Vineeta Sharma v. Rakesh Sharma

Two Supreme Court benches disagreed on what the 2005 amendment to section 6 of the Hindu Succession Act, 1956 gave a daughter. A three-Judge Bench heard the reference with connected matters. It held that a daughter is a coparcener (a member who takes a birthright interest in joint family property) by birth. She has the same rights and liabilities as a son. Her father need not be alive on 9.9.2005.

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Parties

• Vineeta Sharma — appellant in Civil Appeal Diary No. 32601 of 2018. Her appeal is from the Delhi High Court judgment dated 15.05.2018 in R.F.A. No. 301 of 2017.
• Rakesh Sharma and others — respondents in that appeal.
• Union of India — appeared through Shri Tushar Mehta, Solicitor General of India, who argued on the reference (para 10).
• Connected matters — Special Leave Petitions (Civil) Nos. 6840 of 2016, 35994 of 2015, 38542 of 2016, 6403 of 2019, 14353 of 2019, 24901 of 2019 and 1766-1767 of 2020. They are Lokmani v. Mahadevamma, Balchandra v. Poonam, Sistla Sarada Devi v. Uppaluri Hari Narayana, Girijavva v. Kumar Hanmantagouda, V.L. Jayalakshmi v. V.L. Balakrishna, Indubai v. Yadavrao and B.K. Venkatesh v. B.K. Padmavathi (paras 2-7).
• Amici curiae (friends of the Court) — Shri R. Venkataramani and Shri V.V.S. Rao, Senior Advocates (paras 11-12).
• Other counsel who argued — Shri Sridhar Potaraju, Shri Amit Pai, Shri Sameer Shrivastava and Ms. Anagha S. Desai (paras 13-16).
• Bench — Arun Mishra, S. Abdul Nazeer and M.R. Shah, JJ. Arun Mishra, J. delivered the judgment of the Court.

Procedural History

1. Section 6 of the Hindu Succession Act, 1956 was amended by the Hindu Succession (Amendment) Act, 2005 (para 1).
2. Two Division Bench judgments of this Court gave conflicting views on the amended section 6. They are Prakash v. Phulavati, (2016) 2 SCC 36 and Danamma @ Suman Surpur v. Amar, (2018) 3 SCC 343 (para 1).
3. Because of the conflict, the question was referred to a larger Bench (para 1).
4. The connected matters raise a similar question. They were referred and heard along with the main appeal (para 1).
5. The main appeal is Civil Appeal Diary No. 32601 of 2018. It arises from the judgment and order dated 15.05.2018 of the High Court of Delhi at New Delhi in R.F.A. No. 301 of 2017.
6. In Lokmani v. Mahadevamma (S.L.P.(C) No. 6840 of 2016), the High Court held that amended section 6 is deemed to be in force since 17.6.1956. It gave the amended provisions retrospective effect. It held that pending proceedings must be decided in the light of the amendment. It held that oral partition and unregistered partition deeds are excluded from the meaning of partition in the Explanation to section 6(5) (para 2).
7. In Sistla Sarada Devi v. Uppaluri Hari Narayana (S.L.P.(C) No. 38542 of 2016), the final decree (the decree that divides the property by metes and bounds) had not been passed (para 4). Counsel submitted that a preliminary decree (a decree that declares the shares but does not divide the property) had fixed the shares (para 13).
8. In V.L. Jayalakshmi v. V.L. Balakrishna (S.L.P.(C) No. 14353 of 2019), the suit was filed in 2001. The trial court granted shares to all the parties. The judgment was later modified. It was held that the petitioner and the daughters were entitled only to a 1/35th share, in the light of Prakash v. Phulavati (para 6).
9. In B.K. Venkatesh v. B.K. Padmavathi (S.L.P.(C) Nos. 1766-1767 of 2020), the daughters had been given equal shares in Item No. 1 of Schedule A property. That grant is under challenge (para 7).

Facts

The judgment is an answer to a reference. The Amendment Act came into force on 9 September 2005. It does not narrate the facts of the main appeal, apart from the appeal number and the High Court order noted above. The facts it records are those of the decisions that conflict and of the connected matters.

1. The Hindu Succession Act, 1956 was amended by the Hindu Succession (Amendment) Act, 2005, which came into force on 9.9.2005 (para 8). The Court refers to them as the Act of 1956 and the Act of 2005 (para 1).
2. Two Division Bench judgments gave conflicting verdicts on section 6 as amended. The question was therefore referred to a larger Bench (para 1).
3. In Prakash v. Phulavati, the Division Bench held that section 6 is not retrospective. It held that section 6 applies when the coparcener and his daughter were both alive on the date the Amendment Act commenced, 9.9.2005 (para 8).
4. Prakash v. Phulavati also said that the Explanation to section 6(5) has no application to the statutory notional partition (an imagined partition just before death, used to find a share). This is the partition on the opening of succession under the unamended section 6. That Explanation requires a partition to be registered or made by a court decree (para 8).
5. Prakash v. Phulavati further said the registration requirement does not apply to a partition of property by operation of law, which has to be given full effect. It held the provisions of section 6 to be prospective (para 8).
6. In Danamma @ Suman Surpur v. Amar, the Division Bench held that the amended section 6 confers full rights on the daughter coparcener. It held that any coparcener, including a daughter, can claim partition of coparcenary (the narrow body of family members who hold joint property by birth) property (para 9).
7. In Danamma, Gurunalingappa died in 2001. He left two daughters, two sons and a widow. The father-coparcener was not alive when the substituted section 6 came into force. The daughters, sons and widow were each given a 1/5th share (para 9).
8. In Lokmani v. Mahadevamma, the High Court held that the daughters had been denied rights in coparcenary property, and that pending proceedings must be decided under the amended provisions (para 2).
9. In Balchandra v. Poonam, the question raised was whether section 6 is retrospective. The related question concerned a father who was a coparcener in a joint Hindu family (the larger family unit of descendants from a common ancestor). He was not alive when the Act of 2005 came into force. Does his daughter become a coparcener (para 3)?
10. In Sistla Sarada Devi v. Uppaluri Hari Narayana, the final decree in a partition suit had not been passed. The question was whether daughters can claim a re-distribution of shares under amended section 6 (para 4).
11. In Girijavva v. Kumar Hanmantagouda, the question was raised whether substituted section 6 is prospective. The father had died in 1994, so no benefit could be drawn by the daughters (para 5).
12. In V.L. Jayalakshmi v. V.L. Balakrishna, the petitioner sought partition of the petitioner’s father's ancestral properties by a suit filed in 2001 (para 6).
13. In Indubai v. Yadavrao, a similar question was raised (para 7).
14. In B.K. Venkatesh v. B.K. Padmavathi, the daughters had been given equal shares in Item No. 1 of Schedule A property (para 7).

Issues Raised

The judgment does not list numbered issues. The Court states the question referred (para 1) and the questions raised in the connected matters (paras 2-7). The issues below follow those paragraphs.

1. How is section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act, 2005, to be interpreted, given the conflicting verdicts in Prakash v. Phulavati and Danamma v. Amar (para 1)?
2. Is amended section 6 retrospective, retroactive or prospective (paras 2, 3 and 5)?
3. Does a daughter become a coparcener of the joint Hindu family property if her coparcener father was not alive when the Act of 2005 came into force (para 3)?
4. Can daughters claim re-distribution of shares under amended section 6 when a partition suit has a preliminary decree but no final decree (para 4)?
5. Does amended section 6 give no benefit to daughters where the father died before the amendment, for example in 1994 (para 5)?
6. Are oral partitions and unregistered partition deeds excluded from the meaning of partition in the Explanation to amended section 6(5) (para 2)?

Arguments Contended

The judgment records the arguments of counsel by name. It does not divide them into appellant and respondent sides. They are set out below in the order recorded, one list for each counsel.

Shri Tushar Mehta, Solicitor General of India, for the Union of India (para 10)

1. The daughters have been given the right of a coparcener to bring equality with sons. Excluding daughters from the coparcenary was discriminatory and led to oppression and negation of fundamental rights (para 10).
2. The Amendment Act, 2005 is not retrospective but retroactive. It lets daughters exercise their coparcenary rights from the commencement of the Amendment Act. The right accrued to the daughter by birth, because coparcenary is a birthright (para 10).
3. Conferring coparcenary status on daughters does not affect any partition that occurred before 20.12.2004, when the Bill was tabled in the Rajya Sabha. This is in the proviso to section 6(1). Rights crystallised by such a partition are not disturbed (para 10).
4. Under unamended section 6, a male coparcener might die leaving a Class I female relative or a male relative claiming through her. Then the daughter got only a limited share in her father's coparcenary interest. She did not get a share as a coparcener in her own right. The Mitakshara (the main school of Hindu law, in force in most of India) has its own coparcenary law. That law discriminated on the ground of gender and negated the fundamental right of equality (para 10).
5. From 9.9.2005, daughters became coparceners by birth, in their own right, with the same liability in the coparcenary property as if they had been sons (para 10).
6. The Explanation on conferral of rights in section 6(1) saves earlier transactions. It does not affect or invalidate any disposition or alienation, including any partition or testamentary disposition, before 20.12.2004 (para 10).
7. After the substitution of section 6, devolution of coparcenary by survivorship (the old rule that a dead coparcener's interest passes to the surviving coparceners) has been abrogated. When a coparcener, male or female, dies, the interest devolves by intestate succession (inheritance under the statutory order when there is no will). It can also devolve by testamentary succession (inheritance under a will) (para 10).
8. Prakash v. Phulavati was wrong to require a living daughter of a living coparcener on the commencement date. Coparcenary rights are by birth. A coparcener's death matters only for succession to his interest under section 6(3) (para 10).
9. The death of a coparcener does not end the coparcenary. The interest of each coparcener rises or falls by birth or death. On a coparcener's death, the notional partition only fixes his interest. The coparcenary can continue, and new coparceners can be added by birth until an actual partition (para 10).
10. Daughter of a coparcener in section 6 does not mean the daughter of a living coparcener or father. The coparcener through whom the daughter claims need not be alive on the commencement of the Amendment Act (para 10).
11. The Explanation to section 6(5) was not in the Bill moved in the Rajya Sabha on 20.12.2004. It was added later (para 10).
12. Coparceners often enter into a family arrangement or oral partition, which need not be registered. The Explanation requiring registration was inserted to prevent bogus or sham transactions. The registration requirement is directory (a rule to be followed whose breach does not by itself void the act), not mandatory. A coparcener relying on a family arrangement or oral partition must prove it with proper documentary evidence (para 10).

