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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7217 OF 2013

PRAKASH & ORS.                          …APPELLANTS VERSUS

PHULAVATI & ORS.                 ...RESPONDENTS

WITH

SLP  (C)  NOS.21814  OF  2008,  18744  OF  2010, 28702-28703 OF 2010, 28471 OF 2011, 4217-4218 OF  2012,   1299-1300  OF  2013,  17577-17578  OF 2013, 19816 OF 2014, 5619 OF 2015, 3805 OF 2008, 9390 OF 2015, 5680 OF 2015, 35209 OF 2011 AND 15557-15558  OF 2015  AND  SLP.  (C)  ….15560  OF 2015

J U D G M E N T   

ADARSH KUMAR GOEL, J.

1. The only issue which has been raised in this batch of

matters  is  whether  Hindu Succession  (Amendment)  Act,

2005 (‘the Amendment Act’) will have retrospective effect.

In the impugned judgment (reported in AIR 2011 Kar. 78

Phulavati  vs.  Prakash),  plea of  restrospectivity  has been

upheld  in  favour  of  the  respondents  by  which  the

appellants are aggrieved.  

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2. Connected  matters  have  been  entertained  in  this

Court mainly on account of the said legal issue particularly

when there are said to be differing views of High Courts

which makes it necessary that the issue is decided by this

Court.   It  is  not  necessary  to  go  into  the  facts  of  the

individual case or the correctness of the findings recorded

by the courts below on various other issues. It was made

clear during the hearing that after deciding the legal issue,

all other aspects may be decided separately in the light of

the judgment of this Court.  

3. Only  for  the  purpose  of  deciding  the  above  legal

question, we refer to the brief facts in Civil Appeal No.7217

of  2013.   The  respondent-plaintiff,  Phulavati  filed  suit

being O.S. No.12/1992 before Additional Civil Judge (Senior

Division), Belgaum for partition and separate possession to

the extent of 1/7th share in the suit properties in Schedule

‘A’ to ‘G’ except property bearing CTS No.3241 mentioned

in Schedule ‘A’ in which the share sought was 1/28th.

4. According  to  the  case  of  the  plaintiff,  the  suit

properties  were  acquired  by  her  late  father  Yeshwanth

Chandrakant  Upadhye  by  inheritance  from  his  adoptive

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mother Smt. Sunanda Bai.  After the death of her father on

18th February, 1988, she acquired the share in the property

as claimed.   

5. The suit was contested mainly with the plea that the

plaintiff  could  claim  share  only  in  the  self  acquired

property  of  her  deceased  father  and  not  in  the  entire

property.   During  pendency  of  the  suit,  the  plaintiff

amended  the  plaint  so  as  to  claim  share  as  per  the

Amended Act 39 of 2005.  The trial court partly decreed

the suit to the extent of 1/28th share in certain properties

on the basis of notional partition on the death of her father

and in some of the items of property, no share was given,

while  1/7th share was given in some other properties as

mentioned in detail in the judgment of the trial court.

6. The respondent-plaintiff preferred first appeal before

the High Court with the grievance that the plaintiff became

coparcener under the Amendment Act 39 of 2005 and was

entitled to inherit the coparcenary property equal to her

brothers,  apart  from  contentions  based  on  individual

claims in certain items of property.  

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7. The stand of the defendants-appellants was that the

plaintiff could not claim any share in self acquired property

of the members of the joint family and that the claim of

the plaintiff had to be dealt with only under Section 6 of

the Hindu Succession Act,  1956 as it  stood prior  to  the

amendment  by  Act  39  of  2005.   The  defendants  relied

upon a division bench judgment of the High Court in  M.

Prithviraj vs. Neelamma N.1 laying down that if father

of a plaintiff had died prior to commencement of Act 39 of

2005, the amended provision could not apply.   It was only

the law applicable on the date of opening of succession

which was to apply.   

8. The  High  Court  framed  following  question  for

consideration on this aspect :

“(ii) Whether the plaintiff is entitled to a share in terms of Section 6 of the Hindu Succession Act as amended by Act No.39 of 2005?”

9. It  was held that the amendment was applicable to

pending proceedings even if it is taken to be prospective.

