TMI Blog2020 (8) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the same manner as the son. Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property as she would have had if she had been a son . The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be treated as joint family property. If the son is adopted, he will become a coparcener. An adoption by a widow of a deceased coparcener related to the date of her husband's death, subject to saving the alienations made in the intermittent period. Acquisition of Rights in Coparcenary Property - HELD THAT:- As a matter of fact, in substance, there is a divergence of opinion in Prakash v. Phulavati and Danamma [ 2015 (10) TMI 2761 - SUPREME COURT ] with respect to the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living daughter of a living coparcener was not dealt with specifically. However, the effect of reasons given in para 23 had been carried out to logical end by giving an equal share to the daughter. Partition and Effect of Statutory Fiction - HELD THAT:- Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth earlier in point of time. Section 6(5) - HELD THAT:- The intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized Under Section 6(5) - It is settled law that family arrangements can be entered into to keep harmony in the family. There is a general presumption that every Hindu family is presumed to be joint unless the contrary is proved. It is open even if one coparcener has separated, to the non-separating members to remain joint and to enjoy as members of a joint family. No express agreement is required to remain joint. It may be inferred from how their family business was carried on after one coparcener was separated from them. Whether there was a separation of one coparcener fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. (v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly. The views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju and Ors. [ 2018 (5) TMI 1368 - SUPREME COURT ] overruled - The opinion exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Narayana and 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 redistribution of shares can be claimed by the daughters by amended Section 6, as substituted. 5. In Girijavva v. Kumar Hanmantagouda and 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 and 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 1/7th 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 [C] Nos. 1766-67/2020], 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by partition before 20.12.2004. (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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. Shri R. Venkataramani, learned Senior Counsel/amicus curiae, argued as under: (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 cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and 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 coparcenary under the Mitakshara law, his right accretes to other members by survivorship while under the English law if one of the coheirs 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 and Anr. v. Sanatan Singh and Ors. AIR 1933 PC 155, and Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma and 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 and Ors. v. Shib Chunder Roy, 19 IA 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 coparce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 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 above-suggested 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 decree of the Court were introduced. It follows that on a daughter becoming coparcener from a parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. 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 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. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 Explanation was considered in S. Sundaram Pillai and Ors. v. V.R. Pattabiraman and 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 purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the past transactions are saved while applying the theory of relation back as laid down in Sripad Gajanan Suthankar v. Dattaram Kashinath Suthankar and 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 coparcener is adding to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property. She has relied upon Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find it hard to understand the significance of a Hindu joint family and joint property. But it is there from the ancient time perhaps, as a social necessity. 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. They are bound together by the fundamental principle of sapindaship or family relationship, which is the essential feature of the institution. The cord that knits the members of the family is not property but the relationship of one another. 18. The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than a joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants up to three degrees can offer spiritual ministration to an ancestor. Only males can be coparceners. [See: Hindu Law by N.R. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surviving coparcener. If a son is subsequently born or adopted, the coparcenary will survive, subject to saving the alienations made in the interregnum. 29. In Ghamandi Ram (supra), the formation, concept and incidents of the coparcenary were discussed thus: 5. 