Prakash v. Phulavati

A daughter sued for a share in family property. Her father had died in 1988, long before the Hindu Succession (Amendment) Act, 2005 made daughters coparceners (equal members of the joint family) by birth. The Supreme Court held that the amendment is not retrospective and covers only living daughters of living coparceners on 9 September 2005. A later three-Judge Bench overruled the living-coparcener part of this view.

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy)

Parties

Prakash and others — appellants in Civil Appeal No. 7217 of 2013; the defendants in the suit. They said a daughter could claim only under Section 6 as it stood before the 2005 amendment.

Phulavati and others — respondents; Phulavati is the plaintiff, the daughter of the late Yeshwanth Chandrakant Upadhye.

Connected matters — a batch of Special Leave Petitions raising the same legal issue.

Procedural History

1. Trial court. Phulavati filed O.S. No. 12/1992 in the court of the Additional Civil Judge (Senior Division), Belgaum, for partition and separate possession (para 3).
2. During the suit she amended the plaint to claim a share under Act 39 of 2005 (para 5).
3. The trial court partly decreed the suit. It gave 1/28th share in certain properties on a notional partition at her father's death. It gave no share in some items, and 1/7th in others (para 5).
4. High Court. She filed a first appeal. She said she became a coparcener under the amendment and was entitled to inherit coparcenary property equal to her brothers (para 6).
5. The High Court framed the question whether she was entitled to a share under Section 6 as amended. It held that the amendment applies to pending proceedings even if prospective (paras 8-9).
6. It held her entitled to 1/7th share in all items in Schedules A to D. In Schedule F, the first item was given up, and she got 1/7th in Item No. 2 and 1/7th in 40% ownership of Item No. 3 (para 10).
7. Supreme Court. The defendants challenged the High Court's judgment. Connected matters were entertained mainly on this legal issue, on account of differing High Court views (paras 2, 11).
8. The Court delivered its judgment on 16 October 2015. Civil Appeal No. 7217 of 2013 was allowed and the other matters were listed for 24 November 2015 (paras 24, 26.5).

Facts

1. Phulavati sought partition and separate possession of 1/7th share in the suit properties in Schedules A to G, except CTS No. 3241 in Schedule A, where she sought 1/28th (para 3).
2. Her case was that her late father, Yeshwanth Chandrakant Upadhye, had inherited the suit properties from his adoptive mother, Smt. Sunanda Bai (para 4).
3. Her father died on 18 February 1988, and she said she acquired her share then (paras 4, 11).
4. The defendants said she could claim only in her deceased father's self-acquired property, and not in the entire property (para 5).
5. The defendants said her claim had to be dealt with under Section 6 of the Hindu Succession Act, 1956 as it stood before the 2005 amendment. They said she could not claim a share in self-acquired property of joint family members (para 7).
6. They relied on M. Prithviraj v. Neelamma N., which held that if the plaintiff's father died before the commencement of Act 39 of 2005, the amended provision could not apply (para 7).
7. The Amendment Act commenced on 9 September 2005. The Bill was introduced on 20 December 2004 (paras 11, 22).

Issues Raised

1. Does the Hindu Succession (Amendment) Act, 2005 have retrospective effect (para 1)?
2. Is a daughter entitled to a share as a coparcener when her father, a coparcener, died before 9 September 2005 (paras 11, 14)?
3. How should the proviso to Section 6(1), Section 6(5) and its Explanation be read (paras 14, 18, 22)?
4. Should the Court take up the gender discrimination faced by Muslim women, raised by some counsel, as a separate matter (paras 27-31)?

Arguments Contended

For the appellants (the defendants), and counsel supporting them:

• The father died on 18 February 1988. He was not a coparcener on the date the Amendment Act commenced. She could not claim to be the daughter of a coparcener at commencement, which was the necessary condition (para 11).
• On the father's death a notional partition took place. The shares of the heirs crystallised and created vested rights. A later amendment cannot take them away without an express provision or necessary intendment (para 11).
• The amending provision itself applies on and from 9 September 2005. It could apply to pending proceedings only if the amendment applied at all (para 11).
• Based on the plain language, an amendment dealing with a substantive right is prospective and does not affect vested rights. Counsel cited Shyam Sunder v. Ram Kumar (2001) 8 SCC 24 (para 14).
• If a coparcener died before commencement, succession opened on death under the law then in force, and heirs' rights crystallised even without partition by metes and bounds (para 14).
• The apparently conflicting Explanation to Section 6(5) must be given a harmonious construction with the main provision. The main provision of Section 6(1) confers coparcener rights on a daughter only from commencement (para 14).
• The proviso to Section 6(1) also applies only where Section 6(5) applies. Section 6(5) applies to partitions after 20 December 2004, so the proviso and the Explanation apply only when Section 6(1) applies (para 14).
• The Explanation is only a rule of evidence and not a substantive provision. It places the burden of proof of genuineness on the party alleging a partition, and does not wipe out valid earlier partitions. Statutory notional partition remains valid (para 14).