The High Court held that :

1 ILR 2009 Kar. 3612

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“61. The law in this regard is too well settled in terms of the judgment of the Supreme Court in the case of G. Sekar Vs. Geetha and others reported in (2009) 6 SCC 99.  Any development of  law  inevitably  applies  to  a  pending proceeding and in fact it is not even to be taken as  a  retrospective  applicability  of  the  law but only the law as it stands on the day being made applicable.

62. The  suit,  no  doubt,  might  have been  instituted  in  the  year  1992  and  even assuming that it was four years after the demise of  Yeshwanth  Chandrakant  Upadhye,  the position so far as the parties are concerned who are all members of the joint family, in terms of Section 6 as amended by Act No.39 of 2005 is that  a  female  member  is,  by  a  fiction  of  law created in terms of the amended provision also becomes a coparcener and has a right in joint family property by birth.  They are also sharer members  of  the  coparcenary  property  at  par with all male members.  When a partition takes place,  coparceners  succeed to  the property  in equal  measure.   Such  is  the  legal  position  in terms of Section 6 of the Hindu Succession Act as  amended  by  Act  No.39  of  2005  and  as declared by the Supreme Court in the case of G.S. Sekar (supra).  The only exception carved out to the applicability and operation of Section 6 of the Hindu Succession Act as amended by Act No.39 of 2005 being a situation or a factual position where there was a partition which had been effected by a registered partition deed or by  a  decree  of  the  court  which  has  attained finality  prior  to  20.12.2004  in  terms  of sub-section (5) to Section 6.

63. In  the  present  case  such  being not the factual position, the exception available under  sub-section  (5)  to  Section  6  cannot  be called in aid by the defendants and therefore, the liability in terms of the amended provisions operates.  It is not necessary for us to multiply the judgment by going into details or discussing other judgments referred to and relied upon by

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the learned counsel for the parties at the Bar as one judgment of the Supreme Court if clinches the issue on the point, it is good enough for us, as  a  binding  authority  to  apply  that  law  and dispose  of  the  case  as  declared  in  that judgment.”

10. The  respondent-plaintiff  was  accordingly  held

entitled to 1/7th share in all items in Schedules ‘A’ to ‘D’.

In respect of Schedule ‘F’, first item was given up by the

plaintiff.  Out of the other two items, she was held entitled

to  1/7th share  in  Item  No.2  and  1/7th share  in  40%

ownership in Item No.3.

11. The  defendants-appellants  have  questioned  the

judgment and order of the High Court with the contention

that the amended provision of Section 6 has no application

in the present case.  Father of  the plaintiff died on 18th

February, 1988and was thus, not a coparcener on the date

of commencement of the Amendment Act.   The plaintiff

could not claim to be “the daughter of a coparcener” at

the  time  of  commencement  of  the  Act  which   

was the necessary condition for claiming the benefit.  On

the  death  of  plaintiff’s  father  on  18th February,  1988,

notional partition took place and shares of the heirs were

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crystallized  which  created  vested  right  in  the  parties.

Such vested right could not have been taken away by a

subsequent amendment in absence of express provision or

necessary  intendment  to  that  effect.   Moreover,   

the amending provision itself was expressly applicable “on

and from” the commencement of the Amendment Act, i.e.,

9th September, 2005.  The High Court held that even if the

provision  was  prospective,  it  could  certainly  apply  to

pending proceedings as has been held in some decisions

of this Court.  It is pointed out that the amendment could

apply to pending proceedings, only if the amendment was

applicable at all.

12. Learned counsel for the respondents would support

the view taken by the High Court.

13. We have heard learned counsel for the parties in

the present appeal as well as in connected matters for

the rival view points which will be noticed hereinafter.

