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.”
23) The law relating to a joint Hindu family governed by the Mitakshara
law has undergone unprecedented changes. The said changes have
been brought forward to address the growing need to merit equal
treatment to the nearest female relatives, namely daughters of a
coparcener. The section stipulates that a daughter would be a
coparcener from her birth, and would have the same rights and liabilities
as that of a son. The daughter would hold property to which she is
entitled as a coparcenary property, which would be construed as
property being capable of being disposed of by her either by a will or any
other testamentary disposition. These changes have been sought to be
made on the touchstone of equality, thus seeking to remove the
perceived disability and prejudice to which a daughter was subjected.
The fundamental changes brought forward about in the Hindu
Succession Act, 1956 by amending it in 2005, are perhaps a realization
of the immortal words of Roscoe Pound as appearing in his celebrated
treaties, The Ideal Element in Law, that “the law must be stable and yet
it cannot stand still. Hence all thinking about law has struggled to
reconcile the conflicting demands of the need of stability and the need of
change.”
24) 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
recognizes the rights of coparceners of daughters as well since birth.
The section uses the words in the same manner as the son. It should
therefore be apparent that both the sons and the daughters of a
coparcener have been conferred the right of becoming coparceners by
birth. It is the very factum of birth in a coparcenary that creates the
coparcenary, therefore the sons and daughters of a coparcener become
coparceners by virtue of birth. Devolution of coparcenary property is
the later stage of and a consequence of death of a coparcener. The first
stage of a coparcenary is obviously its creation as explained above, and
as is well recognized. 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-s (1)(a) and (b).
25) Reference to the decision of this Court, in the case of State Bank of India v. Ghamandi Ram7
in essential to understand the incidents of
coparceneryship as was always inherited in a Hindu Mitakshara
coparcenary:
“According to the Mitakshara School of Hindu Law all the
property of a Hindu joint family is held in collective ownership
by all the coparceners in a quasi-corporate capacity. The
textual authority of the Mitakshara lays down in express terms
that the joint family property is held in trust for the joint family
members then living and thereafter to be born (See
Mitakshara, Ch. I. 1-27). The incidents of coparcenership
under the Mitakshara law are: first, the lineal male
descendants of a person up to the third generation, acquire on
birth ownership in the ancestral properties is common;
secondly, that such descendants can at any time work out
their rights by asking for partition; thirdly, that till partition
each member has got ownership extending over the entire
property, conjointly with the rest; fourthly, that as a result of
such co-ownership the possession and enjoyment of the
properties is common; fifthly, that no alienation of the property
is possible unless it be for necessity, without the concurrence
of the coparceners, and sixthly, that the interest of a deceased
member lapses on his death to the survivors.”
26) Hence, it is clear that the right to partition has not been abrogated.
7 AIR 1969 SC 1330.18
The right is inherent and can be availed of by any coparcener, now
even a daughter who is a coparcener.
27) 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 188-189 OF 2018
[@SLP(C) Nos. 10638-10639 of 2013]
DANAMMA @ SUMAN SURPUR & ANR. .V AMAR & ORS.
A.K. SIKRI, J.
Dated:FEBRUARY 1, 2018.
The appellants herein, two in number, are the daughters of one,
Gurulingappa Savadi, propositus of a Hindu Joint Family. Apart from
these two daughters, he had two sons, namely, Arunkumar and Vijay.
Gurulingappa Savadi died in the year 2001 leaving behind the aforesaid
two daughters, two sons and his widow, Sumitra. After his death, Amar,
S/o Arunkumar filed the suit for partition and a separate possession of
the suit property described at Schedule B to E in the plaint stating that
the two sons and widow were in joint possession of the aforesaid
properties as coparceners and properties mentioned in Schedule B was
acquired out of the joint family nucleus in the name of Gurulingappa
Savadi. Case set up by him was that the appellants herein were not the
coparceners in the said joint family as they were born prior to the2
enactment of Hindu Succession Act, 1956 (hereinafter referred to as the
‘Act’). It was also pleaded that they were married daughters and at the
time of their marriage they had received gold and money and had,
hence, relinquished their share.
2) The appellants herein contested the suit by claiming that they were also
entitled to share in the joint family properties, being daughters of
Gurulingappa Savadi and for the reason that he had died after coming
into force the Act of 1950.
