided in section 6(3) his interest shallpass by testamentary or intestate succession and not by survivorship,and there is deemed partition of the coparcenary property in order toascertain the shares which would have been allotted to his heirs hadthere been partition. The daughter is to be allotted the same share as aEson; even surviving child of pre-deceased daughter or son are given ashare in case child has also died then surviving child of such pre-deceasedchild of pre-deceased son or pre-deceased daughter would be allottedthe same share, had they been alive at the time of deemed partition.Thus, there is sea-change in substituted section 6. In case of death ofFcoparcener after 9.9.2005, succession is not by survivorship but inaccordance with section 6(3)(1). The Explanation to section 6(3) is thesame as Explanation I to section 6 as originally enacted. Section 6(4)makes daughter liable in the same manner as that of son. The daughter,grand-daughter, or great-grand-daughter, as the case may be, is equallybound to follow the pious obligation under the Hindu Law to dischargeGany such debt. The proviso saves the right of the creditor with respect tothe debt contracted before the commencement of Amendment Act, 2005.The provisions contained in section 6(4) also make it clear that provisionsof section 6 are not retrospective as the rights and liabilities are bothfrom the commencement of the Amendment Act.

62. The proviso to section 6(1) and section 6(5) saves any partitioneffected before 20.12.2004. However, Explanation to section 6(5)recognises partition effected by execution of deed of partition dulyregistered under the Registration Act, 1908 or by decree of court.Other forms of partition have not been recognised under the definitionof ‘partition’ in the Explanation.

63. Considering the principle of coparcenary that person isconferred the rights in the Mitakshara coparcenary by birth, similarly,the daughter has been recognised and treated as coparcener, withequal rights and liabilities as of that of son. The expression used insection 6 is that she becomes coparcener in the same manner as son.By adoption also, the status of coparcener can be conferred. The conceptof uncodified Hindu law of unobstructed heritage has been given aconcrete shape under the provisions of section 6(1)(a) and 6(1)(b).Coparcener right is by birth. Thus, it is not at all necessary that thefather of the daughter should be living as on the date of the amendment,as she has not been conferred the rights of coparcenerby obstructedheritage. According to the Mitakshara coparcenary Hindu law, asadministered which is recognised in section 6(1), it is not necessary thatthere should be living, coparcener or father as on the date of theamendment to whom the daughter would succeed. The daughter wouldstep into the coparcenary as that of son by taking birth before or afterthe Act. However, daughter born before can claim these rights only witheffect from the date of the amendment, i.e., 9.9.2005 with saving of pasttransactions as provided in the proviso to section 6(1) read with section6(5).

64. The effect of the amendment is that daughter is madecoparcener, with effect from the date of amendment and she can claimpartition also, which is necessary concomitant of the coparcenary.Section 6(1) recognises joint Hindu family governed by Mitaksharalaw. The coparcenary must exist on 9.9.2005 to enable the daughter ofa coparcener to enjoy rights conferred on her. As the right is by birth andnot by dint of inheritance, it is irrelevant that coparcener whose daughteris conferred with the rights is alive or not. Conferral is not based on thedeath of father or other coparcener. In case living coparcener diesafter 9.9.2005, inheritance is not by survivorship but by intestate ortestamentary succession as provided in substituted section 6(3).

AIn ref: Effect of enlargement of daughter’s rights

65. Under the proviso to section 6 before the amendment made inthe year 2005 in case coparcener died leaving behind female relativeof Class I heir or male descendant claiming through such Class I femaleheir, the daughter was one of them. Section 6, as substituted, presupposesBthe existence of coparcenary. It is only the case of the enlargement ofthe rights of the daughters. The rights of other relatives remain unaffectedas prevailed in the proviso to section 6 as it stood before amendment.

66. As per the Mitakshara law, no coparcener has any fixed share.It keeps on fluctuating by birth or by death. It is the said principle ofCadministration of Mitakshara coparcenary carried forward in statutoryprovisions of section 6. Even if coparcener had left behind female heirof Class I or male claiming through such female Class I heir, there isno disruption of coparcenary by statutory fiction of partition. Fiction isonly for ascertaining the share of deceased coparcener, which wouldbe allotted to him as and when actual partition takes place. The deemedDfiction of partition is for that limited purpose. The classic Shastric Hindulaw excluded the daughter from being coparcener, which injustice hasnow been done away with by amending the provisions in consonancewith the spirit of the Constitution.

67. There can be sole surviving coparcener in given case theEproperty held by him is treated individual property till son is born. Incase there is widow or daughter also, it would be treated as jointfamily property. If the son is adopted, he will become coparcener. Anadoption by widow of deceased coparcener related to the date ofher husband’s death, subject to saving the alienations made in theFintermittent period.

In Ref.Acquisition of Rights in Coparcenary Property

68. It is by birth that interest in the property is acquired. Devolutionon the death of coparcener before 1956 used to be only by survivorship.After 1956, women could also inherit in exigencies, mentioned in theGproviso to unamended section 6. Now by legal fiction, daughters aretreated as coparceners. No one is made coparcener by devolution ofinterest. It is by virtue of birth or by way of adoption obviously within thepermissible degrees; person is to be treated as coparcener and nototherwise.H

69. The argument raised that if the father or any other coparcenerdied before the Amendment Act, 2005, the interest of the father or othercoparcener would have already merged in the surviving coparcenary,and there was no coparcener alive from whom the daughter wouldsucceed. We are unable to accept the submission because it is not bythe death of the father or other coparcener that rights accrue. It is bythe factum of birth. It is only when female of Class I heir is left, or incase of her death, male relative is left, the share of the deceasedcoparcener is fixed to be distributed by deemed partition, in the eventof an actual partition, as and when it takes place as per the proviso tounamended section 6. The share of the surviving coparcener may undergochange till the actual partition is made. The proviso to section 6 does notcome in the way offormation of coparcenary, and who can be acoparcener. The proviso to section 6 as originally stood, contained anexception to the survivorship right. The right conferred under substitutedsection 6(1) is not by survivorship but by birth. The death of everycoparcener is inevitable. How the property passes on death is not relevantfor interpreting the provisions of section 6(1). Significant is how right ofa coparcener is acquired under Mitakshara coparcenary. It cannot beinferred that the daughter is conferred with the right only on the death ofa living coparcener, by declaration contained in section 6, she has beenmade coparcener. The precise declaration made in section 6 (1) has tobe taken to its logical end; otherwise, it would amount to denial of thevery right to daughter expressly conferred by the legislature.Survivorshipas mode of succession of property of Mitakshara coparcener, hasbeen abrogated with effect from 9.9.2005 by section 6(3).

70. The decision in Bireswar Mookerji & Ors. v. Shib ChunderRoy (supra), was relied upon to contend that adoption is only of maleand not female as held in Amarendra Man Singh Bhramarbar &Anr. v. Sanatan Singh & Ors., (supra), male becomes coparcenerby birth or adoption. There is no dispute with the custom, which wasprevalent earlier that there could be the adoption of male child and notthat of females. There is no dispute with the proposition that acoparcenary right accrued to males under the prevalent law by birth oradoption. In the same manner, right is accrued by birth to the daughterunder the provisions of section 6. The legislature in section 6 used theterm that daughter becomes coparcener by birth. The claim based onbirth is distinguishable and is different from modes of succession.

A71. It was argued that in case Parliament intended that the incidentof birth prior to 2005 would be sufficient to confer the status of acoparcener, Parliament would need not have enacted the proviso tosection 6(1). When we read the provisions conjointly, when right is givento the daughter of coparcener in the same manner as son by birth, itbecame necessary to save the dispositions or alienations, including anyBpartition or testamentary succession, which had taken place before20.12.2004. daughter can assert the right on and from 9.9.2005, andthe proviso saves from invalidation above transactions.72. It was argued that in the eventuality of the death of father orother coparcener, the parties would have not only partitioned their assetsCbut also acted in pursuance of such partition. However, partitions havebeen taken care of by the proviso to section 6(1) and 6(5). Parliamenthas not intended to upset all such transactions as specified in the provisoto section 6(1).

73. It was vehemently argued that if the daughter is given theDright to be coparcener by birth and deemed to become coparcener atany point in the past, in the normal working of the law, uncertainty wouldbe caused. In our opinion, no uncertainty is brought about by the provisionsof section 6 as the law of Mitakshara coparcenary makes the share ofsurviving coparceners uncertain till actual partition takes place.EUncertainty in the right of share in Mitakshara coparcenary is inheredin its underlying principles, and there is no question of upturning it whenthe daughter is treated like son and is given the right by birth; to beexercised from particular date, i.e., 9.9.2005. It is not to resurrect thepast but recognising an antecedent event for conferral of rights,prospectively. There is no doubt about it that advancement brings aboutFthe enlargement of the size of the coparcenary and disabling it fromtreating the daughter unequally. Even otherwise, its size could be enlargedby the birth of son also. By applying section 8, the joint possession wasnot repudiated by the fact that female, whether wife or daughter,inherited the share of coparcener under the proviso to original section 6.GShe was an equal member of the joint Hindu family and deemed statutorypartition did not bring disruption of the coparcenary.

74. In Prakash v. Phulavati, father died in the year 1988,daughters filed suit for partition in 1992, same was dismissed in 2007,entitlement was given to the daughters to share on notional partitionHunder the proviso to section 6 in the share of the coparcener father.