Shri R. Venkataramani, Senior Advocate, amicus curiae (para 11)

1. There is no conflict between Prakash v. Phulavati and Danamma v. Suman. Both held section 6 to be prospective. The declaration that a daughter of a coparcener has certain entitlements and liabilities is prospective. She is treated as a coparcener under the amendment, not because she was born before it (para 11).
2. A joint Hindu family stands on a different footing from the joint tenancy principle in English law. A son becomes a coparcener by birth and can claim partition with or without reference to the death of the Karta (the manager of a joint Hindu family). An adopted son also becomes a coparcener with the adoptive father, and his status in the family of birth is severed. He relied on Nagindas Bhagwandas v. Bachoo Hurkissondas and Nanak Chand v. Chander Kishore (para 11).
3. A Hindu joint family consists of male members descended from a common male ancestor, with their mothers, wives or widows and unmarried daughters. It is a creature of law and cannot be created by an act of parties. He relied on G. Narasimulu v. P. Basava Sankaram, State Bank of India v. Ghamandi Ram, Raghunadha v. Brozo Kishore and Haridas Narayandas Bhatia v. Devkuvarbai Mulji. Coparcener status results from birth, and possession of joint property is only an adjunct (para 11).
4. A Hindu coparcenary has seven essential characteristics. One is that the interest of a deceased member survives and merges in the coparcenary property, as in Controller of Estate Duty v. Alladi Kuppuswamy. If the father or another coparcener died before the Amendment Act, his interest had already merged in the surviving coparcenary. No coparcener would then be alive from whom the daughter could succeed. The daughter can succeed only to the interest of a living coparcener (para 11).
5. In Anthonyswamy v. Chhinnaswamy, the Court noted that the son's interest by birth is balanced by his pious obligation (the duty of sons to pay the father's lawful debts). The debts must not be illegal or immoral (para 11).
6. In Baijnath Prasad Singh v. Tej Bali Singh, the Privy Council noted that Hindu coparcenary differs from English coparcenary. Under Mitakshara law the right of a deceased member accretes to the other members by survivorship (para 11).
7. A male becomes a coparcener by birth and adoption. He relied on Amarendra Man Singh Bhramarbar v. Sanatan Singh, Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma and Bireswar Mookerji v. Shib Chunder Roy. Adoption at the relevant time was only of a male, because the custom related to succession to property (para 11).
8. Under the amended section 6 the daughter becomes a coparcener by birth. Retrospective effect is not intended. Equality is brought in with effect from 2005. The birth of a daughter before 2005 is of no consequence and does not reopen past transactions (para 11).
9. Oral partition and family settlement (an agreement among family members to settle property claims) are not intended to be reopened by section 6(1) and 6(5) (para 11).
10. Treating the daughter as a coparcener at any point in the past would bring enormous uncertainty. Parliament did not intend to scramble the unscrambled egg or resurrect the past (para 11).
11. Challenges to partition have always come when a member of a coparcenary, including an adopted son, was deprived of the entitlement to succeed (para 11).
12. The scheme of section 6 is future and forward-looking. The rights of a coparcener have been enlarged, and the provision stops any defeat of the daughter's right to equal treatment (para 11).
13. Relying on Shashikalabai v. State of Maharashtra, past transactions cannot be reopened. A daughter whose coparcener father was alive on the date of section 6 will be treated as a coparcener. Any other reading would cause unjust consequences (para 11).

Shri V.V.S. Rao, Senior Advocate, amicus curiae (para 12)

1. The logic of Prakash v. Phulavati was upheld in Mangammal v. T.B. Raju. There must be a living daughter of a living coparcener on the date of enforcement of the amended provisions (para 12).
2. Section 6(1)(a) declares the daughter a coparcener by birth. Once she is included, the question of prospectivity or retrospectivity does not arise. A daughter, whether born before or after 2005, is considered a coparcener (para 12).
3. Section 6(1)(b) and (c) deal with the effects of inclusion. The future perfect tense in shall have the same rights shows that the daughters included in the coparcenary have those rights only after the Amendment Act. Had Parliament meant to confer the same rights from a time before the amendment, the language would have been different (para 12).
4. Legislative history: before the Act of 1956 women had no interest in coparcenary property, and the share of a deceased coparcener passed to the surviving coparceners. The Act of 1956 stopped survivorship and provided for a notional partition on the date of death. To that limited extent women could inherit, but they did not become coparceners (para 12).
5. The 174th Report of the Law Commission of India recommended the Kerala Model. Amendments giving coparcenary rights to daughters were made in Kerala, Andhra Pradesh, Karnataka and other States (para 12).
6. The Parliamentary Standing Committee report shows that the Ministry proposed giving the benefit of the Bill to married daughters after the commencement of the amending law. It was proposed that nothing in amended section 6 would apply to a partition effected before commencement (para 12).
7. On oral partition, the Committee said the result would depend on the facts of a case. The law did not require registration. The Committee said partition should be defined so that, for practical purposes, it is registered or made by a court decree. Where oral partition is recognised, it should have proper evidentiary support (para 12).
8. Parliament intended to make a daughter a coparcener from her birth. It never intended to confer rights in coparcenary property retrospectively, for four reasons:
   • Section 6(1)(a) includes the daughter on and from the commencement of the Amendment Act, that is 9.9.2005.
   • The operating part of section 6(1) controls clauses (a), (b) and (c).
   • A daughter declared a coparcener from 9.9.2005 has rights in coparcenary property only from that date.
   • She is subject to the same liabilities only from that date (para 12).
9. The words on and from show that the daughter becomes a coparcener from the commencement of the Act. The word shall shows the status is created only for the future and does not affect existing rights of male coparceners. The words become, have and be are present tenses and support this reading (para 12).
10. The Explanation to section 6(5) was absent from the Bill recommended by the Law Commission and the Bill introduced. It was added on the recommendation of the Parliamentary Committee. So a daughter who becomes a coparcener from a particular date cannot affect the share of a coparcener already fixed, as held in Prakash v. Phulavati (para 12).
11. The essential condition is that a coparcenary exists on the date the Act came into force in 2005. If the coparcenary was disrupted by act of the parties, by death, by partition or by sale, the daughter could not get the status. The status cannot affect past alienation, disposition or partition, oral or written (para 12).
12. Partition may be by memorandum or oral. In most families there used to be an oral partition. Once the parties settle their rights, oral partition cannot be ignored to give shares to daughters. The Explanation protects genuine past transactions, including oral partition. It should not be read as invalidating other documents recording partition, or oral partition, of coparcenary property before 20.12.2004 (para 12).
13. Daughters cannot challenge past transactions that took place before 20.12.2004. The daughter should be alive on the date of the amendment, and there should be a living coparcener to whom she can succeed to become a coparcener (para 12).

Shri Sridhar Potaraju, counsel (para 13)

1. Prakash v. Phulavati adopted the correct interpretation. Married daughters are not part of the father's joint family. Being Class I heirs (the first group of relatives who inherit under the Act) did not by itself make them part of it. He relied on Surjit Lal Chhabda v. Commissioner of Income Tax. A married daughter ceases to be a member of her father's family and becomes a member of her husband's family (para 13).
2. Relying on P. Ramanatha Aiyar's Major Law Lexicon, a coparcenary has unity of title, possession and interest, and is narrower than the joint family. A coparcener's share is undefined and fluctuates with birth and death. On death the rule of survivorship applies. Coparcener status commences with birth and ends with death, or with severance by partition or statutory fiction (para 13).
3. Daughter of a coparcener means the daughter of a living person who has the status of coparcener on the date of commencement. If a statutory partition has taken place, it must be recognised, because it severs the jointness of status and settles the share (para 13).
4. A preliminary decree of partition that has attained finality must be given effect. Filing a suit for partition is enough to effect severance of status (ending a member's joint status in the family). He relied on Puttrangamma v. M.S. Ranganna (para 13).
5. Rights conferred by survivorship are not meant to be taken away, except as the amended proviso to section 6(3) provides (para 13).
6. A legal fiction (a rule treating something as true for a set purpose) cannot be stretched beyond its purpose. He relied on Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (para 13).
7. Statutory partition leads to disruption and must be given full effect. It severs the status of jointness of the deceased coparcener and his heirs, and includes the widow's right to maintenance from the joint family. It ends the joint family. If the petitioner's father died in 1963, a notional partition occurred and the consequences in Anar Devi v. Parmeshwari Devi follow (para 13).
8. Married daughters were not entitled to a share in coparcenary property when the father died in 1963. Only sons were, and they took by survivorship. Statutory partition under unamended section 6 was considered in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum. It has existed since 1956 and continues after the 2005 Amendment (para 13).
9. Amended section 6 does not apply to a daughter whose father is not alive when section 6 was introduced. Not every member of a joint Hindu family is a coparcener. Under section 29A in Andhra Pradesh, unmarried daughters got coparcenary rights and married daughters were excluded. Andhra Pradesh section 29A excluded married daughters. The Central Amendment does not say so expressly, but the expressions joint Hindu family and daughter of a coparcener show it. The provisions should be read to exclude married daughters. The provisions are prospective and were not meant to unsettle settled affairs (para 13).
10. The Explanation to section 6(5) cannot take away rights crystallised in the surviving coparceners by statutory partition. He relied on S. Sundaram Pillai v. V.R. Pattabiraman for the purpose of an Explanation. The Court quotes a passage from that case. In one line: an Explanation supports the main enactment. It cannot take away a statutory right or defeat the working of the Act (para 13).
11. A preliminary decree determines shares. Section 2(2) of the Code of Civil Procedure calls a decree preliminary when further proceedings are needed before the suit is decided entirely. As to individual shares, the preliminary decree is final. After the dismissal of S.L.P.(C) No. 38542/2016 (Sistla Sarada Devi), only apportionment by metes and bounds remains (para 13).
12. Daughters born after the commencement become coparceners. Daughters born before it are covered by section 6(1)(b) and get the same rights as a son. Status cannot be given from the date of birth. Daughters cannot be made liable for all coparcenary liabilities from birth, which in some cases would be as far back as 1925. Liabilities are borne only from the amendment, so the provisions are not retrospective (para 13).
13. Alternatively, if the status is conferred retrospectively, the limits on the legal fiction must be considered. They are (i) statutory partition, (ii) the court's decree and (iii) legitimate alienation by the Karta or coparceners before commencement. All dispositions, including partition or testamentary disposition made before 20.12.2004, must be saved because daughters were then not coparceners. On statutory partition, the property becomes self-acquired and is no longer coparcenary property (para 13).
14. Even in adoption, past transactions are saved under the theory of relation back, as in Sripad Gajanan Suthankar v. Dattaram Kashinath Suthankar. Section 6 is therefore to be construed prospectively (para 13).

Shri Amit Pai, counsel (para 14)

1. The golden rule of interpretation must be applied, as laid down in Kanai Lal Sur v. Paramnidhi Sadhukhan. The rule of literal construction applies, as observed in Lt. Col. Prithi Pal Singh Bedi v. Union of India (para 14).
2. The substitution of section 6 dates back to the commencement of the Principal Act of 1956. A notional partition on a coparcener's death to find his share is not an actual partition and is not saved by the proviso to section 6. A daughter cannot be deprived of equality, as the Statement of Objects and Reasons shows. Section 6 must be given full effect (para 14).
3. Prakash v. Phulavati does not lay down the law correctly. The concept of a living daughter of a living coparcener adds to the text, and a court cannot add words to a statute. Only the legislature can provide it. Section 6 includes all living daughters of coparceners, whether the coparceners were dead or alive at the commencement of the 2005 Amendment (para 14).