3) The trial court, while decreeing the suit held that the appellants were not
entitled to any share as they were born prior to the enactment of the Act
and, therefore, could not be considered as coparceners. The trial court
also rejected the alternate contention that the appellants had acquired
share in the said properties, in any case, after the amendment in the Act
vide amendment Act of 2005. This view of the trial court has been
upheld by the High Court in the impugned judgement dated January 25,
2012 thereby confirming the decree dated August 09, 2007 passed in
the suit filed for partition.
4) In the aforesaid backdrop, the question of law which arises for
consideration in this appeal is as to whether, the appellants, daughters
of Gurulingappa Savadi, could be denied their share on the ground that
they were born prior to the enactment of the Act and, therefore, cannot
be treated as coparceners? Alternate question is as to whether, with the
passing of Hindu Succession (Amendment) Act, 2005, the appellants
would become coparcener “by birth” in their “own right in the same
manner as the son” and are, therefore, entitled to equal share as that of
a son?
5) Though, we have mentioned the gist of the lis involved in this case along
with brief factual background in which it has arisen, some more facts
which may be necessary for understanding the genesis of issue involved
may also be recapitulated. We may start with the genealogy of the
parties, it is as under:
“ Guralingappa=Sumitra
(Def.8)
---------------------------------------------------------------
Mahandanda Arunkumar @ Arun=Sarojini Vijay Danamma
(Def. 7) (Def.1) (dead) (Def.2) (Def.5) (Def. 6)
----------------------------------------------
Sheetal Amar Triveni
(Def. 3) (Plff) (Def. 4) ”
6) Respondent No. 1 herein (the plaintiff) filed the suit on July 01, 2002
claiming 1/15th share in the suit schedule properties. In the said suit, he
mentioned the properties which needed partition.
7) The plaint schedule C compromised of the house properties belonging to
the joint family. The plaint schedule D comprised of the shop properties4
belonging to the joint family. The plaint schedule E comprised of the
machineries and movable belonging to the joint family. The plaintiff
averred that the plaint schedule properties belonged to the joint family
and that defendant no. 1, the father of the plaintiff was neglecting the
plaintiff and his siblings and sought partition of the suit schedule
properties. The plaintiff contended that all the suit schedule properties
were the joint family properties. The plaintiff contended in para 5 of the
plaint that the propositus, Guralingappa died 1 year prior to the filing of
the suit. In para 7 of the plaint, the plaintiff contended that defendant no.
1 had 1/3rd share and defendant no. 5 and 8 had 1/3rd share each in the
suit schedule properties. The plaintiff also contended that defendants 6
and 7 did not have any share in the suit schedule properties.
8) Defendant no. 1 (father of the plaintiff) and son of Guralingappa Savadi
did not file any written statement. Defendant nos. 2, 3 and 4 filed their
separate written statements supporting the claim of the plaintiff.
Defendant no. 5 (respondent no. 5 herein and son of Guralingappa
Savadi), however, contested the suit. He, inter alia, contended that after
the death of Guralingappa, an oral partition took place between
defendant no. 1, defendant no. 5 and others and in the said partition,
defendant no. 1 was allotted certain properties and defendant no. 5 was
allotted certain other properties and defendant no. 8, Sumitra, wife of
Guralingappa Savadi was allotted certain other properties. Defendant5
no. 5 further contended that defendant nos. 6 and 7 were not allotted
any properties in the said alleged oral partition.
9) Defendant no. 5 further contended that one of the properties, namely,
C.T.S. No. 774 and also certain other properties were not joint family
properties.
10) The appellants claimed that they were also entitled to their share in
the property. After framing the issues and recording the evidence, the
trial court by its judgment and decree dated August 09, 2007 held that
the suit schedule properties were joint family properties except CTS No.
774 (one of the house properties in plaint C schedule).
11) The trial court held that the plaintiff, defendant nos. 2 to 4 were
entitled to 1/8th share in the joint family properties. The trial court further
noted that defendant no. 8 (wife of Gurulingappa Savadi) died during the
pendency of the suit intestate and her share devolved in favour of
defendants no. 1 and 5 only and, therefore, defendant nos. 1 and 2 were
entitled to ½ share in the said share. The trial court passed the following
order:
“The suit of the plaintiff is decreed holding that the plaintiff
is entitled for partition and separate possession of his
1/8th share in the suit ‘B’, ‘C’ and ‘D’ schedule properties
(except CTS No. 774) and also in respect of the
Machinery’s stated in the report of the commissioner.
