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TMI Blog2020 (8) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 3 SCC 343. In other connected matters, the question involved is similar; as such, they have also been referred for hearing along. 2. In the case of Lokmani and Ors. v. Mahadevamma and Ors., [S.L.P.(C) No. 6840 of 2016] the High Court held that Section 6, as amended by the Act of 2005, is deemed to be there since 17.6.1956 when the Act of 1956 came into force, the amended provisions are given retrospective effect, when the daughters were denied right in the coparcenary property, pending proceedings are to be decided in the light of the amended provisions. Inequality has been removed. The High Court held that the oral partition and unregistered partition deeds are excluded from the definition of 'partition' used in the Explanation to amended Section 6(5). 3. In Balchandra v. Smt. Poonam and Ors. [SLP [C] No. 35994/2015], the question raised is about the retrospectivity of Section 6 as substituted by Amendment Act, 2005 and in case the father who was a coparcener in the joint Hindu family, was not alive when the Act of 2005 came into force, whether daughter would become a coparcener of joint Hindu family property. 4. In the matter of Sistia Sarada Devi v. Uppaluri Hari Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , leaving behind two daughters, two sons, and a widow. Coparcener's father was not alive when the substituted provision of Section 6 came into force. The daughters, sons and the widow were given 1/5th share apiece. Arguments: 10. Shri Tushar Mehta, learned Solicitor General of India, appearing on behalf of Union of India, raised the following arguments: (i) The daughters have been given the right of a coparcener, to bring equality with sons, and the exclusion of daughter from coparcenary was discriminatory and led to oppression and negation of fundamental rights. The Amendment Act, 2005, is not retrospective but retroactive in operation since it enables the daughters to exercise their coparcenary rights on the commencement of the Amendment Act. Even though the right of a coparcener accrued to the daughter by birth, coparcenary is a birthright. (ii) The conferment of coparcenary status on daughters would not affect any partition that may have occurred before 20.12.2004 when the Bill was tabled before Rajya Sabha as contained in the proviso to Section 6(1). Hence, the conferment of right on the daughter did not disturb the rights which got crystallised by partition before 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becomes definite only when a partition is effected. (viii) The daughter of a coparcener in Section 6 does not imply the daughter of a living coparcener or father, as the death of the coparcener/father does not automatically lead to the end of coparcenary, which may continue with other coparceners alive. Thus, the coparcener, from whom the daughter is inheriting by her being coparcener, needs not to be alive as on the commencement of the Amendment Act of 2005. (ix) The Explanation to Section 6(5) was not provided in the original amendment Bill moved before the Rajya Sabha on 20.12.2004, which came to be added later. (x) Often, coparceners enter into a family arrangement or oral partition, and it may not be necessary to register such a partition. Explanation to Section 6(5) of the Amendment Act requires the partition to be registered, was inserted to avoid any bogus or sham transactions. Considering the entire scheme of the Amendment Act, the requirement of registered partition deed is directory and not mandatory. Any coparcener relying upon any family arrangement or oral partition must prove the same by leading proper documentary evidence. 11. Shri R. Venkataramani, learned Sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Raghunadha v. Brozo Kishore, 3 IA 154 (PC). The coparcener status being the result of birth; possession of the joint property is only an adjunct of the joint family and is not necessary for its constitution, as discussed in Haridas Narayandas Bhatia v. Devkuvarbai Mulji AIR 1926 Bom. 408. (d) A Hindu coparcenary is said to have seven essential characteristics, which include that the interest of a deceased member survives on his death and merges in the coparcenary property as observed in Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977) 3 SCC 385. As a result, if father or any other coparcener has died before the Amendment Act, 2005, the interest of father or another coparcener would have already merged in the surviving coparcenary. Consequently, there will be no coparcener alive, from whom the daughter will succeed. Thus, the daughter can succeed only in the interest of living coparcener as on the date of enforcement of the Amendment Act. (e) In Anthonyswamy v. Chhinnaswamy, (1969) 3 SCC 15, it was observed that as a logical corollary and counter-balance to the principle before the amendment, that the son from the moment of his birth, acquires an interest in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Smt.) v. the State of Maharashtra and Anr., (1998) 5 SCC 332, the past transactions cannot be reopened. Thus, the daughter, whose coparcener father, was alive on the date of incorporation of provisions of Section 6, will be treated as a coparcener. Any other interpretation would cause unjust consequences. 12. Shri V.V.S. Rao learned amicus curiae/senior counsel, argued that: (a) the logic of Prakash v. Phulavati has been upheld in Mangammal v. T.B. Raju, (2018) 15 SCC 662. It was held that there should be a living daughter of a living coparcener to inherit the property on the date of enforcement of the amended provisions of the 2005 Act. (b) Section 6(1)(a) declares a daughter to be a coparcener by birth. By the declaration, a daughter stands included in coparcenary. As the declaration is to the effect that the daughter is to become coparcener by birth, the question of prospectively or retrospectivity will not arise-- daughter, whether born before 2005 or after that, is considered a coparcener. (c) Section 6(1)(b) and (c) deal with the effects of inclusion of daughter as a coparcener. Having regard to the plain language and future perfect tense "shall have the same rights," th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that it would depend upon the facts of a particular case. As per