Vineeta Sharma vs Rakesh Sharma on 11 August, 2020

[Cites 127, Cited by 245]



Supreme Court of India
Vineeta Sharma vs Rakesh Sharma on 11 August, 2020

Equivalent citations: AIR 2020 SUPREME COURT 3717, AIRONLINE 2020 SC 676

Author: Arun Mishra

Bench: M.R. Shah, S. Abdul Nazeer, Arun Mishra

1


REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. DIARY NO.32601 OF 2018

VINEETA SHARMA … APPELLANT(S)

VERSUS
RAKESH SHARMA & ORS. … RESPONDENTS

WITH

SPECIAL LEAVE PETITION (C) NO.684 OF 2016

SPECIAL LEAVE PETITION (C) NO.35994 OF 2015

SPECIAL LEAVE PETITION (C) NO.38542 OF 2016

SPECIAL LEAVE PETITION (C) NO.6403 OF 2019

SPECIAL LEAVE PETITION (C) NO.14353 OF 2019

SPECIAL LEAVE PETITION (C) NO.24901 OF 2019

SPECIAL LEAVE PETITION (C) NOS.1766­1767 OF 2020


JUDGMENT

ARUN MISHRA, J.

1. The question concerning the interpretation of section 6 of the
Signature Not Verified

Hindu Succession Act, 1956 (in short, 'the Act of 1956') as amended
Digitally signed by
Narendra Prasad
Date: 2020.08.11
14:13:54 IST
Reason:

by Hindu Succession (Amendment) Act, 2005 (in short, 'the Act of
 2


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
 3


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 final

decree has not been passed in a suit for partition, whether the re­

distribution of shares can be claimed by the daughters by amended

section 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 1/7 th

share to all the parties. The same was modified. It was held petitioner,

and 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
 4


[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 deceased

coparcener 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
 5


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.

Arguments:

10. Shri Tushar Mehta, learned Solicitor General of India, appearing

on behalf of Union of India, raised the following arguments:

(i) The daughters have been given the right of a coparcener, to bring

equality with sons, and the exclusion of daughter from coparcenary

was discriminatory and led to oppression and negation of fundamental

rights. The Amendment Act, 2005, is not retrospective but retroactive

in operation since it enables the daughters to exercise their

coparcenary rights on the commencement of the Amendment Act.

Even though the right of a coparcener accrued to the daughter by

birth, coparcenary is a birthright.

(ii) The conferment of coparcenary status on daughters would not

affect any partition that may have occurred before 20.12.2004 when

the Bill was tabled before Rajya Sabha as contained in the proviso to

section 6(1). Hence, the conferment of right on the daughter did not

disturb the rights which got crystallised by partition before

20.12.2004.

 6

(iii) Unamended Section 6 provided that if a male coparcener had left

behind on death a female relative specified in Class I of the Schedule

or male relative claiming through such female relative, the daughter

was entitled to limited share in the coparcenary interest of her father

not share as a coparcener in her rights. They were unable to inherit

the ancestral property like sons/male counterparts. The Mitakshara

coparcenary law not only contributed to discrimination on the ground

of gender but was oppressive and negated the fundamental right of

equality guaranteed by the Constitution of India.

(iv) With effect from 9.9.2005, the date of enforcement of Amendment

Act, the daughters became coparceners by birth, in their own right

with the same liability in the coparcenary property as if she had been

a son.

(v) The Explanation contained under Section 6(1) concerning conferral

of rights as coparcener, daughter as coparcener, shall not affect or

invalidate any disposition or alienation including any partition or

testamentary disposition of the property which had taken place before

20.12.2004.

(vi) After substitution of the provisions of section 6, the devolution of

coparcenary by survivorship has been abrogated. Now in case of death
 7


of coparcener, male/female, the coparcenary interest would not

devolve by survivorship but by intestate succession under the

provisions of the Hindu Succession Act or based on testamentary

succession.

