DANAMMA @ SUMAN SURPUR & ANR.versusAMAR AND ORS.

                          [2018] 2 S.C.R. 553                                553


            DANAMMA @ SUMAN SURPUR & ANR.                                    A
                                    v.
                          AMAR AND ORS.
                 (Civil Appeal Nos. 188-189 of 2018)
                         FEBRUARY 01, 2018                                   B
          [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
       Hindu Succession (Amendment) Act, 2005 – s.6 – Applicability
of – One ‘GS’ died in 2001 leaving behind his widow, two daughters
(appellants) and two sons, including ‘AK’ – Suit for partition filed
                                                                             C
by respondent no.1 (son of ‘AK’ ), decreed by Trial Court holding
that appellants were not entitled to any share as they were born
prior to the enactment of the 1956 Act – Appeal filed by appellants,
dismissed by High Court – Review Petition there against, also
dismissed – Held: Section 6, as amended, stipulates that on and
from the commencement of the Amendment Act, 2005, the daughter               D
of a coparcener shall by birth become a coparcener in her own
right in the same manner as the son – Amendment Act, 2005 confers
upon the daughter of the coparcener, same rights and liabilities in
the coparcenery properties as that of the son – In the present case,
suit for partition was filed in 2002, however, during the pendency
                                                                             E
of the suit, s.6 was amended– Decree was passed by trial court only
in 2007 – Thus, the rights of the appellants got crystallised in the
year 2005 – In the instant case, the subject matter of the partition
suit were joint family properties, thus, in the said partition suit, share
will devolve upon the appellants as well – Since, ‘GS’ died leaving
behind appellants, two sons, and a widow, both the appellants would          F
be entitled to 1/5th share each in the property – Since, ‘AK’ will
have 1/5th share, it would be further divided into five shares on
partition i.e. between ‘AK’, his wife, his two daughters and son
(respondent no.1) – Thus, respondent no.1 would be entitled to 1/25th
share in the property – Hindu Succession Act, 1956.
                                                                             G
       Suit – Partition suit – Preliminary Decree – Effect of, on the
rights of daughters in coparcenary property as per amended s.6 –
Held: Rights of daughters in coparcenary property as per amended
s.6 are not lost merely because a preliminary decree has been passed
in a partition suit – In partition suits, partition becomes final only
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                                   553
554            SUPREME COURT REPORTS                      [2018] 2 S.C.R.


A     on the passing of final decree – Where such situation arises, the
      preliminary decree would have to be amended taking into account
      the change in law by amendment of 2005 – Hindu Succession
      (Amendment) Act, 2005 – s.6.

            Allowing the appeals, the Court
B
            HELD : 1.1 Amendment to Section 6, Hindu Succession
      Act, 1956 vide Amendment Act, 2005 clinches the issue, beyond
      any pale of doubt, in favour of the appellants. This amendment
      now confers upon the daughter of the coparcener as well the status
      of coparcener in her own right in the same manner as the son and
C
      gives same rights and liabilities in the coparcenery properties as
      she would have had if it had been son. [Para 20][564-B]

            1.2 The law relating to a joint Hindu family governed by
      the Mitakshara law has undergone unprecedented changes. The
D     said changes have been brought forward to address the growing
      need to merit equal treatment to the nearest female relatives,
      namely daughters of a coparcener. The section stipulates that a
      daughter would be a coparcener from her birth, and would have
      the same rights and liabilities as that of a son. The daughter would
      hold property to which she is entitled as a coparcenary property,
E     which would be construed as property being capable of being
      disposed of by her either by a Will or any other testamentary
      disposition. These changes have been sought to be made on the
      touchstone of equality, thus seeking to remove the perceived
      disability and prejudice to which a daughter was subjected. The
F     fundamental changes brought forward about in the Hindu
      Succession Act, 1956 by amending it in 2005, are perhaps a
      realization of the immortal words of Roscoe Pound as appearing
      in his celebrated treatise, The Ideal Element in Law, that “the
      law must be stable and yet it cannot stand still. Hence all thinking
      about law has struggled to reconcile the conflicting demands of
G     the need of stability and the need of change.” [Para 23][569-D-
      G]

            Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36
            – relied on.
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DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.                        555


      Sadashiv Sakharam Patil v. Chandrakant Gopal Desale             A
      2011 (5) Bom CR 726; Badrinarayan Shankar
      Bhandari v. Omprakash Shankar Bhandari AIR 2014
      Bom 151; Pravat Chandra Pattnaik v. Sarat Chandra
      Pattnaik AIR 2008 Ori 133; Sugalabai v. Gundappa
      A. Maradi ILR 2007 Kar 4790; Rakhi Gupta v. Zahoor
                                                                      B
      Ahmad 197 (2013) DLT 154 – approved.
      Vaishali Satish Gonarkar v. Satish Keshorao Gonarkar
      AIR 2012 Bom 110 – not approved.
      “The Ideal Element in Law” by Roscoe Pound –
      referred to.                                                    C
       1.3 Section 6, as amended, stipulates that on and from the
commencement of the amended Act, 2005, the daughter of a
coparcener shall by birth become a coparcener in her own right
in the same manner as the son. It is apparent that the status
conferred upon sons under the old section and the old Hindu           D
Law was to treat them as coparceners since birth. The amended
provision now statutorily recognizes the rights of coparceners of
daughters as well since birth. The section uses the words in the
same manner as the son. It should therefore be apparent that
both the sons and the daughters of a coparcener have been
conferred the right of becoming coparceners by birth. It is the       E
very factum of birth in a coparcenary that creates the coparcenary,
therefore the sons and daughters of a coparcener become
coparceners by virtue of birth. Devolution of coparcenary property
is the later stage of and a consequence of death of a coparcener.
The first stage of a coparcenary is obviously its creation, as is     F
well recognized. One of the incidents of coparcenary is the right
of a coparcener to seek a severance of status. Hence, the rights
of coparceners emanate and flow from birth (now including
daughters) as is evident from sub-s (1)(a) and (b). The right to
partition has not been abrogated. The right is inherent and can be
availed of by any coparcener, now even a daughter who is a            G
coparcener. [Paras 24, 26][569-H; 570-A-C; 571-A]
      State Bank of India v. Ghamandi Ram AIR 1969 SC
      1330 : [1969] 3 SCR 51 – referred to.

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556            SUPREME COURT REPORTS                      [2018] 2 S.C.R.


A            1.4 In the present case, no doubt, suit for partition was
      filed in the year 2002. However, during the pendency of this suit,
      Section 6 of the Act was amended as the decree was passed by
      the trial court only in the year 2007. Thus, the rights of the
      appellants got crystallised in the year 2005 and this event should
      have been kept in mind by the trial court as well as by the High
B
      Court. The rights of daughters in coparcenary property as per
      the amended S.6 are not lost merely because a preliminary decree
      has been passed in a partition suit. So far as partition suits are
      concerned, the partition becomes final only on the passing of a
      final decree. Where such situation arises, the preliminary decree
C     would have to be amended taking into account the change in the
      law by the amendment of 2005. On facts, there is no dispute that
      the property which was the subject matter of partition suit belongs
      to joint family and ‘GS’ was propositus of the said joint family
      property. In view of the aforesaid discussion, in the said partition
      suit, share will devolve upon the appellants as well. Since, ‘GS’
D
      died leaving behind two sons, two daughters and a widow, both
      the daughters, i.e. the appellants would be entitled to 1/5th share
      each in the said property. Plaintiff (respondent No.1) is son of
      ‘AK’ (defendant No.1). Since, ‘AK’ will have 1/5th share, it would
      be divided into five shares on partition i.e. between defendant
E     No.1 ‘AK’, his wife defendant No.2, his two daughters defendant
      Nos.3 and 4 and son/plaintiff (respondent No.1). In this manner,
      the plaintiff/respondent No.1 would be entitled to 1/25th share in
      the property. [Paras 27, 28][571-B-F]

            Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi &
F           Anr. (2011) 9 SCC 788 : [2011] 12 SCR 968 – relied
            on.