However, the High Court applied the amended provisions of section 6 tothe pending proceedings and treated daughters equally with sons. Assuch, the matter travelled to this Court. It was held that the proviso is notretrospective. The requirement of partition being registered can have noapplication to statutory notional partition, on the opening of successionas per the unamended proviso to section 6, having regard to the natureof such partition, which is by operation of law. It was opined:

“17. The text of the amendment itself clearly provides thatthe right conferred on “daughter of coparcener” is “on andfrom the commencement of the Hindu Succession (Amendment)Act, 2005”. Section 6(3) talks of death after the amendment forits applicability. In view of plain language of the statute, there isno scope for different interpretation than the one suggested bythe text of the amendment. An amendment of substantiveprovision is always prospective unless either expressly or bynecessary intendment it is retrospective.[Shyam Kumar v. RamKumar, (2001) 8 SCC 24, paras 22 to 27] In the present case,there is neither any express provision for giving retrospective effectto the amended provision nor necessary intendment to that effect.Requirement of partition being registered can have no applicationto statutory notional partition on opening of succession as perunamended provision, having regard to nature of such partitionwhich is by operation of law. The intent and effect of theamendment will be considered little later. On this finding, theview of the High Court cannot be sustained.18. The contention of the respondents that the amendmentshould be read as retrospective being piece of social legislationcannot be accepted. Even social legislation cannot be givenretrospective effect unless so provided for or so intended by thelegislature. In the present case, the legislature has expressly madethe amendment applicable on and from its commencement andonly if death of the coparcener in question is after the amendment.Thus, no other interpretation is possible in view of the expresslanguage of the statute. The proviso keeping dispositions oralienations or partitions prior to 20-12-2004 unaffected can alsonot lead to the inference that the daughter could be coparcenerprior to the commencement of the Act. The proviso only meansthat the transactions not covered thereby will not affect the extent

of coparcenary property which may be available when the mainprovision is applicable. Similarly, Explanation has to be readharmoniously with the substantive provision of Section 6(5) bybeing limited to transaction of partition effected after 20-12-2004. Notional partition, by its very nature, is not covered eitherunder the proviso or under sub-section (5) or under the Explanation.

23. Accordingly, we hold that the rights under theamendment are applicable to living daughters of living coparcenersas on 9-9-2005 irrespective of when such daughters are born.Disposition or alienation including partitions which may have takenplace before 20-12-2004 as per law applicable prior to the saiddate will remain unaffected. Any transaction of partition effectedthereafter will be governed by the Explanation.

27.2. In Gurupad Khandappa Magdum v. HirabaiKhandappa Magdum(1978) 3 SCC 383, Shyama Devi v.Manju Shukla (1994) 6 SCC 342 and Anar Devi v. ParmeshwariDevi (2006) 8 SCC 656 cases this Court interpreted Explanation1 to Section 6 (prior to the 2005 Amendment) of the HinduSuccession Act. It was held that the deeming provision referringto partition of the property immediately before the death of thecoparcener was to be given due and full effect in view of settledprinciple of interpretation of provision incorporating deemingfiction. In Shyama Devi (supra) and Anar Devi (supra) cases,same view was followed.

27.3. In Vaishali Satish Ganorkar v. Satish KeshaoraoGanorkar, AIR 2012 Bom. 101, the Bombay High Court heldthat the amendment will not apply unless the daughter is bornafter the 2005 Amendment, but on this aspect different viewhas been taken in the later larger Bench judgment [AIR 214 Bom151]. We are unable to find any reason to hold that birth of thedaughter after the amendment was necessary condition for itsapplicability. All that is required is that daughter should be aliveand her father should also be alive on the date of the amendment.”75. finding has been recorded in Prakash v. Phulavati that therights under the substituted section 6 accrue to living daughters of livingcoparceners as on 9.9.2005 irrespective of when such daughters areborn. We find that the attention of this Court was not drawn to theaspect as to how coparcenary is created. It is not necessary to form acoparcenary or to become coparcener that predecessor coparcenershould be alive; relevant is birth within degrees of coparcenary to whichit extends. Survivorship is the mode of succession, not that of theformation of coparcenary. Hence, we respectfully find ourselves unableto agree with the concept of “living coparcener”, as laid down in Prakashv. Phulavati. In our opinion, the daughters should be living on 9.9.2005.In substituted section 6, the expression ‘daughter of living coparcener’has not been used. Right is given under section 6(1)(a) to the daughterby birth. Declaration of right based on the past event was made on9.9.2005 and as provided in section 6(1(b), daughters by their birth, havethe same rights in the coparcenary, and they are subject to the sameliabilities as provided in section 6(1)(c). Any reference to the coparcenershall include reference to the daughter of coparcener. The provisionsof section 6(1) leave no room to entertain the proposition that coparcenershould be living on 9.9.2005 through whom the daughter is claiming. Weare unable to be in unison with the effect of deemed partition for thereasons mentioned in the latter part.

76. In Mangammal v. T.B. Raju & Ors. (supra), the Courtconsidered the provisions made in the State of Tamil Nadu, the StateGovernment enacted the Hindu Succession (Tamil Nadu Amendment)Act, 1989, made effective from 25.3.1989, adding section 29-A in theHindu Succession Act, 1956. Section 29A was held to be valid regardingsuccession by survivorship. Section 29A provided equal rights to daughtersin coparcenary property. The provisions were more or less similar, exceptsection 29A(iv) treated married daughter differently. The provisionswere not applicable to the daughters married before the date ofcommencement of Amendment Act, 1989. Thus, married daughters werenot entitled to equal rights. That too, has been taken care of in section 6,as substituted by Act of 2005, and no discrimination is made againstmarried daughters. In the said case, Mangammal got married in 1981,and Indira got married in or about 1984, i.e., before the 1989 Amendment.Therefore, it was held that because of section 29-A(iv) of the AmendmentAct, the appellant could not institute suit for partition and separatepossession as they were not coparceners. The decisions in Prakash v.

APhulavati and Danamma were referred, and it was opined that Prakashv. Phulavati would still hold the value of precedent for right of daughterin ancestral property and only “living daughters of living coparceners”as on 9.9.2005 would be entitled to claim share in the coparcenaryproperty. In Mangammal, the Court opined thus:

B“15. Moreover, under Section 29-A of the Act, thelegislature has used the word “the daughter of coparcener.”Here, the implication of such wordings mean both the coparceneras well as daughter should be alive to reap the benefits of thisprovision at the time of commencement of the amendment of1989. The similar issue came up for the consideration before thisCCourt in Prakash v. Phulavati, (2016) 2 SCC 36, wherein thisCourt while dealing with the identical matter held at para 23 asunder (SCC p. 49)

“23. Accordingly, we hold that the rights under theamendment are applicable to living daughters of livingDcoparceners as on 9-9-2005 irrespective of when such daughtersare born.”

(emphasis supplied)

16. It is pertinent to note here that recently, this Court inEDanamma v. Amar, (2018) 3 SCC 343, dealt, inter alia, with thedispute of daughter’s right in the ancestral property. In the abovecase, father of the daughter died in 2001, yet court permitted thedaughter to claim the right in ancestral property in view of theamendment in 2005. On perusal of the judgment and after havingregard to the peculiar facts of the Danamma(supra), it is evidentFthat the Division Bench of this Court primarily did not deal withthe issue of death of the father rather it was mainly related to thequestion of law whether daughter who was born prior to 2005amendment would be entitled to claim share in ancestralproperty or not? In such circumstances, in our view, Prakash,G(2016) 2 SCC 36, would still hold precedent on the issue of deathof coparcener for the purpose of right of daughter in ancestralproperty. Shortly put, only living daughters of living coparcenerswould be entitled to claim share in the ancestral property.

17. Hence, without touching any other aspect in the presentcase, we are of the view that the appellants were not the

coparceners in the Hindu joint family property in view of the 1989amendment, hence, they had not been entitled to claim partitionand separate possession at the very first instance. At the most,they could claim maintenance and marriage expenses if situationwarranted.”

It is apparent that the question of living daughter of livingcoparcener was not involved in the matter, once this Court held that themarried daughters were not entitled to claim partition and separatepossession as marriage had taken place prior to the enforcement of the1989 amendment, as observed in para 17 quoted above. However, thisCourt opined that the decision in Prakash v. Phulavati, laying downthat only living daughters of living coparceners would be entitled to claima share in the ancestral property under section 6 of the Act of 1956. Theopinion expressed cannot be accepted for the reasons mentioned above.Moreover, it was not necessary to go into the aforesaid question.

77. In Danamma, Division Bench of this Court dealt with theinterpretation of amended provisions of section 6. The decision in AnarDevi v. Parmeshwari Devi (supra) was relied upon. It was observedthat the controversy concerning the interpretation of section 6 now standssettled with authoritative pronouncement in Prakash v. Phulavati whichaffirmed the view taken by the High Court as well as Full Bench inBadrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari,AIR 2014 Bom. 151. In Danamma, the Court further opined:

“23. Section 6, as amended, stipulates that on and fromthe commencement of the amended Act, 2005, the daughter of acoparcener shall by birth become coparcener in her own rightin the same manner as the son. It is apparent that the statusconferred upon sons under the old section and the old Hindu Lawwas to treat them as coparceners since birth. The amendedprovision now statutorily recognises the rights of coparceners ofdaughters as well since birth. The section uses the words in thesame manner as the son. It should therefore be apparent thatboth the sons and the daughters of coparcener have beenconferred the right of becoming coparceners by birth. It is thevery factum of birth in coparcenary that creates thecoparcenary, therefore the sons and daughters of coparcenerbecome coparceners by virtue of birth. Devolution ofcoparcenary property is the later stage of and consequence of

death of coparcener. The first stage of coparcenary is obviouslyits creation as explained above, and is well recognised. One ofthe incidents of coparcenary is the right of coparcener to seek aseverance of status. Hence, the rights of coparceners emanateand flow from birth (now including daughters) as is evident fromsub-sections (1)(a) and (b).

25. Hence, it is clear that the right to partition has not beenabrogated. The right is inherent and can be availed of by anycoparcener, now even daughter who is coparcener.

26. In the present case, no doubt, suit for partition wasfiled in the year 2002. However, during the pendency of this suit,Section 6 of the Act was amended as the decree was passed bythe trial court only in the year 2007. Thus, the rights of the appellantsgot crystallised in the year 2005 and this event should have beenkept in mind by the trial court as well as by the High Court. ThisCourt in Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9SCC 788, held that the rights of daughters in coparcenary propertyas per the amended Section 6 are not lost merely because apreliminary decree has been passed in partition suit. So far aspartition suits are concerned, the partition becomes final only onthe passing of final decree. Where such situation arises, thepreliminary decree would have to be amended taking into accountthe change in the law by the amendment of 2005.