For the respondents:

• The amendment is social legislation to remove discrimination against women, in the light of the 174th Report of the Law Commission. It should be read as retrospective, as the High Court held (para 15).
• A daughter acquires the right by birth. Even if her coparcener father died before the amendment, the parties' shares must be redefined (para 15).
• Any partition before 20 December 2004 should be ignored unless made by a registered deed or by a decree of court. If no registered partition took place, the daughter's share is enhanced by the amendment (para 15).
• The respondents' main authorities were Prema v. Nanje Gowda, Ganduri Koteshwaramma v. Chakiri Yanadi, V.K. Surendra v. V.K. Thimmaiah, Ram Sarup v. Munshi, Dayawati v. Inderjit, Amarjit Kaur v. Pritam Singh, Lakshmi Narayan Guin v. Niranjan Modak, S. Sai Reddy v. S. Narayana Reddy and State of Maharashtra v. Narayan Rao (para 25).

Court's Reasoning

The judgment is by Goel, J. for the Bench of Adarsh Kumar Goel and Anil R. Dave, JJ. Paragraph numbers are those of the judgment.

Goel, J. (for the Bench)

The issue and the courts below

1. Noted: The only issue in this batch is whether the Hindu Succession (Amendment) Act, 2005 has retrospective effect. The impugned Karnataka judgment (AIR 2011 Kar. 78) upheld retrospectivity for the respondents. (para 1)
2. Noted: Connected matters were taken up on this legal issue, as High Courts differ. It is not necessary to go into the facts or the findings on other issues, which may be decided separately. (para 2)
3. Noted: The facts of Civil Appeal No. 7217 of 2013 are stated only to decide the legal question. (paras 3-5)
4. Noted: The trial court partly decreed the suit on the basis of a notional partition at her father's death. She appealed to the High Court on the ground that she became a coparcener under Act 39 of 2005. (paras 5-6)
5. Noted: The defendants said her claim must be dealt with under Section 6 as it stood before the amendment. They relied on M. Prithviraj v. Neelamma N. (ILR 2009 Kar. 3612). (para 7)
6. Noted: The High Court framed the question whether she is entitled to a share in terms of Section 6 as amended. (para 8)
7. Noted: The High Court held the amendment applies to pending proceedings even if prospective. It relied on G. Sekar v. Geetha ((2009) 6 SCC 99), which it said means a development of law applies to a pending proceeding. (para 9)
8. Noted: The High Court said a female member becomes a coparcener by a fiction of law and shares at par with male members. The only exception is a partition by registered deed or court decree before 20 December 2004 under Section 6(5). (para 9)
9. Noted: The High Court found the exception unavailable to the defendants and held her entitled to 1/7th share in the items stated. (paras 9-10)
10. Noted: The appellants' contentions are that the father was not a coparcener on commencement, and that a notional partition had crystallised vested rights on his death in 1988. (para 11)
11. Noted: The appellants also said the amending provision is expressly applicable on and from 9 September 2005. It could apply to pending proceedings only if applicable at all. (para 11)
12. Noted: The respondents supported the High Court's view, and the Court heard counsel in the appeal and connected matters. (paras 12-13)
13. Noted: The appellants' contentions are on the plain language of the statute and the principle that an amendment on a substantive right is prospective. Counsel cited Shyam Sunder v. Ram Kumar. (para 14)
14. Noted: The respondents' contentions are that the amendment is social legislation and retrospective, that a daughter acquires rights by birth, and that unregistered earlier partitions are to be ignored. (para 15)
15. Noted: The Court sets out Section 6 as it stood before the 2005 Amendment and as amended, in two columns. (para 16)
16. Noted: Before the amendment, on the death of a male Hindu with an interest in Mitakshara coparcenary property, that interest devolved by survivorship (passing to the surviving coparceners), with a proviso for female Class I relatives. Explanation I deemed the interest to be the share allotted on a notional partition just before death. (para 16)
17. Noted: As amended, Section 6(1) says that on and from the commencement of the Act, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son. She has the same rights and liabilities as a son. (para 16)
18. Noted: The proviso to Section 6(1) says nothing in the sub-section affects any disposition or alienation, including partition or testamentary disposition, that took place before 20 December 2004. (para 16)
19. Noted: Section 6(2) says property to which a female Hindu becomes entitled under Section 6(1) is held with the incidents of coparcenary ownership and can be disposed of by testamentary disposition. (para 16)
20. Noted: Section 6(3) deals with a Hindu who dies after the commencement of the Amendment Act. His interest devolves by testamentary or intestate succession, not survivorship, and the property is deemed divided as if a partition had taken place. (para 16)
21. Noted: Under Section 6(3), the daughter is allotted the same share as a son. The shares of pre-deceased children pass to their children, as set out in clauses (b) and (c), with an Explanation on the deemed partition. (para 16)
22. Noted: Section 6(4) bars courts, after commencement, from recognising the pious obligation of a son, grandson or great-grandson to pay his father's, grandfather's or great-grandfather's debts. A proviso saves rights of creditors and alienations for earlier debts. (para 16)
23. Noted: Section 6(5) says nothing in the section applies to a partition effected before 20 December 2004. Its Explanation defines partition as one made by a duly registered deed under the Registration Act, 1908, or effected by a decree of a court. (para 16)