the prevailing law, it was not necessary that a partition should be registered. There can be an oral partition also, as the law does not prohibit it. At the same time, the Committee observed that the term 'partition' should be defined appropriately, and for all practical purposes, should be registered or should have been effected by a decree of the Court. In case where oral partition is recognised, it should be backed by proper evidentiary support. (i) The Parliament intended to confer the status of a coparcener from the birth of a daughter. However, it was never intended to confer her the rights in the coparcenary property retrospectively, for the following reasons: a. Section 6(1)(a) deals with the inclusion of a daughter in the coparcenary "on and from the commencement of amendment Act 2005, w.e.f. 9.9.2005; b. The operating part of Section 6(1) controls not only Clause (a) but also Clauses (b) and (c); c. Hence the daughter who is declared as coparcener from 9.9.2005 would have the right in a coparcenary property only from 9.9.2005; d. Equally, a daughter who is now coparcener will be subject t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsactions that took place before 20.12.2004, and the daughter should be alive as on the date of amendment. There should be 'living coparcener' to whom the daughter can inherit to become a coparcener. 13. Shri Sridhar Potaraju, learned Counsel, vociferously argued that: (a) The decision in Prakash v. Phulavati adopted the correct interpretation of the provision. Married daughters are not considered as part of the father's joint family. They were recognised as Class I heirs that, by itself, did not make them part of their father's joint Hindu family. He has relied upon Surjit Lal Chhabda v. Commissioner of Income Tax, (1976) 3 SCC 142. A married daughter ceases to be a member of the father's family and becomes a member of her husband's family. (b) As considered by P. Ramanatha Aiyar in Major Law Lexicon, the land is held in coparcenary when there is the unity of title, possession, and interest. A Hindu coparcenary is a narrower body than the joint family. A coparcener shares (equally) with others in inheritance in the estate of a common ancestor. Otherwise called parceners are such as have an equal portion in the inheritance of an ancestor. The share of a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of survivorship. The statutory partition under unamended Section 6 was considered in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and Ors., (1978) 3 SCC 383. Statutory partition has been in existence in Section 6 since 1956 and is continued by the 2005 Amendment. (i) Section 6, as amended, is not applicable in the case of a daughter whose father is not alive at the time of the introduction of provisions of Section 6. Every member of a joint Hindu family is not entitled to be a coparcener either under the traditional Hindu law or under the Hindu Succession Act, 1956 or the Amendment Act, 2005. Under Section 29A introduced in the State of Andhra Pradesh, unmarried daughters were given the rights of a coparcener while excluding married daughters. The Central Amendment has not made a distinction based on the daughter's marital status expressly but has made it evident by the use of the expression 'joint Hindu family' and 'daughter of a coparcener.' The provisions should be read to exclude married daughters. The provisions of Section 6, as amended, are prospective. It was not intended to unsettle the settled affairs. (j) The Explanation to Section 6(5) can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of birth, and they cannot be made liable for all the liabilities of coparcenary property. The benefit cannot be conferred from the date of birth as it would relate in several cases to date of birth even in the year 1925. All liabilities are to be borne only from the amendment; as such, the provisions are not retrospective. (l) Even alternatively, if the status of coparcenary on the daughter is to be conferred retrospectively, the limitations governing such legal fiction will have to take into consideration the implications of (i) statutory partition; (ii) court's decree; and (iii) legitimate alienation of the property by Karta/coparceners, prior to commencement of the Amendment Act. All other dispositions or alienations, including any partition or testamentary disposition of property made before 20.12.2004, are required to be saved as earlier the daughters were not coparceners. On a statutory partition, the property becomes the self-acquired property and is no more a coparcenary property. (m) Even in a case of adoption, the past transactions are saved while applying the theory of relation back as laid down in Sripad Gajanan Suthankar v. Dattaram Kashinath Suthankar and Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 6(1)(2), where male Hindus are given the right by birth to become a coparcener, and they have the right to take a partition with coparcenary property. (c) The decision in Prakash v. Phulavati, laying down that Section 6 as amended applies in case of living daughters of a living coparcener, is arbitrary and non-est in the eye of law. Both sons and daughters of coparceners are conferred the right of becoming coparcener by birth. Birth in coparcenary creates interest. The only other exception is by way of adoption. Coparcenary incident is the right to the severance of the status of partition. 16. Ms. Anagha S. Desai, learned Counsel, strenuously urged that Section 6 provides parity of rights in coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The declaration in Section 6 that the daughter of a coparcener shall have the same rights and liabilities as she would have been a son is unambiguous and unequivocal. The daughter is entitled to a share in the ancestral property. She has relied upon Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr., (2011) 9 SCC 788. 17. When a daughter, who is claiming and demanding a share in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is found to tenets of Bombay school of Hindu law in the entire State of M.P., whereas Benares school is applicable in various parts of Madhya Pradesh. It was clarified by a Full Bench of Madhya Pradesh High Court in Diwan Singh v. Bhaiya Lal, (1997) 2 MP LJ-202, and a Division Bench decision was relied on in FA No. 31/1968 decided on 14.12.1976. In integrating State of Madhya Bharat and some other parts of Madhya Pradesh, Benares school is applicable, not Bombay. 