27. On facts, there is no dispute that the property whichwas the subject-matter of partition suit belongs to joint family andGurulingappa Savadi was propositus of the said joint familyproperty. In view of our aforesaid discussion, in the said partitionsuit, share will devolve upon the appellants as well. Since, Savadidied leaving behind two sons, two daughters and widow, boththe appellants would be entitled to 1/5th share each in the saidproperty. The plaintiff (Respondent 1) is son of Arun Kumar(Defendant 1). Since, Arun Kumar will have 1/5th share, it wouldbe divided into five shares on partition i.e. between Defendant 1Arun Kumar, his wife Defendant 2, his two daughters Defendants3 and 4 and son/plaintiff (Respondent 1). In this manner,Respondent 1-plaintiff would be entitled to 1/25th share in theproperty.”

78. In Danamma, it is pertinent to mention that Gurulingappa,propositus of Hindu joint family and the father of living daughtercoparcener died in 2001, before the Amendment Act, 2005 came intoforce, leaving behind two daughters, son and widow. Daughters weregiven equal rights by this Court. We agree with certain observationsmade in paras 23 and 25 to 27 (supra) but find ourselves unable to agreewith the earlier part approving the decision in Prakash v. Phulavati andthe discussion with respect to the effect of the statutory partition. As amatter of fact, in substance, there is divergence of opinion in Prakashv. Phulavati and Danamma with respect to the aspect of living daughterof living coparcener. In the latter case, the proposition of the livingdaughter of living coparcener was not dealt with specifically. However,the effect of reasons given in para 23 had been carried out to logical endby giving an equal share to the daughter.

In Ref. Partition and Effect of Statutory Fiction

79. The right to claim partition is significant basic feature of thecoparcenary, and coparcener is one who can claim partition. Thedaughter has now become entitled to claim partition of coparcenary w.e.f.9.9.2005, which is vital change brought about by the statute. Acoparcener enjoys the right to seek severance of status. Under section6(1) and 6(2), the rights of daughter are paripassu with son. In theeventuality of partition, apart from sons and daughters, the wife of thecoparcener is also entitled to an equal share. The right of the wife of acoparcener to claim her right in property is in no way taken away.80. We deem it appropriate to refer to the decision in Hardeo Raiv. Sakuntala Devi & Ors., (2008) 7 SCC 46 laying down that when anintention is expressed to partition the coparcenary property, the share ofeach of the coparceners becomes clear and ascertainable. Once theshare of coparcener is determined, it ceases to be coparcenaryproperty. After taking definite share in the property, coparcenerbecomes the owner of that share, and, as such, he can alienate the sameby sale or mortgage in the same manner as he can dispose of his separateproperty. It was observed:

“22. For the purpose of assigning one’s interest in the property, itwas not necessary that partition by metes and bounds amongstthe coparceners must take place. When an intention is expressedto partition the coparcenary property, the share of each of thecoparceners becomes clear and ascertainable. Once the share of

Aa coparcener is determined, it ceases to be coparcenary property.The parties in such an event would not possess the property as“joint tenants” but as “tenants-in-common”. The decision of thisCourt in SBI, (1969) 2 SCC 33, therefore, is not applicable to thepresent case.

B23. Where coparcener takes definite share in the property, he isowner of that share and as such he can alienate the same by saleor mortgage in the same manner as he can dispose of his separateproperty.”

81. It is settled proposition of law that without partition, onlyCundivided share can be sold but not specific property, nor joint possessioncan be disrupted by such alienation. Whether the consent of othercoparcener is required for sale or not, depends upon by which School ofMitakshara law, parties are governed, to say, in Benares School, there isa prohibition on the sale of property without the consent of othercoparceners. The Court in the abovesaid decision made generalDobservation but was not concerned with the aspect when the partitionwas completed, the effect of intervening events and effect of statutoryprovisions as to partition, as such, it cannot be said to be an authority asto provisions of section 6 as substituted and as to enlargement of theright by operation of law achieved thereunder. Shares of coparcenersEcan undergo change in coparcenary by birth and death unless and untilthe final division is made. The body of coparcenary is increased by theoperation of law as daughters have been declared as coparcener, fulleffect is required to be given to the same. The above decision cannot besaid to be an authority for the question involved in the present matters.F82. In Man Singh (D) by LRs. v. Ram Kala (D) by LRs., AIR2011 SC 1542, the question of devolution of interest in coparcenaryproperty arose on the death of male Hindu leaving behind wife, son andthree daughters, and determination of their shares. It was observed thatuntil the disruption of joint family status occurs, the definite share cannotbe claimed with certainty, and share cannot be predicated in joint andGundivided property. The question of disruption of joint family status by adefinite and unequivocal declaration of intention to separate himself fromthe family was also considered. The question in the present case is whenthe partition has not taken place whether the statutory fiction containedin the proviso to section 6 with respect to the determination of shares ofHa deceased coparcener and its devolution thereunder would disrupt

coparcenary. The answer is in the negative. In Man Singh (supra), itwas observed that the wife has right to claim an equal share in thehusband’s property as that of son, and she can enjoy the share separatelyeven from her husband thus:

“12. …Till disruption of joint family status takes place, neithercoparcener nor the other heirs entitled to share in the joint familyproperty can claim with certainty the exact share in that property.In the case of Appovier Alias Seetaramier v. Rama Subba Aiyan& Ors., (1866) 11 MIA 75, Lord Westbury speaking for the JudicialCommittee (Privy Council) observed, ‘According to the true notionof an undivided family in Hindoo law, no individual member ofthat family, whilst it remains undivided, can predicate of the jointand undivided property, that he, that particular member, has certaindefinite share.’

15. In Principles of Hindu Law by Mulla, Vol. I (17th Edition) asregards the right of wife, it is stated that wife cannot herselfdemand partition, but if partition does take place between herhusband and his sons, she is entitled (except in Southern India) toreceive share equal to that of son and to hold and enjoy thatshare separately even from her husband (Article 315 at Page506).”

83. In Girja Bai v. Sadashiv, AIR 1916 PC 104, Kawal Nain v.Prabhulal, AIR 1917 PC 39 and Ramalinga v. Narayana, AIR 1922PC 201, it was laid that the institution of suit for partition by memberof joint family is clear intimation of his intention to separate and thedecisions indicate that there was consequential severance of joint statusfrom the date when the suit was filed though there was an assertion ofhis right to separate by filing of the suit whether the consequential judgmentis passed or not. However, we add rider that if subsequently, the lawconfers right, or such other event takes place, its effect has to beworked out even after passing of the preliminary decree.

84. In Kedar Nath v. Ratan Singh, (1910) 37 IA 161 and PalaniAmmal v. Muthuvenkatachala, AIR 1925 PC 49, it was observed thatif the suit is withdrawn before trial and passing of the decree, the plaintiffultimately has not chosen to go for separation. It was laid down thatthere was no severance of the joint status of the family by filing of thesuit.

A85. In Joala Prasad Singh v. Chanderjet Kuer, AIR 1938 Pat278, it was held that the filing of suit is shred of strong evidence, butnot conclusive evidence of an intention to separate. However, in ouropinion, the intention to separate need not be confused with the changeof rights during the pendency of the suit, which has to be given fulleffect, to do complete justice.B

86. In Chokalingam v. Muthukaruppan, AIR 1938 Mad 849, itwas laid down that even decree passed by consent does not affect aseverance; it had no validity if its terms were not executed and themembers continue to live together having abandoned their decision toseparate.C

87. In Mukund Dharman Bhoir & Ors. v. Balkrishna Padmanji& Ors., AIR 1927 PC 224, distinction was made between severanceof the joint status, which is matter of individual decision and the divisionof the property where the allotment of shares may be effected by privatearrangements, by arbitrators or as last resort, by the Court. It wasDobserved:

“In the first place, there is separation, which means theseverance of the status of jointness. That is matter of individualvolition; and it must be shown that an intention to become dividedhas been clearly and unequivocally expressed, it may be by explicitEdeclaration or by conduct.

Secondly, there is the partition or division of the joint estate,comprising the allotment of shares, which may be effected bydifferent methods.”

F88. In Palani Ammal (supra), Ramabadra v. Gopalaswami, AIR1931 Mad 404 and Gangabai v. Punau Rajwa, AIR 1956 Nag 261, itwas laid down that joint family does not get disrupted merely byascertainment of the shares of the coparcener. In order to constitute apartition, the shares should be defined with the intention of an immediateseparation.G

89. In Poornandachi v. Gopalasami, AIR 1936 PC 281, onlyone of the members was given the share by way of instrument of partition.It was also provided that the rest of the property was to remain joint. Itwas held that there was no partition between the other members.In I.T.Officer, Calicut v. N.K. Sarada Thampatty, AIR 1991 SC 2035, it wasHheld that if preliminary decree for partition is passed, it will not amount

to partition unless an actual physical partition is carried out pursuant toa final decree.