14. The contention raised on behalf of the appellants and

other learned counsel supporting the said view is that the

2005  Amendment  was  not  applicable  to  the  claim of  a

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daughter  when her father who was a coparcener  in the

joint hindu family died prior to 9th September, 2005.  This

submission is based on the plain language of the statute

and the established principle that in absence of express

provision  or  implied  intention  to  the  contrary,  an

amendment dealing with a substantive right is prospective

and  does  not  affect  the  vested  rights2.   If  such  a

coparcener had died prior to the commencement of  the

Amendment Act, succession opens out on the date of the

death as per the prevailing provision of the succession law

and the rights of the heirs get crystalised even if partition

by metes and bounds does not take place.  It was pointed

out that apparently conflicting provision in Explanation to

Section 6(5) and the said Section was required to be given

harmonious  construction  with  the  main  provision.   The

explanation could  not  be read in  conflict  with  the  main

provision.  Main provision of Section 6(1) confers right of

coparcener  on  a  daughter  only  from commencement  of

the Act and not for any period prior to that.  The proviso to

Section 6(1) also applies only where the main provision of

Section 6(5) applies. Since Section 6(5) applies to partition 2 Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27

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effected after 20th December, 2004, the said proviso and

the  Explanation  also  applies  only  when  Section  6(1)

applies.   It  is  also  submitted  that  the  Explanation  was

merely a rule of evidence and not a substantive provision

determining the rights of the parties.  Date of a daughter

becoming coparcener is on and from the commencement

of the Act.  Partitions effected before 20th December, 2004

remain unaffected as expressly provided. The Explanation

defines partition, as partition made by a registered deed or

effected by decree of a court.  Its effect is not to wipe out

a legal and valid partition prior to the said date,  but to

place burden of proof of genuineness of such partition on

the  party  alleging  it.   In  any  case,  statutory  notional

partition remains valid and effective.

15. On the contrary, stand on behalf of the respondents

is that the amendment being piece of social legislation to

remove discrimination against women in the light of 174th

Report of the Law Commission, the amendment should be

read  as  being  retrospective  as  interpreted  by  the  High

Court  in  the  impugned  judgment.  A  daughter  acquired

right  by  birth  and  even  if  her  father,  who  was  a

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coparcener,  had  died  prior  to  coming  into  force  of  the

amendment, the shares of the parties were required to be

redefined.  It was submitted that any partition which may

have taken place even prior to 20th December, 2004 was

liable to be ignored unless it was by a registered deed of

partition  or  by  a  decree  of  the  Court.   If  no  registered

partition had taken place, share of the daughter will stand

enhanced by virtue of the amendment.

16. We  have  given  due  consideration  to  the  rival

submissions.   We may refer to the provision of Section 6

of the Hindu Succession Act as it stood prior to the 2005

Amendment and as amended :

Section  6  of  the  Hindu Succession Act

Section  6  on  and  from  the commencement  of  the  Hindu Succession  (Amendment)  Act, 2005

6. Devolution of interest of coparcenary property. When a  male  Hindu  dies  after  the commencement  of  this  Act, having at 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

6.  Devolution  of  interest  in coparcenary property.-(1) On and from  the  commencement  of  the Hindu Succession (Amendment) Act, 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 in the same manner as the son;  

(b)  have  the  same  rights  in  the coparcenary  property  as  she  would

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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 I: 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  has 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.  7.  Devolution  of interest  in  the  property  of  a tarwad,

have had if she had been a son;  

(c) be subject to the same liabilities in  respect  of  the  said  coparcenary 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, 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  coparcenary 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 time of partition, shall be allotted to the surviving child of such

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predeceased  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,  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, 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

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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 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.  

(5) Nothing contained in this section shall apply to a partition, 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.'

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  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

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always prospective unless either expressly or by necessary

intendment it is retrospective3.  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. Contention of the respondents that the Amendment

should  be read as  retrospective  being a  piece  of  social

legislation cannot be accepted.  Even a social  legislation

cannot be given retrospective effect unless so provided for

or so intended by the legislature.  In the present case, the

legislature has expressly made the Amendment applicable

on and from its commencement and only if death of the

coparcener in question is after the Amendment.  Thus, no

other interpretation is possible in view of express language

3 Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27

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of  the  statute.   The  proviso  keeping  dispositions  or

alienations  or  partitions  prior  to  20th December,  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  20th December,

2004.  Notional partition, by its very nature, is not covered

either under proviso or under sub-section 5 or under the

Explanation.