            Anar Devi & Ors. v. Parmeshwari Devi & Ors.
            (2006) 8 SCC 656 : [2006] 6 Suppl. SCR 370 – referred
            to.
G
            Mulla, Principles of Hindu Law 17 th Edn., Vol. II,
            p. 250 – referred to.


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DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.                               557


                         Case Law Reference                                  A


[2006] 6 Suppl. SCR 370           referred to              Para 17
AIR 2012 Bom 110                  not approved             Para 21
2011 (5) Bom CR 726               approved                 Para 21           B
AIR 2014 Bom 151                  approved                 Para 21
AIR 2008 Ori 133                  approved                 Para 21
ILR 2007 Kar 4790                 approved                 Para 21
                                                                             C
197 (2013) DLT 154                approved                 Para 21
(2016) 2 SCC 36                   relied on                Para 22
[1969] 3 SCR 51                   referred to              Para 25
[2011] 12 SCR 968                 relied on                Para 27
                                                                             D

     CIVIL APPELLATE JURISDICTION :Civil Appeal
Nos.188-189 of 2018.
      From the Judgment and Order dated 25.01.2012 in R.F.A.
No. 322 of 2008 (PAR) and Final Order Dated 18.10.2012 in R. P.              E
No. 1533 of 2012 in R.F.A. No. 322 of 2008 (PAR) of the High Court of
Karnataka, Circuit Bench at Dharwad.
      S. N. Bhat, Adv. for the Appellants.
      H. Chandra Sekhar, Adv. for the Respondents.
                                                                             F
      The Judgment of the Court was delivered by
       A. K. SIKRI, J. The appellants herein, two in number, are the
daughters of one, Gurulingappa Savadi, propositus of a Hindu Joint Family.
Apart from these two daughters, he had two sons, namely, Arunkumar
and Vijay. Gurulingappa Savadi died in the year 2001 leaving behind the      G
aforesaid two daughters, two sons and his widow, Sumitra. After his
death, Amar, S/o Arunkumar filed the suit for partition and a separate
possession of the suit property described at Schedule B to E in the plaint
stating that the two sons and widow were in joint possession of the
aforesaid properties as coparceners and properties mentioned in Schedule
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558             SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A     B was acquired out of the joint family nucleus in the name of Gurulingappa
      Savadi. Case set up by him was that the appellants herein were not the
      coparceners in the said joint family as they were born prior to the
      enactment of Hindu Succession Act, 1956 (hereinafter referred to as
      the ‘Act’). It was also pleaded that they were married daughters and at
      the time of their marriage they had received gold and money and had,
B
      hence, relinquished their share.

             2. The appellants herein contested the suit by claiming that they
      were also entitled to share in the joint family properties, being daughters
      of Gurulingappa Savadi and for the reason that he had died after coming
C     into force the Act of 1950.

             3. The trial court, while decreeing the suit held that the appellants
      were not entitled to any share as they were born prior to the enactment
      of the Act and, therefore, could not be considered as coparceners. The
      trial court also rejected the alternate contention that the appellants had
D     acquired share in the said properties, in any case, after the amendment
      in the Act vide amendment Act of 2005. This view of the trial court has
      been upheld by the High Court in the impugned judgement dated January
      25, 2012 thereby confirming the decree dated August 09, 2007 passed in
      the suit filed for partition.
E            4. In the aforesaid backdrop, the question of law which arises for
      consideration in this appeal is as to whether, the appellants, daughters of
      Gurulingappa Savadi, could be denied their share on the ground that they
      were born prior to the enactment of the Act and, therefore, cannot be
      treated as coparceners? Alternate question is as to whether, with the
F     passing of Hindu Succession (Amendment) Act, 2005, the appellants
      would become coparcener “by birth” in their “own right in the same
      manner as the son” and are, therefore, entitled to equal share as that of
      a son?

             5. Though, we have mentioned the gist of the lis involved in this
G     case along with brief factual background in which it has arisen, some
      more facts which may be necessary for understanding the genesis of
      issue involved may also be recapitulated. We may start with the genealogy
      of the parties, it is as under:


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DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.                                  559
               [A. K. SIKRI, J.]