(vii) The decision in Prakash v. Phulavati to the effect that there

should be a living daughter of a living coparcener on the date of

commencement of the Act of 2005 fails to appreciate that coparcenary

rights are by birth. The death of a Hindu coparcener father or any

other coparcener is only relevant for the succession of his coparcenary

interest under section 6(3) of the Act of 2005. The death of any

coparcener does not bring to an end any coparcenary. An increase or

decrease in the coparcenary interest independently held by each

coparcener may occur by birth or death. On the coparcener's death,

the notional partition is drawn only to determine his coparcenary's

interest. It does not disturb the other incidents of the coparcenary, it

can continue without disruption with other coparceners, and even new

coparceners can be added on account of birth till the time an actual

partition takes place. Coparcenary interest becomes definite only when

a partition is effected.

(viii) The daughter of a coparcener in section 6 does not imply the

daughter of a living coparcener or father, as the death of the
 8


coparcener/father does not automatically lead to the end of

coparcenary, which may continue with other coparceners alive. Thus,

the coparcener, from whom the daughter is inheriting by her being

coparcener, needs not to be alive as on the commencement of the

Amendment Act of 2005.

(ix) The Explanation to Section 6(5) was not provided in the original

amendment Bill moved before the Rajya Sabha on 20.12.2004, which

came to be added later.

(x) Often, coparceners enter into a family arrangement or oral

partition, and it may not be necessary to register such a partition.

Explanation to section 6(5) of the Amendment Act requires the

partition to be registered, was inserted to avoid any bogus or sham

transactions. Considering the entire scheme of the Amendment Act,

the requirement of registered partition deed is directory and not

mandatory. Any coparcener relying upon any family arrangement or

oral partition must prove the same by leading proper documentary

evidence.

11. Shri R. Venkataramani, learned senior counsel/amicus curiae,

argued as under:

 9

(a) There is no conflict between the decisions in Prakash v.

Phulavati (supra) and Danamma v. Suman (supra). In both the

decisions, the provisions of section 6 have been held to be of

prospective application. The amendment is a prospective one. The

declaration by the law that the daughter of a coparcener has certain

entitlements and be subject to certain liabilities is prospective. The

daughter is treated as a coparcener under the amendment Act and not

because of the daughter's birth prior to the amendment.

(b) Unlike the joint tenancy principle in English law, a joint Hindu

family stands on a different footing. Every son by birth became a

coparcener, and because of birth, the son became entitled to be a

coparcener in the joint Hindu family property entitled to claim

partition with or without reference to the death of the Karta of a joint

Hindu family. Like a son born into the family, an adopted son is also

entitled to succeed to the joint family property. He becomes a

coparcener with adoptive father, but his relationship with the natural

family is severed, including his status as a coparcener in the family of

birth as laid down in Nagindas Bhagwandas v. Bachoo Hurkissondas,

AIR 1915 PC 41 and Nanak Chand & Ors. v. Chander Kishore & Ors.,

AIR 1982 Del. 520.

 10

(c) A Hindu joint family consists of male members descended

lineally from a common male ancestor, together with their mothers,

wives or widows, and unmarried daughters bound together by the

fundamental principle of a Sapindaship of family relationship is the

essence and distinguishing feature of the institution of the

coparcenary. A joint family may consist of a single male member and

widows of deceased male members. This body is purely a creature of

law and cannot be created by an act of parties, as observed in G.

Narasimulu & Ors. v. P. Basava Sankaram & Ors., AIR 1925 Mad. 249;

and State Bank of India v. Ghamandi Ram (dead) through Gurbax Rai,

(1969) 2 SCC 33. An undivided family which is the normal condition of

Hindu society is ordinarily joint not only in the estate but in food and

worship, and, therefore, not only the concerns of the joint family but

whatever relates to their commensality and their religious duties are

regulated by the member or by the manager to whom they have

expressly or by implication delegated the task of regulation as held in

Raghunadha v. Brozo Kishore, 3 IA 154 (PC). The coparcener status

being the result of birth; possession of the joint property is only an

adjunct of the joint family and is not necessary for its constitution, as

discussed in Haridas Narayandas Bhatia v. Devkuvarbai Mulji, AIR

1926 Bom. 408.

 11

(d) A Hindu coparcenary is said to have seven essential

characteristics, which include that the interest of a deceased member

survives on his death and merges in the coparcenary property as

observed in Controller of Estate Duty, Madras v. Alladi Kuppuswamy,

(1977) 3 SCC 385. As a result, if father or any other coparcener has

died before the Amendment Act, 2005, the interest of father or another

coparcener would have already merged in the surviving coparcenary.