Shri Sameer Shrivastava, counsel (para 15)

1. Coparcener is not defined in the Succession Act. This Court considered it in Sathyaprema Manjunatha Gowda v. Controller of Estate Duty, Karnataka. A coparcenary is narrower than a joint family. It consists only of persons who take an interest in the property by birth and can enforce partition whenever they like. The daughter is entitled to a share subject to the restrictions in sub-sections (1) and (5) of amended section 6 (para 15).
2. Section 6(3) provides for devolution on the death of a coparcener after the commencement of the Amendment Act. Survivorship has been done away with. Testamentary or intestate succession applies. Under section 6(1)(2), male Hindus have the right by birth to become coparceners and to take partition (para 15).
3. Prakash v. Phulavati, which applied amended section 6 only to living daughters of a living coparcener, is arbitrary and non-est (void) in law. Sons and daughters of coparceners both get the right of becoming coparcener by birth. Birth in coparcenary creates interest. The only other route is adoption. The coparcenary incident is the right to severance of status by partition (para 15).

Ms. Anagha S. Desai, counsel (para 16)

1. Section 6 gives parity of rights in coparcenary property to male and female members of a joint Hindu family on and from 9.9.2005. The declaration that a daughter of a coparcener has the same rights and liabilities as a son is unambiguous. The daughter is entitled to a share in the ancestral property. She relied on Ganduri Koteshwaramma v. Chakiri Yanadi (para 16).

Court's Reasoning

The judgment of the Court was delivered by Arun Mishra, J. It is a single opinion. S. Abdul Nazeer and M.R. Shah, JJ. are on the Bench and no separate opinion is recorded. The Court begins its own reasoning at para 17 and ends at para 130. The numbered steps below follow the judgment's order and headings.

Arun Mishra, J. (for the Court): paras 17-130

Preliminary view

1. Noted: Where the daughter claiming a share is alive, there is no difficulty of interpretation. It does not matter whether the coparcener died before the Amendment Act commenced. Held: The coparcener and the daughter need not be alive on the date of the amendment. Why: Requiring both to be alive would defeat the purpose of the amended provisions. Noted: Earlier Hindu law made only a son a coparcener by birth. Daughters now get the same rights since birth. Held: Where a partition by metes and bounds is adequately proved, the daughter of a coparcenary cannot seek partition of the property already divided (para 17).

Historical background

2. Noted: Hindu law comes from the Vedas, shrutis and smritis, and custom is its basis. It grew with the needs of society. There are two main schools, Mitakshara and Dayabhaga (the other main school of Hindu law, under which each coparcener has a defined share). Mitakshara has four sub-schools: Benares, Mithila, Maharashtra or Bombay, and Dravida or Madras (para 18).
3. Noted: The Mitakshara schools apply region by region. After the 1956 reorganisation of States, confusion arose between the Bombay and Benares schools. In Madhya Pradesh both apply to different territories. The Full Bench of the Madhya Pradesh High Court clarified this in Diwan Singh v. Bhaiya Lal. In the integrated Madhya Bharat area, the Benares school applies (para 19).
4. Noted: Mitakshara law applies in most of India except Bengal. Some areas of Southern India follow the Marumakkatayam, Aliyasantana and Nambudiri systems (para 20).
5. Noted: Custom, equity, justice and conscience helped develop Hindu law. Judicial decisions filled gaps. Hindu law was never static. Codification came, women's rights were addressed, and constitutional imperatives of equality followed. The latest step is the amendment making the daughter a coparcener in the Mitakshara coparcenary with rights equal to a son (para 21).

Coparcenary and joint Hindu family

6. Noted: A joint Hindu family is a larger body than a coparcenary. It has all persons descended from a common ancestor, with their wives and unmarried daughters. It is joint in worship and holds joint assets. It ceases to be joint after separation of assets. Mere separation in food and worship is not separation, as in Sri Raghunadha v. Sri Brozo Kishore (para 22).
7. Noted: A coparcenary is a much narrower body. It has the propositus and three lineal descendants. Before 2005 it included only sons, grandsons and great-grandsons. In the Court's example, A holds the property, B is his son, C his grandson, D his great-grandson and E his great-great-grandson. The coparcenary forms up to D. E's right ripens only on A's death (para 23).
8. Noted: Coparcenary property is what a Hindu inherits from his father, grandfather or great-grandfather. Property inherited from others is his own and is not coparcenary. Coparcenary property is held as joint owners (para 24).
9. Noted: A person becomes a coparcener by birth or by adoption. Before, a woman could be a joint family member but not a coparcener. From 9.9.2005, daughters are coparceners in their own right by birth. Coparcenary is a creation of law. Only a coparcener can demand partition. The test is whether a person can demand partition. A great-great-grandson cannot demand it. If one or more of the three male descendants has died, a fifth descendant who is the last holder can claim partition (para 25).

Formation of coparcenary

10. Noted: To interpret section 6, it is necessary to see how a coparcenary is formed. It rests on common ownership. While undivided, no coparcener can claim a precise share. The interest fluctuates. It increases and diminishes with death and birth in the family (para 26).
11. Noted: In Sunil Kumar v. Ram Parkash, this Court described a joint Hindu family and its coparcenary. The family is bound by sapindaship (family relationship), not by property. The coparcenary has only those who take an interest by birth and can enforce partition. It goes up to three degrees from the holder. Only males could be coparceners. The Court quotes two paragraphs of that judgment (para 27).
12. Noted: Coparcenary property that reaches a single person for a time is treated as his own. Once a son is born, the coparcenary revives. The Court relies on Sheela Devi v. Lal Chand, M. Yogendra v. Leelamma N. and Sitabai v. Ramchandra. Alienations made before the son's birth stand. A joint family can consist of a single male member and widows. Dharma Shamrao Agalawe v. Pandurang Miragu Agalwe held that joint family property keeps its character in the hands of a sole surviving coparcener (para 28).
13. Noted: In State Bank of India v. Ghamandi Ram, this Court set out the incidents of Mitakshara coparcenary. Descendants up to the third generation acquire ownership by birth. They can seek partition at any time. Each has ownership over the whole conjointly, and possession is common. No alienation is possible without concurrence except for necessity. A deceased member's interest lapses to the survivors. Coparcenary is a creature of law, except that an adopted son joins it. Ghamandi Ram also quotes Sundaranam Maistri v. Harasimbhulu Maistri and mentions Gan Savant Bal Savant v. Narayan Bhond Savant (para 29).
14. Noted: Controller of Estate Duty v. Alladi Kuppuswamy analysed these incidents into six characteristics. It held that a Hindu widow under the Act of 1937 has coparcenary interest and is a member of the coparcenary, but is not a coparcener (para 30).
15. Noted: Alladi Kuppuswamy also held that if a widow does not claim partition, there is no severance. On her death her interest merges in the coparcenary property or lapses to the other coparceners. A male issue acquires interest by birth and not as representing his father (para 31).
16. Noted: Alladi Kuppuswamy relied on Satrughan Isser v. Sabujpari. That case held that a widow introduced into the coparcenary does not become a coparcener. The coparcenary is not dissolved on a coparcener's death. If she claims partition, her interest becomes definite. Satrughan Isser also cites Lakshmi Perumallu v. Krishnavanamma (para 32).
17. Noted: Bhagwan Dayal v. Mst. Reoti Devi held that coparcenary is a creature of Hindu law and cannot be created by agreement, except on reunion. A branch of the family is a subordinate corporate body. Joint tenancy with survivorship, as in English law, is unknown to Hindu law except in specially recognised cases (para 33).
18. Noted: Kalyanji Vithaldas v. Commissioner of Income Tax says Hindu undivided family is a wider phrase than Hindu coparcenary. Gowli Buddanna v. Commissioner of Income Tax held that a coparcenary is narrower than a joint family. Surjit Lal Chhabda v. Commissioner of Income Tax distinguished the joint family from the coparcenary. It said a daughter on marriage ceases to be a member of her father's family (para 34).
19. Noted: State of Maharashtra v. Narayan Rao Sham Rao Deshmukh described the characteristics of the joint family and coparcenary. A coparcener's right is definite only on partition. A joint family may include female members. A female heir who inherits an interest under old section 6 does not cease to be a member of the family unless she chooses to separate. The Court also notes the Dayabhaga position, where each coparcener has a defined share. Gowli Buddanna, Sitabai v. Ram Chandra and N.V. Narendranath v. C.W.T. are cited there (para 35).
20. Noted: Commissioner of Income Tax, Poona v. H.H. Raja of Bhor described aggregate ownership (Samudavika Swatwa) in the Mitakshara coparcenary. The share fluctuates and becomes definite only on partition. It cites Approvier v. Rama Subha Aiyan (para 36).
21. Noted: Vellikannu v. R. Singaperumal restated that a coparcener's share fluctuates. It quotes Mulla and N.R. Raghavachariar on the rights of coparceners, including the rights by birth and by survivorship. It cites Katama Natchiar v. Rajah of Shivagunga (para 37).
22. Noted: Rohit Chauhan v. Surinder Singh held that a coparcener has no definite share. His interest enlarges by deaths and diminishes by births. Property in a single person's hands is treated as separate until a son is born (para 38).
23. Noted: Thamma Venkata Subramma v. Thamnma Ratamma took a similar view. The share is not defined and fluctuates with death and birth (para 39).
24. Noted: A coparcener becomes entitled to a definite share only on actual partition. Katama Natchiar v. Srimat Rajah Moottoo Vijaya Raganadha Bodha calls the interest undivided coparcenary interest. Shankara Cooperative Housing Society v. M. Prabhakar held that a co-owner has no right in a particular item until division by metes and bounds. It quotes A. Viswanatha Pillai v. Tahsildar, which cites Kanta Goel v. B.P. Pathak, Sri Ram Pasricha v. Jagannath and Pal Singh v. Sunder Singh (para 40).
25. Noted: In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, a three-Judge Bench held that joint family property keeps its character despite severance of status until actual partition. No member can convert it into personal property by a unilateral act (para 41).
26. Noted: Bhagwati Prasad Sah v. Dulhin Rameshwari Kuer held that when one coparcener separates, there is no presumption that the rest stay joint. It is a question of fact in each case. The burden lies on the party asserting a state of things (para 42).

Heritage by birth and heritage on death

27. Noted: Mitakshara has unobstructed heritage (property in which a person takes an interest by birth) (apratibandhadaya), acquired by birth. It has obstructed heritage (sapratibandhadaya), which arises only on the owner's death. The Court quotes Mulla. Unobstructed heritage passes by survivorship, and obstructed heritage by succession (para 43).
28. Held: Under section 6, the right is given by birth. That is unobstructed heritage. It does not depend on the owner's death. So the coparcener father need not be alive on 9.9.2005 (para 44).