20. Mitakshara law applies to most parts of India except Bengal. Maharashtra school prevailed in North India, Bombay school, in Western India. However, certain areas in Southern India are governed by Marumakkatayam, Aliyasantana, and Nambudiri systems of law. 21. Besides the various sources, custom, equity, justice, and conscience have also played a pivotal role in the development of Hindu law, which prevailed. When the law was silent on certain aspects, Judicial decisions also acted as a source of law. Hindu law was not static but always progressive. Slowly necessity was felt for the codification of Hindu law. In particular, women's rights were taken care of, and attempts were made to remove the anomalies and un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded. In Ref. Formation of Coparcenary 26. For interpreting the provision of Section 6, it is necessary to ponder how coparcenary is formed. The basic concept of coparcenary is based upon common ownership by coparceners. When it remains undivided, the share of the coparcener is not certain. Nobody can claim with precision the extent of his right in the undivided property. Coparcener cannot claim any precise share as the interest in coparcenary is fluctuating. It increases and diminishes by death and birth in the family. 27. In Sunil Kumar and Anr. v. Ram Parkash and Ors., (1988) 2 SCC 77, the Court discussed essential features of coparcenary of birth and sapindaship thus: 17. Those who are of individualistic attitude and separate ownership may 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 line ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid. (emphasis supplied) In Smt. Sitabai and Anr. v. Ramchandra AIR 1970 SC 343, it was held: 3. x x x under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint family did not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess..... In Dharma Shamrao Agalawe v. Pandurang Miragu Agalwe and Ors., (1988) 2 SCC 126, it was held that joint family property retains its character even after its passing on to the hands of a sole 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far that, by adoption, a stranger may be affiliated as a member of that corporate family. 6. Adverting to the nature of the property owned by such a family the learned Judge proceeded to state: As regards the property of such family, the 'unobstructed heritage' devolving on such family, with its accretions, is owned by the family, as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'unobstructed heritage' which, with its accretions, may be exclusively owned by such branch as a corporate body. (emphasis supplied) 30. Essential characteristics of coparcenary, as discussed in the above-mentioned decision in Ghamandi Ram (supra), were analysed in Controller of Estate Duty v. Alladi Kuppuswamy, (supra), thus: 8. .... Thus analysing the ratio of the aforesaid case regarding the incidents of a Hindu coparcenary 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everance of the Hindu coparcenary and on her death, the interest of the widow merges in the coparcenary property or lapses to the other coparceners. It was observed that the male issue of coparcener acquires an interest in the coparcenary by birth, not as representing his father. 32. This Court in Controller of Estate Duty (supra), placed reliance on Satrughan Isser v. Sabujpari, and Ors. AIR 1967 SC 272. In case the right to partition by a widow has not been exercised, there is no severance of Hindu coparcenary, and on death of coparcener, there is no dissolution of coparcenary. In Satrughan (supra), it was held: 7. By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) thus: 13. Outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father's family and becomes a member of her husband's family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption: The fundamental principle of the Hindu joint family is the sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, 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 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for the position that when a female member who inherits an interest in the joint family property Under Section 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her, as stated in Explanation I to Section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant thing to notice is that the theory of ownership being acquired by birth has given rise to the doctrine of Samudavika swatwa or aggregate ownership in the Mitakshara school. Till partition therefore all the coparceners have got rights extending over the entirety of the coparcenary property...... (emphasis supplied) 37. In Vellikannu v. R. Singaperumal and Anr., (2005) 6 SCC 622, this Court restated that the share of a member of a coparcenary fluctuates from time to time is a settled proposition of law. It was held: 11. So far as the property in question is concerned, there is a finding of the courts below that the property is a coparcenary property and if that being so, if Defendant 1 had not murdered his father then perhaps things would have taken a different shape. But what is the effect on the succession of the property of the deceased father when 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to existence after the birth of the coparcener concerned. While dealing with right of survivorship, it is said thus: The system of a joint family with its incident of succession by survivorship is a peculiarity of the Hindu law. In such a family no member has any definite share and his death or somehow ceasing to be a member of the family causes no change in the joint status of the family. Where a coparcener dies without male issue his interest in the joint family property passes to the other coparceners by survivorship and not by succession to his own heir. Even where a coparcener becomes afflicted with lunacy subsequent to his birth, he does not lose his status as a coparcener which he has acquired by his birth, and although his lunacy may under the Hindu law disqualify him from demanding a share in a partition in his family, yet where 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 coparce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daya Taver, (1863) 9 MIA 543. In Shankara Cooperative Housing Society Ltd. v. M. Prabhakar and Ors., (2011) 5 SCC 607, it was observed that coparcenary be collective ownership. If a suit for recovery of property is filed, it is for the benefit of all co-owners. The position of ownership of co-ownership property indicates a change when actual division takes place, and co-owner's share becomes identifiable. In Shankara Cooperative, it was observed: 85. Shri Ranjit Kumar, learned Senior Counsel, contends that the writ petition was filed by one of the co-owners of late Mandal Buchaiah and judgment and order passed would not bind the other parties. We cannot agree. It is a settled law that no co-owner has a definite right, title and interest in any particular item or 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. 