                                                                                A
                            Guralingappa=Sumitra
                                         (Def.8)

             ---------------------------------------------------------------

                                                                                B

    Mahandanda Arunkumar @ Arun=Sarojini Vijay Danamma
    (Def. 7)   (Def.1) (dead) (Def.2)    (Def.5) (Def. 6)


                                                                                C
             -------------------------------------------------------



      Sheetal                       Amar                      Triveni
      (Def. 3)                      (Plff)                    (Def. 4) ”        D



       6. Respondent No. 1 herein (the plaintiff) filed the suit on July 01,
2002 claiming 1/15th share in the suit schedule properties. In the said
suit, he mentioned the properties which needed partition.                       E
        7. The plaint schedule C compromised of the house properties
belonging to the joint family. The plaint schedule D comprised of the
shop properties belonging to the joint family. The plaint schedule E
comprised of the machineries and movable belonging to the joint family.
The plaintiff averred that the plaint schedule properties belonged to the       F
joint family and that defendant no. 1, the father of the plaintiff was
neglecting the plaintiff and his siblings and sought partition of the suit
schedule properties. The plaintiff contended that all the suit schedule
properties were the joint family properties. The plaintiff contended in
para 5 of the plaint that the propositus, Guralingappa died 1 year prior to
the filing of the suit. In para 7 of the plaint, the plaintiff contended that   G
defendant no. 1 had 1/3rd share and defendant no. 5 and 8 had 1/3rd
share each in the suit schedule properties. The plaintiff also contended
that defendants 6 and 7 did not have any share in the suit schedule
properties.
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560             SUPREME COURT REPORTS                            [2018] 2 S.C.R.


A             8. Defendant no. 1 (father of the plaintiff) and son of Guralingappa
      Savadi did not file any written statement. Defendant nos. 2, 3 and 4
      filed their separate written statements supporting the claim of the plaintiff.
      Defendant no. 5 (respondent no. 5 herein and son of Guralingappa Savadi),
      however, contested the suit. He, inter alia, contended that after the
      death of Guralingappa, an oral partition took place between defendant
B
      no. 1, defendant no. 5 and others and in the said partition, defendant no.
      1 was allotted certain properties and defendant no. 5 was allotted certain
      other properties and defendant no. 8, Sumitra, wife of Guralingappa
      Savadi was allotted certain other properties. Defendant no. 5 further
      contended that defendant nos. 6 and 7 were not allotted any properties
C     in the said alleged oral partition.
            9. Defendant no. 5 further contended that one of the properties,
      namely, C.T.S. No. 774 and also certain other properties were not joint
      family properties.
            10. The appellants claimed that they were also entitled to their
D     share in the property. After framing the issues and recording the
      evidence, the trial court by its judgment and decree dated August 09,
      2007 held that the suit schedule properties were joint family properties
      except CTS No. 774 (one of the house properties in plaint C schedule).
            11. The trial court held that the plaintiff, defendant nos. 2 to 4
E     were entitled to 1/8th share in the joint family properties. The trial court
      further noted that defendant no. 8 (wife of Gurulingappa Savadi) died
      during the pendency of the suit intestate and her share devolved in favour
      of defendants no. 1 and 5 only and, therefore, defendant nos. 1 and 2
      were entitled to ½ share in the said share. The trial court passed the
F     following order:
             “The suit of the plaintiff is decreed holding that the plaintiff is
             entitled for partition and separate possession of his 1/8 th share in
             the suit ‘B’, ‘C’ and ‘D’ schedule properties (except CTS No.
             774) and also in respect of the Machinery’s stated in the report of
G            the commissioner. The commissioners report Ex. P16 which
             contains the list of machinery’s to form part of the decree.
             The defendants 2 to 4 are each entitled to a/8th share and the 5th
             defendant is entitled for 4/8 share in the above said properties.”
             12. The trial court, thus, denied any share to the appellants.
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DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.                                    561
               [A. K. SIKRI, J.]