90. In S. Sai Reddy v. S. Narayana Reddy &Ors. (1991) 3 SCC647, suit for partition, was filed. preliminary decree determining theshares was passed. The final decree was yet to be passed. It wasobserved that unless and until the final decree is passed and the allotteesof the shares are put in possession of the respective property, the partitionis not complete. preliminary decree does not bring about the finalpartition. For, pending the final decree, the shares themselves are liableto be varied on account of the intervening events, and the preliminarydecree does not bring about any irreversible situation. The concept ofpartition that the legislature had in mind could not be equated with amere severance of the status of the joint family, which could be effectedby an expression of mere desire by family member to do so. Thebenefit of the provision of section 29A could not have been denied towomen whose daughters were entitled to seek shares equally with sonsin the family. In S. Sai Reddy (supra), it was held:

“7. The question that falls for our consideration is whether thepreliminary decree has the effect of depriving respondents 2 to 5of the benefits of the amendment. The learned counsel placedreliance on clause (iv) of Section 29-A to support his contentionthat it does. Clause (ii) of the section provides that daughtershall be allotted share like son in the same manner treating herto be son at the partition of the joint family property. However,the legislature was conscious that prior to the enforcement of theamending Act, partitions will already have taken place in somefamilies and arrangements with regard to the disposition of theproperties would have been made and marriage expenses wouldhave been incurred etc. The legislature, therefore, did not want tounsettle the settled positions. Hence, it enacted clause (iv) providingthat clause (ii) would not apply to daughter married prior to thepartition or to partition which had already been effected beforethe commencement of the amending Act. Thus if prior to thepartition of family property daughter had been married, she wasdisentitled to any share in the property. Similarly, if the partitionhad been effected before September 5, 1985 the date on whichthe amending Act came into force, the daughter even thoughunmarried was not given share in the family property. The crucial

Aquestion, however, is as to when partition can be said to havebeen effected for the purposes of the amended provision. partitionof the joint Hindu family can be effected by various modes, viz.,by family settlement, by registered instrument of partition, byoral arrangement by the parties, or by decree of the Court.When suit for partition is filed in court, preliminary decree isBpassed determining shares of the members of the family. Thefinal decree follows, thereafter, allotting specific properties anddirecting the partition of the immovable properties by metes andbounds. Unless and until the final decree is passed and the allotteesof the shares are put in possession of the respective property, theCpartition is not complete. The preliminary decree which determinesshares does not bring about the final partition. For, pending thefinal decree the shares themselves are liable to be varied on accountof the intervening events. In the instant case, there is no disputethat only preliminary decree had been passed and before thefinal decree could be passed the amending Act came into forceDas result of which clause (ii) of Section 29-A of the Act becameapplicable. This intervening event which gave shares torespondents 2 to 5 had the effect of varying shares of the partieslike any supervening development.Since the legislation is beneficialand placed on the statute book with the avowed object of benefittingEwomen which is vulnerable section of the society in all its stratas,it is necessary to give liberal effect to it. For this reason also, wecannot equate the concept of partition that the legislature has inmind in the present case with mere severance of the status ofthe joint family which can be effected by an expression of meredesire by family member to do so. The partition that the legislatureFhas in mind in the present case is undoubtedly partition completedin all respects and which has brought about an irreversible situation.A preliminary decree which merely declares shares which arethemselves liable to change does not bring about any irreversiblesituation. Hence, we are of the view that unless partition of theGproperty is effected by metes and bounds, the daughters cannotbe deprived of the benefits conferred by the Act. Any other viewis likely to deprive vast section of the fair sex of the benefitsconferred by the amendment. Spurious family settlements,instruments of partitions not to speak of oral partitions will springup and nullify the beneficial effect of the legislation depriving aHvast section of women of its benefits.

8. Hence, in our opinion, the High Court has rightly held that sincethe final decree had not been passed and the property had notbeen divided by metes and bounds, clause (iv) to Section 29-Awas not attracted in the present case and the respondent-daughterswere entitled to their share in the family property.”

(emphasis supplied)

91. In Prema v. Nanje Gowda, AIR 2011 SC 2077, insertion ofsection 6A by the amendment made by the State of Karnataka in theHindu Succession Act, 1956, was considered. Equal rights were givento the daughter in coparcenary property in suit for partition. preliminarydecree was passed. Amendment in the Act was made during the finaldecree proceedings. It was held that the discrimination practiced againstthe unmarried daughter was removed. Unmarried daughters had equalrights in the coparcenary property. The amendment’s effect was thatthe unmarried daughter could claim an equal share in the property interms of section 6A inserted in Karnataka. In Prema (supra), the Courtopined:“11. … in R. Gurubasaviah v. Rumale Karibasappa and others,AIR 1955 Mysore 6, Parshuram Rajaram Tiwari v. HirabaiRajaram Tiwari, AIR 1957 Bombay 59 and Jadunath Royandothers v. Parameswar Mullick and others, AIR 1940 PC 11,and held that if after passing of preliminary decree in partitionsuit but before passing of final decree, there has been enlargementor diminution of the shares of the parties or their rights have beenaltered by statutory amendment, the Court is duty-bound to decidethe matter and pass final decree keeping in view of the changedscenario.”

“14. We may add that by virtue of the preliminary decree passedby the trial court, which was confirmed by the lower appellateCourt and the High Court, the issues decided therein will be deemedto have become final but as the partition suit is required to bedecided in stages, the same can be regarded as fully andcompletely decided only when the final decree is passed. If in theinterregnum any party to the partition suit dies, then his/her shareis required to be allotted to the surviving parties and this can bedone in the final decree proceedings. Likewise, if law governingthe parties is amended before the conclusion of the final decree

Aproceedings, the party benefited by such amendment can make arequest to the Court to take cognizance of the amendment andgive effect to the same. If the rights of the parties to the suitchange due to other reasons, the Court seized with the final decreeproceedings is not only entitled but is duty-bound to take notice of”such change and pass appropriate order…B

(emphasis supplied)

It was held that if after passing of preliminary decree in partitionsuit but before passing of the final decree, there has been enlargementor diminution of the shares of the parties or their rights have been alteredCby statutory amendment; the Court is duty-bound to decide the matterand pass final decree keeping in view the changed scenario. In Prema(supra), the Court further opined:

“20. In our view, neither of the aforesaid three judgments can beread as laying down proposition of law that in partition suit,Dpreliminary decree cannot be varied in the final decree proceedingsdespite amendment of the law governing the parties by which thediscrimination practiced against unmarried daughter was removedand the statute was brought in conformity with Articles 14 and 15of the Constitution. We are further of the view that the ratio ofPhoolchand v. Gopal Lal, (AIR 1967 SC 1470) (supra) and S. SaiEReddy v. S. Narayana Reddy, (1991 AIR SCW 488) (supra) hasdirect bearing on this case and the trial court and the High Courtcommitted serious error by dismissing the application filed by theappellant for grant of equal share in the suit property in terms ofSection 6A of the Karnataka Act No.23 of 1994.”FIt was laid down that by the change of law, the share of daughtercan be enlarged even after passing preliminary decree, the effect canbe given to in final decree proceedings.

92. In Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi &Anr., (supra), this Court considered the amendment made in section 6 ofGthe Hindu Succession Act in 2005 and held that the right of daughter incoparcenary property is not lost bypassing of preliminary decree forpartition before stipulated date i.e., 20[th] December, 2004. partition suitdoes not stand disposed of bypassing preliminary decree. Relying interalia, on S. Sai Reddy (supra), it was held that the preliminary decreecan be amended in order to fully recognise the rights of daughter:H“16. The legal position is settled that partition of joint Hindufamily can be effected by various modes, inter alia, two of thesemodes are (one) by registered instrument of partition and(two) by decree of the Court. In the present case, admittedly,the partition has not been effected before 20-12-2004 either by aregistered instrument of partition or by decree of the Court. Theonly stage that has reached in the suit for partition filed byRespondent 1 is the determination of shares vide preliminary decreedated 19-3-1999, which came to be amended on 27-9-2003 andthe receipt of the report of the Commissioner.

17. preliminary decree determines the rights and interests ofthe parties. The suit for partition is not disposed of by passing ofthe preliminary decree. It is by final decree that the immovableproperty of joint Hindu family is partitioned by metes and bounds.After the passing of the preliminary decree, the suit continuesuntil the final decree is passed. If in the interregnum i.e. afterpassing of the preliminary decree and before the final decree ispassed, the events and supervening circumstances occurnecessitating change in shares, there is no impediment for theCourt to amend the preliminary decree or pass another preliminarydecree redetermining the rights and interests of the parties havingregard to the changed situation. We are fortified in our view by athree-Judge Bench decision of this Court in Phoolchand & Anr. v.Gopal Lal, AIR 1967 SC 1470, wherein this Court stated as follows:

“We are of opinion that there is nothing in the Code of CivilProcedure which prohibits the passing of more than onepreliminary decree if circumstances justify the same and thatit may be necessary to do so particularly in partition suits whenafter the preliminary decree some parties die and shares ofother parties are thereby augmented. … So far therefore aspartition suits are concerned we have no doubt that if an eventtranspires after the preliminary decree which necessitates achange in shares, the Court can and should do so; … there isno prohibition in the Code of Civil Procedure against passing asecond preliminary decree in such circumstances and we donot see why we should rule out second preliminary decree insuch circumstances only on the ground that the Code of CivilProcedure does not contemplate such possibility. … for it

must not be forgotten that the suit is not over till the final decreeis passed and the Court has jurisdiction to decide all disputesthat may arise after the preliminary decree, particularly in apartition suit due to deaths of some of the parties. … secondpreliminary decree can be passed in partition suits by whichthe shares allotted in the preliminary decree already passedcan be amended and if there is dispute between surviving partiesin that behalf and that dispute is decided the decision amountsto decree…..”

19. The above legal position is wholly and squarely applicable tothe present case. It surprises us that the High Court was notapprised of the decisions of this Court in Phoolchand, (AIR 1967SC 1470) and S. Sai Reddy, (1991 AIR SCW 488). High Courtconsidered the matter as follows:

“ xxx.”

20. The High Court was clearly in error in not properly appreciatingthe scope of Order XX Rule 18 of CPC. In suit for partition ofimmovable property, if such property is not assessed to thepayment of revenue to the Government, ordinarily passing of apreliminary decree declaring the share of the parties may berequired. The Court would thereafter proceed for preparation offinal decree. In Phoolchand, this Court has stated the legal positionthat CPC creates no impediment for even more than onepreliminary decree if after passing of the preliminary decree eventshave taken place necessitating the readjustment of shares asdeclared in the preliminary decree. The Court has always powerto revise the preliminary decree or pass another preliminary decreeif the situation in the changed circumstances so demand. suitfor partition continues after the passing of the preliminary decreeand the proceedings in the suit get extinguished only on passing ofthe final decree. It is not correct statement of law that once apreliminary decree has been passed, it is not capable ofmodification.It needs no emphasis that the rights of the parties ina partition suit should be settled once for all in that suit alone andno other proceedings.

21. Section 97 of C.P.C. that provides that where any partyaggrieved by preliminary decree passed after the commencementof the Code does not appeal from such decree, he shall be

precluded from disputing its correctness in any appeal which maybe preferred from the final decree does not create any hindranceor obstruction in the power of the Court to modify, amend or alterthe preliminary decree or pass another preliminary decree if thechanged circumstances so require.