Consequently, there will be no coparcener alive, from whom the

daughter will succeed. Thus, the daughter can succeed only in the

interest of living coparcener as on the date of enforcement of the

Amendment Act.

(e) In Anthonyswamy v. Chhinnaswamy, (1969) 3 SCC 15, it was

observed that as a logical corollary and counter­balance to the

principle before the amendment, that the son from the moment of his

birth, acquires an interest in the coparcener, a pious obligation is

imposed on him to pay his father's debts incurred for the purpose

which is not illegal or immoral.

(f) In Baijnath Prasad Singh & Ors. v. Tej Bali Singh, AIR 1921 PC

62, it was observed that there is a difference between coparcenary in

Hindu law, which is not identical with coparcenary as understood

under the English law. In the case of death of a member of a
 12


coparcenary under the Mitakshara law, his right accretes to other

members by survivorship while under the English law if one of the co­

heirs jointly inheriting property dies, his or her right goes to his or her

relations without accreting to surviving coparceners.

(g) By birth and adoption, a male becomes a coparcener. The

custom of adoption is of ancient origin, as observed in Amarendra Man

Singh Bhramarbar & Anr. v. Sanatan Singh & Ors., AIR 1933 PC 155,

and Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma &

Ors., 26 IA 113. The adoption at the relevant time was only of male

and not of a female as the custom related to succession to the

property, as discussed in Bireswar Mookerji & Ors. v. Shib Chunder

Roy, 19 IA 101.

(h) By the expression used in the amended section 6, the daughter

becomes coparcener by birth. The retrospective effect is not intended

to be given to the provisions of section 6. Though equality has been

brought in, w.e.f. 2005, the incidence of birth of a daughter before

2005 is of no consequence and not to reopen the past transactions.

(i) The oral partition and family settlement are not intended to be

reopened by section 6(1) and 6(5).

(j) If the daughter is treated as coparcener at any point of time in

the past before the amendment, the same will bring in enormous
 13


uncertainty in the working of the law. It can be stated that the

Parliament has not intended to scramble the unscrambled egg or to

resurrect the past.

(k) Challenges to partition had always come when any member of a

coparcenary, including an adopted son, stood deprived of the

entitlement to succeed to the joint family property.

(l) The scheme of section 6 is future and forward­looking, and it

has to be interpreted in such a manner that its relevance is not

diluted. Now the rights of a coparcener have been enlarged, and the

provision has disabled it from defeating the right of a daughter from

being treated equally.

(m) In the light of the decision in Shashikalabai (Smt) v. the State of

Maharashtra & Anr., (1998) 5 SCC 332, the past transactions cannot

be reopened. Thus, the daughter, whose coparcener father, was alive

on the date of incorporation of provisions of section 6, will be treated

as a coparcener. Any other interpretation would cause unjust

consequences.

12. Shri V.V.S. Rao learned amicus curiae/senior counsel, argued

that:

 14

(a) the logic of Prakash v. Phulavati has been upheld in Mangammal

v. T.B. Raju, (2018) 15 SCC 662. It was held that there should be a

living daughter of a living coparcener to inherit the property on the

date of enforcement of the amended provisions of the 2005 Act.


(b) Section 6(1)(a) declares a daughter to be a coparcener by birth.

By the declaration, a daughter stands included in coparcenary. As the

declaration is to the effect that the daughter is to become coparcener

by birth, the question of prospectivity or retrospectivity will not arise—

daughter, whether born before 2005 or after that, is considered a

coparcener.

