Case Summary
| Citation | Vineeta Sharma v. Rakesh Sharma and OthersCivil Appeal No. Diary No. 32601 Of 2018 |
| Keywords | female coparcener, sec 6 HSA 2005* , equal rights |
| Facts | A Hindu man ‘A’ had constructed a house with his self-acquired property in Delhi and had later thrown it into the joint family hotchpotch. He had one daughter and three sons. Upon his demise as also of one of his sons (the brother), the daughter filed a suit for partition and a claim of 1/4th share of the house as the class-1 heir. The suit for partition was filed in 2002 and the decree was passed by the trial court in 2007. The High Court had held on 29 October 2013 that keeping in view the intention of the parliament to enact the 2005 Act: she would be entitled to a share as per the latest law despite the fact that she had filed the case earlier to 2005. |
| Issues | Whether a daughter born before 9 November 2005 can claim equal rights and liabilities in coparcenary as that of a son? Whether the statutory fiction of partition created by proviso to section 6 of the hindu succession act, 1956 as originally enacted bring about the actual partition or disruption of coparcenary? |
| Contentions | |
| Law Points | *The court, overruling the phulvati and dannmma judgement, ruled that the effects of the provisions of section 6 are neither prospective in nature nor retrospective; but it is retroactive in nature. The concept is explained by the Apex court and means that the equal right of coparcenary will be given to daughter on and from 9 November 2005 but it is based upon some past event i.e. the birth of the daughter. The effects are retroactive as if the daughter never took birth, which is in past, the rights would never have existed in the first place. This approach of the court cleared the lacuna in law as to what effect, in relevance to time, these provisions have. *The court also held that notional partition doesn’t mean that actual partition has been effectuated. As notional partition is a legal fiction, it should be used and implied up to a certain limit and to only fulfil the purpose it was created for. In this case, a notional partition is created as to ascertain the share of each coparcener of the joint Hindu family. The court reiterated that the ascertainment of the shares distributed and fixated upon notional partition are not final, as the birth of a new coparcener or the death of any existing coparcener can either increase of decrease the shares of the other coparceners. It also ruled that, consequentially, a daughter can claim a share in the joint family property even if notional partition is done before 9 November 2005 as the notional partition is not an actual partition and just because of it, the coparcenary property doesn’t cease to exist. |
| Judgement | Supreme Court has also interpreted the legislation according to its objects which was to make good a fault in law as the unamended section 6 of Hindu succession act was discriminatory in nature. Accordingly, it has laid down precedence that will ensure that no bogus or sham partitions can lead to deprivation of an equal right of a daughter in Hindu joint family. This judgement successfully cleared all the confusion created by two contradicting judgements before it. |
| Ratio Decidendi & Case Authority |
Full Case Details
ARUN MISHRA, J. 1. The question concerning the interpretation of section 6 of the Hindu
Succession Act, 1956 (in short, ‘the Act of 1956’) as amended by Hindu Succession (Amendment)
Act, 2005 (in short, ‘the Act of 2005’) has been referred to a larger Bench in view of the
conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash &Ors. v.
Phulavati&Ors.,(2016) 2 SCC 36 and Danamma @ Suman Surpur&Anr. v. Amar &Ors.,
(2018) 3 SCC 343. In other connected matters, the question involved is similar; as such, they
have also been referred for hearing along.
2. In the case of Lokmani&Ors. v. Mahadevamma&Ors., [S.L.P.(C) No.6840 of 2016] the
High Court held that section 6, as amended by the Act of 2005, is deemed to be there since
17.6.1956 when the Act of 1956 came into force, the amended provisions are given retrospective
effect, when the daughters were denied right in the coparcenary property, pending proceedings
are to be decided in the light of the amended provisions. Inequality has been removed. The High
Court held that the oral partition and unregistered partition deeds are excluded from the definition
of ‘partition’ used in the Explanation to amended Section 6(5).
3. In Balchandra v. Smt. Poonam &Ors. [SLP [C] No.35994/2015], the question raised is about
the retrospectivity of section 6 as substituted by Amendment Act, 2005 and in case the father who
was a coparcener in the joint Hindu family, was not alive when the Act of 2005 came into force,
whether daughter would become a coparcener of joint Hindu family property.
4. In the matter of Sistia Sarada Devi v. Uppaluri Hari Narayana &Ors.[SLP [C]
No.38542/2016], the question raised is where the finaldecree has not been passed in a suit for
partition, whether the redistributionof 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, is prospective as the father died in the year 1994 and, thus, no
benefit could be drawn by the daughters.
6. In Smt. V.L. Jayalakshmi v. V.L. Balakrishna &Ors.[SLP [C] No. 14353/2019], the
petitioner sought partition of his father’s ancestral properties, and suit was filed in 2001. The trial
court granted 1/7th share to all the parties. The same was modified. It was held petitioner, and
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daughters were entitled to only 1/35th share in the light of the decision of this Court in Prakash
v. Phulavati(supra).