19. Interpretation of a provision depends on the text and

the context4.  Normal rule is to read the words of a statute

in ordinary sense.  In case of ambiguity, rational meaning

has to be given5.  In case of apparent conflict, harmonious

meaning to advance the object and intention of legislature

has to be given6. 4 RBI vs. Peerless (1987) 1 SCC 424, para 33 5 Kehar Singh vs. State (1988) 3 SCC 609 6 District Mining Officer vs. Tata Iron and Steel Co. (2001) 7 SCC 358

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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 applied7.

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  masters8.

Object  of  interpretation  is  to  discover  the  intention  of

legislature.

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 20th December, 2004 on which

date the Bill was introduced.  Explanation cannot permit

reopening  of  partitions  which  were  valid  when effected. 7  S. Sundaram Pillai vs. R. Pattabiraman (1985) 1 SCC 591 8 Keshavji Ravji & Co. vs. CIT (1990) 2 SCC 231

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Object  of  giving  finality  to  transactions  prior  to  20th

December,  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 Section

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  20th

December, 2004.  In no case statutory notional partition

even after 20th December, 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  9th September,  2005  irrespective  of

when such daughters are born.  Disposition  or alienation

including  partitions  which  may have  taken  place  before

20th December, 2004 as per law applicable prior to the said

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date will remain unaffected.  Any transaction of partition

effected thereafter will be governed by the Explanation.

24. On  above  interpretation,  Civil  Appeal  No.7217  of

2013 is allowed.  The order of the High Court is set aside.

The  matter  is  remanded  to  the  High  Court  for  a  fresh

decision in accordance with law.  All other matters may be

listed  for  hearing  separately  for  consideration  on  24th

November, 2015.  

25. The view which we have taken above is consistent

with and not in conflict with any of the earlier decisions.

We may now refer to the decisions cited by the parties.

Main decisions cited by the respondents are:  Prema vs.

Nanje Gowda9,  Ganduri Koteshwaramma vs. Chakiri

Yanadi10,  V.K.  Surendra  vs.  V.K.  Thimmaiah11, Ram

Sarup vs. Munshi12, Dayawati vs. Inderjit13,  Amarjit

Kaur vs. Pritam Singh14,  Lakshmi Narayan Guin vs.

Niranjan  Modak15, S.  Sai  Reddy  vs.  S.  Narayana

9 (2011) 6 SCC 462 10 (2011) 9 SCC 788 11 (2013) 10 SCC 211, para 18 12 (1963) 3 SCR 858 13  (1966) 3 SCR 275 14 (1974) 2 SCC 363 15 (1985) 1 SCC 270

18

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Reddy16 and State of Maharashtra vs. Narayan Rao17.

Many of these decisions deal with situations where change

in  law  is  held  to  be  applicable  to  pending  proceedings

having regard to intention of legislature in a particular law.

There is no dispute with the propositions laid down in the

said  decisions.   Question  is  of  application  of  the  said

principle in the light  of a particular  amending law.  The

decisions relied upon do not apply to the present case to

support the stand of the respondents.

25.1. In  Ram  Sarup  case  (supra),  the  question  for

consideration  was  of  amendment  to  the  Punjab

Pre-emption Act, 1930 by Punjab Act 10 of 1960 restricting

the  pre-emption  right.    Section  31  inserted  by  way  of

amendment  prohibited  passing  of  a  decree  which  was

inconsistent with the amended provisions.  It was held that

the amendment was retrospective and had retrospective

operation  in  view  of  language  employed  in  the  said

provision.

25.2. In Dayawati case (supra), Section 6 of the Punjab

Relief  of  Indebtedness  Act,  1956  expressly  gave 16 (1991) 3 SCC 647 17 (1985) 2 SCC 321, paras 8 to 10

Page 20

retrospective effect and made the statute applicable to all

pending suits on the commencement of the Act.  The Act

sought  to  reduce  the  rate  of  interest  in  certain

transactions to give relief against indebtedness to certain

specified persons.

25.3. In  Lakshmi  Narayan  Guin  case  (supra),  the

question  was  of  applicability  of  Section  13  of  the  West

Bengal  Premises  Tenancy  Act,  1956  which  expressly

provided  that  no  order  could  be  passed  by  the  Court

contrary to the scheme of the new law.   