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 co-parcenership 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 of such person; 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oparcenary it would appear that a Hindu coparcenary has six essential characteristics, namely, (1) that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, each member has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he might receive; (4) that as a result of such co-ownership the possession and enjoyment of the property is common; (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property. Applying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by virtue of the Act of 1937, we find that, excepting Condition (1), all other conditions are fully satisfied in case of a Hindu widow succeeding to the interest of her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener: though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the Rule of survivorship remains suspended so long as that estate enures. But on the death of a coparcener there is no dissolution of the coparcenary so as to carve out a defined interest in favour of the widow in the coparcenary property: Lakshmi Perumallu v. Krishnavanamma. The interest acquired by her Under Section 3(2) is subject to the restrictions on alienation which are inherent in her estate. She has still power to make her interest definite by making a demand for partition, is a male owner may. If the widow after being introduced into family to which her husband belonged does not seek partition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisitions made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result that their properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, it is almost impossible not to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family, and is of its very essence, (1908) 32 Bom. 479. (emphasis supplied) 35. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and Ors., (1985) 2 SCC 321, characteristics of joint family and coparcenary were culled out. It was also held that interest of a female member of a joint Hindu family getting fixed, on her inheriting interest of a deceased male member of the family. She would not cease to be a member of family unless she chooses to become separate by partition, thus: 8. A Hindu coparcenary is, however, a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary, A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the family property gets fixed on the death of a male member Under Section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result does not follow from the language of the statute. In such an event she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. We have already noticed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the son has murdered him? If he had not murdered his father he would have along with his wife succeeded in the matter. So far as the rights of coparceners in the Mitakshara law are concerned, the son acquires by birth or adoption a vested interest in all coparcenary property whether ancestral or not and whether acquired before or after his birth or adoption, as the case may be, as a member of a joint family. This is the view which has been accepted by all the authors of the Hindu law. In the famous principles of Mulla, 15th Edn. (1982) at pp. 284 and 285, the learned author has stated thus: The essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere all the other coparceners die and he becomes the sole surviving member of the coparcenary, he takes the whole joint family property by survivorship, and becomes a fresh stock of descent to the exclusion of the daughter of the last predeceased coparcener, a case of leprosy of the last surviving coparcener. The beneficial interest of each coparcener is liable to fluctuation, increasing by the death of another coparcener and decreasing by the birth of a new coparcener. Therefore, it is now settled that a member of a coparcenary acquires a right in the property by birth. His share may fluctuate from time to time but his right by way of survivorship in coparcenary property in Mitakshara law is a settled proposition. (emphasis supplied) 38. In Rohit Chauhan v. Surinder Singh and Ors., (2013) 9 SCC 419, the concept of coparcenary of sharing equally with others and no definite share, was discussed thus: 11. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr. Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, title and interest in every part and parcel of the joint property or coparcenary under Hindu law by all the coparceners. Our conclusion is fortified by the view expressed by this Court in A. Viswanatha Pillai v. Tahsildar (LA), (1991) 4 SCC 17 in which this Court observed: (SCC p. 21, para 2) 2. ... It is settled law that one of the co-owners can file a suit and recover the property against strangers and the decree would enure to all the co-owners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu law by all the coparceners. In Kanta Goel v. B.P. Pathak, (1977) 2 SCC 814, this Court upheld an application by one of the co-owners for eviction of a tenant for personal occupation of the co-owners as being maintainable. The same view was reiterated in Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184, and Pal Singh v. Sunder Singh, (1989) 1 SCC 444. A co-owner is as much an owner of the entire property as a sole owner of the property. It is not correct to say that a co-owner's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief.... In Ref. Unobstructed and obstructed heritage 43. In Mitakshara coparcenary, there is unobstructed heritage, i.e., apratibandha daya and obstructed heritage i.e., sapratibandha daya. When right is created by birth is called unobstructed heritage. At the same time, the birthright is acquired in the property of the father, grandfather, or great grandfather. In case a coparcener dies without leaving a male issue, right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. It is obstructed because the accrual of right to it is obstructed by the owner's existence. It is only on his death that obstructed heritage takes place. Mulla on Hindu Law has discussed the concept thus: 216. Obstructed and unobstructed heritage. - Mitakshara divides property into two classes, namely, apratibandha daya or unobstructed heritage, and sapratibandha daya or obstructed heritage. (1) Property in which a person acquires an interest by birth is called unobstructed heritage, because the accrual of the right to it is not obstructed by the existence of the owner. Thus, property inherited by a Hindu from his father, father's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enary 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 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. 