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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless the contrary is proved, but ...... where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the Plaintiff's side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.... 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritage devolves by survivorship; obstructed heritage, by succession. There are, however, some cases in which obstructed heritage is also passed by survivorship. 44. It is apparent that unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner. It is significant to note that Under Section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner's death. Thus, coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6. In Ref. Section 6 of the Act of 1956 45. Section 6 of the Act of 1956 before the substitution by Amendment Act, 2005 is reproduced hereunder: 6. Devolution of interest in 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 had left him surviving a female relative specified in Class I of the Schedule or a male relative spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a predeceased 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 dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925. 2. Section 6 of the Act deals with devolution of interest of a male hindu in coparcenary property and recognises the Rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakashara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground 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 discriminati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A son is a son until he gets a wife. A daughter is a daughter throughout her life. 7. ...The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), .....to claim the benefit..... ...(Otherwise, it would be) unfair, gender-biased and unreasonable, liable to be struck down Under Article 14 of the Constitution. ... It suffers from twin vices of gender discrimination inter se among women on account of marriage. 51. The daughter is treated as a coparcener in the same manner as a son by birth with the same rights in coparcenary property and liabilities. However, the proviso 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener "in her own right" 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an enactment which is ex facie or by implication not retrospective. But merely because an Act envisages a past act or event in the sweep of its operation, it may not necessarily be said to be retrospective. Retrospective, according to Black's Law Dictionary, means looking backward; contemplating what is past; having reference to a statute or things existing before the Act in question. Retrospective law, according to the same dictionary, means a law which looks backward or contemplates the past; one which is made to affect acts or facts occurring, or rights occurring, before it came into force. Every statute which takes 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t might have committed a mistake in opining that the operation of Section 3 of the 2005 Act is retrospective in character, but, for the reasons aforementioned, it does not make any difference. What should have been held was that although it is not retrospective in nature, its application is prospective. 59. The decision in G. Sekar (supra) concerned with the provisions of Section 23 of the Hindu Succession Act prior to its deletion, w.e.f. 9.9.2005. The question involved therein was the effect of the deletion by Amendment Act of 2005. The suit for partition of the residential dwelling house was not maintainable 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 intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in Section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncies, mentioned in the proviso to unamended Section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise. 69. The argument raised that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transactions. 72. It was argued that in the eventuality of the death of a father or other coparcener, the parties would have not only partitioned their assets but also acted in pursuance of such partition. However, partitions have been taken care of by the proviso to Section 6(1) and 6(5). Parliament has not intended to upset all such transactions as specified in the proviso to Section 6(1). 73. It was vehemently argued that if the daughter is given the right to be a coparcener by birth and deemed to become a coparcener at any point in the past, in the normal working 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, the view of the High Court cannot be sustained. 18. The contention of the Respondents that the amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20-12-2004. Notional partition, by its very nature, is not covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted Section 6, the expression 'daughter of a living coparcener' has not been used. Right is given Under Section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in Section 6(1)(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in Section 6(1)(c). Any reference to the coparcener shall include a reference 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 successi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who was born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash, (2016) 2 SCC 36, would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property. 