Section 6 of the Act of 1956

29. Noted: The Court reproduces old section 6. On death of a male Hindu with a Mitakshara coparcenary interest, it devolved by survivorship. The proviso applied where he left a Class I female relative or a male relative claiming through her. Then it devolved by testamentary or intestate succession. Explanation I deemed his interest to be the share allotted on a partition immediately before death (para 45).
30. Noted: The Court reproduces substituted section 6. Section 6(1) makes the daughter of a coparcener a coparcener by birth in her own right, with the same rights and liabilities as a son. Its proviso saves dispositions, alienations, partitions and testamentary dispositions before 20th December 2004. Section 6(2) says her property is held with coparcenary incidents and can be willed. Section 6(3) provides succession by will or intestacy, with a deemed partition, on death after the Amendment. Section 6(4) ends the pious obligation of sons, grandsons and great-grandsons for debts, with a saving for older debts. Section 6(5) excludes partitions before 20th December 2004, and its Explanation defines partition (para 46).
31. Noted: The Court reproduces the Statement of Objects and Reasons. It says old section 6 excluded daughters from the coparcenary and so discriminated on gender and negated equality. Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra had changed the law. Kerala had enacted its 1975 Act. Section 23 was to be omitted. The proposals rest on the Law Commission's 174th Report (para 47).
32. Noted: Original section 6 excluded ordinary succession for Mitakshara coparcenary property and applied survivorship. The exception for Class I female heirs used a deemed partition to find the share. Explanation 2 barred a separated person from claiming in intestate succession (para 48).
33. Noted: Before the amendment a widow or daughter could take a share as a Class I heir. A widow could claim a share on partition. A daughter was not treated as a coparcener. Gender justice, though late, is now achieved by the substituted section 6 (para 49).
34. Noted: On gender discrimination, the Court quotes Savita Samvedi v. Union of India. It said a son is a son until he gets a wife, but a daughter is a daughter throughout life. It held that treating a married daughter differently is gender-biased and liable to be struck down under Article 14 (para 50).
35. Noted: The daughter is a coparcener in the same manner as a son by birth. The proviso to section 6(1) saves earlier dispositions, alienations, partitions and testamentary dispositions before 20.12.2004 (para 51).
36. Noted: Discrimination against the daughter has been done away with. State amendments had come earlier. Karnataka inserted section 6A on 30.7.1994. Andhra Pradesh added section 29A from 5.9.1985, Tamil Nadu from 25.3.1989 and Maharashtra from 26.9.1994. Kerala enacted its Act in 1975 (para 52).
37. Noted: Before the amendment, section 6 applied survivorship. The proviso applied if a Class I female relative or a male relative through her survived. The Court reproduces the Class I heirs in the Schedule (para 53).
38. Noted: When such heirs survived, the share of the deceased had to be found, so a legal fiction of partition was created. A separated Hindu could not claim an interest by intestacy in the deceased's coparcenary interest (para 54).
39. Held: On and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes her a coparcener "in her own right" by birth, on the concept of unobstructed heritage. Section 6(1)(b) gives the same rights as a son. The right is conferred by birth. She is treated as if she had been a son at birth. Held: The rights can be claimed from 9.9.2005. The provisions are retroactive. They confer benefits based on an antecedent event. The proviso saves earlier transactions, up to 20.12.2004, the date the Bill was presented in the Rajya Sabha (para 55).
40. Noted: A prospective statute operates from enactment and confers new rights. A retrospective statute operates backward and impairs vested rights. Held: A retroactive statute (one operating in future on the basis of an earlier status or event) operates in futuro. Its operation rests on a status or event that arose earlier. Under amended section 6, birth is that antecedent event. The provisions operate on rights claimed on and from the date of the Amendment Act (para 56).
41. Noted: The Court relies on Darshan Singh v. Ram Pal Singh for the ideas of retrospective and retroactive statutes. That case says a statute is not retrospective merely because part of its requisites is drawn from an earlier time. The quoted passage cites Thakur Gokulchand v. Parvin Kumari, Garikapatti Veeraya v. N. Subbiah Choudhury, Jose Da Costa v. Bascora Sadasiva Sinai Narcornim, Govind Das v. ITO, Henshall v. Porter and United Provinces v. Mst. Atiga Begum. It also cites Black's Law Dictionary and Halsbury's Laws of England (para 57).
42. Noted: G. Sekar v. Geetha said the operation of the 2005 Act is prospective, not retrospective (para 58).
43. Held: G. Sekar concerned section 23 of the Act before its deletion. It does not decide the question here. In Sheela Devi the question was whether section 8 or the earlier law applied (para 59).
44. Held: Under section 6(2), a female Hindu holds property under section 6(1) subject to the rigours of coparcenary ownership. She can dispose of it by will (para 60).
45. Held: For a Hindu dying after the Amendment Act, section 6(3) applies. His interest passes by will or intestacy, not survivorship. A deemed partition finds the shares. The daughter gets the same share as a son. Surviving children of a pre-deceased daughter or son take a share, and so do their children if they too are dead. Noted: This is a sea-change. The Explanation to section 6(3) is the same as Explanation I to the original section. Section 6(4) makes the daughter liable as a son for pious obligation, with a saving for earlier debts. Held: Section 6(4) shows that section 6 is not retrospective, since rights and liabilities both start at commencement (para 61).
46. Held: The proviso to section 6(1) and section 6(5) save any partition made before 20.12.2004. The Explanation recognises only a registered partition deed or a court decree. Other forms of partition are not recognised in its definition (para 62).
47. Held: A daughter is treated as a coparcener with equal rights and liabilities as a son. "Coparcener right is by birth." The father need not be living on the date of the amendment. She has not been given the rights by obstructed heritage. She steps into the coparcenary as a son does, whether born before or after the Act. Held: A daughter born before can claim the rights only from 9.9.2005, with past transactions saved by the proviso to section 6(1) read with section 6(5). Noted: Status as coparcener can also be conferred by adoption (para 63).
48. Held: A daughter is a coparcener from the date of the amendment and can claim partition. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005. Since the right is by birth and not inheritance, it does not matter whether the coparcener is alive. If a living coparcener dies after 9.9.2005, succession is by section 6(3) and not survivorship (para 64).

Effect of enlargement of the daughter's rights

49. Held: Under the proviso to old section 6, the daughter was one of the Class I relatives. Substituted section 6 presupposes a coparcenary. It only enlarges the daughters' rights. The rights of other relatives remain as under the old proviso (para 65).
50. Held: Under Mitakshara law no coparcener has a fixed share. It fluctuates by birth and death. The deemed partition does not disrupt the coparcenary, even if a Class I female heir survives. The fiction only finds the deceased's share for when actual partition occurs. Noted: The classic shastric law excluded daughters. This injustice is removed in line with the spirit of the Constitution (para 66).
51. Noted: A sole surviving coparcener holds property as his own until a son is born. If a widow or daughter exists, it is treated as joint family property. An adopted son becomes a coparcener. An adoption by a widow relates back to the husband's death, subject to alienations made in between (para 67).

Acquisition of rights in coparcenary property

52. Noted: Interest is acquired by birth. Before 1956, devolution on a coparcener's death was only by survivorship. After 1956, women could inherit in the cases in the old proviso. Now daughters are treated as coparceners by legal fiction. No one becomes a coparcener by devolution of interest. A person is a coparcener only by birth or by adoption within permissible degrees (para 68).
53. Held: The Court rejects an argument. The argument was that the interest of a father or coparcener who died before the Amendment had merged in the survivors. So no coparcener remained for the daughter to succeed. Why: Rights accrue by birth, not by death. The old proviso only fixed the deceased's share by deemed partition. It did not stop a coparcenary forming or decide who can be a coparcener. The right in section 6(1) is by birth and not survivorship. How property passes on death does not matter for reading section 6(1). The declaration must be taken to its logical end. Survivorship was abrogated from 9.9.2005 by section 6(3) (para 69).
54. Held: The Court answers the argument on adoption of males only. The custom of adopting only males is not disputed. Coparcenary rights came to males by birth or adoption. In the same way a daughter gets the right by birth under section 6. Claims by birth differ from modes of succession. This relies on Bireswar Mookerji v. Shib Chunder Roy and Amarendra Man Singh Bhramarbar v. Sanatan Singh (para 70).
55. Held: The Court answers the argument that the proviso to section 6(1) would be needless if birth before 2005 were enough. Why: Since the right is given by birth, earlier dispositions and partitions had to be saved. The daughter asserts the right from 9.9.2005, and the proviso saves those transactions (para 71).
56. Held: On the argument that parties would have partitioned and acted on it after a death, partitions are protected by the proviso to section 6(1) and section 6(5). Parliament did not intend to upset those transactions (para 72).
57. Held: The Court rejects the argument that uncertainty results. Why: In Mitakshara law the shares of survivors are uncertain until actual partition. That uncertainty is inherent. It is not to resurrect the past. It recognises an antecedent event and confers rights prospectively. The coparcenary can also grow by the birth of a son. Under section 8, a female heir's inheritance under old section 6 did not end joint possession. The deemed statutory partition did not disrupt the coparcenary (para 73).

Prakash v. Phulavati, Mangammal and Danamma

58. Noted: In Prakash v. Phulavati the father died in 1988 and the daughters sued for partition in 1992. The suit was dismissed in 2007 with a share only on notional partition. The High Court applied the amended section 6 to the pending case. This Court held the amendment not retrospective. It held that the registration requirement cannot apply to a notional partition by operation of law. It said the amendment applies to living daughters of living coparceners as on 9-9-2005. It cited Shyam Kumar v. Ram Kumar. It also cited Gurupad Khandappa Magdum, Shyama Devi v. Manju Shukla and Anar Devi on Explanation 1. It mentioned Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar and the later Bombay Full Bench view (para 74).
59. Held: The Court disagrees with the concept of living coparcener in Prakash v. Phulavati. Why: Its attention was not drawn to how a coparcenary is created. A predecessor coparcener need not be alive for a coparcenary to form or for a person to become a coparcener. What matters is birth within the degrees. Survivorship is a mode of succession and not of forming a coparcenary. Held: The daughters should be living on 9.9.2005. Section 6 does not use the words daughter of a living coparcener. The right is given by birth. Held: Section 6(1) leaves no room for the view that the coparcener must be living on 9.9.2005. Noted: The Court also disagrees with the effect given to the deemed partition, for reasons given later (para 75).
60. Noted: In Mangammal v. T.B. Raju, the Court considered section 29-A added in Tamil Nadu in 1989. Section 29A(iv) treated married daughters differently, and that is now addressed in section 6. Mangammal was married in 1981 and Indira about 1984, before the 1989 Amendment, so they were not coparceners. That case held Prakash v. Phulavati still a precedent and that only living daughters of living coparceners can claim. Held: The question of a living daughter of a living coparcener did not arise in Mangammal. The Court cannot accept its opinion for the reasons given, and it was not necessary to decide it (para 76).
61. Noted: Danamma applied the amended section 6 and relied on Anar Devi v. Parmeshwari Devi. It said the controversy stood settled by Prakash v. Phulavati and by the Full Bench in Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari. It said both sons and daughters become coparceners by birth. The right to partition is not abrogated. The rights of the appellants crystallised in 2005, and a preliminary decree can be amended. It relied on Ganduri Koteshwaramma v. Chakiri Yanadi. The appellants were given 1/5th shares (para 77).
62. Held: In Danamma the propositus Gurulingappa died in 2001, before the Amendment Act, leaving two daughters, a son and a widow. The daughters got equal rights. The Court agrees with paras 23 and 25 to 27 of Danamma. It cannot agree with the earlier part approving Prakash v. Phulavati or with the discussion on statutory partition. Noted: There is a divergence between the two cases on the living daughter of a living coparcener. Danamma did not deal with it directly, but its reasoning was carried to its logical end (para 78).