46. The substituted provision of Section 6 by the Amendment Act, 2005 is extracted hereunder: 6. Devolution of interest in coparcenary property.- (1) On and from the commenceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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-grand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. 3. It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said Section so as to remove the disability on female heirs contained in that section. 4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on Property Rights of Women: Proposed Reform under the Hindu Law . 5. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sub-section (1) contains a non-obstante Clause providing that nothing contained in the Sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20.12.2004. 52. It is apparent from the provisions of Section 6 that the discrimination with the daughter has been done away with, and they have been provided equal treatment in the matter of inheritance with Mitakshara coparcenary. In several States viz., Andhra Pradesh, Tamil Nadu, Karnataka, and Maharashtra, the State Amendments in the Act of 1956 were made to extend equal rights to daughters in Hindu Mitakshara coparcenary property. An amendment was made on 30.7.1994 by the insertion of Section 6A by Karnataka Act 23 of 1994 in the Act of 1956. In-State of Andhra Pradesh, the amendment was made, w.e.f. 5.9.1985, Tamil Nadu w.e.f. 25.3.1989 and Maharashtra w.e.f. 26.9.1994 by the addition of Section 29A in the Act of 1956. In Kerala, the Act was enacted in 1975. 53. Before the amendment, Section 6 provided that on the death of a male Hindu, a coparcener's interest in Mitakshara coparcenary shall devolve by survivorsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. 56. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended Section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. Retroactive statute means a statute which creates a new obligation on transactions or considerations already past or destroys or impairs vested rights. 36. In Halsbury's Laws of England (4th edn., Vol. 44, at paragraph 921) we find: 921. Meaning of 'retrospective'.--It has been said that 'retrospective' is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; or is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing. 37. We are inclined to take th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Under Section 23. In that context, the observations were made by this Court. In Sheela Devi (supra), the question was whether Section 8 of the Act of 1956 would apply or the law applicable prior to the Act of 1956. 60. Section 6(2) provides when the female Hindu shall hold the property to which she becomes entitled Under Section 6(1), she will be bound to follow rigors of coparcenary ownership, and can dispose of the property by testamentary mode. 61. With respect to a Hindu who dies after the commencement of the Amendment Act, 2005, as provided in Section 6(3) his interest shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares which would have been allotted to his heirs had there been a partition. The daughter is to be allotted the same share as a son; even surviving child of pre-deceased daughter or son are given a share in case child has also died then surviving child of such pre-deceased child of a pre-deceased son or pre-deceased daughter would be allotted the same share, had they been alive at the time of deemed partition. Thus, there is a sea-change in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5). 64. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3). In ref: Effect of enlargement of daughter's rights 65. Under the proviso to Section 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended Section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to Section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to Section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted Section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of Section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the law, uncertainty would be caused. In our opinion, no uncertainty is brought about by the provisions of Section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively. There is no doubt about it that advancement brings about the enlargement of the size of the coparcenary and disabling it from treating the daughter unequally. Even otherwise, its size could be enlarged by the birth of a son also. By applying Section 8, the joint possession was not repudiated by the fact that a female, whether a wife or daughter, inherited the share of coparcener under the proviso to original Section 6. She was an equal member of the joint Hindu family and deemed statutory partition did not bring disruption of the coparcenary. 