7. In Indubai v. Yadavrao[SLP [C] No.24901/2019], a similar question has been raised. In B.K.
Venkatesh v. B.K. Padmavathi [SLP[C] Nos. 176667/ 2020], the daughters have been accorded
equal shares in Item No. 1 of Schedule A property, that has been questioned.
8. A Division Bench of this Court in Prakash v. Phulavati(supra) held that section 6 is not
retrospective in operation, and it applies when both coparceners and his daughter were alive on
the date of commencement of Amendment Act, 9.9.2005. This Court further opined that the
provision contained in the Explanation to section 6(5) provides for the requirement of partition
for substituted section 6 is to be a registered one or by a decree of a court, can have no application
to a statutory notional partition on the opening of succession as provided in the unamended
Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of
the deceasedcoparcener which is not covered either under the proviso to section 6(1) or section
6(5), including its Explanation. The registration requirement is inapplicable to partition of
property by operation of law, which has to be given full effect. The provisions of section 6 have
been held to be prospective.
9. In Danamma(supra), this Court held that the amended provisions of section 6 confer full rights
upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the
coparcenary property. Gurunalingappa died in the year 2001, leaving behind two daughters, two
sons, and a widow. Coparcener’s father was not alive when the substituted provision of section 6
came into force. The daughters, sons and the widow were given 1/5th share apiece.
54. In view of the provisions contained in section 6 when a coparcener is survived by a female
heir of Class I or male relative of such female, it was necessary to ascertain the share of the
deceased, as such, a legal fiction was created. The Explanation I provided legal fiction of partition
as if it had taken place immediately before his death, notwithstanding whether he had the right to
claim it or not. However, a separated Hindu could not claim an interest in the coparcenary based
on intestacy in the interest left by the deceased.
55. The amended provisions of section 6(1) provide that on and from the commencement of the
Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a
coparcener “in her own right” and “in the same manner as the son.” Section 6(1)(a) contains the
concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth.
Section 6(1)(b) confers the same rights in the coparcenary property “as she would have had if she
had been a son”. The conferral of right is by birth, and the rights are given in the same manner
with incidents of coparcenary as that of a son and she is treated as a coparcener in the same
manner with the same rights as if she had been a son at the time of birth. Though the rights can be
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claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based
on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a
reference to a daughter as a coparcener. At the same time, the legislature has provided savings by
adding a proviso that any disposition or alienation, if there be any testamentary disposition of the
property or partition which has taken place before 20.12.2004, the date on which the Bill was
presented in the Rajya Sabha, shall not be invalidated.
56. The prospective statute operates from the date of its enactment conferring new rights. The
retrospective statute operates backward and takes away or impairs vested rights acquired under
existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in
futuro. However, its operation is based upon the character or status that arose earlier.
Characteristic or event which happened in the past or requisites which had been drawn from
antecedent events. Under the amended section 6, since the right is given by birth,that is an
antecedent event, and the provisions operate concerning claiming rights on and from the date of
Amendment Act.
61. With respect to a Hindu who dies after the commencement of the Amendment Act, 2005, as
provided in section 6(3) his interest shall pass by testamentary or intestate succession and not by
survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the
shares which would have been allotted to his heirs had there been a partition. The daughter is to
be allotted the same share as a son; even surviving child of predeceased daughter or son are given
a share in case child has also died then surviving child of such predeceased child of a predeceased
son or predeceased daughter would be allotted the same share, had they been alive at the time of
deemed partition. Thus, there is a sea change in substituted section 6. In case of death of
coparcener after 9.9.2005, succession is not by survivorship but in accordance with section
6(3)(1). The Explanation to section 6(3) is the same as Explanation I to section 6 as originally
enacted. Section 6(4) makes a daughter liable in the same manner as that of a son. The daughter,
granddaughter, or great granddaughter, as the case may be, is equally bound to follow the pious
obligation under the Hindu Law to discharge any such debt. The proviso saves the right of the
creditor with respect to the debt contracted before the commencement of Amendment Act, 2005.
The provisions contained insection 6(4) also make it clear that provisions of section 6 are not
retrospective as the rights and liabilities are both from the commencement of the Amendment
Act.
62. The proviso to section 6(1) and section 6(5) saves any partition effected before 20.12.2004.
However, Explanation to section 6(5) recognises partition effected by execution of a deed of
partition duly registered under the Registration Act, 1908 or by a decree of a court. Other forms
of partition have not been recognised under the definition of ‘partition’ in the Explanation.
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63.Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara
coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener,
with equal rights and liabilities as of that of a son. The expression used in section 6 is that she
becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can
be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a
concrete shape under the provisions of section 6(1)(a) and 6(1) (b). Coparcener right is by birth.
Thus, it is not at all necessary that the father of the daughter should be living as on the date of the
amendment, as she has not been conferred the rights of a coparcener by obstructed heritage.