(c) Section 6(1)(b) and (c) deal with the effects of inclusion of

daughter as a coparcener. Having regard to the plain language and

future perfect tense "shall have the same rights," the only conclusion

is that the daughters who are included in the coparcenary will have

the same rights after coming into force of the Amendment Act. The

future perfect tense indicates that an action will have been completed

(finished or perfected) at some point in the future. This tense is formed

with "will" plus "have" plus the past participle of the verb. If the

Parliament had intended to mean as conferring the same rights in the

coparcenary, anterior to the amendment, the language would have

been different. The future perfect tense indicates that action will have
 15


to be completed at some point in time in the future. The tense is

formed with “will” plus "have" plus the past participle of the verb. If

the Parliament intended to mean conferring the same rights in the

coparcenary, anterior to the amendment, the language would have

been different. If the daughter is now made a coparcener, she would

now have the same rights as she is a son.

(d) The legislative history of section 6 throws light in understanding

the provision before the Act of 1956 was enacted. Women were not

having any interest in the coparcenary properties, and on the demise

of a coparcener, the share of the deceased coparcener devolved on the

surviving coparceners. Hindu Succession Act made inroads into the

system. It provided that on the demise of a coparcener, his interest in

the coparcenary properties would not devolve on other coparceners by

survivorship, and the share of the deceased coparcener was to be

ascertained by way of notional partition as on the date of death. To

that limited extent, the women did not become a coparcener, but they

could inherit the property.

(e) The 174th Report of Law Commission of India recommended the

adoption of the Kerala Model, and the amendments were effected in

Kerala, Andhra Pradesh, Karnataka, and in several States, giving

coparcenary rights to the daughters.

 16

(f) The Parliament Standing Committee report indicates that the

Ministry proposed giving the benefit of the provision of this Bill to

married daughters after the commencement of the proposed amending

legislation.

(g) It was proposed in the report that nothing in the amended

section 6 shall apply to a partition that has been effected before the

commencement of the Amendment Act.

(h) Deliberations by the Committee also indicate that concerning the

partition effected through oral means, it was opined that it would

depend upon the facts of a particular case. As per the prevailing law, it

was not necessary that a partition should be registered. There can be

an oral partition also, as the law does not prohibit it. At the same

time, the Committee observed that the term 'partition' should be

defined appropriately, and for all practical purposes, should be

registered or should have been effected by a decree of the Court. In

case where oral partition is recognised, it should be backed by proper

evidentiary support.

(i) The Parliament intended to confer the status of a coparcener

from the birth of a daughter. However, it was never intended to confer
 17


her the rights in the coparcenary property retrospectively, for the

following reasons:

a. Section 6(1)(a) deals with the inclusion of a daughter in the
coparcenary "on and from the commencement of amendment
Act 2005, w.e.f. 9.9.2005;
b. The operating part of section 6(1) controls not only clause (a)
but also clauses (b) and (c);
c. Hence the daughter who is declared as coparcener from
9.9.205 would have the right in a coparcenary property only
from 9.9.2005;

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

(j) Conferment of coparcenary status shall take effect on and from

the commencement "of the Amendment Act." The use of the words "on

and from" in section 6(1) indicates that the daughter becomes

coparcener from the commencement of the Act. The daughter of a

coparcener shall by birth become a coparcener, have the same rights

and be subject to the same liabilities. The word "shall" indicates the

due status of the daughter as coparcener is created only for the future

and would not affect the existing rights of a male coparcener. The use

of the words "become," "have," and "be" are all present tenses, and

they reiterate to support the above­suggested interpretation.

(k) In the Bill recommended by the Law Commission and the Bill

introduced, the Explanation to section 6(5) was not mentioned. It was

introduced only on the recommendations of the Parliamentary

Committee. Thus, the concept of partition by registered deed and
 18


decree of the Court were introduced. It follows that on a daughter

becoming coparcener from a particular date, she cannot prospectively

affect the share of a coparcener, which was already fixed as held in

Prakash v. Phulavati.

(l) The essential condition for conferring the status of coparcener on

the daughter is that there should be a coparcenary on the date of

coming into force of the Act in 2005. If the coparcenary was disrupted

by the act of the parties or by the death of parties, in partition or sale,

the daughter could not get the status of a coparcener in coparcenary.