74. In Prakash v. Phula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uage 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. x x x 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. x x x 27.2. In Gurupad Khandappa Magdum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the daughter of a coparcener. The provisions of Section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part. 76. In Mangammal v. T.B. Raju and Ors. (supra), the Court considered the provisions made in the State of Tamil Nadu, the State Government enacted the Hindu Succession (Tamil Nadu Amendment) Act, 1989, made effective from 25.3.1989, adding Section 29-A in the Hindu Succession Act, 1956. Section 29A was held to be valid regarding succession by survivorship. Section 29A provided equal rights to daughters in coparcenary property. The provisions were more or less similar, except Section 29A(iv) treated a married daughter differently. The provisions were not applicable to the daughters married before the date of commencement of Amendment Act, 1989. Thus, married daughters were not entitled to equal rights. That too, has been taken care of in Section 6, as substituted by Act of 2005, and no discrimination is made against married daughters. In the said case, Mangammal got married in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, without touching any other aspect in the present case, we are of the view that the Appellants were not the coparceners in the Hindu joint family property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance. At the most, they could claim maintenance and marriage expenses if situation warranted. It is apparent that the question of living daughter of a living coparcener was not involved in the matter, once this Court held that the married daughters were not entitled to claim partition and separate possession as marriage had taken place prior to the enforcement of the 1989 amendment, as observed in para 17 quoted above. However, this Court opined that the decision in Prakash v. Phulavati, laying down that only living daughters of living coparceners would be entitled to claim a share in the ancestral property Under Section 6 of the Act of 1956. The opinion expressed cannot be accepted for the reasons mentioned above. Moreover, it was not necessary to go into the aforesaid question. 77. In Danamma, a Division Bench of this Court dealt with the interpretation of amended provisions of Section 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the amended Section 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. 27. On facts, there is no dispute that the property which was the subject-matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property. In view of our aforesaid discussion, in the said partition suit, share will devolve upon the Appellants as well. Since, Savadi died leaving behind two sons, two daughters and a widow, both the Appellants would be entitled to 1/5th share each in the said property. The Plaintiff (Respondent 1) is son of Arun Kumar (Defendant 1). Since, Arun Kumar will have 1/5th share, it would be divided into five shares on partition i.e. between Defendant 1 Arun Kumar, his wife Defendant 2, his two daughters Defendants 3 and 4 and son/Plaintiff (Respondent 1). In this manner, Respondent 1-Plaintiff would be entitled to 1/25th share in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as joint tenants but as tenants-in-common . The decision of this Court in SBI, (1969) 2 SCC 33, therefore, is not applicable to the present case. 23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. 81. It is settled proposition of law that without partition, only undivided share can be sold but not specific property, nor joint possession can be disrupted by such alienation. Whether the consent of other coparcener is required for sale or not, depends upon by which School of Mitakshara law, parties are governed, to say, in Benares School, there is a prohibition on the sale of property without the consent of other coparceners. The Court in the abovesaid decision made general observation but was not concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain definite share.' 15. In Principles of Hindu Law by Mulla, Vol. I (17th Edition) as regards the right of wife, it is stated that a wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled (except in Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband (Article 315 at Page 506). 83. In Girja Bai v. Sadashiv AIR 1916 PC 104, Kawal Nain v. Prabhulal AIR 1917 PC 39 and Ramalinga v. Narayana AIR 1922 PC 201, it was laid that the institution of a suit for partition by a member of a joint family is a clear intimation of his intention to separate and the decisions indicate that there was consequential severance of joint status from the date when the suit was filed though there was an assertion of his right to separate by filing of the suit whether the consequential judgment is passed or not. However, we add a rider that if subsequently, the law confers a right, or such other event takes place, its effect has to be worked out even after passing of the preliminary decree. 84. In Kedar Nath v. Ratan Singh, (1910) 37 IA 161 and Palani Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . N.K. Sarada Thampatty AIR 1991 SC 2035, it was held that if a preliminary decree for partition is passed, it will not amount to a partition unless an actual physical partition is carried out pursuant to a final decree. 90. In S. Sai Reddy v. S. Narayana Reddy and Ors. (1991) 3 SCC 647, a suit for partition, was filed. A preliminary decree determining the shares was passed. The final decree was yet to be passed. It was observed that unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. A preliminary decree does not bring about the final partition. For, pending the final decree, the shares themselves are liable to be varied on account of the intervening events, and the preliminary decree does not bring about any irreversible situation. The concept of partition that the legislature had in mind could not be equated with a mere severance of the status of the joint family, which could be effected by an expression of a mere desire by a family member to do so. The benefit of the provision of Section 29A could not have been denied to women whose daughters were entitled to seek shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vents. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which Clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to Respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable Section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before the conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court seized with the final decree proceedings is not only entitled but is duty-bound to take notice of such change and pass appropriate order... (emphasis supplied) It was held that if after passing of a preliminary decree in a partition suit but before passing of the final decree, there has been enlargement or diminution of the shares of the parties or their rights have been altered by statutory amendment; the Court is duty-bound to decide the matter and pass final decree keeping in view the changed scenario. In Prema (supra), the Court further opined: 20. In our view, neither of the aforesaid three judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. We are fortified in our view by a three-Judge Bench decision of this Court in Phoolchand and Anr. v. Gopal Lal AIR 1967 SC 1470, wherein this Court stated as follows: We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. ... So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be settled once for all in that suit alone and no other proceedings. 21. Section 97 of Code of Civil Procedure that provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree does not create any hindrance or obstruction in the power of the Court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require. 22. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree. (emphasis supplied) The effect of the legislative provision concerning partition was considered, and it was held that a preliminary decree merely declares the shares and on which law confers equal rights upon the daughter that is required to be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the Court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree. (emphasis supplied) 94. In Laxmi Narayan Guin and Ors. v. Niranjan Modak, (1985) 1 SCC 270, it was laid down that change in law during the pendency of the appeal has to be taken into consideration thus: 9. That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Sarup v. Munshi AIR 1963 SC 553 which was followed by this Court in Mula v. Godhu, (1969) 2 SCC 653. We may point out that in Dayawati v. Inderjit: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd's lifetime and the share she would have obtained in her husband's interest upon his death. The first step is to ascertain the share of the deceased in the coparcenary property that would be worked out ultimately, and that shall be deemed to be the share in the property that should have been allotted to the deceased. What is therefore required to be assumed is that a partition had, in fact, taken place between the deceased and his coparceners immediately before his death. The assumption must permeate the entire process of ascertainment of the ultimate share of the heirs. All the consequences must be taken to a logical end. It was opined: 13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out, rights have to be recognised as they exist at the time of the final decree. It is only the share of the deceased coparcener, and his heirs are ascertained under the Explanation to Section 6 and not that of other coparceners, which keep on changing with birth and death. 97. In Anar Devi and Ors. v. Parmeshwari Devi and Ors. (supra), the decision in Gurupad (supra) was considered, and it was held that when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative claiming through such female relative, his undivided interest is not devolved by survivorship but upon his heir by intestate succession thus: 8. According to the learned author, at page 253, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation thus: (4) It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. There does not need to be an agreement between all the coparceners for the disruption of the joint status. It is immaterial in such a case whether the other coparceners give their assent to the separation or not. The jural basis of this doctrine has been expounded by the early writers of Hindu Law. The relevant portion of the commentary of Vijnaneswara states as follows: x x x x x [And thus though the mother is having her menstrual courses (has not lost the capacity to bear children) and the father has attachment and does not desire a partition, yet by the will (or desire) of the son a partition of the grandfather's wealth does take place] Saraswathi Vilasa, placitum 28 states: [From this it is known that without any speech (or Explanation) even by means of a determination (or resolution) only, partition is effected, just an appointed daughter is constituted by mere in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separation of his share which may be arrived at either by private agreement among the parties, or on failure of that, by the intervention of the Court. Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable; neither the co-sharers can question it nor can the Court examine his conscience to find out whether his reasons for separation were well-founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others. In Syed Kasam v. Jorawar Singh, ILR 50 Cal 84, Viscount Cave, in delivering the judgment of the Judicial Committee, observed: It is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara, a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place; and the commencement of a suit for partition has been held to be sufficient to effect a severance in interest even before decree. (emphasis supplied) 99. Once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors., (1954) SCR 53; Bengal Immunity Co. Ltd. v. State of Bihar and Ors. AIR 1955 SC 661; and Controller of Estate Duty v. Smt. S. Harish Chandra, (1987) 167 ITR 230. A legal fiction created in law cannot be stretched beyond the purpose for which it has been created, was held in Mancheri Puthusseri Ahmed (supra) thus: 8. xxx In the first place the Section creates a legal fiction. Therefore, the express words of the Section have to be given their full meaning and play in order to find out whether the legal fiction contemplated by this express provision of the statute has arisen or not in the facts of the case. Rule of construction of provisions creating legal fictions is well settled. In interpreting a provision creating a legal fiction the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the Section by which it is created. It cannot also be extended by importing anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of proviso to Section 6 as discussed in Prakash v. Phulavati (supra) and Danamma (supra). If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time. In Ref. Section 6(5) 107. The Explanation to Section 6(5) provides that for the purposes of Section 6, 'partition' means effected by any registered partition deed or effected by a decree of a court. It is pertinent to mention that Explanation did not find place in the original Amendment Bill moved before the Rajya Sabha on 20.12.2004. The same was added subsequently. In the initial Note, it was mentioned that partition should be properly defined, leaving any arbitrary interpretation, and for all practical purposes, the partition should be evinced by a registered public document or have been affected by a decree of a court. In a case partition is oral, it should be supported by documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced in the Rajya Sabha will not be affected or invalidated. Consequential changes are also suggested in Sub-section (5) of proposed Section 6. 110. Section 6(5) as proposed in the original Bill of 2004 read thus: (5) Nothing contained in this Section shall apply to a partition, which has been effected before the commencement of the Hindu Succession (Amendment) Act, 2004. 111. Shri R. Venkataramani, Amicus Curiae, argued that proviso to Section 6 is plain and clear. All dispositions, alienations, testamentary depositions, including partition effected prior to 20.12.2004, shall not be reopened. There may be a partition of coparcenary property, and they would have also acted in pursuance of such partition. There could be any number of instances where parties would have entered into family settlements or division of properties on the basis of respective shares or entitlement to succeed on a partition. In many of those cases, a simple mutation in revenue entries would have been considered as sufficient for severance of status. The Parliament did not intend to upset all such cases, complete transactions, and open them for a new order of succession. The partition effected me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceiving report of the Parliamentary Committee. The partition may be effected orally and later on memorandum can be created for memory purposes. Such a document containing memorandum of partition is not required to be registered. The parties may settle their rights and enter into subsequent transactions based upon such a partition. It is not to unsettle the completed property transactions that had already taken place. The explanation should not be understood as invalidating all the documents or oral partition in respect of the coparcenary property. In case genuineness of such document is questioned, it has to be proved to the satisfaction of the Court. The saving of transactions would safeguard the genuine past transaction and prevent unrest in the family system. Similar proposal was made by the Law Commission of India. 114. The learned Counsel, Shri Sridhar Potaraju, argued that ignoring statutory fiction of partition under proviso to Section 6, which provision had been incorporated in 1956 and continued till 2005, is not warranted. 115. Ms. Anagha S. Desai, learned Counsel, argued that in the absence of partition deed also, partition could be effected by metes and bounds, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement. 15. In Tek Bahadur Bhujil v. Debi Singh Bhujil AIR 1966 SC 292, 295, it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had observed thus: Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Benares school; (vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue have no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene. Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here. (emphasis supplied) 119. In Chinthamani Ammal v. Nandgopal Gounder, (2007) 4 SCC 163, it was observed that a plea of partition was required to be substantiated as under law, there is a presumption as to jointness. Even separate possession by co-sharers may not, by itself, lead to a presumption of partition. 120. In Rukhmabai v. Laxminarayan AIR 1960 SC 335 and Mudigowda Gowdappa Sankh and Ors. v. Ramchandra Revgowda Sankh (dead) by his LRs. and Anr. AIR 1969 SC 1076, it was observed that prima facie a document expressing the intention to divide brin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved.... 124. In Hari Baksh v. Babu Lal AIR 1924 PC 126, it was laid down that in case there are two coparcener brothers, it is not necessary that there would be a separation inter se family of the two brothers. The family of both the brothers may continue to be joint. 125. The severance of status may take place from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged Under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. (v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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