According to the Mitakshara coparcenary Hindu law, as administered which is recognised in
section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of
the amendment to whom the daughter would succeed. The daughter would step into the
coparcenary as that of a son by taking birth before or after the Act. However, daughter born
before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with
saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).
64. The effect of the amendment is that a daughter is made coparcener, with effect from the date
of amendment and she can claim partition also, which is a necessary concomitant of the
coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The
coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights
conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a
coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on
the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance
is not by survivorship but by intestate or testamentary succession as provided in substituted
section 6(3).
In ref: Effect of enlargement of daughter’s rights
65. Under the proviso to section 6 before the amendment made in the year 2005 in case a
coparcener died leaving behind female relative of Class I heir or a male descendant claiming
through such Class I female heir, the daughter was one of them. Section 6, as substituted,
presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of
the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to
section 6 as it stood before amendment.
66. As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth
or by death. It is the said principle of administration of Mitakshara coparcenary carried forward in
statutory provisions of section 6. Even if a coparcener had left behind female heir of Class I or a
male claiming through such female Class I heir, there is no disruption of coparcenary by statutory
fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which
would be allotted to him as and when actual partition takes place. The deemed fiction of partition
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is for that limited purpose. The classic Shastric Hindu law excluded the daughter from being
coparcener, which injustice has now been done away with by amending the provisions in
consonance with the spirit of the Constitution.
67. There can be a sole surviving coparcener in a given case the property held by him is treated
individual property till a son is born. In case there is a widow or daughter also, it would be treated
as joint family property. If the son is adopted, he will become a coparcener. An adoption by a
widow of a deceased coparcener related to the date of her husband’s death, subject to saving the
alienations made in the intermittent period.
In Ref. Acquisition of Rights in Coparcenary Property
68. It is by birth that interest in the property is acquired. Devolution on the death of a coparcener
before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies,
mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as
coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by
way of adoption obviously within the permissible degrees; a person is to be treated as coparcener
and not otherwise.
69. The argument raised that if the father or any other coparcener died before the Amendment
Act, 2005, the interest of the father or other coparcener would have already merged in the
surviving coparcenary, and there was no coparcener alive from whom the daughter would
succeed. We are unable to accept the submission because it is not by the death of the father or
other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I
heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is
fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it
takes place as per the proviso to unamended section 6. The share of the surviving coparcener may
undergo change till the actual partition is made. The proviso to section 6 does not come in the
way of formation of a coparcenary, and who can be a coparcener. The proviso to section 6 as
originally stood, contained an exception to the survivorship right. The right conferred under
substituted section 6(1) is not by survivorship but by birth. The death of every coparcener is
inevitable. How the property passes on death is not relevant for interpreting the provisions of
section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It
cannot be inferred that the daughter is conferred with the right only on the death of a living
coparcener, by declaration contained in section 6, she has been made a coparcener. The precise
declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to
a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a
mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from
9.9.2005 by section 6(3).
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70. The decision in BireswarMookerji&Ors. v. Shib Chunder Roy (supra), was relied upon to
contend that adoption is only of a male andnot a female as held in Amarendra Man Singh
Bhramarbar&Anr. v. Sanatan Singh &Ors., (supra), a male becomes a coparcener by birth or
adoption. There is no dispute with the custom, which was prevalent earlier that there could be the
adoption of a male child and not that of females. There is no dispute with the proposition that a
coparcenary right accrued to males under the prevalent law by birth or adoption. In the same
manner, right is accrued by birth to the daughter under the provisions of section 6. The legislature
in section 6 used the term that a daughter becomes coparcener by birth. The claim based on birth
is distinguishable and is different from modes of succession.
73. It was vehemently argued that if the daughter is given the right to be a coparcener by birth and
deemed to become a coparcener at any point in the past, in the normal working of the law,
uncertainty would be caused. In our opinion, no uncertainty is brought about by the provisions of
section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners
uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara
coparcenary is inhered in its underlying principles, and there is no question of upturning it when
the daughter is treated like a son and is given the right by birth; to be exercised from a particular
date, i.e., 9.9.2005. It is not to resurrect the past but recognising an antecedent event for conferral
of rights, prospectively. There is no doubt about it that advancement brings about the enlargement
of the size of the coparcenary and disabling it from treating the daughter unequally. Even
otherwise, its size could be enlarged by the birth of a son also. By applying section 8, the joint
possession was not repudiated by the fact that a female, whether a wife or daughter, inherited the
share of coparcener under the proviso to original section 6. She was an equal member of the joint
Hindu family and deemed statutory partition did not bring disruption of the coparcenary.
