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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. .....APPELLANT(S)

VERSUS

AMAR & ORS. .....RESPONDENT(S)

J U D G M E N T

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  the

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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

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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 properties

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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.  Defendant

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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.

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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 at

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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 656

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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 would

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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

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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 the

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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,

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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 151

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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 36

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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.

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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

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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

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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.

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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 1/5 th

8  (2011) 9 SCC 788

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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.