       13. Aggrieved by the said judgment and decree of the trial court,          A
the defendant nos. 6 and 7 filed an appeal bearing R.F.A. No. 322 of
2008 before the High Court seeking equal share as that of the sons of
the propositus, namely, defendant nos. 1 and 5.
      14. The High Court by its impugned judgment and order dated
January 25, 2012 dismissed the appeal. Thereafter, on March 04, 2012              B
defendant nos. 6 and 7 filed a review petition bearing no. 1533 of 2012
before the High Court, which met the same fate.
       15. We have heard the learned counsel for the parties. Whereas,
the learned counsel for the appellants reiterated his submissions which
were made before the High Court as well and noted above, learned                  C
counsel for the respondents refuted those submissions by relying upon
the reason given by the High Court in the impugned judgment.
       16. In the first instance, let us take note of the provisions of Section
6 of the Act, as it stood prior to its amendment by the Amendment Act,
2005. This provision reads as under:                                              D
       “6. Devolution of interest in coparcenary property.—When a
       male Hindu dies after the commencement of this Act, having at
       the time of his death an interest in a Mitakshara coparcenary
       property, his interest in the property shall devolve by survivorship
       upon the surviving members of the coparcenary and not in                   E
       accordance with this Act:
             Provided that, if the deceased had left him surviving a female
       relative specified in Class I of the Schedule or a male relative
       specified in that class who claims through such female relative,
       the interest of the deceased in the Mitakshara coparcenary property        F
       shall devolve by testamentary or intestate succession, as the case
       may be, under this Act and not by survivorship.
            Explanation 1.—For the purposes of this section, the interest
       of a Hindu Mitakshara coparcener shall be deemed to be the
       share in the property that would have been allotted to him if a
                                                                                  G
       partition of the property had taken place immediately before his
       death, irrespective of whether he was entitled to claim partition or
       not.
            Explanation 2.—Nothing contained in the proviso to this
       section shall be construed as enabling a person who had separated
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562               SUPREME COURT REPORTS                             [2018] 2 S.C.R.


A              himself from the coparcenary before the death of the deceased
               or any of his heirs to claim on intestacy a share in the interest
               referred to therein.”
             17. No doubt, Explanation 1 to the aforesaid Section states that
      the interest of the deceased Mitakshara coparcenary property shall be
B     deemed to be the share in the property that would have been allotted to
      him if the partition of the property had taken place immediately before
      his death, irrespective whether he was entitled to claim partition or not.
      This Explanation came up for interpretation before this Court in Anar
      Devi & Ors. v. Parmeshwari Devi & Ors.1. The Court quoted, with
      approval, the following passage from the authoritative treatise of Mulla,
C     Principles of Hindu Law, 17th Edn., Vol. II, p. 250 wherein the learned
      author made following remarks while interpreting Explanation 1 to Section
      6:
               “…Explanation 1 defines the expression ‘the interest of the
               deceased in Mitakshara coparcenary property’ and incorporates
D              into the subject the concept of a notional partition. It is essential to
               note that this notional partition is for the purpose of enabling
               succession to and computation of an interest, which was otherwise
               liable to devolve by survivorship and for the ascertainment of the
               shares in that interest of the relatives mentioned in Class I of the
E              Schedule. Subject to such carving out of the interest of the
               deceased coparcener the other incidents of the coparcenary are
               left undisturbed and the coparcenary can continue without
               disruption. A statutory fiction which treats an imaginary state of
               affairs as real requires that the consequences and incidents of the
               putative state of affairs must flow from or accompany it as if the
F              putative state of affairs had in fact existed and effect must be
               given to the inevitable corollaries of that state of affairs.”
               7. The learned author further stated that:
               “[T]he operation of the notional partition and its inevitable
G              corollaries and incidents is to be only for the purposes of this
               section, namely, devolution of interest of the deceased in
               coparcenary property and would not bring about total disruption
               of the coparcenary as if there had in fact been a regular partition
               and severance of status among all the surviving coparceners.”
      1
          (2006) 8 SCC 656
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DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.                               563
               [A. K. SIKRI, J.]