The status conferred cannot affect the past transactions of alienation,

disposition, partition – oral or written.

(m) Partition could be in the form of a memorandum of partition, or

it could also be made orally. In most of the families, there used to be

an oral partition. Once parties settle their rights, the partition effected

orally cannot be ignored to give shares to the daughters. Such legal

transactions cannot be unsettled; the Explanation safeguards all

genuine transactions of the past, including oral partition effected by

the parties. The Explanation should not be understood as invalidating

all other documents recording partition or oral partition in respect of

coparcenary property before 20.12.2004.

 19

(n) Daughters conferred with the status of coparcener under the

Amendment Act cannot challenge past transactions that took place

before 20.12.2004, and the daughter should be alive as on the date of

amendment. There should be 'living coparcener' to whom the daughter

can inherit to become a coparcener.

13. Shri Sridhar Potaraju, learned counsel, vociferously argued that:

(a) The decision in Prakash v. Phulavati adopted the correct

interpretation of the provision. Married daughters are not considered

as part of the father's joint family. They were recognised as Class I

heirs that, by itself, did not make them part of their father's joint

Hindu family. He has relied upon Surjit Lal Chhabda v. Commissioner

of Income Tax, (1976) 3 SCC 142. A married daughter ceases to be a

member of the father's family and becomes a member of her

husband's family.


(b) As considered by P. Ramanatha Aiyar in Major Law Lexicon, the

land is held in coparcenary when there is the unity of title, possession,

and interest. A Hindu coparcenary is a narrower body than the joint

family. A coparcener shares (equally) with others in inheritance in the

estate of a common ancestor. Otherwise called parceners are such as

have an equal portion in the inheritance of an ancestor. The share of a

coparcener is undefined and keeps fluctuating with the birth and
 20


death of a coparcener. When a male is born, he becomes a coparcener,

thereby decreasing the share of other coparceners. In the event of the

death of a coparcener, the rule of survivorship comes into play, and

the estate devolves on the surviving coparceners to the exclusion of

heirs of the deceased coparcener. Status of a coparcener is a creation

of law commencing with birth and ending with death or by severance

of such status by way of partition or statutory fiction. The status of

coparcenary ceases on death.


(c) "Daughter of a coparcener" means the daughter of an alive

person and has the status of a coparcener on the date of

commencement of the Amendment Act. In case a statutory partition

has taken place, the same is required to be recognised. It would bring

severance of jointness of status and settle the share.


(d) If a preliminary decree of partition has been passed and has

attained finality, it must be given effect. The mere filing of a suit for

partition is sufficient to effect a partition. On separation of status, the

decree is passed by a court as held in Puttrangamma & Ors. v. M.S.

Ranganna & Ors., AIR 1968 SC 1018.
 21


(e) What rights have been conferred by way of survivorship are not

intended to be taken away except as provided by the amended proviso

in section 6(3) of the Amendment Act.


(f) A legal fiction created in law cannot be stretched beyond the

purpose for which the fiction has been created, as held in Mancheri

Puthusseri Ahmed & Ors. v. Kuthiravattam Estate Receiver, (1996) 6

SCC 185.


(g) Statutory partition leads to disruption. A statutory partition, as

provided in section 6(3), is to be given full effect. The same leads to

severance of status of jointness of the deceased coparcener and his

legal heirs, which shall include the right of maintenance from the joint

family of the widow of the deceased coparcener and such other rights.

Such partition brings an end to the joint family. In the case of death of

the father of petitioner in 1963, notional partition would occur and the

consequences laid down in Anar Devi & Ors. v. Parmeshwari Devi &

Ors., (2006) 8 SCC 656 would follow.

(h) The married daughters on the death of father in 1963 were not

entitled to a share in the coparcenary property. Only sons were

entitled to equal shares, and sons obtained the property by way of

survivorship. The statutory partition under unamended Section 6 was
 22


considered in Gurupad Khandappa Magdum v. Hirabai Khandappa

Magdum & Ors., (1978) 3 SCC 383. Statutory partition has been in

existence in section 6 since 1956 and is continued by the 2005

Amendment.