The commissioners report Ex. P16 which contains the list
of machinery’s to form part of the decree.6
The defendants 2 to 4 are each entitled to a/8th share and
the 5th defendant is entitled for 4/8 share in the above
said properties.”
12) The trial court, thus, denied any share to the appellants.
13) Aggrieved by the said judgment and decree of the trial court, the
defendant nos. 6 and 7 filed an appeal bearing R.F.A. No. 322 of 2008
before the High Court seeking equal share as that of the sons of the
propositus, namely, defendant nos. 1 and 5.
14) The High Court by its impugned judgment and order dated January
25, 2012 dismissed the appeal. Thereafter, on March 04, 2012
defendant nos. 6 and 7 filed a review petition bearing no. 1533 of 2012
before the High Court, which met the same fate.
15) We have heard the learned counsel for the parties. Whereas, the
learned counsel for the appellants reiterated his submissions which were
made before the High Court as well and noted above, learned counsel
for the respondents refuted those submissions by relying upon the
reason given by the High Court in the impugned judgment.
16) In the first instance, let us take note of the provisions of Section 6
of the Act, as it stood prior to its amendment by the Amendment Act,
2005. This provision reads as under:
“6. Devolution of interest in coparcenary property.—When a
male Hindu dies after the commencement of this Act, having at7
the time of his death an interest in a Mitakshara coparcenary
property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary
and not in accordance with this Act:
Provided that, if the deceased had left him surviving a
female relative specified in Class I of the Schedule or a male
relative specified in that class who claims through such female
relative, the interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary or
intestate succession, as the case may be, under this Act and
not by survivorship.
Explanation 1.—For the purposes of this section, the
interest of a Hindu Mitakshara coparcener shall be deemed to
be the share in the property that would have been allotted to
him if a partition of the property had taken place immediately
before his death, irrespective of whether he was entitled to
claim partition or not.
Explanation 2.—Nothing contained in the proviso to this
section shall be construed as enabling a person who had
separated himself from the coparcenary before the death of the
deceased or any of his heirs to claim on intestacy a share in
the interest referred to therein.”
17) No doubt, Explanation 1 to the aforesaid Section states that the
interest of the deceased Mitakshara coparcenary property shall be
deemed to be the share in the property that would have been allotted to
him if the partition of the property had taken place immediately before
his death, irrespective whether he was entitled to claim partition or not.
This Explanation came up for interpretation before this Court in Anar
Devi & Ors. v. Parmeshwari Devi & Ors.1
. The Court quoted, with
approval, the following passage from the authoritative treatise of Mulla,
Principles of Hindu Law, 17th Edn., Vol. II, p. 250 wherein the learned
1 (2006) 8 SCC 6568
author made following remarks while interpreting Explanation 1 to
Section 6:
“…Explanation 1 defines the expression ‘the interest of the
deceased in Mitakshara coparcenary property’ and
incorporates into the subject the concept of a notional partition.
It is essential to note that this notional partition is for the
purpose of enabling succession to and computation of an
interest, which was otherwise liable to devolve by survivorship
and for the ascertainment of the shares in that interest of the
relatives mentioned in Class I of the Schedule. Subject to such
carving out of the interest of the deceased coparcener the
other incidents of the coparcenary are left undisturbed and the
coparcenary can continue without disruption. A statutory fiction
which treats an imaginary state of affairs as real requires that
the consequences and incidents of the putative state of affairs
must flow from or accompany it as if the putative state of affairs
had in fact existed and effect must be given to the inevitable
corollaries of that state of affairs.”
7. The learned author further stated that:
“[T]he operation of the notional partition and its inevitable
corollaries and incidents is to be only for the purposes of
this section, namely, devolution of interest of the
deceased in coparcenary property and would not bring
about total disruption of the coparcenary as if there had
in fact been a regular partition and severance of status
among all the surviving coparceners.”
8. According to the learned author, at pp. 253-54, the undivided
interest
“of the deceased coparcener for the purpose of giving
effect to the rule laid down in the proviso, as already
pointed out, is to be ascertained on the footing of a
notional partition as of the date of his death. The
determination of that share must depend on the
number of persons who would have been entitled to a
share in the coparcenary property if a partition had in
fact taken place immediately before his death and
such person would have to be ascertained according
to the law of joint family and partition. The rules of
Hindu law on the subject in force at the time of the
death of the coparcener must, therefore, govern the
question of ascertainment of the persons who would9
have been entitled to a share on the notional partition”.