25.4. In Amarjit  Kaur  case  (supra),  Section  3  of  the

Punjab   

Pre-emption  (Repeal)  Act,  1973 was  considered  which

expressly  prohibited  the  Court  from  passing  any

pre-emption decree after the commencement of the Act.

25.5. There is also no conflict with the principle laid down

in  V.K.  Surendra  case  (supra) which  deals  with  a

presumption about the nature of  a  joint  family  property

and burden of  proof  being on the person claiming such

Page 21

property to be separate.  The said decision only lays down

a rule of evidence.  

25.6.  In  S. Sai Reddy case (supra),   the question for

consideration was whether even after a preliminary decree

is passed determining the shares in partition, such shares

could be varied on account of intervening events at the

time  of  passing  of  the  final  decree.   In  the  said  case,

partition suit was filed by a son against his father in which

a preliminary decree was passed determining share of the

parties.  Before final decree could be passed, there was an

amendment  in  the  Hindu  Succession  Act  (vide  A.P.

Amendment  Act,  1986)  allowing share to  the unmarried

daughters. Accordingly, the unmarried daughters applied

to the court for their shares which plea was upheld.  The

said judgment does not deal with the issue involved in the

present matter.   It was not a case where the coparcener

whose daughter claimed right was not alive on the date of

the commencement of the Act nor a case where shares of

the parties stood already crystalised by operation of law to

which the amending law had no application.  Same is the

position in Prema and Ganduri cases (supra).  

Page 22

25.7. In Narayan Rao case (supra), it was observed that

even  after  notional  partition,  the  joint  family  continues.

The  proposition  laid  down  in  this  judgment  is  also  not

helpful in deciding the question involved herein.  The text

of the Amendment itself shows that the right conferred by

the Amendment is on a ‘daughter of a coparcener’ who is

member of a coparcenary and alive on commencement of

the Act.

25.8. We also  do  not  find  any  relevance  of  decisions  in

State of Rajasthan vs. Mangilal Pindwal18 and  West

U.P.  Sugar  Mills  Asson.  vs.  State  of  U.P.19 or  other

similar  decisions  for  deciding  the  issue  involved  herein.

The  said  decisions  deal  with  the  effect  of  repeal  of  a

provision and not the issue of restrospectivity with which

the Court is concerned in the present case.

26. We now come to the decisions  relied upon by the

appellants.   In  M.  Prithviraj  case  (supra),  the  view

taken appears to be consistent with what has been said

above.  It appears that this was a binding precedent before

the Bench of the High Court which passed the impugned 18 (1996) 5 SCC 60 19 (2002) 2 SCC 645

Page 23

order but does not appear to have been referred to in the

impugned judgment.  Judgments of this Court in  Sheela

Devi vs. Lal Chand20  and  G. Sekar vs. Geetha21 and

the judgment of Madras High Court in  Bagirathi vs. S.

Manivanan22 have been relied upon therein.  In  Sheela

Devi case (supra), this Court observed:

21.  The Act indisputably would prevail over the old  Hindu  Law.  We  may  notice  that  the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property,  enacted Hindu  Succession  Act,  2005. Such  a  provision  was  enacted  as  far  back  in 1987  by  the  State  of  Andhra  Pradesh.  The succession  having  opened  in  1989,  evidently, the  provisions  of Amendment  Act,  2005  would have no application.  Sub-section  (1)  of Section 6 of  the  Act  governs  the  law  relating  to succession on the death of a coparcener in the event the heirs are only male descendants. But, the  proviso  appended  to  Sub-section  (1) of Section  6 of  the  Act  creates  an  exception. First son of Babu Lal, viz., Lal Chand, was, thus, a  coparcener. Section  6 is  exception  to  the general  rules.  It  was,  therefore,  obligatory  on the  part  of  the  respondents-plaintiffs  to  show that apart  from Lal  Chand, Sohan Lal will  also derive the benefit thereof. So far as the Second son,  Sohan Lal  is  concerned,  no evidence has been brought  on records to show that he was born  prior  to  coming  into  force  of Hindu Succession Act, 1956.”