The amendment is prospective

1. Held: The text of the amendment says the right of a daughter of a coparcener is on and from the commencement of the 2005 Act. Section 6(3) talks of death after the amendment. In view of the plain language, there is no scope for a different interpretation. (para 17)
2. Held: An amendment of a substantive provision is "always prospective unless either expressly or by necessary intendment" retrospective. The Court cites Shyam Sunder v. Ram Kumar (2001) 8 SCC 24, paras 22 to 27. (para 17)
3. Held: Here there is neither an express provision for retrospective effect nor a necessary intendment to that effect. (para 17)
4. Held: The requirement that a partition be registered cannot apply to a statutory notional partition on opening of succession under the unamended provision. Such a partition is by operation of law. (para 17)
5. Held: On this finding, the High Court's view cannot be sustained. The intent and effect of the amendment are considered later. (para 17)
6. Held: "Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature". The respondents' contention is not accepted. (para 18)
7. Held: The legislature expressly made the amendment applicable on and from its commencement, and only if the coparcener's death is after the amendment. No other interpretation is possible. (para 18)
8. Held: The proviso saving earlier dispositions, alienations and partitions does not lead to the inference that a daughter was a coparcener before commencement. It means only that transactions not covered will not affect the extent of coparcenary property when the main provision applies. (para 18)
9. Held: The Explanation must be read harmoniously with Section 6(5), limited to a partition effected after 20 December 2004. A notional partition, by its nature, is not covered by the proviso, Section 6(5) or the Explanation. (para 18)

Interpreting the proviso and the Explanation

1. Noted: Interpretation depends on text and context. It cites RBI v. Peerless ((1987) 1 SCC 424, at paragraph thirty-three). The normal rule is to read words in their ordinary sense. (para 19)
2. Noted: In case of ambiguity, a rational meaning is given (Kehar Singh v. State (1988) 3 SCC 609). In case of apparent conflict, a harmonious meaning advancing the legislature's object is given (District Mining Officer v. Tata Iron and Steel Co. (2001) 7 SCC 358). (para 19)
3. Noted: Depending on text, context and purpose, different rules of interpretation have applied to a proviso or an explanation. (para 20)
4. Noted: The normal rule is that a proviso excepts something out of the enactment. An explanation explains the meaning of the words of the section. A different rule may apply if the text, context or purpose so requires. (para 21)
5. Noted: The Court cites S. Sundaram Pillai v. R. Pattabiraman ((1985) 1 SCC 591) and Keshavji Ravji & Co. v. CIT ((1990) 2 SCC 231). It says "Rules of interpretation of statutes are useful servants but difficult masters". The object is to discover the legislature's intention. (para 21)
6. Held: The proviso to Section 6(1) and Section 6(5) clearly intend to exclude transactions before 20 December 2004, when the Bill was introduced. The Explanation cannot reopen partitions that were valid when made. (para 22)
7. Held: The object of giving finality to earlier transactions is not to make the main provision retrospective. It is to prevent fake transactions from taking away available property. It strengthens Section 6(1) and (3). (para 22)
8. Held: Settled principles on such earlier transactions, relied on by the appellants, are not meant to be done away with for the period before 20 December 2004. Statutory notional partition, even after that date, is not covered by the Explanation or the proviso. (para 22)
9. Held: The Court holds that the rights under the amendment are "applicable to living daughters of living coparceners as on 9th September, 2005", irrespective of when such daughters are born. (para 23)
10. Held: Dispositions or alienations, including partitions, before 20 December 2004 under the law then applicable remain unaffected. Any partition effected thereafter is governed by the Explanation. (para 23)
11. Held: On this interpretation, Civil Appeal No. 7217 of 2013 is allowed. The High Court's order is set aside and the matter is remanded for fresh decision in accordance with law. (para 24)