22. It is true that final decree is always required to be in conformitywith the preliminary decree but that does not mean that apreliminary decree, before the final decree is passed, cannot bealtered or amended or modified by the trial court in the event ofchanged or supervening circumstances even if no appeal has beenpreferred from such preliminary decree.”

(emphasis supplied)

The effect of the legislative provision concerning partition wasconsidered, and it was held that preliminary decree merely declaresthe shares and on which law confers equal rights upon the daughter thatis required to be recognised.

93. The concept of partition and its effect was considered by thisCourt in Shub Karan Bubna Alias Shub Karan Prasad Bubna v. SitaSaran Bubna and Ors., (2009) 9 SCC 689 thus:

“The issue

5. “Partition” is redistribution or adjustment of pre-existing rights,among co-owners/coparceners, resulting in division of lands orother properties jointly held by them into different lots or portionsand delivery thereof to the respective allottees. The effect of suchdivision is that the joint ownership is terminated and the respectiveshares vest in them in severalty.

6. partition of property can be only among those having ashare or interest in it. person who does not have share in suchproperty cannot obviously be party to partition. “Separation ofshare” is species of “partition”. When all co-owners getseparated, it is partition. Separation of share(s) refers to divisionwhere only one or only few among several co-owners/coparceners get separated, and others continue to be joint orcontinue to hold the remaining property jointly without division bymetes and bounds. For example, where four brothers owning aproperty divide it among themselves by metes and bounds, it is

Apartition. But if only one brother wants to get his share separatedand other three brothers continue to remain joint, there is only aseparation of the share of one brother.

18. The following principles emerge from the above discussionregarding partition suits:

18.3.As the declaration of rights or shares is only the first stagein suit for partition, preliminary decree does not have the effectof disposing of the suit. The suit continues to be pending untilpartition, that is, division by metes and bounds takes place byCpassing final decree.An application requesting the Court to takenecessary steps to draw up final decree effecting division interms of the preliminary decree, is neither an application forexecution (falling under Article 136 of the Limitation Act) nor anapplication seeking fresh relief (falling under Article 137 of theDLimitation Act). It is only reminder to the Court to do its duty toappoint Commissioner, get report, and draw final decree inthe pending suit so that the suit is taken to its logical conclusion.

20.On the other hand, in partition suit the preliminary decreesonly decide part of the suit and therefore an application forEpassing final decree is only an application in pending suit,seeking further progress. In partition suits, there can be apreliminary decree followed by final decree, or there can be adecree which is combination of preliminary decree and finaldecree or there can be merely single decree with certain furthersteps to be taken by the Court. In fact, several applications forFfinal decree are permissible in partition suit. decree in partitionsuit enures to the benefit of all the co-owners and therefore, it issometimes said that there is really no judgment-debtor in partitiondecree.”

(emphasis supplied)

G94. In Laxmi Narayan Guin&Ors. v. Niranjan Modak, (1985)1 SCC 270, it was laid down that change in law during the pendency ofthe appeal has to be taken into consideration thus:

“9. That change in the law during the pendency of an appealhas to be taken into account and will govern the rights of the

parties was laid down by this Court in Ram Sarup v. Munshi,AIR 1963 SC 553 which was followed by this Court in Mula v.Godhu, (1969) 2 SCC 653. We may point out that in Dayawativ. Inderjit, AIR 1966 SC 1423 this Court observed:

“If the new law speaks in language, which, expressly or byclear intendment, takes in even pending matters, the Court of trialas well as the court of appeal must have regard to an intention soexpressed, and the court of appeal may give effect to such laweven after the judgment of the court of first instance.”

Reference may also be made to the decision of this Court in AmarjitKaur v. Pritam Singh, (1974) 2 SCC 363 where effect wasgiven to change in the law during the pendency of an appeal,relying on the proposition formulated as long ago as KristnamaChariar v. Mangammal, ILR (1902) 26 Mad 91 (FB) byBhashyamAyyangar, J., that the hearing of an appeal was, underthe processual law of this country, in the nature of re-hearing ofthe suit. In Amarjit Kaur, (1974) 2 SCC 363 this Court referredalso to Lachmeshwar Prasad Shukul v. Keshwar LalChaudhuri, AIR 1941 FC 5 in which the Federal Court had laiddown that once decree passed by court had been appealedagainst the matter became sub judice again and thereafter theappellate court acquired seisin of the whole case, except that forcertain purposes, for example, execution, the decree was regardedas final and the Court below retained jurisdiction.”

95. In United Bank of India, Calcutta v. Abhijit Tea Co. Pvt.Ltd. & Ors., AIR 2000 SC 2957, with respect to change in law duringthe pendency of proceedings, it was observed:

“20. Now, it is well settled that it is the duty of court, whether itis trying original proceedings or hearing an appeal, to take noticeof the change in law affecting pending actions and to give effectto the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn.,p. 406). If, while suit is pending, law like the 1993 Act that theCivil Court shall not decide the suit, is passed, the Civil Court isbound to take judicial notice of the statute and hold that the suit —even after its remand — cannot be disposed of by it.”

96. In Gurupad Khandappa Magdum (supra), the question ofExplanation I to section 6 of the Hindu Succession Act, 1956 came up

Afor consideration with respect to the determination of widow’s interestin the coparcenary property. Court held that widow’s share in thecoparcenary property must be ascertained by adding the share to whichshe is entitled at notional partition during her husband’s lifetime and theshare she would have obtained in her husband’s interest upon his death.The first step is to ascertain the share of the deceased in the coparcenaryBproperty that would be worked out ultimately, and that shall be deemedto be the share in the property that should have been allotted to thedeceased. What is therefore required to be assumed is that partitionhad, in fact, taken place between the deceased and his coparcenersimmediately before his death. The assumption must permeate the entireCprocess of ascertainment of the ultimate share of the heirs. All theconsequences must be taken to logical end. It was opined:

“13. In order to ascertain the share of heirs in the property of adeceased coparcener it is necessary in the very nature of things,and as the very first step, to ascertain the share of the deceasedDin the coparcenary property. For, by doing that alone can onedetermine the extent of the claimant’s share. Explanation 1 toSection 6 resorts to the simple expedient, undoubtedly fictional,that the interest of Hindu Mitakshara coparcener “shall bedeemed to be” the share in the property that would have beenallotted to him if partition of that property had taken placeEimmediately before his death. What is therefore required to beassumed is that partition had in fact taken place between thedeceased and his coparceners immediately before his death. Thatassumption, once made, is irrevocable. In other words, theassumption having been made once for the purpose of ascertainingFthe share of the deceased in the coparcenary property, one cannotgo back on that assumption and ascertain the share of the heirswithout reference to it. The assumption which the statute requiresto be made that partition had in fact taken place must permeatethe entire process of ascertainment of the ultimate share of theheirs, through all its stages. To make the assumption at the initialGstage for the limited purpose of ascertaining the share of thedeceased and then to ignore it for calculating the quantum of theshare of the heirs is truly to permit one’s imagination to boggle.All the consequences which flow from real partition have to belogically worked out, which means that the share of the heirsHmust be ascertained on the basis that they had separated fromone another and had received share in the partition which hadtaken place during the lifetime of the deceased. The allotment ofthis share is not processual step devised merely for the purposeof working out some other conclusion. It has to be treated andaccepted as concrete reality, something that cannot be recalledjust as share allotted to coparcener in an actual partition cannotgenerally be recalled. The inevitable corollary of this position isthat the heir will get his or her share in the interest which thedeceased had in the coparcenary property at the time of his death,in addition to the share which he or she received or must be deemedto have received in the notional partition.”

The only question involved in the aforesaid matter was with respectto the Explanation of section 6 and the determination of the widow’sshare. In that case, the question was not of fluctuation in the coparcenarybody by legal provision or otherwise. Everything remained static. Nodoubt about it, the share of the deceased has to be worked out as per thestatutory fiction of partition created. However, in case of change ofbody of the coparceners by legal provision or otherwise, unless anduntil the actual partition is finally worked out, rights have to be recognisedas they exist at the time of the final decree. It is only the share of thedeceased coparcener, and his heirs are ascertained under the Explanationto section 6 and not that of other coparceners, which keep on changingwith birth and death.

97. In Anar Devi & Ors. v. Parmeshwari Devi & Ors (supra),the decision in Gurupad (supra) was considered, and it was held thatwhen coparcener dies leaving behind any female relative specified inClass I of the Schedule to the Act or male relative claiming through suchfemale relative, his undivided interest is not devolved by survivorship butupon his heir by intestate succession thus:

“8. According to the learned author, at page 253, the undividedinterest”of the deceased coparcener for the purpose of givingeffect to the rule laid down in the proviso, as already pointedout, is to be ascertained on the footing of notional partition asof the date of his death. The determination of that share mustdepend on the number of persons who would have been entitledto share in the coparcenary property if partition had in facttaken place immediately before his death and such person wouldhave to be ascertained according to the law of joint family and

partition. The rules of Hindu law on the subject in force at thetime of the death of the coparcener must, therefore, governthe question of ascertainment of the persons who would havebeen entitled to share on the notional partition”.

11. Thus we hold that according to Section 6 of the Act when aBcoparcener dies leaving behind any female relative specified inClass I of the Schedule to the Act or male relative specified inthat class claiming through such female relative, his undividedinterest in the Mitakshara coparcenary property would not devolveupon the surviving coparcener, by survivorship but upon his heirsby intestate succession. Explanation 1 to Section 6 of the ActCprovides mechanism under which undivided interest of adeceased coparcener can be ascertained and i.e. that the interestof Hindu Mitakshara coparcener shall be deemed to be theshare in the property that would have been allotted to him if apartition of the property had taken place immediately before hisDdeath, irrespective of whether he was entitled to claim partition ornot. It means for the purposes of finding out undivided interest ofa deceased coparcener, notional partition has to be assumedimmediately before his death and the same shall devolve upon hisheirs by succession which would obviously include the survivingcoparcener who, apart from the devolution of the undivided interestEof the deceased upon him by succession, would also be entitled toclaim his undivided interest in the coparcenary property which hecould have got in notional partition.”