74. In Prakash v. Phulavati, father died in the year 1988, daughters filed a suit for partition in
1992, same was dismissed in 2007, entitlement was given to the daughters to a share on a
notional partition under the proviso to section 6 in the share of the coparcener father. However,
the High Court applied the amended provisions of section 6 to the pending proceedings and
treated daughters equally with sons. As such, the matter travelled to this Court. It was held that
the proviso is not retrospective. The requirement of partition being registered can have no
application to statutory notional partition, on the opening of succession as per the unamended
proviso to section 6, having regard to the nature of such partition, which is by operation of law. It
was opined:
“17. The text of the amendment itself clearly provides that the right conferred on a
“daughter of a coparcener” is “on and from the commencement of the Hindu Succession
(Amendment) Act, 2005”.Section 6(3) talks of death after the amendment for its
applicability.In view of plain language of the statute, there is no scope for a different
interpretation than the one suggested by the text of the amendment. An amendment of a
substantive provision is always prospective unless either expressly or by necessary
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intendment it is retrospective. [Shyam Kumar v. Ram Kumar, (2001) 8 SCC 24, paras 22
to 27] In the present case, there is neither any express provision for giving retrospective
effect to the amended provision nor necessary intendment to that effect. Requirement of
partition being registered can have no application to statutory notional partition on
opening of succession as per unamended provision, having regard to nature of such
partition which is by operation of law. The intent and effect of the amendment will be
considered a little later. On this finding, the view of the High Court cannot be sustained.
18. The contention of the respondents that the amendment should be read as retrospective
being a piece of social legislation cannot be accepted. Even a social legislation cannot be
given retrospective effect unless so provided for or so intended by the legislature. In the
present case, the legislature has expressly made the amendment applicable on and from
its commencement and only if death of the coparcener in question is after the
amendment. Thus, no other interpretation is possible in view of the express language of
the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-
2004 unaffected can also not lead to the inference that the daughter could be a coparcener
prior to the commencement of the Act. The proviso only means that the transactions not
covered thereby will not affect the extent of coparcenary property which may be
available when the main provision is applicable. Similarly, Explanation has to be read
harmoniously with the substantive provision of Section 6(5) by being limited to a
transaction of partition effected after 20-12-2004. Notional partition, by its very nature, is
not covered either under the proviso or under sub-section (5) or under the Explanation.
23. Accordingly, we hold that the rights under the amendment are applicable to living
daughters of living coparceners as on 9-9- 2005 irrespective of when such daughters are
born. Disposition or alienation including partitions which may have taken place before
20-12-2004 as per law applicable prior to the said date will remain unaffected. Any
transaction of partition effected thereafter will be governed by the Explanation.
27.2 In GurupadKhandappaMagdumv. HirabaiKhandappaMagdum (1978) 3 SCC 383,
Shyama Devi v. Manju Shukla (1994)6 SCC 342 and Anar Devi v. Parmeshwari Devi
(2006) 8 SCC 656cases this Court interpreted Explanation 1 to Section 6 (prior to the
2005 Amendment) of the Hindu Succession Act. It was held that the deeming provision
referring to partition of the property immediately before the death of the coparcener was
to be given due and full effect in view of settled principle of interpretation of a provision
incorporating a deeming fiction. In Shyama Devi (supra) and Anar Devi (supra) cases,
same view was followed.
27.3 In Vaishali Satish Ganorkarv. Satish KeshaoraoGanorkar, AIR 2012 Bom. 101, the
Bombay High Court held thatthe amendment will not apply unless the daughter is born
after the2005 Amendment, but on this aspect a different view has been taken in the later
larger Bench judgment [AIR 214 Bom 151]. We are unable to find any reason to hold
that birth of the daughter after the amendment was a necessary condition for its
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applicability. All that is required is that daughter should be alive and her father should
also be alive on the date of the amendment.”
75. A finding has been recorded in Prakash v. Phulavatithat the rights under the substituted
section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when
such daughters are born. We find that the attention of this Court was not drawn to the aspect as to
how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener
that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to
which it extends. Survivorship is the mode of succession, not that of the formation of a
coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living
coparcener”, as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living
on 9.9.2005. In substituted section 6, the expression ‘daughter of a living coparcener’ has not been
used. Right is given under section 6(1)(a) to the daughter by birth. Declaration of right based on
the past event was made on 9.9.2005 and as provided in section 6(1(b), daughters by their birth,
have the same rights in the coparcenary, and they are subject to the same liabilities as provided in
section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a
coparcener. The provisions of section 6(1) leave no room to entertain the proposition that
coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable
to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.
76. In Mangammal v. T.B. Raju &Ors. (supra), the Court considered the provisions made in the
State of Tamil Nadu, the State Government enacted the Hindu Succession (Tamil Nadu
Amendment) Act, 1989, made effective from 25.3.1989, adding section 29A in the Hindu
Succession Act, 1956. Section 29A was held to be valid regarding succession by survivorship.