20 (2006) 8 SCC 581  21 (2009) 6 SCC 99, para 30 22 AIR 2005 Mad 250 (DB)

Page 24

Full  Bench  judgment  of  Bombay  High  Court  in

Badrinarayan  Shankar  Bhandari  Vs.  Ompraskash

Shankar Bhandari23  also appears to be consistent with

the view taken hereinabove.

26.1. In  Gurupad  Khandappa  Magdum  vs.  Hirabai

Khandappa  Magdum24,  Shyama  Devi  vs.  Manju

Shukla25 and   Anar  Devi  vs.  Parmeshwari  Devi26

cases this Court interpreted the Explanation 1 to Section 6

(prior to 2005 Amendment) of the Hindu Succession Act.  It

was held that the deeming provision referring to partition

of  the  property  immediately  before  the  death  of  the

coparcener was to be given due and full effect in view of

settled  principle  of  interpretation  of  a  provision

incorporating a deeming fiction.   In  Shyama Devi and

Anar Devi cases, same view was followed.

26.2. In  Vaishali  Satish  Ganorkar  vs.  Satish

Keshaorao Ganorkar27, the Bombay High Court held that

the amendment will not apply unless the daughter is born

23 AIR 2014, BOM 151. paras 40-57 24 (1978) 3 SCC 383, paras 6,11 and 13 25 (1994) 6 SCC 342, para 7 26 (2006) 8 SCC 656, paras 10,11 27 AIR  2012, BOM 101, paras 13 to 37

Page 25

after the 2005 Amendment, but on this aspect a different

view has been taken in the later larger Bench judgment.

We are unable to find any reason to hold that birth of the

daughter after the amendment was a necessary condition

for its applicability.  All  that is required is that daughter

should be alive and her father should also be alive on the

date of the amendment.   

26.3. Kale  vs.  Dy.  Director  of  Consolidation28 and

Digambar  Adhar  Patil  vs.  Devram  Girdhar  Patil29

have been cited to submit that the family settlement was

not  required  to  be  registered.   Santosh  Hazari  vs.

Purushottam Tiwari30 lays down that the Appellate Court

must deal with reasons of the trial court while reversing its

findings.

26.4 Kannaiyan  vs.  The  Assistant  Collector  of

Central  Excise31,   C.I.T.  Gujarat  vs.  Keshavlal

Lallubhai Patel32, Umayal Achi vs. Lakshmi Achi33 and

Shivappa  Laxman  vs.  Yellawa  Shivappa

28 (1976) 3 SCC 119, para 9 29 (1995) Supp. 2 SCC 428 at page 430 30 (2001) 3 SCC 179, para 15. 31 1969 (2) MLJ 277, 32 (1965) 2 SCR 100 33 AIR 1945 FC 25 at 31(d)

Page 26

Shivagannavar34  have  been  cited  to  canvass  that

partition was recognition of pre-existing rights and did not

create new rights.

26.5 This would normally have ended our order with the

operative  part  being  in  para  24  which  disposes  of  Civil

Appeal  No.7217  of  2013  and  directs  listing  of  other

matters  for  being  dealt  with  separately.   However,  one

more  aspect  relating  to  gender  discrimination  against

muslim women which came up for consideration needs to

be gone into as Part II of this order.

Part II

27. An  important  issue  of  gender  discrimination  which

though  not  directly  involved  in  this  appeal,  has  been

raised  by  some  of  the  learned  counsel  for  the  parties

which concerns rights to muslim women.  Discussions on

gender discrimination led to this issue also.  It was pointed

out that inspite of guarantee of the Constitution, muslim

women  are  subjected  to  discrimination.   There  is  no

safeguard against arbitrary divorce and second marriage

by  her  husband  during  currency  of  the  first  marriage, 34 AIR 1954 BOM 47, para 4

Page 27

resulting in denial of dignity and security to her.  Although

the  issue  was  raised  before  this  Court  in  Ahmedabad

Women  Action  Group(AWAG)  vs.  Union  of  India35,

this Court did not go into the merits of the discrimination

with the observation that the issue involved state policy

to be dealt with by the legislature36.  It was observed that

challenge to the Muslim Women (Protection of Rights on

Divorce)  Act,  1986 was  pending before  the  Constitution

Bench and there was no reason to multiply proceedings on

such an issue.