18) Thereafter the Court spelled out the manner in which the statutory
fiction is to be construed by referring to certain judgments and summed
up the position as follows:
“11. Thus we hold that according to Section 6 of the Act when a
coparcener dies leaving behind any female relative specified in
Class I of the Schedule to the Act or male relative specified in
that class claiming through such female relative, his undivided
interest in the Mitakshara coparcenary property would not
devolve upon the surviving coparcener, by survivorship but
upon his heirs by intestate succession. Explanation 1 to
Section 6 of the Act provides a mechanism under which
undivided interest of a deceased coparcener can be
ascertained and i.e. that the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property
that would have been allotted to him if a partition of the
property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.
It means for the purposes of finding out undivided interest of a
deceased coparcener, a notional partition has to be assumed
immediately before his death and the same shall devolve upon
his heirs by succession which would obviously include the
surviving coparcener who, apart from the devolution of the
undivided interest of the deceased upon him by succession,
would also be entitled to claim his undivided interest in the
coparcenary property which he could have got in notional
partition.”
19) This case clearly negates the view taken by the High Court in the
impugned judgment.
20) That apart, we are of the view that amendment to the aforesaid
Section vide Amendment Act, 2005 clinches the issue, beyond any pale
of doubt, in favour of the appellants. This amendment now confers upon
the daughter of the coparcener as well the status of coparcener in her
own right in the same manner as the son and gives same rights and10
liabilities in the coparcener properties as she would have had if it had
been son. The amended provision reads as under:
“6. Devolution of interest in coparcenary property.―(1) On and
from the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family
governed by the Mitakshara law, the daughter of a coparcener
shall,―
(a) by birth become a coparcener in her own right the same
manner as the son;
(b) have the same rights in the coparcenery property as she
would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenery property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including any
partition or testamentary disposition of property which had
taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by
virtue of sub-section (1) shall be held by her with the incidents
of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other law
for the time being in force, as property capable of being
disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu
Succession (Amendment) Act, 2005 (39 of 2005), his interest
in the property of a Joint Hindu family governed by the
Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by
survivorship, and the coparcenery property shall be deemed to
have been divided as if a partition had taken place and,―
(a) the daughter is allotted the same share as is allotted to a
son;
(b) the share of the pre-deceased son or a pre-deceased
daughter, as they would have got had they been alive at the11
time of partition, shall be allotted to the surviving child of such
pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son
or of a pre-deceased daughter, as such child would have got
had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the
pre-deceased son or a pre-deceased daughter, as the case
may be.
Explanation.―For the purposes of this sub-section, the
interest of a Hindu Mitakshara coparcener shall be deemed to
be the share in the property that would have been allotted to
him if a partition of the property had taken place immediately
before his death, irrespective of whether he was entitled to
claim partition or not.
(4) After the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), no court shall recognise
any right to proceed against a son, grandson or
great-grandson for the recovery of any debt due from his
father, grandfather or great-grandfather solely on the ground of
the pious obligation under the Hindu law, of such son,
grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before
the commencement of the Hindu Succession (Amendment)
Act, 2005 (39 of 2005), nothing contained in this sub-section
shall affect―
(a) the right of any creditor to proceed against the son,
grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any
such debt, and any such right or alienation shall be
enforceable under the rule of pious obligation in the same
manner and to the same extent as it would have been
enforceable as if the Hindu Succession (Amendment) Act,
2005 (39 of 2005) had not been enacted.
Explanation.―For the purposes of clause (a), the
expression “son”, “grandson” or “great-grandson” shall be
deemed to refer to the son, grandson or great-grandson, as the
case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act,
2005 (39 of 2005).
(5) Nothing contained in this section shall apply to a partition,12
which has been effected before the 20th day of December,
2004.
Explanation.―For the purposes of this section “partition”
means any partition made by execution of a deed of partition
duly registered under the Registration Act, 1908 (16 of 1908) or
partition effected by a decree of a court.]”