In Anar Devi (supra), the question of enlargement of right by alegal provision or otherwise change in the coparcener’s share was notFinvolved. The decision cannot help the cause set up of partition createdby statutory fiction. Statutory fiction is with respect to the extent of theshare of deceased coparcener in exigency provided in the proviso tosection 6. Co-parcenary or HUF, as the case may be, does not come toan end by statutory fiction. Disruption of coparcenary by statutory fictionGtakes place, is not the proposition laid down in the aforesaid decision.

98. In Puttrangamma & Ors. v. M.S. Rangamma & Ors., AIR1968 SC 1018, this Court considered the doctrine of Hindu law, separationin status by definite, unequivocal and unilateral declaration thus:

“(4) It is now settled doctrine of Hindu Law that member of aHjoint Hindu family can bring about his separation in status by

definite, unequivocal and unilateral declaration of his intention toseparate himself from the family and enjoy his share in severalty.There does not need to be an agreement between all thecoparceners for the disruption of the joint status. It is immaterialin such case whether the other coparceners give their assent tothe separation or not. The jural basis of this doctrine has beenexpounded by the early writers of Hindu Law. The relevant portionof the commentary of Vijnaneswara states as follows:

“x x x xx “

[And thus though the mother is having her menstrual courses (hasnot lost the capacity to bear children) and the father has attachmentand does not desire partition, yet by the will (or desire) of theson partition of the grandfather’s wealth does take place]”

Saraswathi Vilasa, placitum 28 states:

[From this it is known that without any speech (orExplanation) even by means of determination (or resolution)only, partition is effected, just an appointed daughter is constitutedby mere intention without speech.]

Viramitrodaya of Mitra Misra (Ch. 11. pl. 23) is to thefollowing effect:

[Here too there is no distinction between partition duringthe lifetime of the father or after his death and partition at thedesire of the sons may take place or even by the desire (or at thewill) of single (coparcener)].

VyavaharaMayukha of Nilakantabhatta also states:

[Even in the absence of any common (joint family) property,severance does indeed result by the mere declaration ‘I am

separate from thee’ because severance is particular state (orcondition) of the mind and the declaration is merely manifestationof this mental state (or condition).]” (Ch. IV, S. III-I).

Emphasis is laid on the “budhivisesha” (particular state or conditionof the mind) as the decisive factor in producing severance instatus and the declaration is stated to be merely “abhivyanjika” ormanifestation which might vary according to circumstances. InSuraj Narain v. Iqbal Narain, (1913) ILR 35 All 80 the JudicialCommittee made the following categorical statement of the legalposition:

“A definite and unambiguous indication by one member of intentionto separate himself and to enjoy his share in severalty may amountto separation. But to have that effect the intention must beunequivocal and clearly expressed … Suraj Narain alleged thathe separated few months later; there is, however, no writing insupport of his allegation, nothing to show that at that time he gaveexpression to an unambiguous intention on his part to cut himselfoff from the joint undivided family.”

In later case — Girja Bai v. Sadashiv Dhundiraj, ILR42 Cal 1031, the Judicial Committee examined the relevant textsof Hindu Law and referred to the well-marked distinction thatexists in Hindu law between severance in status so far as theseparating member is concerned and de facto division intospecific shares of the property held until then jointly, and laid downthe law as follows:

“One is matter of individual decision, the desire on thepart of any one member to sever himself from the joint family andto enjoy his hitherto undefined or unspecified share separatelyfrom the others without being subject to the obligations whicharise from the joint status; whilst the other is the natural resultantfrom his decision, the division and separation of his share whichmay be arrived at either by private agreement among the parties,or on failure of that, by the intervention of the Court. Once thedecision has been unequivocally expressed and clearly intimatedto his co-sharers, his right to obtain and possess the share to whichhe admittedly has title is unimpeachable; neither the co-sharerscan question it nor can the Court examine his conscience to findout whether his reasons for separation were well-founded or

sufficient; the Court has simply to give effect to his right to have”his share allocated separately from the others.

In Syed Kasam v. Jorawar Singh, ILR 50 Cal 84, Viscount Cave,in delivering the judgment of the Judicial Committee, observed:

“It is settled law that in the case of joint Hindu familysubject to the law of the Mitakshara, severance of estate iseffected by an unequivocal declaration on the part of one of thejoint holders of his intention to hold his share separately, eventhough no actual division takes place; and the commencement ofa suit for partition has been held to be sufficient to effect aseverance in interest even before decree.”

(emphasis supplied)

99. Once the constitution of coparcenary changes by birth or death,shares have to be worked out at the time of actual partition. The shareswill have to be determined in changed scenario. The severance of statuscannot come in the way to give effect to statutory provision and changeby subsequent event. The statutory fiction of partition is far short ofactual partition, it does not bring about the disruption of the joint familyor that of coparcenary is settled proposition of law. For the reasonsmentioned above, we are also of the opinion that mere severance ofstatus by way of filing suit does not bring about the partition and till thedate of the final decree, change in law, and changes due to the subsequentevent can be taken into consideration.

100. As to the effect of legal fiction, reliance was placed onCommissioner of Income Tax, Delhi v. S Teja Singh, AIR 1959 SC352, in which it was laid down that in construing the scope of legalfiction, it would be proper and even necessary to assume all those factson which alone the fiction can operate. There is no dispute with theaforesaid proposition, but the purpose of fiction is limited so as to workout the extent of the share of the deceased at the time of his death, andnot to affect the actual partition in case it has not been done by metesand bounds.

101. When the proviso to unamended section 6 of the Act of 1956came into operation and the share of the deceased coparcener wasrequired to be ascertained, deemed partition was assumed in the lifetimeof the deceased immediately before his death. Such concept of notionalpartition was employed so as to give effect to Explanation to section 6.

AThe fiction of notional partition was meant for an aforesaid specificpurpose. It was not to bring about the real partition. Neither did it affectthe severance of interest nor demarcated the interest of survivingcoparceners or of the other family members, if any, entitled to share inthe event of partition but could not have claimed it. The entire partitionof the coparcenary is not provided by deemed fiction; otherwise,Bcoparcenary could not have continued which is by birth, and the death ofone coparcener would have brought an end to it. Legal fiction is only fora purpose it serves, and it cannot be extended beyond was held in Stateof Travancore-Cochin &Ors. v. Shanmugha Vilas Cashew NutFactory &Ors., (1954) SCR 53; Bengal Immunity Co. Ltd. v. State ofCBihar&Ors., AIR 1955 SC661; and Controller of Estate Duty v. Smt.S. Harish Chandra, (1987) 167 ITR 230. legal fiction created in lawcannot be stretched beyond the purpose for which it has been created,was held in MancheriPuthusseri Ahmed (supra) thus:

“8. xxx In the first place the section creates legal fiction.DTherefore, the express words of the section have to be giventheir full meaning and play in order to find out whether the legalfiction contemplated by this express provision of the statute hasarisen or not in the facts of the case. Rule of construction ofprovisions creating legal fictions is well settled. In interpreting aprovision creating legal fiction the Court is to ascertain for whatEpurpose the fiction is created, and after ascertaining this, the Courtis to assume all those facts and consequences which are incidentalor inevitable corollaries to the giving effect to the fiction. But in soconstruing the fiction it is not to be extended beyond the purposefor which it is created, or beyond the language of the section byFwhich it is created. It cannot also be extended by importing anotherfiction. x xx”

102. It is apparent that the right of widow to obtain an equalshare in the event of partition with the son was not deprived under oldsection 6. Unamended Section 6 provided that the interest of coparcenerGcould be disposed of by testamentary or intestate succession on happeningof exigency under the proviso. Under the old law before 1956 devise bya coparcener of Hindu Mitakshara family property was wholly invalid.Section 30 of the Act of 1956 provided competence for male Hindu inMitakshara coparcenary to dispose of his interest in the coparcenaryproperty by testament.H

103. In Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055, it washeld that the shares of all coparceners should be ascertained in order towork out the share of the deceased coparcener, partition to be assumedand given effect to when the question of allotment comes, but this Courtdid not lay down in the said decision that the deeming fiction and notionalpartition brought an end to the joint family or coparcenary.

104. In case coparcenary is continued, and later on between thesurviving coparceners partition takes place, it would be necessary tofind out the extent of the share of the deceased coparcener. That has tobe worked out with reference to the property which was available at thetime of death of deceased coparcener whose share devolved as per theproviso and Explanation I to section 6 as in case of intestate succession.

105. In Hari Chand Roach v. Hem Chand & Ors., (2010) 14SCC 294, widow inherited the estate of her husband and had anundivided interest in the property. The subsequent family arrangementwas entered into whereby she exchanged her share for another property.This Court held that though her share was definite, the interest continuedundivided, and there was further family arrangement that will have theeffect of giving her disposition over the property in question, which wasgiven to her in the subsequent family arrangement. It is apparent thatunder an undivided interest, as provided under section 6, the shares aredefinite, but the interest in the property can continue undivided.

106. In the instant case, the question is different. What has beenrecognised as partition by the legislation under section 6, accordingly,rights are to be worked out. This Court consistently held in variousdecisions mentioned above that when the rights are subsequentlyconferred, the preliminary decree can be amended, and the benefit oflaw has to be conferred. Hence, we have no hesitation to reject theeffect of statutory fiction of proviso to section 6 as discussed in Prakashv. Phulavati (supra) and Danamma (supra). If daughter is alive onthe date of enforcement of the Amendment Act, she becomes acoparcener with effect from the date of the Amendment Act, irrespectiveof the date of birth earlier in point of time.