28. It is pointed out that the matter needs consideration

by this Court as the issue relates not merely to a policy

matter but to fundamental rights of women under Articles

14,  15  and  21  and  international  conventions  and

covenants.  One of the reasons for the court having not

gone into the matter was pendency of an issue before the

Constitution Bench which has since been decided by this

Court   in  Danial  Latifi  vs.  Union  of  India37.   The

35 (1997) 3 SCC 573 36 This Court referred to the observations of Sahai, J. in  Sarla Mudgal vs. Union of India (1995) 3 SCC 635 that a climate was required to be built for a uniform civil code.  Reference was also made to observations in Madhu Kishwar vs. State of Bihar (1996 (5) SCC 125 to the effect that the court could at best advise and focus attention to the problem instead of playing an activist role. 37 (2001) 7 SCC 740

Page 28

Constitution Bench did not address the said issue but the

Court  held  that  Article  21  included  right  to  live  with

dignity38 which  supports  the plea that  a  muslim woman

could invoke fundamental rights in such matters. In  Javed

vs.  State  of  Haryana39,  a  Bench  of  three  judges

observed that practice of polygamy is injurious to public

morals  and  can  be  superseded   by  the  State  just  as

practice of ‘sati’  40.  It was further observed that conduct

rules providing for monogamy irrespective of religion are

valid  and  could  not  be  struck  down  on  the  ground  of

violation  of  personal  law  of  muslims41.   In  John

38 “  Para 33……. This Court  in  Olga Tellis v.  Bombay Municipal Corpn. [1985(3) SCC 545] and Maneka Gandhi v.  Union of India [1978 (1) SCC 248]   held that the concept of “right to life and personal liberty” guaranteed under Article 21 of the Constitution would include the “right to live with dignity”. Before the Act, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Section 125 CrPC until she may remarry and such  a  right,  if  deprived,  would  not  be  reasonable,  just  and  fair.  Thus  the  provisions  of  the  Act depriving the divorced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC. Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of the  Code  of  Criminal  Procedure,  a  divorced  Muslim  woman  has  obviously  been  unreasonably discriminated and got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of the  Constitution  mandating  equality  and  equal  protection  of  law  to  all  persons  otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion.” 39 (2003) 8 SCC 369 40 Para 46 41 Paras 54 to 59

Page 29

Vallamattom vs. UOI42, it was observed that Section 118

of  Indian  Succession  Act,  1925  restricting  right  of

christians to make Will for charitable purpose was without

any  rational  basis,  was  discriminatory  against  christians

and violated Article 1443. Laws dealing with marriage and

succession are not part of religion44.  Law has to change

with time45. International covenants and treaties could be

referred  to  examine  validity  and  reasonableness  of  a

provision46.

29. In Charu Khurana vs. UOI47, this Court considered

the issue of gender discrimination in the matter of denial

of membership of “Cine Costume Make-up Artists and Hair

Dressers  Association”  in  film industry.   It  was  held  that

such discrimination violates basic constitutional rights.

30. It was thus submitted that this aspect of the matter

may be gone into by separately registering the matter as

Public Interest Litigation (PIL).  We are of the view that the

suggestion needs consideration in view of earlier decisions

42 (2003) 6 SCC 611 43 Paras 28 and 29 44 Para 44 45 Paras 33 to 36 46 Paras 30 to 32 47 (2015) 1 SCC 192

Page 30

of this Court. The issue has also been highlighted in recent

Articles appearing in the press on this subject48.

31. For this purpose, a PIL be separately registered and

put  up  before  the  appropriate  Bench  as  per  orders  of

Hon’ble the Chief Justice of India.  

32. Notice  be  issued  to  learned  Attorney  General  and

National Legal Services Authority, New Delhi returnable on

23rd November, 2015.   We give liberty to learned counsel

already appearing in this matter to assist the Court on this

aspect of the matter, if they wish to volunteer, for either

view point.