(i) Section 6, as amended, is not applicable in the case of a

daughter whose father is not alive at the time of the introduction of

provisions of section 6. Every member of a joint Hindu family is not

entitled to be a coparcener either under the traditional Hindu law or

under the Hindu Succession Act, 1956 or the Amendment Act, 2005.

Under Section 29A introduced in the State of Andhra Pradesh,

unmarried daughters were given the rights of a coparcener while

excluding married daughters. The Central Amendment has not made a

distinction based on the daughter's marital status expressly but has

made it evident by the use of the expression 'joint Hindu family' and

'daughter of a coparcener.' The provisions should be read to exclude

married daughters. The provisions of section 6, as amended, are

prospective. It was not intended to unsettle the settled affairs.

(j) The Explanation to section 6(5) cannot be interpreted to take

away the rights crystallised upon the surviving coparceners of the

joint family under the statutory partition. The purpose of the
 23


Explanation was considered in S. Sundaram Pillai & Ors. v. V. R.

Pattabiraman & Ors., (1985) 1 SCC 591 thus:

“53. Thus, from a conspectus of the authorities referred to above, it
is manifest that the object of an Explanation to a statutory provision
is—
“(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main
enactment, to clarify the same to make it consistent with the
dominant object it seems to subserve,
(c) to provide an additional support to the dominant object of the
Act in order to make it meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change the
enactment or any part thereof but where some gap is left which is
relevant for the Explanation, in order to suppress the mischief and
advance the object of the Act it can help or assist the Court in
interpreting the true purport and intendment of the enactment, and
(e) it cannot, however, take away a statutory right with which any
person under a statute has been clothed or set at naught the working
of an Act by becoming an hindrance in the interpretation of the
same.”

(k) A preliminary decree determines the shares. Section 2(2) of the

Code of Civil Procedure defines 'decree' to mean the formal expression,

which clarifies that a decree is preliminary when further proceedings

have to be taken before the suit can be decided entirely. In so far as

the determination of individual shares to be allotted to parties to the

suit is concerned, the preliminary decree is final. After the dismissal of

Special Leave Petition (C) No.38542/2016 in Sistla Sarada Devi v.

Uppaluri Hari Narayana & Ors., the only step required to be taken is to

apportion the shares by metes and bounds in terms of the preliminary

decree which was passed. The daughters born after the
 24


commencement of the Amendment Act become coparceners, and

daughters born before the commencement of the Amendment Act have

been covered under section 6(1)(b) and granted the same rights in

coparcenary as given to a son. The daughters born before and after the

amendment covered under section 6 are given the status of a

coparcener. The status of a coparcener to daughters cannot be given

from the date of birth, and they cannot be made liable for all the

liabilities of coparcenary property. The benefit cannot be conferred

from the date of birth as it would relate in several cases to date of

birth even in the year 1925. All liabilities are to be borne only from the

amendment; as such, the provisions are not retrospective.

(l) Even alternatively, if the status of coparcenary on the daughter

is to be conferred retrospectively, the limitations governing such legal

fiction will have to take into consideration the implications of (i)

statutory partition; (ii) court's decree; and (iii) legitimate alienation of

the property by Karta/coparceners, prior to commencement of the

Amendment Act. All other dispositions or alienations, including any

partition or testamentary disposition of property made before

20.12.2004, are required to be saved as earlier the daughters were not

coparceners. On a statutory partition, the property becomes the self­

acquired property and is no more a coparcenary property.
 25

(m) Even in a case of adoption, the past transactions are saved while

applying the theory of relation back as laid down in Sripad Gajanan

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

156.


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

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

(a) The golden rule of interpretation is required to be adopted as laid

down in Kanai Lal Sur v. Paramnidhi Sadhukhan, (1958) SCR 360. The

rule of literal construction is relied upon, as observed in Lt. Amrendra

Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140.


(b) The substitution of the provision of section 6 dates back to the

commencement of the Principal Act of 1956. A notional partition on

the death of a coparcener to ascertain his share is not an actual

partition. The same is not saved by the proviso contained in section 6.