In Ref. Section 6(5)

107. The Explanation to Section 6(5) provides that for the purposesof Section 6, ‘partition’ means effected by any registered partition deedor effected by decree of court. It is pertinent to mention that

AExplanation did not find place in the original Amendment Bill movedbefore the Rajya Sabha on 20.12.2004. The same was addedsubsequently. In the initial Note, it was mentioned that partition shouldbe properly defined, leaving any arbitrary interpretation, and for allpractical purposes, the partition should be evinced by registered publicdocument or have been affected by decree of court. In caseBpartition is oral, it should be supported by documentary evidence. Initially,it was proposed to recognise the oral partition also, in case the same issupported by contemporaneous documentary evidence. The intentionwas to avoid any sham or bogus transactions in order to defeat the rightsof coparcener conferred upon daughters by the Amendment Act, 2005.CIn this regard, Note for Cabinet issued by the Legislative Department,Ministry of Law & Justice, Government of India, suggested as under:

“As regards subsection 5 of the proposed new section 6, thecommittee vide paragraph has recommended that the term“partition” should be properly defined, leaving any arbitraryDinterpretation. Partition for all practical purposes should beregistered have been effected by decree of the Court. In casewhere oral partition is recognised, be backed by properdocumentary evidence. It is proposed to accept thisrecommendation and make suitable changes in the Bill.”

E108. Learned Solicitor General argued that the requirement of aregistered partition deed may be interpreted as the only directory andnot mandatory in nature considering its purposes. However, anycoparcener relying upon any such family arrangements or oral partitionso arrived must prove the same by leading proper documentary evidence.

F109. The Cabinet note made on 29.7.2005 with respect to ‘partition’is quoted hereunder:

“5.2 In this connection it may be noted that the amendments madein the Hindu Succession Act, 1956 by the States of AndhraPradesh, Karnataka, Maharashtra and Tamil Nadu and the KeralaGJoint Hindu Family System (Abolition) Act, 1975 will besuperseded by any subsequent Central enactment containingprovisions to the contrary as the Central legislation will prevailover the State enactments by virtue of operation of doctrine ofrepugnancy enunciated in article 254 of the Constitution.Innumerable settled transactions and partitions which have takenH

place hitherto will also become disturbed by the proposed courseof action. Further, there could be heartburning from the majorityof the Hindu population. In the circumstances, it is proposed thatwe may remove the distinction between married and unmarrieddaughters and at the same time clearly lay down that alienation ordisposition of property made at any time before the 20[th] day ofDecember, 2004, that is, the date on which the Hindu Succession(Amendment) Bill, 2004 was introduced in the Rajya Sabha willnot be affected or invalidated. Consequential changes are alsosuggested in sub-section (5) of proposed section 6.”

110. Section 6(5) as proposed in the original Bill of 2004 read

thus:

“(5) Nothing contained in this section shall apply to partition,which has been effected before the commencement of the HinduSuccession (Amendment) Act, 2004.”

111. Shri R. Venkataramani, Amicus Curiae, argued that provisoto Section 6 is plain and clear. All dispositions, alienations, testamentarydepositions, including partition effected prior to 20.12.2004, shall not bereopened. There may be partition of coparcenary property, and theywould have also acted in pursuance of such partition. There could beany number of instances where parties would have entered into familysettlements or division of properties on the basis of respective shares orentitlement to succeed on partition. In many of those cases, simplemutation in revenue entries would have been considered as sufficientfor severance of status. The Parliament did not intend to upset all suchcases, complete transactions, and open them for new order ofsuccession. The partition effected merely to avoid any obligation underany law, for example, the law relating to taxation or land ceiling legislation,are not examples relevant for understanding the objects and scheme ofSection 6. Therefore, the proviso to sub-Section (1) of Section 6 andsub-Section 5 of Section 6 is required to be given such meaning andextent to not dilute the relevance in the forward and future-looking schemeof Section 6. The past cases shall not be reopened for this purpose. Hehas relied upon Shashika Bai (supra).

112. Shri V.V.S. Rao, learned senior counsel appearing as AmicusCuriae, pointed out that under Section 6(5), as proposed in the Billmentioned that nothing contained in the amended Section 6 should apply

Ato partition, which has been effected before the commencement of theAmendment Act. Following deliberation was made by the Committee:

“Deliberation by the Committee

35. During its deliberation on the Bill, the Committee pondered onthe concept of ‘partition’ as referred to in the aforesaid sub section.BWhen the Secretary (Legislative Department) was asked as tothe validity of partition effected through oral means, he repliedthat it depends upon the facts of the particular case.The Secretarystated as below:

“Sub clause (5) (of the Bill) says that nothing contained in thisCsection shall apply to partition, which has been effected beforethe commencement of the Act. So, people may not have chanceof effecting registered partition or going to the court and getting itregistered.”

36. Further, the Legal Secretary stated as below:D

“…. under the present legal position, it is not necessary that apartition should be registered. There is no legal requirement. Therecan be oral partition also.”

General observation by the CommitteeE37. The Committee recommends that the term ‘partition’ shouldbe properly defined leaving no scope for any arbitraryinterpretation. Partition, for all practical purposes should beregistered or should have been effected by decree of the court.In cases, where oral partition is recognised, it should be backedby proper evidentiary support.F

Subject to above, clause 2 of the Bill is adopted.”

113. Shri V.V.S. Rao argued that the status of coparcenerconferred on daughters cannot affect the partition made orally, and theexplanation at the end of Section 6 was added after receiving report ofGthe Parliamentary Committee. The partition may be effected orally andlater on memorandum can be created for memory purposes. Such adocument containing memorandum of partition is not required to beregistered. The parties may settle their rights and enter into subsequenttransactions based upon such partition.It is not to unsettle the completedproperty transactions that had already taken place. The explanation shouldH

not be understood as invalidating all the documents or oral partition inrespect of the coparcenary property. In case genuineness of suchdocument is questioned, it has to be proved to the satisfaction of theCourt. The saving of transactions would safeguard the genuine pasttransaction and prevent unrest in the family system. Similar proposalwas made by the Law Commission of India.

114. The learned counsel, Shri Sridhar Potaraju, argued that ignoringstatutory fiction of partition under proviso to section 6, which provisionhad been incorporated in 1956 and continued till 2005, is not warranted.

115. Ms. Anagha S. Desai, learned counsel,argued that in theabsence of partition deed also, partition could be effected by metes andbounds, and if it is proved properly, the daughters will not open theseconcluded transactions of coparcenary property.

116. The intendment of amended Section 6 is to ensure thatdaughters are not deprived of their rights of obtaining share on becomingcoparcener and claiming partition of the coparcenary property by settingup the frivolous defence of oral partition and/or recorded in theunregistered memorandum of partition. The Court has to keep in mindthe possibility that plea of oral partition maybe set up, fraudulently or incollusion, or based on unregistered memorandum of partition which mayalso be created at any point of time. Such partition is not recognizedunder Section 6(5).

117. How family settlement is effected was considered in Kale v.Deputy Director of Consolidation, (1976) 3 SCC 119, thus:

“10. In other words to put the binding effect and the essentials ofa family settlement in concretised form, the matter may bereduced into the form of the following propositions:

“(1) The family settlement must be bona fide one so as toresolve family disputes and rival claims by fair and equitabledivision or allotment of properties between the various membersof the family;

(2) The said settlement must be voluntary and should notbe induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in whichcase no registration is necessary;

(4) It is well settled that registration would be necessaryonly if the terms of the family arrangement are reduced intowriting. Here also, distinction should be made between documentcontaining the terms and recitals of family arrangement madeunder the document and mere memorandum prepared afterthe family arrangement had already been made either for thepurpose of the record or for information of the Court for makingnecessary mutation. In such case the memorandum itself doesnot create or extinguish any rights in immovable properties andtherefore does not fall within the mischief of Section 17(2) of theRegistration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the familyarrangement must have some antecedent title, claim or interesteven possible claim in the property which is acknowledged bythe parties to the settlement. Even if one of the parties to thesettlement has no title but under the arrangement the other partyrelinquishes all its claims or titles in favour of such person andacknowledges him to be the sole owner, then the antecedent titlemust be assumed and the family arrangement will be upheld andthe courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, whichmay not involve legal claims are settled by bona fide familyarrangement which is fair and equitable the family arrangement”is final and binding on the parties to the settlement.

15. In Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR1966 SC 292, 295, it was pointed out by this Court that familyarrangement could be arrived at even orally and registration wouldbe required only if it was reduced into writing. It was also heldthat document which was no more than memorandum of whathad been agreed to did not require registration. This Court hadobserved thus:

“Family arrangement as such can be arrived at orally. Itsterms may be recorded in writing as memorandum of what hadbeen agreed upon between the parties. The memorandum neednot be prepared for the purpose of being used as document onwhich future title of the parties be founded. It is usually preparedas record of what had been agreed upon so that there be no

hazy notions about it in future. It is only when the parties reducethe family arrangement in writing with the purpose of using thatwriting as proof of what they had arranged and, where thearrangement is brought about by the document as such, that thedocument would require registration as it is then that it would be adocument of title declaring for future what rights in what propertiesthe parties possess.””

(emphasis supplied)

It is settled law that family arrangements can be entered into tokeep harmony in the family.

118. Reliance has been placed on Shripad Gajanan Suthankarv. Dattaram Kashinath Suthankar, (1974) 2 SCC 156, in which effectof adoption by widow and its effect on partition and other alienationmade before adoption was considered. , the following observations weremade:

“11. Two crucial questions then arise. One-third share out of what?Should the gift by Mahadev of what was under the thencircumstances his exclusive property be ignored in working outthe one-third share? Two principles compete in this jurisdictionand judges have struck fair balance between the two, animatedby sense of realism, impelled by desire to do equity and to avoidunsettling vested rights and concluded transactions, lest legalfiction should by invading actual facts of life become aninstrumentality of instability. Law and order are jurisprudentialtwins and this perspective has inarticulately informed judicialpronouncements in this branch of Hindu law.