The decisions cited

1. Noted: The view taken is consistent with earlier decisions and not in conflict with them. The Court then refers to the decisions cited by the parties. (para 25)
2. Held: Many of the respondents' decisions deal with changes in law applying to pending proceedings by the intention of the legislature in a particular law. There is no dispute with them. The question is application of the principle to this amending law, and the decisions do not apply. (para 25)
3. Noted: In Ram Sarup v. Munshi, the Punjab Pre-emption Act, 1930 was amended by Punjab Act 10 of 1960 to restrict pre-emption. Section 31 barred decrees inconsistent with it. The amendment was held retrospective by its language. (para 25.1)
4. Noted: In Dayawati v. Inderjit, Section 6 of the Punjab Relief of Indebtedness Act, 1956 expressly gave retrospective effect and made the Act apply to pending suits. It reduced interest rates in certain transactions. (para 25.2)
5. Noted: In Lakshmi Narayan Guin v. Niranjan Modak, Section 13 of the West Bengal Premises Tenancy Act, 1956 expressly barred orders contrary to the new law. (para 25.3)
6. Noted: In Amarjit Kaur v. Pritam Singh, Section 3 of the Punjab Pre-emption (Repeal) Act, 1973 expressly barred pre-emption decrees after commencement. (para 25.4)
7. Held: There is no conflict with V.K. Surendra v. V.K. Thimmaiah. It deals with a presumption about the nature of joint family property and the burden of proof, and lays down only a rule of evidence. (para 25.5)
8. Noted: In S. Sai Reddy v. S. Narayana Reddy, a preliminary decree was passed in a partition suit by a son against his father. Before the final decree, the A.P. Amendment Act, 1986 allowed unmarried daughters a share, and the plea was upheld. (para 25.6)
9. Held: That case does not deal with this issue. It was not a case where the coparcener whose daughter claimed was not alive at commencement, or where shares had already crystallised. The same is true of Prema and Ganduri. (para 25.6)
10. Held: State of Maharashtra v. Narayan Rao observed that the joint family continues after a notional partition. It does not help here. The text of the amendment shows the right is given to a daughter of a coparcener who is a member of a coparcenary and alive on commencement. (para 25.7)
11. Held: State of Rajasthan v. Mangilal Pindwal ((1996) 5 SCC 60) and West U.P. Sugar Mills Assn. v. State of U.P. ((2002) 2 SCC 645) deal with the effect of repeal, not retrospectivity. (para 25.8)
12. Noted: The view in M. Prithviraj appears consistent with the view taken above. It was a binding precedent for the High Court but was not referred to in the impugned judgment. (para 26)
13. Noted: Prithviraj relied on Sheela Devi v. Lal Chand ((2006) 8 SCC 581), G. Sekar v. Geetha ((2009) 6 SCC 99, para 30) and Bagirathi v. S. Manivanan (AIR 2005 Mad 250 (DB)). (para 26)
14. Noted: In Sheela Devi, the Court observed that the succession had opened in 1989, so the 2005 Amendment would have no application. It also observed that Section 6 is an exception to the general rules. (para 26)
15. Noted: The Full Bench of the Bombay High Court in Badrinarayan Shankar Bhandari v. Ompraskash Shankar Bhandari (AIR 2014 Bom 151) also appears consistent with this view. (para 26)
16. Noted: In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum ((1978) 3 SCC 383), Shyama Devi v. Manju Shukla ((1994) 6 SCC 342) and Anar Devi v. Parmeshwari Devi ((2006) 8 SCC 656), the Court gave full effect to the deeming fiction of partition just before the coparcener's death in Explanation 1. (para 26.1)
17. Noted: In Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar (AIR 2012 Bom 101), the Bombay High Court held the amendment does not apply unless the daughter is born after it. A later larger Bench took a different view. (para 26.2)
18. Held: The Court finds no reason to hold that the daughter's birth after the amendment is a necessary condition. All that is required is that the daughter should be alive and her father should also be alive on the date of the amendment. (para 26.2)
19. Noted: Kale v. Dy. Director of Consolidation ((1976) 3 SCC 119) and Digambar Adhar Patil v. Devram Girdhar Patil ((1995) Supp. 2 SCC 428) were cited to say a family settlement need not be registered. Santosh Hazari v. Purushottam Tiwari ((2001) 3 SCC 179) says an appellate court must deal with the trial court's reasons. (para 26.3)
20. Noted: Kannaiyan v. The Assistant Collector of Central Excise (1969 (2) MLJ 277), C.I.T. Gujarat v. Keshavlal Lallubhai Patel ((1965) 2 SCR 100), Umayal Achi v. Lakshmi Achi (AIR 1945 FC 25) and Shivappa Laxman v. Yellawa Shivappa Shivagannavar (AIR 1954 Bom 47) were cited to say partition recognises pre-existing rights and does not create new rights. (para 26.4)
21. Noted: The order would normally have ended with the operative part in para 24. One more aspect, gender discrimination against Muslim women, is dealt with as Part II. (para 26.5)