Partition and effect of statutory fiction

63. Held: The right to claim partition is a basic feature of the coparcenary. The daughter can claim partition from 9.9.2005. Under section 6(1) and 6(2) her rights are equal with a son. On partition the wife of a coparcener also gets an equal share. Her right is not taken away (para 79).
64. Noted: Hardeo Rai v. Sakuntala Devi held that once an intention to partition is expressed, each coparcener's share becomes ascertainable. It then ceases to be coparcenary property. He can alienate his share as separate property (para 80).
65. Held: Without partition, only an undivided share can be sold, and joint possession is not disrupted. Whether consent is needed depends on the school of Mitakshara. Hardeo Rai did not consider intervening events or the statutory provisions. It is not authority on substituted section 6. Shares change by birth and death until final division. The coparcenary body is enlarged by declaring daughters coparceners, and full effect must be given (para 81).
66. Noted: Man Singh v. Ram Kala involved a male Hindu who left a wife, a son and three daughters. It said that until joint family status is disrupted, no share can be claimed with certainty. It cited Appovier v. Rama Subba Aiyan. Held: The question here is whether the statutory fiction of old section 6 disrupts the coparcenary when no partition has occurred. The answer is no. Noted: Man Singh also says a wife can hold her share separately from her husband on a partition (para 82).
67. Noted: Girja Bai v. Sadashiv, Kawal Nain v. Prabhulal and Ramalinga v. Narayana held that filing a partition suit shows an intention to separate. Severance follows from that date. Held: If the law later confers a right or another event occurs, its effect must be worked out even after a preliminary decree (para 83).
68. Noted: Kedar Nath v. Ratan Singh and Palani Ammal v. Muthuvenkatachala held that if the suit is withdrawn before decree, there is no severance by filing it (para 84).
69. Noted: Joala Prasad Singh v. Chanderjet Kuer held that filing a suit is strong but not conclusive evidence of intention to separate. Held: Intention to separate must not be confused with a change of rights during the suit. That change must be given full effect to do complete justice (para 85).
70. Noted: Chokalingam v. Muthukaruppan held that even a consent decree does not effect severance if its terms are not executed and the members go on living together (para 86).
71. Noted: Mukund Dharman Bhoir v. Balkrishna Padmanji distinguished separation, meaning severance of the status of jointness by individual volition, from partition of the joint estate by allotment of shares. Shares can be allotted by private arrangement, arbitrators or, last, the Court (para 87).
72. Noted: Palani Ammal, Ramabadra v. Gopalaswami and Gangabai v. Punau Rajwa held that a joint family is not disrupted merely by fixing the shares. For partition the shares must be defined with the intention of immediate separation (para 88).
73. Noted: In Poornandachi v. Gopalasami only one member got a share and the rest stayed joint, so there was no partition among the others. I.T. Officer, Calicut v. N.K. Sarada Thampatty held that a preliminary decree is not a partition unless an actual partition follows a final decree (para 89).
74. Noted: S. Sai Reddy v. S. Narayana Reddy dealt with section 29A of the Andhra Pradesh law. A preliminary decree was passed and the final decree was pending. This Court held partition is incomplete until the final decree and possession are given. A preliminary decree only declares shares that can vary. The meaning of partition cannot be equated with mere severance of status. Spurious settlements, and oral partitions, would nullify the beneficial law. The daughters were entitled to shares (para 90).
75. Noted: Prema v. Nanje Gowda considered section 6A inserted by Karnataka. After a preliminary decree and before the final decree, the law changed. It held that the Court must pass the final decree in view of the changed law. It relied on R. Gurubasaviah v. Rumale Karibasappa, Parshuram Rajaram Tiwari v. Hirabai Rajaram Tiwari, Jadunath Roy v. Parameswar Mullick and Phoolchand v. Gopal Lal. It held that a daughter's share can be enlarged after a preliminary decree, and effect can be given in final decree proceedings (para 91).
76. Noted: Ganduri Koteshwaramma v. Chakiri Yanadi held that a daughter's right in coparcenary property is not lost because a preliminary decree was passed before 20th December 2004. A partition suit is not disposed of by a preliminary decree. The preliminary decree can be amended, or a second preliminary decree passed, relying on Phoolchand v. Gopal Lal and S. Sai Reddy. The Court also said Order XX Rule 18 of the Code of Civil Procedure and section 97 do not bar this. A preliminary decree only declares shares, and the law gives the daughter equal rights that must be recognised (para 92).
77. Noted: Shub Karan Bubna v. Sita Saran Bubna explains partition as redistribution among co-owners that ends joint ownership. It says a preliminary decree does not dispose of the suit, which continues until the final decree divides the property by metes and bounds. A partition suit can have a preliminary decree, a final decree, a combined decree or a single decree with further steps (para 93).
78. Noted: Laxmi Narayan Guin v. Niranjan Modak held that a change in law during an appeal must be taken into account. It relied on Ram Sarup v. Munshi and Mula v. Godhu. It quoted Dayawati v. Inderjit and mentioned Amarjit Kaur v. Pritam Singh, Kristnama Chariar v. Mangammal and Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri. An appeal is a re-hearing of the suit (para 94).
79. Noted: United Bank of India v. Abhijit Tea Co. held that a court hearing a case or an appeal must take notice of a change in law affecting pending actions and give effect to it (para 95).
80. Noted: Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum dealt with a widow's share under Explanation I to old section 6. The assumption of a partition just before death must be carried to its logical end. Held: In Gurupad the coparcenary body did not change and everything stayed static. Where the body of coparceners changes by law or otherwise, rights must be recognised as they stand at the time of the final decree. Only the deceased's share and his heirs' shares are fixed under the Explanation, and not other coparceners' shares (para 96).
81. Noted: Anar Devi v. Parmeshwari Devi held that when a coparcener dies leaving a Class I female relative or a male relative through her, his interest passes by intestate succession and not by survivorship. Held: Anar Devi did not involve enlargement of rights. It cannot help the view that a statutory partition disrupts the coparcenary. The fiction only fixes the extent of the deceased's share. The coparcenary or HUF does not end by that fiction (para 97).
82. Noted: Puttrangamma v. M.S. Ranganna held that a member can bring about separation in status by a definite, unequivocal, unilateral declaration. It cites Suraj Narain v. Iqbal Narain, Girja Bai v. Sadashiv Dhundiraj and Syed Kasam v. Jorawar Singh. Filing a partition suit is enough for severance of interest even before decree (para 98).
83. Held: When the constitution of a coparcenary changes by birth or death, shares are worked out at the time of actual partition. Severance of status cannot stand in the way of giving effect to a statute or a later event. The statutory fiction is far short of actual partition. Held: Severance of status by filing a suit does not bring about partition. Until the date of the final decree, changes in law and later events can be considered (para 99).
84. Noted: Commissioner of Income Tax, Delhi v. S. Teja Singh held that a fiction requires assuming all facts on which it can operate. Held: The purpose of this fiction is limited. It works out the deceased's share at death. It does not affect actual partition where none was made by metes and bounds (para 100).
85. Held: The notional partition under the proviso to unamended section 6 was for a specific purpose. It was not a real partition. It did not sever interest or mark out the interests of the survivors. Why: If the whole coparcenary were partitioned by fiction, it could not continue, and one coparcener's death would end it. Noted: A fiction cannot go beyond its purpose. The Court cites State of Travancore-Cochin v. Shanmugha Vilas Cashew Nut Factory, Bengal Immunity Co. v. State of Bihar and Controller of Estate Duty v. S. Harish Chandra. It quotes Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver on how fictions are construed (para 101).
86. Noted: A widow's right to an equal share with a son on partition was not taken away by old section 6. Old section 6 allowed the interest to pass by will or intestacy. Before 1956 a devise of Mitakshara coparcenary property was invalid. Section 30 of the Act of 1956 let a male Hindu will his interest (para 102).
87. Noted: Gyarsi Bai v. Dhansukh Lal held that shares of all coparceners are ascertained to find the deceased's share. It did not hold that the notional partition ended the joint family or coparcenary (para 103).
88. Held: If a coparcenary continues and survivors later partition, the deceased's share is worked out from the property available at his death. This uses the proviso and Explanation I to old section 6 (para 104).
89. Noted: Hari Chand Roach v. Hem Chand concerned a widow who inherited her husband's estate and made a later family arrangement. Held: Under an undivided interest as in section 6, the shares are definite but the interest can continue undivided (para 105).
90. Held: Here the question is different. Rights must be worked out on what the legislation recognises as partition. This Court has consistently held that when rights are conferred later, a preliminary decree can be amended and the law's benefit given. The Court rejects the effect of the statutory fiction of the proviso to section 6 as discussed in Prakash v. Phulavati and Danamma. Held: If a daughter is alive on the date the Amendment Act took effect, she becomes a coparcener from that date, "irrespective of the date of birth earlier in point of time" (para 106).