A daughter cannot be deprived of the right to equality as per the

Statement of Objects and Reasons. The provision of section 6 is

required to be given full effect.

(c) The decision in Prakash v. Phulavati cannot be said to be laying

down the law correctly. The concept of living daughter of a living
 26


coparcener is adding to the text of provisions of section 6, whereas no

word can be added or read into a statute by the Court. It can only

repair errors or supply omissions. It is for the legislature to provide

such a concept of a daughter of a living coparcener. Thus, it was

argued that section 6 includes all living daughters of coparceners,

irrespective of whether such coparceners are deceased or alive at the

commencement of the 2005 Amendment.

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

(a) The term 'coparcener' is not defined in the Succession Act. This

Court considered it in Sathyaprema Manjunatha Gowda (Smt) v.

Controller of Estate Duty, Karnataka, (1997) 10 SCC 684. It is a

narrower body than a joint family and consists of only those persons

who have taken by birth, an interest in the property, and can enforce

a partition, whenever they like. The daughter is entitled to share in the

property subject to the restrictions provided under sub­section (1) and

sub­section (5) of amended section 6.

(b) Section 6(3) provides a consequence of the death of a coparcener,

devolution on the death of a coparcener after the commencement of

the Amendment Act. The concept of survivorship has been done away.

Testamentary or intestate succession has been provided where a

Hindu dies before the commencement of the Amendment Act. The
 27


relevant provisions are section 6(1)(2), where male Hindus are given

the right by birth to become a coparcener, and they have the right to

take a partition with coparcenary property.

(c) The decision in Prakash v. Phulavati, laying down that section 6

as amended applies in case of living daughters of a living coparcener,

is arbitrary and non­est in the eye of law. Both sons and daughters of

coparceners are conferred the right of becoming coparcener by birth.

Birth in coparcenary creates interest. The only other exception is by

way of adoption. Coparcenary incident is the right to the severance of

the status of partition.

16. Ms. Anagha S. Desai, learned counsel, strenuously urged that

section 6 provides parity of rights in coparcenary property among male

and female members of a joint Hindu family on and from 9.9.2005.

The declaration in section 6 that the daughter of a coparcener shall

have the same rights and liabilities as she would have been a son is

unambiguous and unequivocal. The daughter is entitled to a share in

the ancestral property. She has relied upon Ganduri Koteshwaramma

& Anr. v. Chakiri Yanadi & Anr., (2011) 9 SCC 788.

17. When a daughter, who is claiming and demanding a share in the

coparcenary, is alive, there is no difficulty of interpretation,

irrespective of the fact whether a coparcener has died before the
 28


commencement of the Amendment Act. The coparcener and the

daughter do not need to be alive as on the date of the amendment. If it

is to be interpreted that coparcener and daughter both should be

alive, it will defeat the very purpose and objective of the amended

provisions. Earlier, the provisions of Hindu law treated a son as a

coparcener by birth; now, daughters are given the same rights since

birth. In case partition has been effected by metes and bounds and is

adequately proved, then the daughter of coparcenary cannot seek

partition of already divided property.

In Ref. Historical Background

18. The Hindu branch of dharma is influenced by the theological

tenets of the Vedic Aryans. What is not modified or abrogated by the

legislation or constitutional provisions still prevails, the basic Hindu

law emanates from Vedas and past shrutis/smritis. Various dharma

shastras regard custom as the basis of Hindu law as administered

from time to time. Law has advanced and made progress as per the

requirements of the society and the prevailing ethos. The justice used

to be administered by the emperors resolving the conflicts. The

building of law has taken place over time. There are two main schools

of Hindu law, i.e., Mitakshara and Dayabhaga. Mitakshara has further

been sub­divided into four schools, i.e., Benares, Mithila, Maharashtra
 29


or Bombay, and Dravida or Madras school. Benares, Mithila, Dravida,

and Maharashtra denote old names of the territories.