Section 29A provided equal rights to daughters in coparcenary property. The provisions were
more or less similar, except section 29A(iv) treated a married daughter differently. The provisions
were not applicable to the daughters married before the date of commencement of Amendment
Act, 1989. Thus, married daughters were not entitled to equal rights. That too, has been taken
care of in section 6, as substituted by Act of 2005, and no discrimination is made against married
daughters. In the said case, Mangammal got married in 1981, and Indira got married in or about
1984, i.e., before the 1989 Amendment. Therefore, it was held that because of section 29A(
iv) of the Amendment Act, the appellant could not institute a suit for partition and separate
possession as they were not coparceners. The decisions in Prakash v. Phulavatiand Danamma
were referred, and it was opined that Prakash v. Phulavatiwould still hold the value of precedent
for right of a daughter in ancestral property and only “living daughters of living coparceners” as
on 9.9.2005 would be entitled to claim a share in the coparcenary property. In Mangammal, the
Court opined thus:
15. Moreover, under Section 29-A of the Act, the legislature has used the word “the
daughter of a coparcener.” Here, the implication of such wordings mean both the
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coparcener as well as daughter should be alive to reap the benefits of this provision at the
time of commencement of the amendment of 1989. The similar issue came up for the
consideration before this Court in Prakash v. Phulavati, (2016) 2 SCC 36, wherein this
Court while dealing with the identical matter held at para 23 as under (SCC p. 49)
23.Accordingly, we hold that the rights under the amendment are applicable to living
daughters of living coparceners as on 9-9- 2005 irrespective of when such daughters are
born.”
(emphasis supplied)
16. It is pertinent to note here that recently, this Court in Danammav. Amar, (2018) 3
SCC 343, dealt, inter alia, with the dispute of daughter’s right in the ancestral property. In
the above case, father of the daughter died in 2001, yet court permitted the daughter to
claim the right in ancestral property in view of the amendment in 2005. On a perusal of
the judgment and after having regard to the peculiar facts of the Danamma(supra), it is
evident that the Division Bench of this Court primarily did not deal with the issue of
death of the father rather it was mainly related to the question of law whether daughter
who was born prior to 2005amendment would be entitled to claim a share in ancestral
propertyor not? In such circumstances, in our view, Prakash, (2016) 2 SCC
36. would still hold precedent on the issue of death of coparcener for the purpose of right
of daughter in ancestral property. Shortly put, only living daughters of living coparceners
would be entitled to claim a share in the ancestral property.
17. Hence, without touching any other aspect in the present case, we are of the view that
the appellants were not the coparceners in the Hindu joint family property in view of the
1989 amendment, hence, they had not been entitled to claim partition and separate
possession at the very first instance. At the most, they could claim maintenance and
marriage expenses if situation warranted.”
77. It is apparent that the question of living daughter of a living coparcener was not involved in
the matter, once this Court held that the married daughters were not entitled to claim partition and
separate possession as marriage had taken place prior to the enforcement of the 1989 amendment,
as observed in para 17 quoted above. However, this Court opined that the decision in Prakash
v.Phulavati, laying down that only living daughters of living coparceners would be entitled to
claim a share in the ancestral property under section 6 of the Act of 1956. The opinion expressed
cannot be accepted for the reasons mentioned above. Moreover, it was not necessary to go into
the aforesaid question.
78. In Danamma, a Division Bench of this Court dealt with the interpretation of amended
provisions of section 6. The decision in Anar Devi v. Parmeshwari Devi (supra) was relied upon.
It was observed that the controversy concerning the interpretation of section 6 now stands settled
with authoritative pronouncement in Prakash v.Phulavatiwhich affirmed the view taken by the
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High Court as well as a Full Bench in Badrinarayan Shankar Bhandari v. Omprakash Shankar
Bhandari, AIR 2014 Bom. 151. In Danamma, the Court further opined:
23. Section 6, as amended, stipulates that on and from the commencement of the
amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own
right in the same manner as the son. It is apparent that the status conferred upon sons under the
old section and the old Hindu Law was to treat them as coparceners since birth. The
amended provision now statutorily recognises the rights of coparceners of daughters as
well since birth. The section uses the words in the same manner as theson. It should
therefore be apparent that both the sons and the daughters of a coparcener have been
conferred the right of becoming coparceners by birth. It is the very factum of birth in a
coparcenary that creates the coparcenary, therefore the sons and daughters of a
coparcener become coparceners by virtue of birth. Devolution of coparcenary
property is the later stage of and a consequence of death of a coparcener. The first stage
of a coparcenary is obviously its creation as explained above, and is well recognised.
One of the incidents of coparcenary is the right of a coparcener to seek a severance of status.
Hence, the rights of coparceners emanate and flow from birth (now including daughters) as
is evident from sub sections (1)(a) and (b).
25. Hence, it is clear that the right to partition has not been abrogated. The right is
inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.
26. In the present case, no doubt, suit for partition was filed in the year 2002. However,
during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by
the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year
2005 and this event should have been kept in mind by the trial court as well as by the High Court.