Section 6(5) and its Explanation

91. Noted: The Explanation to section 6(5) says partition means one by a registered partition deed or by a court decree. It was not in the original Bill moved in the Rajya Sabha on 20.12.2004. It was added later. An early note said an oral partition should be supported by documentary evidence. The aim was to avoid sham or bogus transactions that defeat daughters' rights. The Court quotes the Cabinet Note of the Legislative Department, which accepted the Committee's recommendation on defining partition (para 107).
92. Noted: The Solicitor General argued that registration is only directory and not mandatory. A coparcener relying on a family arrangement or oral partition must still prove it with proper documentary evidence (para 108).
93. Noted: The Cabinet note of 29.7.2005 said the State amendments would be superseded by a Central law under article 254 of the Constitution. It said many settled partitions would be disturbed. It proposed removing the distinction between married and unmarried daughters. It proposed clearly saving alienations and dispositions before 20th December 2004, with changes to sub-section (5) (para 109).
94. Noted: Section 6(5) in the original Bill of 2004 said nothing in the section applies to a partition effected before the commencement of the Amendment Act, 2004 (para 110).
95. Noted: Shri R. Venkataramani said that the proviso is plain. Transactions before 20.12.2004 should not be reopened. Family settlements and division on shares were common. A simple mutation in revenue entries was often treated as enough for severance. Parliament did not intend to upset completed transactions. He said that some partitions are made only to avoid an obligation under law, such as tax or land ceiling law. Such partitions are not relevant to the objects and scheme of section 6. He relied on Shashikalabai (para 111).
96. Noted: Shri V.V.S. Rao pointed to section 6(5) in the Bill. The Court quotes the Parliamentary Committee's deliberation. The Secretary said that oral partition depends on the facts. The Legal Secretary said no registration was needed and oral partition was possible. The Committee recommended that partition should be properly defined and, for practical purposes, registered or by decree. Oral partition, where recognised, must have proper evidentiary support (para 112).
97. Noted: Shri V.V.S. Rao further argued that the coparcener status cannot affect oral partition. A later memorandum need not be registered. The Explanation should not invalidate all documents or oral partitions. Genuineness must be proved to the Court. The Law Commission made a similar proposal (para 113).
98. Noted: Shri Sridhar Potaraju argued that the statutory fiction of partition under the proviso to section 6, in force from 1956 to 2005, must not be ignored (para 114).
99. Noted: Ms. Anagha S. Desai argued that a partition by metes and bounds is possible without a partition deed. If properly proved, daughters will not reopen concluded transactions (para 115).
100. Held: Amended section 6 aims to ensure daughters are not deprived by a frivolous defence of oral partition or an unregistered memorandum. Why: A plea of oral partition can be set up fraudulently or in collusion. An unregistered memorandum can be created at any time. Such a partition is not recognised under section 6(5) (para 116).
101. Noted: Kale v. Deputy Director of Consolidation set out the essentials of a family settlement. It must be bona fide, voluntary and free of fraud. It may be oral, and then no registration is needed. Registration is needed only if its terms are reduced to writing, and a mere memorandum is not compulsorily registrable. The parties need some antecedent title, claim or interest, even a possible claim. A bona fide arrangement that settles even possible disputes is final and binding on the parties. It relies on Tek Bahadur Bhujil v. Debi Singh Bhujil. Noted: Family arrangements can be made to keep harmony (para 117).
102. Noted: Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar concerned adoption by a widow and earlier partitions and alienations. It laid down six propositions. A widow's adoption is not defeated by an earlier partition, but the partition stays. Lawful earlier dispositions are immune from the adopted son's challenge. The Court quotes the balance struck between vested rights and legal fictions (para 118).
103. Noted: Chinthamani Ammal v. Nandgopal Gounder held that a plea of partition must be proved, since jointness is presumed. Separate possession by co-sharers alone does not raise a presumption of partition (para 119).
104. Noted: Rukhmabai v. Laxminarayan and Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh held that a document showing an intention to divide prima facie brings division in status. It can be shown to be a sham. Held: The requirement in substituted section 6(5) is stricter, to rule out unjust deprivation of the daughter's right (para 120).
105. Noted: Kalwa Devdattam v. Union of India held that if a purported partition is proved a sham, the family is considered joint (para 121).
106. Noted: Earlier an oral partition was allowed, but the burden stayed on the person asserting partition. Cessation of commonality is not conclusive proof. Living apart for convenience or service does not show separation. Acts such as separate occupation, division of income and definition of shares in revenue records can, with other facts, lead to that conclusion. The Court cites Bhagwani v. Mohan Singh and Digambar Patil v. Devram (para 122).
107. Noted: Every Hindu family is presumed joint unless the contrary is proved. If one coparcener separates, the others may stay joint. No express agreement is needed. This is drawn from Palani Ammal and Girijanandini Devi v. Bijendra Narain Choudhary. The Court quotes the passage in Palani Ammal, including that a re-union is rare and must be strictly proved (para 123).
108. Noted: Hari Baksh v. Babu Lal held that where two brothers are coparceners, separation of one does not require separation between the families of the two. Both families may continue joint (para 124).
109. Noted: Severance of status may date from filing of a suit, but a decree is needed to work out the result. Rights may change during the suit until the final decree. Partition can be reopened for fraud, mistake or other permissible grounds. In appropriate cases it can be reopened at a minor's instance (para 125).
110. Held: The substituted section 6 protects daughters as coparceners. It recognises partition by a court decree or by a registered instrument. A partition effected so before 20.12.2004 is saved (para 126).
111. Held: The special definition of partition in the Explanation aims to protect the daughter's interest and prevent sham or frivolous defences. Oral partition, once recognised, is not to be readily accepted now. The Court must apply section 6(5) so as to put a heavy burden of proof on the person pleading oral partition. Supporting facts include separate occupation of portions, use of the income and entry in the revenue records. Such a plea must invariably be supported by contemporaneous public documents and may be accepted only most reluctantly. Held: Only genuine partitions made under the earlier law are to be accepted. A plea resting on oral ipse dixit (mere say-so, a bare assertion without proof) is to be rejected outrightly. Held: Only very cogent, impeccable and contemporaneous documentary evidence in the form of public documents can support such a plea. An oral partition or unregistered memorandum, made at any time, "needs rejection at all costs". Held: Even in exceptionally good cases, the finding must not rest on preponderance of probabilities, given gender justice and the heavy burden of proof. Why: Courts must not defeat the object of the beneficial provisions. The exception exists because earlier a registered partition deed was not needed. Courts were approached rarely, for family prestige, and only as a last resort. Even before 1956 partition took place in other modes (para 127).
112. Held: Partition effected by a decree of a court means the final decree. A preliminary decree declares shares but does not effect partition. The Court must find whether partition was actually carried out as the Act intends. Even with a registered document, it must be proved that the partition was acted on and is not a sham or invalid. Held: A partition worked out finally in toto, as if by a court decree, can be recognised. A registered deed refers to a completed event of partition, not a mere intention to separate. Held: The Court may recognise another mode of partition in exceptional cases, based on evidence over a long time in the form of public documents, not stray entries. There is a clear legislative departure from the earlier rules of proof (para 128).

Answer to the reference and request to courts

113. Held: The Court answers the reference in five points (i) to (v). They are set out in the Judgement section (para 129).
114. Noted: Suits and appeals on this question are pending before different High Courts and subordinate courts. The matters have been delayed by conflicting decisions. Daughters cannot be deprived of their right of equality under section 6. The Court asks that pending matters be decided, as far as possible, within six months. Held: The Court overrules the contrary views in Prakash v. Phulavati and Mangammal v. T.B. Raju. It partly overrules Danamma to the extent it is contrary to this decision (para 130).

Authorities

Each entry gives the case, its citation as printed in the judgment, how the Court used it, and the paragraph.

Conflicting decisions and the connected matters

• Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 — overruled: the living daughter of a living coparcener view and the statutory-fiction reasoning rejected (paras 1, 8, 12, 74, 75, 106, 130).
• Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343 (also cited as Danamma v. Suman) — partly overruled; paras 23 and 25 to 27 approved, the part approving Prakash and the statutory partition discussion not (paras 1, 9, 77, 78, 106, 130).
• Mangammal v. T.B. Raju, (2018) 15 SCC 662 — contrary view overruled; the point was not involved there (paras 12, 76, 130).
• Lokmani & Ors. v. Mahadevamma & Ors., S.L.P.(C) No. 6840 of 2016 — connected matter; High Court view on retrospective effect and oral partition recorded (para 2).
• Balchandra v. Smt. Poonam, S.L.P.(C) No. 35994 of 2015 — connected matter (para 3).
• Sistla Sarada Devi v. Uppaluri Hari Narayana, S.L.P.(C) No. 38542 of 2016 — connected matter on a preliminary decree (paras 4, 13).
• Girijavva v. Kumar Hanmantagouda, S.L.P.(C) No. 6403 of 2019 — connected matter (para 5).
• V.L. Jayalakshmi v. V.L. Balakrishna, S.L.P.(C) No. 14353 of 2019 — connected matter (para 6).
• Indubai v. Yadavrao, S.L.P.(C) No. 24901 of 2019 — connected matter (para 7).
• B.K. Venkatesh v. B.K. Padmavathi, S.L.P.(C) Nos. 1766-1767 of 2020 — connected matter (para 7).

Cases cited in the arguments

• Nagindas Bhagwandas v. Bachoo Hurkissondas, AIR 1915 PC 41 — cited by an amicus on adoption severing the natural family tie (para 11).
• Nanak Chand & Ors. v. Chander Kishore & Ors., AIR 1982 Del. 520 — cited with Nagindas Bhagwandas (para 11).
• G. Narasimulu & Ors. v. P. Basava Sankaram & Ors., AIR 1925 Mad. 249 — coparcenary as a creature of law, cited in argument (para 11).
• Raghunadha v. Brozo Kishore, 3 IA 154 (PC) — joint family in food and worship, cited in argument (para 11). The same case is cited as Sri Raghunadha v. Sri Brozo Kishore, 1876 (1) Mad. 69 = 3 IA 154 by the Court (para 22).
• Haridas Narayandas Bhatia v. Devkuvarbai Mulji, AIR 1926 Bom. 408 — coparcener status by birth, cited in argument (para 11).
• Anthonyswamy v. Chhinnaswamy, (1969) 3 SCC 15 — son's interest and pious obligation, cited in argument (para 11).
• Baijnath Prasad Singh & Ors. v. Tej Bali Singh, AIR 1921 PC 62 — Hindu against English coparcenary, cited in argument (para 11).
• Amarendra Man Singh Bhramarbar & Anr. v. Sanatan Singh & Ors., AIR 1933 PC 155 — adoption; the Court accepted the custom but distinguished it from birth (paras 11, 70).
• Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma, 26 IA 113 — adoption, cited in argument (para 11).
• Bireswar Mookerji & Ors. v. Shib Chunder Roy, 19 IA 101 — adoption only of males; distinguished (paras 11, 70).
• Shashikalabai (Smt) v. State of Maharashtra, (1998) 5 SCC 332 — past transactions not to be reopened, cited in argument (paras 11, 111).
• Puttrangamma & Ors. v. M.S. Ranganna & Ors., AIR 1968 SC 1018 — severance of status by unilateral declaration; used by the Court (paras 13, 98).
• Mancheri Puthusseri Ahmed & Ors. v. Kuthiravattam Estate Receiver, (1996) 6 SCC 185 — a legal fiction must not be stretched beyond its purpose; relied on (paras 13, 101).
• S. Sundaram Pillai & Ors. v. V. R. Pattabiraman & Ors., (1985) 1 SCC 591 — purpose of an Explanation, cited in argument (para 13).
• Sripad Gajanan Suthankar v. Dattaram Kashinath Suthankar, (1974) 2 SCC 156 — adoption and saving of past transactions; also cited as Shripad Gajanan Suthankar (paras 13, 118).
• Kanai Lal Sur v. Paramnidhi Sadhukhan, (1958) SCR 360 — golden rule of interpretation, cited in argument (para 14).
• Lt. Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140 — literal construction, cited in argument (para 14).
• Sathyaprema Manjunatha Gowda (Smt) v. Controller of Estate Duty, Karnataka, (1997) 10 SCC 684 — meaning of coparcener, cited in argument (para 15).
• Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (2011) 9 SCC 788 — cited in argument and relied on: the daughter's right is not lost by a preliminary decree (paras 16, 77, 92).