Part II: gender discrimination against Muslim women

1. Noted: Some counsel raised an important issue of gender discrimination, not directly involved in this appeal, about Muslim women's rights. They said Muslim women face discrimination despite the Constitution's guarantee. (para 27)
2. Noted: They pointed to no safeguard against arbitrary divorce and a second marriage by the husband during the first marriage, which denies dignity and security. (para 27)
3. Noted: The issue was raised in Ahmedabad Women Action Group (AWAG) v. Union of India ((1997) 3 SCC 573). The Court did not go into merits, saying it involved state policy for the legislature. A challenge to the Muslim Women (Protection of Rights on Divorce) Act, 1986 was pending before the Constitution Bench. (para 27)
4. Noted: The footnote records that this Court referred to Sahai, J.'s observation in Sarla Mudgal v. Union of India ((1995) 3 SCC 635) that a climate was needed for a uniform civil code. It also referred to Madhu Kishwar v. State of Bihar ((1996) 5 SCC 125): a court can at best advise and focus attention. (para 27)
5. Noted: It was pointed out that the issue relates not merely to policy but to fundamental rights of women under Articles 14, 15 and 21 and international conventions and covenants. (para 28)
6. Noted: The pending Constitution Bench issue has since been decided in Danial Latifi v. Union of India ((2001) 7 SCC 740). That Bench did not address the gender discrimination issue. It held that Article 21 includes the right to live with dignity. (para 28)
7. Noted: The footnote to Danial Latifi quotes its paragraph thirty-three. It says the 1986 Act's limit of maintenance to the iddat period does not appear to be a reasonable and fair substitute for Section 125 CrPC. It says the Act prima facie appears to violate Article 14 and Article 15, since it treats divorced Muslim women worse than women of other communities solely on the ground of religion. It cites Olga Tellis v. Bombay Municipal Corpn. ([1985] 3 SCC 545) and Maneka Gandhi v. Union of India ([1978] 1 SCC 248). (para 28)
8. Noted: In Javed v. State of Haryana ((2003) 8 SCC 369), a three-Judge Bench observed that the practice of polygamy is injurious to public morals and can be superseded by the State, as with sati. It said conduct rules providing for monogamy irrespective of religion are valid. (para 28)
9. Noted: In John Vallamattom v. UOI ((2003) 6 SCC 611), Section 118 of the Indian Succession Act, 1925 restricting Christians' right to make a Will for charitable purposes was held discriminatory and violated Article 14. Laws on marriage and succession are not part of religion, law has to change with time, and international covenants can be referred to. (para 28)
10. Noted: In Charu Khurana v. UOI ((2015) 1 SCC 192), the Court considered gender discrimination in denying membership to the Cine Costume Make-up Artists and Hair Dressers Association. It held that such discrimination violates basic constitutional rights. (para 29)
11. Held: The suggestion to register this aspect as a Public Interest Litigation needs consideration, in view of earlier decisions. The issue has also been highlighted in recent press articles. (para 30)
12. Noted: The press articles cited are in The Tribune of 24 September 2015, Muslim Women's quest for equality by Vandana Shukla, and the Sunday Express Magazine of 4 October 2015, In Her Court by Dipti Nagpaul D'Souza. (para 30)
13. Held: A PIL is to be registered separately and put up before the appropriate Bench, as the Chief Justice of India orders. (para 31)
14. Held: Notice is issued to the Attorney General and the National Legal Services Authority, returnable on 23 November 2015. Counsel already appearing may assist the Court on either view if they wish. (para 32)