21) The effect of this amendment has been the subject matter of
pronouncements by various High Courts, in particular, the issue as to
whether the right would be conferred only upon the daughters who are
born after September 9, 2005 when Act came into force or even to those
daughters who were born earlier. Bombay High Court in Vaishali
Satish Gonarkar v. Satish Keshorao Gonarkar2
had taken the view
that the provision cannot be made applicable to all daughters born even
prior to the amendment, when the Legislature itself specified the
posterior date from which the Act would come into force. This view was
contrary to the view taken by the same High Court in Sadashiv
Sakharam Patil v. Chandrakant Gopal Desale3
. Matter was referred to
the Full Bench and the judgment of the Full Bench is reported as
Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari4
.
The Full Bench held that clause (a) of sub-section (1) of Section 6 would
be prospective in operation whereas clause (b) and (c) and other parts
of sub-section (1) as well as sub-section (2) would be retroactive in
operation. It held that amended Section 6 applied to daughters born
2 AIR 2012 Bom 110
3 2011 (5) Bom CR 726
4 AIR 2014 Bom 15113
prior to June 17, 1956 (the date on which Hindu Succession Act came
into force) or thereafter (between June 17, 1956 and September 8,
2005) provided they are alive on September 9, 2005 i.e. on the date
when Amended Act, 2005 came into force. Orissa, Karnataka and Delhi
High Court have also held to the same effect5
.
22) The controversy now stands settled with the authoritative
pronouncement in the case of Prakash & Ors. v. Phulavati & Ors.6
which has approved the view taken by the aforesaid High Courts as well
as Full Bench of the Bombay High Court. Following discussion from the
said judgment is relevant:
“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 intendment it is retrospective. [Shyam
Sunder 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
5 AIR 2008 Ori 133: Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik; ILR
2007 Kar 4790: Sugalabai v. Gundappa A. Maradi and 197 (2013) DLT 154: Rakhi Gupta v. Zahoor
Ahmad
6 (2016) 2 SCC 3614
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.
19. Interpretation of a provision depends on the text and the
context. [RBI v. Peerless General Finance & Investment Co.
Ltd., (1987) 1 SCC 424, p. 450, para 33] Normal rule is to read
the words of a statute in ordinary sense. In case of ambiguity,
rational meaning has to be given. [Kehar Singh v. State (Delhi
Admn.), (1988) 3 SCC 609 : 1988 SCC (Cri) 711] In case of
apparent conflict, harmonious meaning to advance the object
and intention of legislature has to be given. [District Mining
Officerv. TISCO, (2001) 7 SCC 358]
20. There have been number of occasions when a proviso or
an explanation came up for interpretation. Depending on the
text, context and the purpose, different rules of interpretation
have been applied. [S. Sundaram Pillai v. V.R. Pattabiraman,
(1985) 1 SCC 591]
21. Normal rule is that a proviso excepts something out of the
enactment which would otherwise be within the purview of the
enactment but if the text, context or purpose so require a
different rule may apply. Similarly, an explanation is to explain
the meaning of words of the section but if the language or
purpose so require, the explanation can be so interpreted.
Rules of interpretation of statutes are useful servants but
difficult masters. [Keshavji Ravji & Co. v. CIT, (1990) 2 SCC
231 : 1990 SCC (Tax) 268] Object of interpretation is to
discover the intention of legislature.15
22. In this background, we find that the proviso to Section 6(1)
and sub-section (5) of Section 6 clearly intend to exclude the
transactions referred to therein which may have taken place
prior to 20-12-2004 on which date the Bill was introduced.
Explanation cannot permit reopening of partitions which were
valid when effected. Object of giving finality to transactions
prior to 20-12-2004 is not to make the main provision
retrospective in any manner. The object is that by fake
transactions available property at the introduction of the Bill is
not taken away and remains available as and when right
conferred by the statute becomes available and is to be
enforced. Main provision of the amendment in Sections 6(1)
and (3) is not in any manner intended to be affected but
strengthened in this way. Settled principles governing such
transactions relied upon by the appellants are not intended to
be done away with for period prior to 20-12-2004. In no case
statutory notional partition even after 20-12-2004 could be
covered by the Explanation or the proviso in question.
23. Accordingly, we hold that the rights under the amendment
are applicable to living daughters of living coparceners as on
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.”