Coparcenary, joint family and unobstructed heritage (paras 17-44)

• Diwan Singh v. Bhaiya Lal, (1997) 2 MP LJ 202 — Full Bench on which school applies in parts of Madhya Pradesh (para 19).
• Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988) 2 SCC 77 — joint family and coparcenary; relied on (para 27).
• Sheela Devi v. Lal Chand, (2006) 8 SCC 581 — property in one person's hands becomes coparcenary when a son is born; relied on (para 28). It refers to C. Krishna Prasad v. CIT, (1975) 1 SCC 160 (para 28).
• M. Yogendra & Ors. v. Leelamma N. & Ors., (2009) 15 SCC 184 — a sole coparcener's property revives only on the birth of a son; referred to (para 28).
• Smt. Sitabai & Anr. v. Ramchandra, AIR 1970 SC 343 — a joint family may have a single male member and widows; relied on (para 28). Also cited as Sitabai v. Ram Chandra, (1969) 2 SCC 544 (para 35).
• Dharma Shamrao Agalawe v. Pandurang Miragu Agalwe & Ors., (printed as Dharma ShamraoAgalawe v. Pandurang Miragu Agalwe in the source text), (1988) 2 SCC 126 — joint family property keeps its character in a sole survivor's hands; referred to (para 28).
• State Bank of India v. Ghamandi Ram, (1969) 2 SCC 33 — incidents of coparcenary; relied on (para 29; also paras 11, 80).
• Sundaranam Maistri v. Harasimbhulu Maistri, ILR 25 Mad 149 — corporate body of the family, quoted inside Ghamandi Ram (para 29).
• Gan Savant Bal Savant v. Narayan Bhond Savant, ILR 7 Bom 467 — mentioned inside that quotation (para 29).
• Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977) 3 SCC 385 — characteristics of coparcenary and the widow's position; relied on (paras 30, 31, 32).
• Satrughan Isser v. Sabujpari, AIR 1967 SC 272 — a widow introduced into the coparcenary is not a coparcener; relied on (para 32).
• Lakshmi Perumallu v. Krishnavanamma — mentioned inside the Satrughan Isser quotation on no dissolution on death (para 32).
• Bhagwan Dayal v. Mst. Reoti Devi, AIR 1962 SC 287 — coparcenary is a creature of law; relied on (para 33).
• Kalyanji Vithaldas & Ors. v. Commissioner of Income Tax, Bengal, AIR 1937 PC 36 — Hindu undivided family is a wider phrase; referred to (para 34).
• Gowli Buddanna v. Commissioner of Income Tax, Mysore (also printed as GowliBuddanna v. CIT), AIR 1966 SC 1523 — coparcenary narrower than joint family; referred to (paras 34, 35).
• Surjit Lal Chhabda v. Commissioner of Income Tax (also printed as Surjit Lal Chhabda v. The Commissioner of Income Tax), (1976) 3 SCC 142 — joint family and coparcenary; relied on (paras 13, 34).
• State of Maharashtra v. Narayan Rao Sham Rao Deshmukh, (1985) 2 SCC 321 — characteristics of joint family and coparcenary; relied on (para 35).
• N.V. Narendranath v. C.W.T., (1969) 1 SCC 748 — a joint family need not have two male members; cited inside that case (para 35).
• Commissioner of Income Tax, Poona v. H.H. Raja of Bhor, (1967) 65 ITR 634 — aggregate ownership and fluctuating share; relied on (para 36).
• Approvier v. Rama Subha Aiyan, (1866) 11 MIA 75 (also printed as Appovier Alias Seetaramier v. Rama Subba Aiyan & Ors.) — no definite share while undivided; cited in Raja of Bhor (para 36). Also cited as Appovier v. Rama Subba Aiyan (para 82).
• Vellikannu v. R. Singaperumal, (2005) 6 SCC 622 — the share of a coparcener fluctuates; relied on (para 37).
• Katama Natchiar v. Rajah of Shivagunga, (1863) 9 MIA 543 — community of interest and survivorship; quoted through Mulla (para 37). Also cited as Katama Natchiar v. Srimat Rajah Moottoo Vijaya Raganadha Bodha Gooroo Swamy Periya Odaya Taver for undivided coparcenary interest (para 40).
• Rohit Chauhan v. Surinder Singh, (2013) 9 SCC 419 — coparcener has no definite share; relied on (para 38).
• Thamma Venkata Subramma v. Thamnma Ratamma, (1987) 3 SCC 294 — share fluctuates; referred to (para 39).
• Shankara Cooperative Housing Society Ltd. v. M. Prabhakar & Ors., (2011) 5 SCC 607 — collective ownership until division; relied on (para 40).
• A. Viswanatha Pillai v. Tahsildar (LA), (1991) 4 SCC 17 — quoted inside Shankara Cooperative (para 40).
• Kanta Goel v. B.P. Pathak (printed as KantaGoel v. B.P. Pathak), (1977) 2 SCC 814 — cited inside Viswanatha Pillai (para 40).
• Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184 — cited inside Viswanatha Pillai (para 40).
• Pal Singh v. Sunder Singh, (1989) 1 SCC 444 — cited inside Viswanatha Pillai (para 40).
• Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, (1986) 1 SCC 366 — joint family property keeps its character until partition; relied on (para 41).
• Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari Kuer & Anr., AIR 1952 SC 72 — separation of one coparcener; referred to (para 42).
• Muhamad Hussain v. Babu Kishava Nandan Sahai, AIR 1937 PC 223; Om Prakash v. Sarvjit Singh, AIR 1995 MP 92; Sirtaji v. Algu Upadhiya, AIR 1936 Ori 331 — footnotes to the Mulla passage on obstructed heritage (para 43).

Section 6, retroactivity and the daughter's status (paras 45-78)

• Savita Samvedi v. Union of India, (1996) 2 SCC 380 — married and unmarried daughters treated alike; quoted (para 50).
• Darshan Singh v. Ram Pal Singh, (1992) Supp (1) SCC 191 — retrospective and retroactive statutes; relied on (para 57).
• Thakur Gokulchand v. Parvin Kumari, AIR 1952 SC 231; Garikapatti Veeraya v. N. Subbiah Choudhury, AIR 1957 SC 540; Jose Da Costa v. Bascora Sadasiva Sinai Narcornim, (1976) 2 SCC 917; Govind Das v. ITO, (1976) 1 SCC 906; Henshall v. Porter, (1923) 2 KBD 193; United Provinces v. Mst. Atiga Begum, AIR 1941 FC 16 — cited inside Darshan Singh on retrospectivity (para 57).
• G. Sekar v. Geetha, (2009) 6 SCC 99 — the 2005 Act as prospective; distinguished, since it concerned section 23 (paras 58, 59).
• Shyam Kumar v. Ram Kumar, (2001) 8 SCC 24 — amendment of a substantive provision is prospective; cited inside Prakash (para 74).
• Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, (1978) 3 SCC 383 — widow's share and the fiction of partition; distinguished on facts (paras 13, 74, 96).
• Shyama Devi v. Manju Shukla, (1994) 6 SCC 342 — same view on Explanation 1; cited inside Prakash (para 74).
• Anar Devi & Ors. v. Parmeshwari Devi & Ors., (2006) 8 SCC 656 — devolution on death; distinguished (paras 13, 74, 77, 97).
• Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar, AIR 2012 Bom. 101 — birth after 2005 view; cited inside Prakash (para 74).
• Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, AIR 2014 Bom. 151 — Bombay Full Bench; referred to (paras 74, 77).

Partition, preliminary decrees, family settlement and legal fiction (paras 79-128)

• Hardeo Rai v. Sakuntala Devi, (2008) 7 SCC 46 — share becomes ascertainable on intention to partition; held not to be authority on section 6 (paras 80, 81).
• Man Singh (D) by LRs. v. Ram Kala (D) by LRs., AIR 2011 SC 1542 — no definite share until joint status is disrupted; referred to (para 82).
• Girja Bai v. Sadashiv, AIR 1916 PC 104; Kawal Nain v. Prabhulal, AIR 1917 PC 39; Ramalinga v. Narayana, AIR 1922 PC 201 — a suit shows an intention to separate; followed with a rider (para 83).
• Kedar Nath v. Ratan Singh, (1910) 37 IA 161 — no severance if the suit is withdrawn; referred to (para 84).
• Palani Ammal v. Muthuvenkatachala, AIR 1925 PC 49 — withdrawn suit, shares without separation, and continuing joint family; referred to (paras 84, 88, 123).
• Joala Prasad Singh v. Chanderjet Kuer, AIR 1938 Pat 278 — a suit is strong but not conclusive evidence of intention; referred to (para 85).
• Chokalingam v. Muthukaruppan, AIR 1938 Mad 849 — a consent decree not acted upon; referred to (para 86).
• Mukund Dharman Bhoir & Ors. v. Balkrishna Padmanji & Ors., AIR 1927 PC 224 — separation of status and partition of estate; referred to (para 87).
• Ramabadra v. Gopalaswami, AIR 1931 Mad 404; Gangabai v. Punau Rajwa, AIR 1956 Nag 261 — ascertaining shares is not partition; referred to (para 88).
• Poornandachi v. Gopalasami, AIR 1936 PC 281 — one member given a share, the rest stay joint; referred to (para 89).
• I.T. Officer, Calicut v. N.K. Sarada Thampatty, AIR 1991 SC 2035 — a preliminary decree is not partition; referred to (para 89).
• S. Sai Reddy v. S. Narayana Reddy, (1991) 3 SCC 647 — partition incomplete until the final decree; relied on (para 90).
• Prema v. Nanje Gowda, AIR 2011 SC 2077 — the final decree must reflect a change of law; relied on (para 91).
• R. Gurubasaviah v. Rumale Karibasappa, AIR 1955 Mys. 6; Parshuram Rajaram Tiwari v. Hirabai Rajaram Tiwari, AIR 1957 Bom. 59; Jadunath Roy v. Parameswar Mullick, AIR 1940 PC 11 — cited inside Prema (para 91).
• Phoolchand & Anr. v. Gopal Lal, AIR 1967 SC 1470 — a second preliminary decree can be passed; cited inside Prema and Ganduri (paras 91, 92).
• Shub Karan Bubna v. Sita Saran Bubna, (2009) 9 SCC 689 — meaning of partition; relied on (para 93).
• Laxmi Narayan Guin & Ors. v. Niranjan Modak, (1985) 1 SCC 270 — change of law during appeal; referred to (para 94).
• Ram Sarup v. Munshi, AIR 1963 SC 553; Mula v. Godhu, (1969) 2 SCC 653; Dayawati v. Inderjit, AIR 1966 SC 1423; Amarjit Kaur v. Pritam Singh, (1974) 2 SCC 363; Kristnama Chariar v. Mangammal, ILR (1902) 26 Mad 91 (FB); Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 — cited inside Laxmi Narayan Guin (para 94).
• United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. & Ors., AIR 2000 SC 2957 — a court must notice change in law; referred to (para 95).
• Suraj Narain v. Iqbal Narain, ILR 35 All 80; Girja Bai v. Sadashiv Dhundiraj, ILR 42 Cal 1031; Syed Kasam v. Jorawar Singh, ILR 50 Cal 84 — cited inside Puttrangamma (para 98).
• Commissioner of Income Tax, Delhi v. S. Teja Singh, AIR 1959 SC 352 — scope of a legal fiction; accepted but its purpose limited (para 100).
• State of Travancore-Cochin & Ors. v. Shanmugha Vilas Cashew Nut Factory & Ors., (1954) SCR 53; Bengal Immunity Co. Ltd. v. State of Bihar & Ors., AIR 1955 SC 661; Controller of Estate Duty v. Smt. S. Harish Chandra, (1987) 167 ITR 230 — a fiction is limited to its purpose (para 101).
• Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055 — notional partition did not end the joint family; referred to (para 103).
• Hari Chand Roach v. Hem Chand, (2010) 14 SCC 294 — definite shares in an undivided interest; referred to (para 105).
• Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119 — essentials of a family settlement; relied on (para 117).
• Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC 292 — an oral family arrangement and a memorandum; cited inside Kale (para 117).
• Chinthamani Ammal v. Nandgopal Gounder (printed as ChinthamaniAmmal v. NandgopalGounder), (2007) 4 SCC 163 — a partition plea must be proved; referred to (para 119).
• Rukhmabai v. Laxminarayan, AIR 1960 SC 335; Mudigowda Gowdappa Sankh & Ors. v. Ramchandra Revgowda Sankh, AIR 1969 SC 1076 — a document of division can be shown to be a sham; referred to (para 120).
• Kalwa Devdattam v. Union of India, AIR 1964 SC 880 — a sham partition leaves the family joint; referred to (para 121).
• Bhagwani v. Mohan Singh, AIR 1925 PC 132; Digambar Patil v. Devram, AIR 1995 SC 1728 — acts pointing to partition; referred to (para 122).
• Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124 — the decree alone is looked at; referred to (para 123).
• Hari Baksh v. Babu Lal, AIR 1924 PC 126 — separation of one brother's family; referred to (para 124).