17. Hence, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26. In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the Appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788, held that the rights of daughters in coparcenary property as 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. After taking a definite share in the property, a coparcener becomes the 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. It was observed: 22. For the purpose of assigning one's interest in the property, it was not necessary that partition by metes and bounds amongst 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 settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to share in the joint family property can claim with certainty the exact share in that property. In the case of Appovier Alias Seetaramier v. Rama Subba Aiyan and Ors., (1866) 11 MIA 75, Lord Westbury speaking for the Judicial Committee (Privy Council) observed, 'According to the true notion of an undivided family in Hindoo 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 certain 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upted merely by ascertainment of the shares of the coparcener. In order to constitute a partition, the shares should be defined with the intention of an immediate separation. 89. In Poornandachi v. Gopalasami AIR 1936 PC 281, only one of the members was given the share by way of instrument of partition. It was also provided that the rest of the property was to remain joint. It was held that there was no partition between the other members. In I.T. Officer, Calicut v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after, allotting specific properties and directing the partition of the immovable properties by metes and bounds. 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. The preliminary decree which determines shares 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. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been altered by statutory amendment, the Court is duty-bound to decide the matter and pass final decree keeping in view of the changed scenario. 14. We may add that by virtue of the preliminary decree passed by the trial court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as 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 hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for partition filed by Respondent 1 is the determination of shares vide preliminary decree dated 19-3-1999, which came to be amended on 27-9-2003 and the receipt of the report of the Commissioner. 17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is 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 prohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 136 of the Limitation Act) nor an application seeking a fresh relief (falling Under Article 137 of the Limitation Act). It is only a reminder to the Court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion. 20. On the other hand, in a partition suit the preliminary decrees only 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 pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), the question of Explanation I to Section 6 of the Hindu Succession Act, 1956 came up for consideration with respect to the determination of widow's interest in the coparcenary property. Court held that a widow's share in the coparcenary property must be ascertained by adding the share to which she is entitled at a notional partition during her husband'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 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctuation in the coparcenary body by a legal provision or otherwise. Everything remained static. No doubt about it, the share of the deceased has to be worked out as per the statutory fiction of partition created. However, in case of change of body of the coparceners by a legal provision or otherwise, unless and until the actual partition is finally worked 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an end by statutory fiction. Disruption of coparcenary by statutory fiction takes place, is not the proposition laid down in the aforesaid decision. 98. In Puttrangamma and Ors. v. M.S. Rangamma and Ors. AIR 1968 SC 1018, this Court considered the doctrine of Hindu law, separation in status by a definite, unequivocal and unilateral declaration 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is the natural resultant from his decision, the division and 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it. Legal fiction is only for a purpose it serves, and it cannot be extended beyond was held in State of Travancore-Cochin and Ors. v. Shanmugha Vilas Cashew Nut Factory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty can continue undivided. 106. In the instant case, the question is different. What has been recognised as partition by the legislation Under Section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when 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 shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween married and unmarried daughters and at the same time clearly lay down that alienation or disposition of property made at any time before the 20th day of December, 2004, that is, the date on which the Hindu Succession (Amendment) Bill, 2004 was introduced 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, Clause 2 of the Bill is adopted. 113. Shri V.V.S. Rao argued that the status of coparcener conferred on daughters cannot affect the partition made orally, and the explanation at the end of Section 6 was added after receiving 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 provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the 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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontext means not necessarily for a family necessity but alienation made competently in accordance with law; (v) A widow's power of alienation is limited and if--and only if--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 San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ..... It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is on separation entitled to 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 separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t necessary that father coparcener should be living as on 9.9.2005. (iv) The statutory fiction of partition created by proviso to Section 6 of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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