This Court in GanduriKoteshwarammav. ChakiriYanadi(2011) 9 SCC 788, held that the rights
of daughters in coparcenary property as per the amended Section 6 are not lost merely because a
preliminary decreehas been passed in a partition suit. So far as partition suits are concerned, the
partition becomes final only on the passing of a final decree. Where such situation arises, the
preliminary decree would have to be amended taking into account the change in the law by the
amendment of 2005.
27. On facts, there is no dispute that the property which was the subject-matter of
partition suit belongs to joint family and GurulingappaSavadi was propositus of the said joint
family property. In view of our aforesaid discussion, in the said partition suit, share will devolve
upon the appellants as well. Since, Savadi died leaving behind two sons, two daughters and a
widow, both the appellants would be entitled to 1/5th share each in the said property. The
plaintiff (Respondent 1) is son of Arun Kumar (Defendant 1). Since, Arun Kumar will have 1/5th
share, it would be divided into five shares on partition i.e. between Defendant 1 Arun Kumar, his
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wife Defendant 2, his two daughters Defendants 3 and 4 and son/plaintiff (Respondent 1). In this
manner, Respondent 1-plaintiff would be entitled to 1/25th share in the property.”
78. In Danamma, it is pertinent to mention that Gurulingappa, propositus of a Hindu joint family
and the father of living daughter coparcener died in 2001, before the Amendment Act, 2005 came
into force, leaving behind two daughters, son and a widow. Daughters were given equal rights by
this Court. We agree with certain observations made in paras 23 and 25 to 27 (supra) but find
ourselves unable to agree with the earlier part approving the decision in Prakash v. Phulavatiand
the discussion with respect to the effect of the statutory partition. As a matter of fact, in
substance, there is a divergence of opinion in Prakash v. Phulavatiand Danammawith respect to
the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living
daughter of a living coparcener was not dealt with specifically. However, the effect of reasons
given in para 23 had been carried out to logical end by giving an equal share to the daughter.
In Ref. Partition and Effect of Statutory Fiction
79. The right to claim partition is a significant basic feature of the coparcenary, and a coparcener
is one who can claim partition. The daughter has now become entitled to claim partition of
coparcenary w.e.f. 9.9.2005, which is a vital change brought about by the statute. A coparcener
enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter
are pari passu with a son. In the eventuality of a partition, apart from sons and daughters, the wife
of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim
her right in property is in no way taken away.
80. We deem it appropriate to refer to the decision in Hardeo Rai v. Sakuntala Devi &Ors.,
(2008) 7 SCC 46 laying down that when an intention is expressed to partition the coparcenary
property, the share of each of the coparceners becomes clear and ascertainable. Once the share of
a coparcener is determined, it ceases to be a coparcenary property. After taking a definite share in
the property, a coparcener becomes the owner of that share, and, as such, he can alienate the same
by sale or mortgage in the same manner as he can dispose of his separate property.
81. It is settled proposition of law that without partition, only undivided share can be sold but not
specific property, nor joint possession can be disrupted by such alienation. Whether the consent
of other coparcener is required for sale or not, depends upon by which School of Mitakshara law,
parties are governed, to say, in Benares School, there is a prohibition on the sale of property
without the consent of other coparceners. The Court in the abovesaid decision made general
observation but was not concerned with the aspect when the partition was completed, the effect of
intervening events and effect of statutory provisions as to partition, as such, it cannot be said to be
an authority as to provisions of section 6 as substituted and as to enlargement of the right by
operation of law achieved thereunder. Shares of coparceners can undergo a change in coparcenary
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by birth and death unless and until the final division is made. The body of coparcenary is
increased by the operation of law as daughters have been declared as a coparcener, full effect is
required to be given to the same. The above decision cannot be said to be an authority for the
question involved in the present matters.
90. In S. Sai Reddy v. S. Narayana Reddy &Ors. (1991) 3 SCC 647, a suit for partition, was filed.
A preliminary decree determining the shares was passed. The final decree was yet to be passed. It
was observed that unless and until the final decree is passed and the allottees of the shares are put
in possession of the respective property, the partition is not complete. A preliminary decree does
not bring about the final partition. For, pending the final decree, the shares themselves are liable
to be varied on account of the intervening events, and the preliminary decree does not bring about
any irreversible situation. The concept of partition that the legislature had in mind could not be
equated with a mere severance of the status of the joint family, which could be effected by an
expression of a mere desire by a family member to do so. The benefit of the provision of section
29A could not have been denied to women whose daughters were entitled to seek shares equally
with sons in the family.
99. Once the constitution of coparcenary changes by birth or death, shares have to be worked out
at the time of actual partition. The shares will have to be determined in changed scenario. The
severance of status cannot come in the way to give effect to statutory provision and change by
subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring
about the disruption of the joint family or that of coparcenary is a settled proposition of law. For
the reasons mentioned above, we are also of the opinion that mere severance of status by way of
filing a suit does not bring about the partition and till the date of the final decree, change in law,
and changes due to the subsequent event can be taken into consideration.
