Law Web: Supreme court: Daughter become coparcener in joint family irrespective of when she was born

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.

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. Vs AMAR & ORS.

Dated: FEBRUARY 1, 2018.
Citation: (2018) 3 SCC 343

A.K. SIKRI, J.

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 and

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;

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

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

should be read as retrospective being a piece of social

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

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.

22. In this background, we find that the proviso to Section 6(1)15

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