………………………………………………..J.                        [ ANIL R. DAVE ]

………………………………………………..J.        [ ADARSH KUMAR GOEL ]

NEW DELHI OCTOBER  16, 2015

48 “The Tribune” dated 24.09.2015 “Muslim Women’s quest for equality” by Vandana Shukla and  “Sunday Express Magazine” dated 04.10.2015 “In Her Court” by Dipti Nagpaul D’Souza.

Page 31

ITEM NO.1A               COURT NO.3          SECTION IVA (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal No(s).7217/2013 PRAKASH & ORS.                                      Appellant(s)                                 VERSUS PHULAVATI & ORS.                                    Respondent(s) WITH SLP(C)No.21814/2008 SLP(C)No.18744/2010 SLP(C)Nos.28702-28703/2010 SLP(C)No.28471/2011 SLP(C)Nos.4217-4218/2012 SLP(C)Nos.1299-1300/2013 SLP(C)Nos.17577-17578/2013 SLP(C)No.19816/2014 SLP(C)No.5619/2015 SLP(C)No.3805/2008 SLP(C)No.9390/2015 SLP(C)No.5680/2015 SLP(C)No.35209/2011 SLP(C)Nos.15557-15558/2015 S.L.P.(C)No......../2015 (CC No.15560/2015)   Date : 16/10/2015 These appeals were called on for  pronouncement                   of judgment today. For Appellant(s) Mr. Anil C. Nishant,Adv.

Mr. S.N. Bhat,Adv. Mr. A.K. Joseph,Adv. Mrs. Sudha Gupta,Adv. Mrs. S. Usha Reddy,Adv. Mr. Nanda Kishore,Adv. Mr. P.R.Kovilan,Adv. Ms. Geetha Kovilan,Adv.

Page 32

Civil Appeal No.7217 of 2013 etc.

Mr. Shanth Kumar V. Mahale,Adv. Mr. Amith J.,Adv. Mr. Rajesh Mahale,Adv. Mr. Raghavendra S. Srivatsa,Adv.

Mr. Charudatta Mohindrakar,Adv. Mr. A. Selvin Raja,Adv. Mr. Aniruddha P. Mayee,Adv. Mr. P.R. Ramasesh,Adv. Mr. Ankolekar Gurudatta,Adv. Mr. K.N. Rai,Adv. Mrs. Vaijayanthi Girish,Adv. Mr. G. Balaji,Adv.

For Respondent(s) for M/s. S.M. Jadhav & Company,Advs. Mr. Rauf Rahim,Adv. Mr. Sumeet Lall,Adv. Mr. Balaji Srinivasan,Adv. Mr. Mayank Kshirsagar,Adv. Ms. Srishti Govil,Adv. Ms. Vaishnavi Subrahmanyam,Adv. Mr. Tushar Singh,Adv. Mr. Virendra Sharma,Adv. Mr. Manjunath Meled,Adv. Mr. Vijaylaxmi,Adv. Mr. Anil Kumar,Adv. Mr. Somiran Sharma,Adv. Mr. B. Subrahmanya Prasad,Adv. Mr. Anirudh Sanganeria,Adv. Mr. Chinmay Deshpande,Adv. Mr. Amjid MaQBOOL,aDV. Mr. Shashibhushan P. Adgaonkar,Adv. Mr. T. Mahipal,Adv. Mr. G.N. Reddy,Adv. Mr. Rajinder Mathur,Adv. Mr. Shankar Divate,Adv.

32

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Civil Appeal No.7217 of 2013 etc.

Mrs. K. Sarada Devi,Adv. Ms. Garima Prashad,Adv.

Hon'ble  Mr.  Justice  Adarsh  Kumar  Goel pronounced the reportable judgment of the Bench

comprising Hon'ble Mr. Justice Anil R. Dave and

His Lordship.

Civil  appeal  No.7217/2013  is  allowed,  all

the pending applications stand disposed of and

the  connected  Special Leave  Petitions may  be

listed for hearing separately for consideration

on  24th November,  2015, in  terms  of  signed

Reportable Judgment.

All the pending applications stand disposed of.

  (Anita Malhotra)                    (Sneh Bala Mehra)      Court Master                    Assistant Registrar

(Signed Reportable judgment is placed on the file)

33