101. When the proviso to unamended section 6 of the Act of 1956 came into operation and the
share of the deceased coparcener was required to be ascertained, a deemed partition was assumed
in the lifetime of the deceased immediately before his death. Such a concept of notional partition
was employed so as to give effect to Explanation to section 6. The fiction of notional partition
was meant for an aforesaid specific purpose. It was not to bring about the real partition. Neither
did it affect the severance of interest nor demarcated the interest of surviving coparceners or of
the other family members, if any, entitled to a share in the event of partition but could not have
claimed it. The entire partition of the coparcenary is not provided by deemed fiction; otherwise,
coparcenary could not have continued which is by birth, and the death of one coparcener would
have brought an end to it. Legal fiction is only for a purpose it serves, and it cannot be extended
beyond was held in State of TravancoreCochin&Ors. v. Shanmugha Vilas Cashew Nut Factory
&Ors., (1954) SCR 53; Bengal Immunity Co. Ltd. v. State of Bihar &Ors., AIR 1955 SC 661;
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8. xxx In the first place the section creates a legal fiction. Therefore, the express words of
the section have to be given their full meaning and play in order to find out whether the legal
fiction contemplated by this express provision of the statute has arisen or not in the facts of the
case. Rule of construction of provisions creating legal fictions is well settled. In interpreting a
provision creating a legal fiction the Court is to ascertain for what purpose the fiction is created,
and after ascertaining this, the Court is to assume all those facts and consequences which are
incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the
fiction it is not to be extended beyond the purpose for which it is created, or beyond the language
of the section by which it is created. It cannot also be extended by importing another fiction. x
xx”
106. In the instant case, the question is different. What has been recognised as partition by the
legislation under section 6, accordingly, rights are to be worked out. This Court consistently held
in various decisions mentioned above that when the rights are subsequently conferred, the
preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have
no hesitation to reject the effect of statutory fiction of proviso to section 6 as discussed in
Prakash v. Phulavati(supra) and Danamma(supra). If a daughter is alive on the date of
enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the
Amendment Act, irrespective of the date of birth earlier in point of time.
In Ref. Section 6(5)
107. The Explanation to Section 6(5) provides that for the purposes of Section 6, ‘partition’
means effected by any registered partition deed or effected by a decree of a court. It is pertinent to
mention that Explanation did not find place in the original Amendment Bill moved before the
Rajya Sabha on 20.12.2004. The same was added subsequently. In the initial Note, it was
mentioned that partition should be properly defined, leaving any arbitrary interpretation, and for
all practical purposes, the partition should be evinced by a registered public document or have
been affected by a decree of a court. In a case partition is oral, it should be supported by
documentary evidence. Initially, it was proposed to recognise the oral partition also, in case the
same is supported by contemporaneous documentary evidence. The intention was to avoid any
sham or bogus transactions in order to defeat the rights of coparcener conferred upon daughters
by the Amendment Act, 2005. In this regard, Note for Cabinet issued by the Legislative
Department, Ministry of Law & Justice, Government of India, suggested as under:
“As regards sub section 5 of the proposed new section 6, the committee vide paragraph
has recommended that the term “partition” should be properly defined, leaving any arbitrary
interpretation. Partition for all practical purposes should be registered have been effected by a
decree of the Court. In case where oral partition is recognised, be backed by proper documentary
evidence. It is proposed to accept this recommendation and make suitable changes in the Bill.”
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116. The intendment of amended Section 6 is to ensure that daughters are not deprived of their
rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary
property by setting up the frivolous defence of oral partition and/or recorded in the unregistered
memorandum of partition. The Court has to keep in mind the possibility that a plea of oral
partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of
partition which may also be created at any point of time. Such a partition is not recognized under
Section 6(5).
122. Earlier, an oral partition was permissible, and at the same time, the burden of proof remained
on the person who asserted that there was a partition. It is also settled law that Cesser of
Commonality is not conclusive proof of partition, merely by the reason that the members are
separated in food and residence for the convenience, and separate residence at different places
due to service or otherwise does not show separation. Several acts, though not conclusive proof of
partition, may lead to that conclusion in conjunction with various other facts. Such as separate
occupation of portions, division of the income of the joint property, definement of shares in the
joint property in the revenue of land registration records, mutual transactions, as observed in
Bhagwani v. Mohan Singh, AIR 1925 PC 132, and Digambar Patil v. Devram, AIR 1995 SC
1728.