23) The law relating to a joint Hindu family governed by the Mitakshara
law has undergone unprecedented changes. The said changes have
been brought forward to address the growing need to merit equal
treatment to the nearest female relatives, namely daughters of a
coparcener. The section stipulates that a daughter would be a
coparcener from her birth, and would have the same rights and liabilities
as that of a son. The daughter would hold property to which she is
entitled as a coparcenary property, which would be construed as
property being capable of being disposed of by her either by a will or any
other testamentary disposition. These changes have been sought to be
made on the touchstone of equality, thus seeking to remove the
perceived disability and prejudice to which a daughter was subjected.
The fundamental changes brought forward about in the Hindu
Succession Act, 1956 by amending it in 2005, are perhaps a realization
of the immortal words of Roscoe Pound as appearing in his celebrated
treaties, The Ideal Element in Law, that “the law must be stable and yet
it cannot stand still. Hence all thinking about law has struggled to
reconcile the conflicting demands of the need of stability and the need of
change.”
24) 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
recognizes the rights of coparceners of daughters as well since birth.
The section uses the words in the same manner as the son. It should
therefore be apparent that both the sons and the daughters of a
coparcener have been conferred the right of becoming coparceners by
birth. It is the very factum of birth in a coparcenary that creates the
coparcenary, therefore the sons and daughters of a coparcener become
coparceners by virtue of birth. Devolution of coparcenary property is
the later stage of and a consequence of death of a coparcener. The first
stage of a coparcenary is obviously its creation as explained above, and
as is well recognized. 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-s (1)(a) and (b).
25) Reference to the decision of this Court, in the case of State Bank
of India v. Ghamandi Ram7
in essential to understand the incidents of
coparceneryship as was always inherited in a Hindu Mitakshara
coparcenary:
“According to the Mitakshara School of Hindu Law all the
property of a Hindu joint family is held in collective ownership
by all the coparceners in a quasi-corporate capacity. The
textual authority of the Mitakshara lays down in express terms
that the joint family property is held in trust for the joint family
members then living and thereafter to be born (See
Mitakshara, Ch. I. 1-27). The incidents of coparcenership
under the Mitakshara law are: first, the lineal male
descendants of a person up to the third generation, acquire on
birth ownership in the ancestral properties is common;
secondly, that such descendants can at any time work out
their rights by asking for partition; thirdly, that till partition
each member has got ownership extending over the entire
property, conjointly with the rest; fourthly, that as a result of
such co-ownership the possession and enjoyment of the
properties is common; fifthly, that no alienation of the property
is possible unless it be for necessity, without the concurrence
of the coparceners, and sixthly, that the interest of a deceased
member lapses on his death to the survivors.”
26) Hence, it is clear that the right to partition has not been abrogated.
7 AIR 1969 SC 1330.18
The right is inherent and can be availed of by any coparcener, now
even a daughter who is a coparcener.
27) In the present case, no doubt, suit for partition was filed in the year
2002. However, during the pendency of this suit, Section 6 of the Act
was amended as the decree was passed by the trial court only in the
year 2007. Thus, the rights of the appellants got crystallised in the year
2005 and this event should have been kept in mind by the trial court as
well as by the High Court. This Court in Ganduri Koteshwaramma &
Anr. v. Chakiri Yanadi & Anr.8
held that the rights of daughters in
coparcenary property as per the amended S. 6 are not lost merely
because a preliminary decree has been passed in a partition suit. So far
as partition suits are concerned, the partition becomes final only on the
passing of a final decree. Where such situation arises, the preliminary
decree would have to be amended taking into account the change in the
law by the amendment of 2005.
28) On facts, there is no dispute that the property which was the
subject matter of partition suit belongs to joint family and Gurulingappa
Savadi was propositus of the said joint family property. In view of our
aforesaid discussion, in the said partition suit, share will devolve upon
the appellants as well. Since, Savadi died leaving behind two sons, two
daughters and a widow, both the appellants would be entitled to 1/5th
8 (2011) 9 SCC 788 19
share each in the said property. Plaintiff (respondent No.1) is son of
Arun Kumar (defendant No.1). Since, Arun Kumar will have 1/5th share,
it would be divided into five shares on partition i.e. between defendant
No.1 Arun Kumar, his wife defendant No.2, his two daughters defendant
Nos.3 and 4 and son/plaintiff (respondent No.1). In this manner, the
plaintiff/respondent No.1 would be entitled to 1/25th share in the property.
29) The appeals are allowed in the aforesaid terms and decree of
partition shall be drawn by the trial court accordingly.
No order as to costs.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
FEBRUARY 1, 2018.
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