Authorities

• Phulavati v. Prakash (AIR 2011 Kar. 78): the impugned Karnataka High Court judgment, which upheld retrospectivity; set aside (paras 1, 24).
• M. Prithviraj v. Neelamma N. (ILR 2009 Kar. 3612): held the amended provision does not apply if the father died before 2005; found consistent with the Court's view (paras 7, 26).
• G. Sekar v. Geetha ((2009) 6 SCC 99): relied on by the High Court; also relied on in Prithviraj (paras 9, 26).
• Shyam Sunder v. Ram Kumar ((2001) 8 SCC 24, paras 22 to 27): an amendment of a substantive provision is prospective unless expressly or by necessary intendment retrospective. Followed (paras 14, 17).
• RBI v. Peerless ((1987) 1 SCC 424), Kehar Singh v. State ((1988) 3 SCC 609), District Mining Officer v. Tata Iron and Steel Co. ((2001) 7 SCC 358), S. Sundaram Pillai v. R. Pattabiraman ((1985) 1 SCC 591) and Keshavji Ravji & Co. v. CIT ((1990) 2 SCC 231): rules of interpretation (paras 19-21).
• Prema v. Nanje Gowda ((2011) 6 SCC 462), Ganduri Koteshwaramma v. Chakiri Yanadi ((2011) 9 SCC 788), V.K. Surendra v. V.K. Thimmaiah ((2013) 10 SCC 211, para 18), Ram Sarup v. Munshi ((1963) 3 SCR 858), Dayawati v. Inderjit ((1966) 3 SCR 275), Amarjit Kaur v. Pritam Singh ((1974) 2 SCC 363), Lakshmi Narayan Guin v. Niranjan Modak ((1985) 1 SCC 270), S. Sai Reddy v. S. Narayana Reddy ((1991) 3 SCC 647) and State of Maharashtra v. Narayan Rao ((1985) 2 SCC 321, paras 8 to 10): cited by the respondents; distinguished (paras 25 to 25.7).
• State of Rajasthan v. Mangilal Pindwal ((1996) 5 SCC 60) and West U.P. Sugar Mills Asson. v. State of U.P. ((2002) 2 SCC 645): effect of repeal; not relevant (para 25.8).
• Sheela Devi v. Lal Chand ((2006) 8 SCC 581), Bagirathi v. S. Manivanan (AIR 2005 Mad 250 (DB)) and Badrinarayan Shankar Bhandari v. Ompraskash Shankar Bhandari (AIR 2014 Bom 151, the source cites its paragraphs forty to fifty-seven): consistent with the view taken (para 26).
• Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum ((1978) 3 SCC 383), Shyama Devi v. Manju Shukla ((1994) 6 SCC 342) and Anar Devi v. Parmeshwari Devi ((2006) 8 SCC 656): full effect to the deeming fiction in Explanation 1 (para 26.1).
• Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar (AIR 2012 Bom 101, paras 13 to 37): daughter must be born after the amendment; not accepted (para 26.2).
• Kale v. Dy. Director of Consolidation ((1976) 3 SCC 119), Digambar Adhar Patil v. Devram Girdhar Patil ((1995) Supp. 2 SCC 428), Santosh Hazari v. Purushottam Tiwari ((2001) 3 SCC 179), Kannaiyan v. The Assistant Collector of Central Excise (1969 (2) MLJ 277), C.I.T. Gujarat v. Keshavlal Lallubhai Patel ((1965) 2 SCR 100), Umayal Achi v. Lakshmi Achi (AIR 1945 FC 25) and Shivappa Laxman v. Yellawa Shivappa Shivagannavar (AIR 1954 Bom 47, para 4): cited by the appellants (paras 26.3-26.4).
• Ahmedabad Women Action Group (AWAG) v. Union of India ((1997) 3 SCC 573), Danial Latifi v. Union of India ((2001) 7 SCC 740), Javed v. State of Haryana ((2003) 8 SCC 369), John Vallamattom v. UOI ((2003) 6 SCC 611) and Charu Khurana v. UOI ((2015) 1 SCC 192): on gender discrimination, in Part II (paras 27-29).
• Sarla Mudgal v. Union of India ((1995) 3 SCC 635), Madhu Kishwar v. State of Bihar ((1996) 5 SCC 125), Olga Tellis v. Bombay Municipal Corpn. ([1985] 3 SCC 545) and Maneka Gandhi v. Union of India ([1978] 1 SCC 248): named in footnotes (paras 27-28).