123. There is a general presumption that every Hindu family is presumed to be joint unless the
contrary is proved. It is open even if one coparcener has separated, to the nonseparating members
to remain joint and to enjoy as members of a joint family. No express agreement is required to
remain joint. It may be inferred from how their family business was carried on after one
coparcener was separated from them. Whether there was a separation of one coparcener from all
other members of a joint family by a decree of partition, the decree alone should be looked at to
determine the question was laid down in Palani Ammal (supra) and Girijanandini Devi &Ors. v.
BijendraNarain Choudhary, AIR 1967 SC 1124.
125. The severance of status may take place from the date of filing of a suit; however, a decree is
necessary for working out the results of the same, and there may be a change of rights during the
pendency of the suit for allotting definite shares till final decree is passed. There are cases in
which partition can be reopened on the ground of fraud or mistake, etc. or on certain other
permissible grounds. In appropriate cases, it can be reopened at the instance of minor also.
126. The protection of rights of daughters as coparcener is envisaged in the substituted Section 6
of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a
registered instrument. The partition so effected before 20.12.2004 is saved.
127. A special definition of partition has been carved out in the explanation. The intendment of
the provisions is not to jeopardise the interest of the daughter and to take care of sham or
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frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener
and prevent nullifying the benefit flowing from the provisions as substituted. The statutory
provisions made in section 6(5) change the entire complexion as to partition. However, under the
law that prevailed earlier, an oral partition was recognised. In view of change of provisions of
section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily
accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of
proof upon proponent of oral partition before it is accepted such as separate occupation of
portions, appropriation of the income, and consequent entry in the revenue records and invariably
to be supported by other contemporaneous public documents admissible in evidence, may be
accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act
is only to accept the genuine partitions that might have taken place under the prevailing law, and
are not set up as a false defence and only oral ipsedixit is to be rejected outrightly. The object of
preventing, setting up of false or frivolous defence to set at naught the benefit emanating from
amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive
the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very
extremely careful in accepting the same, and only if very cogent, impeccable, and
contemporaneous documentary evidence in shape of public documents in support are available,
such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or
memorandum of partition, unregistered one can be manufactured at any point in time, without any
contemporaneous public document needs rejection at all costs. We say so for exceptionally good
cases where partition is proved conclusively and we caution the courts that the finding is not to be
based on the preponderance of probabilities in view of provisions of gender justice and the rigor
of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be
remembered that courts cannot defeat the object of the beneficial provisions made by the
Amendment Act. The exception is carved out by us as earlier execution of a registered document
for partition was not necessary, and the Court was rarely approached for the sake of family
prestige. It was approached as a last resort when parties were not able to settle their family
dispute amicably. We take note of the fact that even before 1956, partition in other modes than
envisaged under Section 6(5) had taken place.
128. The expression used in Explanation to Section 6(5) ‘partition effected by a decree of a court’
would mean giving of final effect to actual partition by passing the final decree, only then it can
be said that a decree of a court effects partition. A preliminary decree declares share but does not
effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions
are to be given full effect, whether partition is actually carried out as per the intendment of the
Act is to be found out by Court. Even if partition is supported by a registered document it is
necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid
or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in
toto as if it would have been carried out in the same manner as if affected by a decree of a court,
it can be recognized, not otherwise. A partition made by execution of deed duly registered under
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the Registration Act, 1908, also refers to completed event of partition not merely intendment to
separate, is to be borne in mind while dealing with the special provisions of Section 6(5)
conferring rights on a daughter. There is a clear legislative departure with respect to proof of
partition which prevailed earlier; thus, the Court may recognise the other mode of partition in
exceptional cases based upon continuous evidence for a long time in the shape of public
document not mere stray entries then only it would not be in consonance with the spirit of the
provisions of Section 6(5) and its Explanation.
129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer
status of coparcener on the daughter born before or after amendment in the same manner as son
with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings
as provided in Section 6(1) as to the disposition or alienation, partition or testamentary
disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be
living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act,
1956 as originally enacted did not bring about the actual partition or disruption of coparcenary.
The fiction was only for the purpose of ascertaining share of deceased coparcener when he was
survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male
relative of such female. The provisions of the substituted Section 6 are required to be given full
effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given
share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of
oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed
of partition duly registered under the provisions of the Registration Act, 1908 or effected by a
decree of a court. However, in exceptional cases where plea of oral partition is supported by
public documents and partition is finally evinced in the same manner as if it had been affected by
a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be
accepted and to be rejected outrightly.
130. We understand that on this question, suits/appeals are pending before different High Courts
and subordinate courts. The matters have already been delayed due to legal imbroglio caused by
conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon
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them by Section 6. Hence, we request that the pending matters be decided, as far as possible,
within six months. In view of the aforesaid discussion and answer, we overrule the views to the
contrary expressed in Prakash v. Phulavatiand Mangammal v. T.B. Raju &Ors. The opinion
expressed in Danamma @Suman Surpur&Anr. v. Amar is partly overruled to the extent it is
contrary to this decision. Let the matters be placed before appropriate Bench for decision on
merits.