19. The application of schools of Mitakshara is region­wise. There

has been re­organization of States in 1956, and after that, some

confusion has arisen concerning the administration of Bombay school

and Benares School. Benares school practically governs the whole of

Northern India. The Bombay school covers Western India and various

other territories. The certain States were re­organized by the State

Reorganisation Act of 1956. In some regions of reorganised States,

given the common name, different schools apply. Take, for example,

Madhya Pradesh. It consists of territories to which both Bombay and

Benares schools are applicable. However, various authors of Hindu

law have failed to note the fact in which parts of the State of M.P. after

reorganisation which school is applicable. A reference is found to

tenets of Bombay school of Hindu law in the entire State of M.P.,

whereas Benares school is applicable in various parts of Madhya

Pradesh. It was clarified by a Full Bench of Madhya Pradesh High

Court in Diwan Singh v. Bhaiya Lal, (1997) 2 MP LJ­202, and a

Division Bench decision was relied on in FA No.31/1968 decided on

14.12.1976. In integrating State of Madhya Bharat and some other

parts of Madhya Pradesh, Benares school is applicable, not Bombay.
 30

20. Mitakshara law applies to most parts of India except Bengal.

Maharashtra school prevailed in North India, Bombay school, in

Western India. However, certain areas in Southern India are governed

by Marumakkatayam, Aliyasantana, and Nambudiri systems of law.

21. Besides the various sources, custom, equity, justice, and

conscience have also played a pivotal role in the development of Hindu

law, which prevailed. When the law was silent on certain aspects,

Judicial decisions also acted as a source of law. Hindu law was not

static but always progressive. Slowly necessity was felt for the

codification of Hindu law. In particular, women's rights were taken

care of, and attempts were made to remove the anomalies and

unscrupulous practices. Necessity was also felt after the

independence, given the constitutional imperatives to bring about

equality of status, the codified law has been amended from time to

time. The latest attempt has been made by way of amending the Hindu

Succession Act concerning rights of daughter to be a coparcener in

Mitakshara coparcenary and has been given the rights equal to that of

a son.

In Ref. Coparcenary and Joint Hindu Family
 31

22. A joint Hindu family is a larger body than a Hindu coparcenary.

A joint Hindu family consists of all persons lineally descended from a

common ancestor and include their wives and unmarried daughters. A

joint Hindu family is one in worship and holds joint assets. After

separation of assets, the family ceases to be joint. Mere severance in

food and worship is not treated as a separation, as observed in Sri

Raghunadha v. Sri Brozo Kishore, 1876 (1) Mad. 69 = 3 IA 154.

23. Hindu coparcenary is a much narrower body. It consists of

propositus and three lineal descendants. Before 2005, it included only

those persons like sons, grandsons, and great­grandsons who are the

holders of joint property. For example, in case A is holding the

property, B is his son, C is his grandson, D is great­grandson, and E

is a great­great­grandson. The coparcenary will be formed up to D, i.e.,

great­grandsons, and only on the death of A, holder of the property,

the right of E would ripen in coparcenary as coparcenary is confined

to three lineal descendants. Since grandsons and great­grandsons

become coparceners by birth, they acquired an interest in the

property.

24. Coparcenary property is the one which is inherited by a Hindu

from his father, grandfather, or great grandfather. Property inherited

from others is held in his rights and cannot be treated as forming part
 32


of the coparcenary. The property in coparcenary is held as joint

owners.

25. Coparcener heirs get right by birth. Another method to be a

coparcener is by way of adoption. As earlier, a woman could not be a

coparcener, but she could still be a joint family member. By

substituted section 6 with effect from 9.9.2005 daughters are

recognised as coparceners in their rights, by birth in the family like a

son. Coparcenary is the creation of law. Only a coparcener has a right

to demand partition. Test is if a person can demand a partition, he is a

coparcener not otherwise. Great great­grandson cannot demand a

partition as he is not a coparcener. In a case out of three male

descendants, one or other has died, the last holder, even a fifth

descendant, can claim partition. In case they are alive, he is excluded.


In Ref. Formation of Coparcenary

26. For interpreting the provision of section 6, it is necessary to

ponder how coparcenar