Provisions mentioned

• Section 6, Hindu Succession Act, 1956 (before and after the Hindu Succession (Amendment) Act, 2005, Act 39 of 2005): devolution of interest in coparcenary property.
• Section 6(1) and its proviso (as amended): a daughter of a coparcener becomes a coparcener by birth, with saving of earlier dispositions before 20 December 2004.
• Section 6(3) (as amended): on a coparcener's death after commencement, the property is deemed divided; the daughter gets the same share as a son.
• Section 6(4) (as amended): no recognition of the pious obligation of sons for their father's debts, with a proviso for earlier debts.
• Section 6(5) and its Explanation (as amended): the section does not apply to a partition before 20 December 2004; partition means a registered deed or a decree of a court.
• Section 6(2) (as amended): property a female Hindu gets under Section 6(1) is held with incidents of coparcenary ownership.
• Explanations 1 and 2 to Section 6 (before the amendment): the deemed partition just before death, and no claim on intestacy by a person who had separated.
• Registration Act, 1908: the Explanation to Section 6(5) refers to a deed of partition duly registered under it.
• Articles 14, 15 and 21, Constitution: raised in Part II on gender discrimination. The source prints Article 1443 where it means Article 14 with footnote 43, in the Vallamattom passage.
• Other Acts named: the Punjab Pre-emption Act, 1930 and Punjab Act 10 of 1960 (Section 31); Punjab Relief of Indebtedness Act, 1956 (Section 6); West Bengal Premises Tenancy Act, 1956 (Section 13); Punjab Pre-emption (Repeal) Act, 1973 (Section 3); A.P. Amendment Act, 1986; Muslim Women (Protection of Rights on Divorce) Act, 1986; Indian Succession Act, 1925 (Section 118); Section 125 of the Code of Criminal Procedure.

Judgement

1. Civil Appeal No. 7217 of 2013 is allowed. The order of the High Court is set aside (para 24).
2. The matter is remanded to the High Court for a fresh decision in accordance with law (para 24).
3. All other matters (the connected Special Leave Petitions) are listed for hearing separately on 24 November 2015 (para 24).
4. All pending applications are disposed of, as the order of the day records (order).
5. The Court directs that a PIL on gender discrimination against Muslim women be separately registered and put up before the appropriate Bench, as the Chief Justice of India orders (para 31).
6. Notice is issued to the Attorney General and the National Legal Services Authority, returnable on 23 November 2015. Counsel already appearing may assist the Court if they wish (para 32).
7. The judgment records no order on costs.

Legal Principle / Ratio

The Hindu Succession (Amendment) Act, 2005 is prospective. The Court holds that its rights are "applicable to living daughters of living coparceners as on 9th September, 2005", whenever the daughters were born. Dispositions and partitions before 20 December 2004 stay unaffected, and a statutory notional partition is not covered by the Explanation to Section 6(5).

Subsequent Treatment

One later Supreme Court judgment refers to this case. It is described only as its own text states.

Vineeta Sharma v. Rakesh Sharma, Civil Appeal Diary No. 32601 of 2018 with connected Special Leave Petitions, Supreme Court of India, decided 11 August 2020. Bench: Arun Mishra, S. Abdul Nazeer and M.R. Shah, JJ.