18. We reach the end of the journey of precedents, ignoring asinessential other citations. The balance sheet is clear. Thepropositions that emerge are that: (i) widow’s adoption cannotbe stultified by an anterior partition of the joint family and theadopted son can claim share as if he were begotten and alivewhen the adoptive father breathed his last; (ii) Nevertheless, thefactum of partition is not wiped out by the later adoption; (iii) Anydisposition testamentary or inter vivos lawfully made antecedentto the adoption is immune to challenge by the adopted son; (iv)Lawfulalienation in this context means not necessarily for familynecessity but alienation made competently in accordance with

Alaw; (v) widow’s power of alienation is limited and if — and—only if the conditions set by the Hindu Law are fulfilled will thealienation bind subsequently adopted son. So also alienation bythe Karta of an undivided Hindu family or transfer by coparcenergoverned by the Benares school; (vi) Once partitioned validly, theshare of member of Mitakshara Hindu family in which hisBown issue have no right by birth can be transferred by him at hiswill and such transfers, be they by will, gift or sale, bind the adoptedson who comes later on the scene. Of course, the position of avoid or voidable transfer by such sharer may stand on separatefooting but we need not investigate it here.”

(emphasis supplied)

119. In ChinthamaniAmmal v. NandgopalGounder, (2007) 4SCC 163, it was observed that plea of partition was required to besubstantiated as under law, there is presumption as to jointness. Evenseparate possession by co-sharers may not, by itself, lead to presumptionDof partition.

120. In Rukhmabai v. Laxminarayan, AIR 1960 SC 335 andMudigowda Gowdappa Sankh & Ors. v. Ramchandra RevgowdaSankh (dead) by his LRs. &Anr., AIR 1969 SC 1076, it was observedthat prima facie document expressing the intention to divide bringsEabout division in status, however, it is open to prove that the documentwas sham or nominal one and was not intended to be acted upon andexecuted for some ulterior purpose. The relations with the estate is thedetermining factor in the statement made in the document. The statutoryrequirement of substituted Section 6(5) is stricter to rule out unjustFdeprivation to the daughter of the coparcener’s right.

121. In Kalwa Devdattam v. Union of India, AIR 1964 SC 880,it was laid down that when purported petition is proved to be sham,the effect would be that the family is considered joint.

122. Earlier, an oral partition was permissible, and at the sameGtime, the burden of proof remained on the person who asserted thatthere was partition. It is also settled law that Cesser of Commonality isnot conclusive proof of partition, merely by the reason that the membersare separated in food and residence for the convenience, and separateresidence at different places due to service or otherwise does not showseparation. Several acts, though not conclusive proof of partition, mayH

lead to that conclusion in conjunction with various other facts. Such asseparate occupation of portions, division of the income of the joint property,definement of shares in the joint property in the revenue of land registrationrecords, mutual transactions, as observed in Bhagwani v. Mohan Singh,AIR 1925 PC 132, and Digambar Patil v. Devram, AIR 1995 SC 1728.

123. There is general presumption that every Hindu family ispresumed to be joint unless the contrary is proved. It is open even if onecoparcener has separated, to the non-separating members to remainjoint and to enjoy as members of joint family. No express agreement isrequired to remain joint. It may be inferred from how their family businesswas carried on after one coparcener was separated from them. Whetherthere was separation of one coparcener fromall other members of ajoint family by decree of partition, the decree alone should be looked atto determine the question was laid down in Palani Ammal (supra) andGirijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967SC 1124. In Palani Ammal (supra), it was held:

“…… It is also now beyond doubt that member of such jointfamily can separate himself from the other members of the jointfamily and is on separation entitled to have his share in the propertyof the joint family ascertained and partitioned off for him, and thatthe remaining coparceners, without any special agreement amongstthemselves, may continue to be coparceners and to enjoy asmembers of joint family what remained after such partition ofthe family property. That the remaining members continued to bejoint may, if disputed, be inferred from the way in which theirfamily business was carried on after their previous coparcenerhad separated from them. It is also quite clear that if joint Hindufamily separates, the family or any members of it may agree toreunite as joint Hindu family, but such reuniting is for obviousreasons, which would apply in many cases under the law of theMitakshara, of very rare occurrence, and when it happens it mustbe strictly proved as any other disputed fact is proved….”

124. In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laiddown that in case there are two coparcener brothers, it is not necessarythat there would be separation inter se family of the two brothers.The family of both the brothers may continue to be joint.

A125. The severance of status may take place from the date offiling of suit; however, decree is necessary for working out the resultsof the same, and there may be change of rights during the pendency ofthe suit for allotting definite shares till final decree is passed. There arecases in which partition can be reopened on the ground of fraud ormistake, etc. or on certain other permissible grounds. In appropriateBcases, it can be reopened at the instance of minor also.

126. The protection of rights of daughters as coparcener isenvisaged in the substituted Section 6 of the Act of 1956 recognises thepartition brought about by decree of court or effected by registeredinstrument. The partition so effected before 20.12.2004 is saved.C

127. special definition of partition has been carved out in theexplanation. The intendment of the provisions is not to jeopardise theinterest of the daughterand to take care of sham or frivolous transactionset up in defence unjustly to deprive the daughter of her right ascoparcener and prevent nullifying the benefit flowing from the provisionsDas substituted. Thestatutory provisions made in section 6(5) change theentire complexion as to partition. However, under the law that prevailedearlier, an oral partition was recognised. In view of change of provisionsof section 6, the intendment of legislature is clear and such plea of oralpartition is not to be readily accepted. The provisions of section 6(5) areErequired to be interpreted to cast heavy burden of proof upon proponentof oral partition before it is accepted such as separate occupation ofportions, appropriation of the income, and consequent entry in the revenuerecords and invariably to be supported by other contemporaneous publicdocuments admissible in evidence,may be accepted most reluctantly whileexercising all safeguards. The intendment of Section 6 of the Act is onlyFto accept the genuine partitions that might have taken place under theprevailing law, and are not set up as false defenceand only oral ipsedixit is to be rejected outrightly. The object of preventing, setting up offalse or frivolous defence to set at naught the benefit emanating fromamended provisions, has to be given full effect. Otherwise, it wouldGbecome very easy to deprive the daughter of her rightsas coparcener.When such defence is taken, the Court has to be very extremely carefulin accepting the same, and only if very cogent, impeccable, andcontemporaneous documentary evidence in shape of public documentsin support are available, such plea may be entertained, not otherwise.We reiterate that the plea of an oral partition or memorandum of partition,

unregisteredone can be manufactured at any point in time, without anycontemporaneous public document needs rejection at all costs. We sayso for exceptionally good cases where partition is proved conclusivelyand we caution the courts that the finding is not to be based on thepreponderanceof probabilities in view of provisions of gender justiceand the rigor of very heavy burden of proof which meet intendment ofExplanation to Section 6(5). It has to be remembered that courts cannotdefeat the object of the beneficial provisions made by the AmendmentAct. The exceptioniscarved out by us as earlier execution of registereddocument for partition was not necessary, and the Court was rarelyapproached for the sake of family prestige. It was approached as lastresort when parties were not able to settle their family dispute amicably.We take note of the fact that even before 1956, partition in other modesthan envisaged under Section 6(5) had taken place.128. The expression used in Explanation to Section 6(5) ‘partitioneffected by decree of court’ would mean giving of final effect toactual partition by passing the final decree, only then it can be said thata decree of court effects partition. preliminary decree declares sharebut does not effect the actual partition, that is effected by passing of afinal decree; thus, statutory provisions are to be given full effect, whetherpartition is actually carried out as per the intendment of the Act is to befound out by Court. Even if partition is supported by registered documentit is necessary to prove it had been given effect to and acted upon and isnot otherwise sham or invalid or carried out by final decree of court.Incase partition, in fact, had been worked out finally in toto as if it wouldhave been carried out in the same manner as if affected by decree ofa court, it can be recognized, not otherwise. partition made by executionof deed duly registered under the Registration Act, 1908, also refers tocompleted event of partition not merely intendment to separate, is to beborne in mind while dealing with the special provisions of Section 6(5)conferring rights on daughter. There is clear legislative departurewith respect to proof of partition which prevailed earlier; thus, the Courtmay recognise the other mode of partition in exceptional cases basedupon continuous evidence for long time in the shape of public documentnot mere stray entries then only it would not be in consonancewith thespirit of the provisions of Section 6(5) and its Explanation.

129. Resultantly, we answer the reference as under:

A(i) The provisions contained in substituted Section 6 of the HinduSuccession Act, 1956 confer status of coparcener on the daughter bornbefore or after amendment in the same manner as son with same rightsand liabilities.

(ii) The rights can be claimed by the daughter born earlier withBeffect from 09.09.2005 with savings as provided in Section 6(1) as tothe disposition or alienation, partition or testamentary disposition whichhad taken place before 20[th] day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessarythat father coparcener should be living as on 09.09.2005.

C(iv) The statutory fiction of partition created by proviso to Section6 of the Hindu Succession Act, 1956 as originally enacted did not bringabout the actual partition or disruption of coparcenary. The fiction wasonly for the purpose of ascertaining share of deceased coparcener whenhe was survived by female heir, of Class-I as specified in the ScheduleDto the Act of 1956 or male relative of such female. The provisions of thesubstituted Section 6 are required to be given full effect. Notwithstandingthat preliminary decree has been passed the daughters are to begivenshare in coparcenary equal to that of sonin pending proceedingsforfinal decree or in an appeal.

E(v) In view of the rigor of provisions of Explanation to Section6(5) of the Act of 1956, plea of oral partition cannot be accepted as thestatutory recognised mode of partition effected by deed of partitionduly registered under the provisions of the Registration Act, 1908 oreffected by decree of court. However, in exceptional cases whereplea of oral partition is supported by public documents and partition isFfinally evinced in the same manner as if it had been affected by decreeof court, it may be accepted. plea of partition based on oral evidencealone cannot be accepted and to be rejected outrightly.

130. We understand that on this question, suits/appeals are pendingbefore different High Courts and subordinate courts. The matters haveGalready been delayed due to legal imbroglio caused by conflictingdecisions.The daughters cannot be deprived of their right of equalityconferred upon them by Section 6. Hence, we request that the pendingmatters be decided, as far as possible, within six months.

In view of the aforesaid discussion and answer, we overrule theHviews to the contrary expressed in Prakash v. Phulavati and

Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma@ Suman Surpur & Anr. v. Amar is partly overruled to the extent it iscontrary to this decision.Let the matters be placed before appropriateBench for decision on merits.

Ankit Gyan

Reference answered.