Also cited in footnotes: Muhamad Hussain v. Babu Kishava Nandan Sahai, AIR 1937 PC 223; Om Prakash v. Sarvjit Singh, AIR 1995 MP 92; Sirtaji v. Algu Upadhiya, AIR 1936 Ori 331.

Provisions and materials discussed

• Hindu Succession Act, 1956, section 6 as originally enacted. It applied survivorship to a Mitakshara coparcener's interest. It had a proviso for Class I female relatives and Explanation I on deemed partition (paras 45, 48, 53, 54).
• Section 6 as substituted by the Hindu Succession (Amendment) Act, 2005. It has sub-section (1) with its proviso, sub-section (2), and sub-section (3) with its Explanation. It also has sub-section (4) with its proviso and Explanation, and sub-section (5) with its Explanation (paras 46, 55, 60-64).
• Schedule to the Act, Class I heirs (para 53).
• Section 8 of the Act, on general rules of succession (paras 59, 73).
• Section 23 of the Act, before its deletion, on a female heir's right to partition a dwelling house (paras 47, 59).
• Section 30 of the Act, which lets a male Hindu dispose of his coparcenary interest by will (para 102).
• State amendments: section 6A (Karnataka, 1994) and section 29A (Andhra Pradesh, Tamil Nadu, Maharashtra), and the Kerala Joint Hindu Family System (Abolition) Act, 1975 (paras 47, 52, 76, 91, 109).
• Registration Act, 1908: registered partition deed in the Explanation to section 6(5), and section 17(2) on family arrangements (paras 46, 117).
• Code of Civil Procedure: section 2(2) (decree), section 97 and Order XX Rule 18 (paras 13, 92).
• Constitution of India: article 14 (para 50), article 15 (para 91) and article 254 on repugnancy (para 109).
• Limitation Act: Articles 136 and 137, mentioned in the quoted passage of Shub Karan Bubna (para 93).
• State Reorganisation Act, 1956 (para 19), and Indian Succession Act, 1925 in the Statement of Objects and Reasons (para 47).
• Section 29-A (Tamil Nadu and Andhra Pradesh) and Section 6A (Karnataka), cited in the decisions discussed (paras 76, 90, 91). Section 3(2) is cited in the quoted passage of Satrughan Isser (para 32). Section 235 and Article 315 are cited in the quoted passages of Mulla (paras 37, 82). Article 15 is cited in the quoted passage of Prema v. Nanje Gowda (para 91). Section 97 is the provision on preliminary decrees quoted in Ganduri Koteshwaramma (para 92). Section 17(2) of the Registration Act, 1908 is cited in the quoted passage of Kale (para 117). Section 5 is sub-section 5 of section 6, as Shri Venkataramani described it (para 111).
• Law Commission of India, 174th Report, and the Statement of Objects and Reasons of the Bill (para 47).

Judgement

The Court answered the reference on 11 August 2020. The main appeal (Civil Appeal Diary No. 32601 of 2018, from the Delhi High Court judgment dated 15.05.2018 in R.F.A. No. 301 of 2017) and the connected matters are to go back to the appropriate Bench for a decision on merits. The judgment records no costs order and does not state what the Delhi High Court decided.

1. The provisions of substituted section 6 of the Hindu Succession Act, 1956 confer the status of coparcener on a daughter born before or after the amendment. She has it in the same manner as a son, with the same rights and liabilities (para 129(i)).
2. A daughter born earlier can claim these rights with effect from 09.09.2005. This is subject to the savings in section 6(1) for any disposition or alienation, partition or testamentary disposition that took place before the 20th day of December 2004 (para 129(ii)).
3. The right in the coparcenary is by birth. So the father-coparcener need not be living on 09.09.2005 (para 129(iii)).
4. The statutory fiction of partition in the proviso to section 6 as originally enacted did not bring about an actual partition or disrupt the coparcenary. It was only for finding the share of a deceased coparcener who was survived by a Class I female heir or a male relative of such a female (para 129(iv)).
5. The provisions of substituted section 6 must be given full effect. Even if a preliminary decree has been passed, the daughters are to be given a share in the coparcenary equal to that of a son. This applies in pending proceedings for a final decree and in an appeal (para 129(iv)).
6. Because of the rigour of the Explanation to section 6(5), a plea of oral partition cannot be accepted as the statutorily recognised mode of partition. The recognised modes are a deed of partition duly registered under the Registration Act, 1908, or a decree of a court (para 129(v)).
7. In exceptional cases, a plea of oral partition may be accepted. It must be supported by public documents. The partition must be finally evinced in the same manner as if a court decree had effected it (para 129(v)).
8. A plea of partition based on oral evidence alone cannot be accepted and is to be rejected outrightly (para 129(v)).
9. The Court asks that suits and appeals pending in the High Courts and subordinate courts on this question be decided, as far as possible, within six months. Why: The matters were already delayed by conflicting decisions, and daughters cannot be deprived of their right of equality under section 6 (para 130).
10. The Court overrules the contrary views in Prakash v. Phulavati and Mangammal v. T.B. Raju. It partly overrules Danamma @ Suman Surpur v. Amar to the extent that it is contrary to this decision (para 130).
11. The matters are to be placed before the appropriate Bench for a decision on merits (para 130).

Legal Principle / Ratio

A daughter becomes a coparcener by birth in a joint Hindu family governed by Mitakshara law. She can claim her rights from 9.9.2005, whether she was born before or after it, and whether or not her father was alive on that date. The Court records the key holding as: "confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities". Earlier partitions are saved only if made before 20.12.2004. They must be by a registered deed or a court decree. In exceptional cases an oral partition may be accepted. It needs very cogent, impeccable and contemporaneous public documents, or continuous evidence over a long time and not stray entries. The partition must be finally evinced as if a court decree had effected it. The finding must not rest on preponderance of probabilities (paras 55, 63, 64, 127-129).

Obiter and observations:

• The Court notes that a daughter's rights are equal to a son's and that the wife of a coparcener still gets an equal share on partition (para 79).
• The Court notes that the deemed partition under old section 6 fixes only the deceased's share and leaves the coparcenary undisturbed (paras 66, 97, 101).
• The Court cautions courts that a finding of oral partition is not to rest on preponderance of probabilities (para 127).

Critical Analysis

Analysis based on the judgment text.

• The judgment does not state the facts of the main appeal or what the Delhi High Court decided. It answers the reference and sends the matters to the appropriate Bench (paras 1, 130). The reader cannot tell from the text how the answer applies to the appellant.
• The rule on oral partition leaves a category open. Oral partition may be accepted in exceptional cases on public documents, evidence over a long time and not stray entries (paras 127-128). The judgment gives illustrations but no complete test for an exceptional case.
• The judgment says the coparcenary must exist on 9.9.2005 (para 64). It also says the father need not be alive (paras 69, 129(iii)). It does not spell out how the existence of the coparcenary is shown in a case where the earlier coparceners have died. The Court separately says that "the daughters should be living on 9.9.2005" (para 75).
• The Court calls the amendment retroactive and not retrospective (paras 55-56). It then adds that the rights can be claimed only from 9.9.2005 and that section 6(4) shows rights and liabilities both begin at commencement (para 61). The label and the cut-off date must be read together.

Significance

• The judgment settles the conflict between Prakash v. Phulavati and Danamma. It overrules Prakash and Mangammal and partly overrules Danamma (para 130).
• It ties the daughter's status to birth and not to the father's survival. It holds that unobstructed heritage passes by birth, so the daughter's right does not depend on the owner's death (paras 43-44, 63-64).
• It links the amendment to gender justice and the Constitution. It notes that the classic shastric law excluded the daughter and that the injustice is now removed in line with the spirit of the Constitution (paras 49, 66).
• It limits the deemed partition of old section 6. That fiction does not break the coparcenary (paras 66, 97, 101).
• It requires courts to apply the changed law in pending partition cases, even after a preliminary decree (paras 90-95, 129(iv)).
• It sets a strict standard for a plea of oral partition. Courts are to look for public documents and reject oral say-so (para 127).

Exam-Important Points

• Rule: Under substituted section 6, a daughter is a coparcener by birth, in her own right, in the same manner as a son. The trap: the right is claimed only from 9.9.2005, so it is retroactive and not retrospective (paras 55-56, 63).
• Rule: The father need not be alive on 9.9.2005. The trap: Prakash v. Phulavati required a living daughter of a living coparcener, and that view is overruled (paras 75, 129(iii), 130).
• Rule: The daughter must be living on 9.9.2005. The trap: the coparcenary must exist on that date (paras 64, 75).
• Rule: Partitions before 20.12.2004 are saved. The trap: the Explanation to section 6(5) recognises only a registered deed or a court decree (paras 62, 126).
• Rule: Decree of a court means the final decree. The trap: a preliminary decree does not stop the daughter's claim, and shares can be redetermined (paras 90-92, 128).
• Rule: Oral partition, or an unregistered memorandum, needs public documents and is accepted only in exceptional cases. The trap: proof by preponderance of probabilities or oral evidence is not enough (paras 127-129).
• Rule: The deemed partition in old section 6 only fixes the deceased's share. The trap: it does not disrupt the coparcenary (paras 66, 97, 101).
• Rule: After 9.9.2005, a coparcener's interest passes by will or intestacy, not survivorship (paras 61, 64, 69).
• Rule: Section 6(4) bars proceeding against a son, grandson or great-grandson solely on the ground of pious obligation for debts after the amendment, and saves earlier debts (para 46). The daughter is equally bound as a son (para 61). The trap: do not read the two points as one.
• Rule: The Court asked for pending cases to be decided within six months (para 130).

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.