• How it described Prakash v. Phulavati. The three-Judge Bench recorded that a Division Bench in Prakash v. Phulavati held Section 6 is not retrospective. It applies when both the coparcener and his daughter were alive on 9 September 2005 (para 8). It also recorded the facts of Prakash and the finding that the proviso is not retrospective (para 74).
• Living coparcener. The Bench noted the finding that rights under substituted Section 6 accrue to living daughters of living coparceners on 9 September 2005. It said the attention of the Court was not drawn to how a coparcenary is created (para 75).
• Disagreement. The Bench said it is not necessary that a predecessor coparcener should be alive. It said survivorship is the mode of succession and not of formation of a coparcenary. It was unable to agree with the concept of a living coparcener laid down in Prakash (para 75).
• Notional partition. The Bench recorded (para 8) that Prakash held the registration requirement has no application to a statutory notional partition, which is not covered by the proviso or Section 6(5) and its Explanation, and that Section 6 is prospective. It said (para 75) it was unable to agree with the effect of the deemed partition. It said Section 6(1)(a) gives the right by birth and that the words daughter of a living coparcener are not used in substituted Section 6, which leaves no room for a living-coparcener requirement.
• Rejection of the fiction. The Bench said (para 106) it had no hesitation in rejecting the effect of the statutory fiction of the proviso to Section 6 as discussed in Prakash and Danamma. It said a daughter alive on 9 September 2005 becomes a coparcener from that date irrespective of her date of birth, and that a preliminary decree can be amended when rights are conferred later. It said (para 129(iv)) the fiction of partition did not bring about an actual partition or disruption of the coparcenary, and that daughters get an equal share in pending proceedings even after a preliminary decree.
• Facts recalled. In para 74 the Bench restated the facts of Prakash: the father died in 1988, the suit was filed in 1992, and the High Court applied the amended Section 6 to pending proceedings. It said (para 78) that Danamma was partly overruled because it approved Prakash, and (para 76) that Mangammal followed Prakash in holding that only living daughters of living coparceners can claim.
• Wider answers. The Bench answered (para 129(i)-(ii)) that daughters born before or after the amendment are coparceners, with the right dating from 9 September 2005 and the savings for 20 December 2004. It requested (para 130) that pending matters be decided, as far as possible, within six months. It said daughters cannot be deprived of the right of equality conferred by Section 6, and placed the matters before the appropriate Bench for decision on merits.
• What it kept. The Bench said that, in its opinion, the daughters should be living on 9 September 2005 (para 75).
• Answer to the reference. Since the right in coparcenary is by birth, it is not necessary that the father coparcener should be living on 9 September 2005 (para 129(iii)).
• Overruling. The Bench overruled the views to the contrary expressed in Prakash v. Phulavati and in Mangammal v. T.B. Raju. It partly overruled Danamma @ Suman Surpur v. Amar to the extent contrary to its decision (closing lines of the judgment).

Critical Analysis

Analysis based on the judgment text.

The judgment decides only the retrospectivity question. It says it is not necessary to go into the facts or the findings on other issues. It remands the appeal for a fresh decision, so the daughter's actual share is left to the High Court.

The judgment uses a single test for the application of the amendment. It requires a living daughter of a living coparcener on 9 September 2005. It does not separately discuss how a coparcenary is formed or what happens when the coparcener died before that date but the coparcenary continued.

Part II is outside the appeal. The Court itself says gender discrimination against Muslim women is not directly involved in the appeal. It acts by registering a separate PIL. The judgment records the arguments and precedents but decides nothing on that issue.

Significance

• The Court held that the 2005 amendment to Section 6 is prospective, even though it is social legislation.
• It tied the daughter's coparcenary right to living daughters of living coparceners on 9 September 2005.
• It kept partitions before 20 December 2004 intact and held that the Explanation to Section 6(5) does not cover a notional partition.
• It rejected the view that a daughter must be born after the amendment.
• It started a separate PIL on gender discrimination against Muslim women, with notice to the Attorney General and the National Legal Services Authority.

Exam-Important Points

• Facts in one line: a daughter claimed a coparcenary share though her father died in 1988. The High Court applied the 2005 amendment. The Supreme Court held it prospective and remanded.
• Rule: an amendment of a substantive provision is prospective unless expressly or by necessary intendment retrospective. Even social legislation is not retrospective unless so provided.
• Test: living daughters of living coparceners on 9 September 2005, whenever born.
• Trap: this test was later overruled in part. In Vineeta Sharma (2020), it was held that the father need not be alive on 9 September 2005.
• Dates: 20 December 2004 (Bill introduced; partitions before it saved) and 9 September 2005 (commencement).
• Part II: a separate PIL on gender discrimination against Muslim women. It is not part of the ratio.
• Result: appeal allowed, order set aside, matter remanded, connected matters listed for 24 November 2015.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.