       8. According to the learned author, at pp. 253-54, the undivided      A
interest
      “of the deceased coparcener for the purpose of giving effect to
      the rule laid down in the proviso, as already pointed out, is to be
      ascertained on the footing of a notional partition as of the date of
      his death. The determination of that share must depend on the          B
      number of persons who would have been entitled to a share in the
      coparcenary property if a partition had in fact taken place
      immediately before his death and such person would have to be
      ascertained according to the law of joint family and partition. The
      rules of Hindu law on the subject in force at the time of the death
      of the coparcener must, therefore, govern the question of              C
      ascertainment of the persons who would have been entitled to a
      share on the notional partition”.
       18. Thereafter the Court spelled out the manner in which the
statutory fiction is to be construed by referring to certain judgments and
summed up the position as follows:                                           D

      “11. Thus we hold that according to Section 6 of the Act when a
      coparcener dies leaving behind any female relative specified in
      Class I of the Schedule to the Act or male relative specified in
      that class claiming through such female relative, his undivided
      interest in the Mitakshara coparcenary property would not devolve      E
      upon the surviving coparcener, by survivorship but upon his heirs
      by intestate succession. Explanation 1 to Section 6 of the Act
      provides a mechanism under which undivided interest of a
      deceased coparcener can be ascertained and i.e. that the interest
      of a Hindu Mitakshara coparcener shall be deemed to be the             F
      share in the property that would have been allotted to him if a
      partition of the property had taken place immediately before his
      death, irrespective of whether he was entitled to claim partition or
      not. It means for the purposes of finding out undivided interest of
      a deceased coparcener, a notional partition has to be assumed
      immediately before his death and the same shall devolve upon his       G
      heirs by succession which would obviously include the surviving
      coparcener who, apart from the devolution of the undivided interest
      of the deceased upon him by succession, would also be entitled to
      claim his undivided interest in the coparcenary property which he
      could have got in notional partition.”                                 H
564            SUPREME COURT REPORTS                            [2018] 2 S.C.R.


A           19. This case clearly negates the view taken by the High Court in
      the impugned judgment.
              20. That apart, we are of the view that amendment to the aforesaid
      Section vide Amendment Act, 2005 clinches the issue, beyond any pale
      of doubt, in favour of the appellants. This amendment now confers
B     upon the daughter of the coparcener as well the status of coparcener in
      her own right in the same manner as the son and gives same rights and
      liabilities in the coparcener properties as she would have had if it had
      been son. The amended provision reads as under:
            “6. Devolution of interest in coparcenary property.¯(1) On and
C           from the commencement of the Hindu Succession (Amendment)
            Act, 2005 (39 of 2005), in a Joint Hindu family governed by the
            Mitakshara law, the daughter of a coparcener shall,¯
            (a) by birth become a coparcener in her own right the same manner
            as the son;
D           (b) have the same rights in the coparcenery property as she would
            have had if she had been a son;
            (c) be subject to the same liabilities in respect of the said
            coparcenery property as that of a son,
            and any reference to a Hindu Mitakshara coparcener shall be
E
            deemed to include a reference to a daughter of a coparcener:
                 Provided that nothing contained in this sub-section shall affect
            or invalidate any disposition or alienation including any partition or
            testamentary disposition of property which had taken place before
            the 20th day of December, 2004.
F
            (2) Any property to which a female Hindu becomes entitled by
            virtue of sub-section (1) shall be held by her with the incidents of
            coparcenary ownership and shall be regarded, notwithstanding
            anything contained in this Act or any other law for the time being
            in force, as property capable of being disposed of by her by
G           testamentary disposition.
            (3) Where a Hindu dies after the commencement of the Hindu
            Succession (Amendment) Act, 2005 (39 of 2005), his interest in
            the property of a Joint Hindu family governed by the Mitakshara
            law, shall devolve by testamentary or intestate succession, as the
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DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.                                565
               [A. K. SIKRI, J.]

   case may be, under this Act and not by survivorship, and the               A
   coparcenery property shall be deemed to have been divided as if
   a partition had taken place and,¯
   (a) the daughter is allotted the same share as is allotted to a son;
   (b) the share of the pre-deceased son or a pre-deceased daughter,
   as they would have got had they been alive at the time of partition,       B
   shall be allotted to the surviving child of such pre-deceased son or
   of such pre-deceased daughter; and
   (c) the share of the pre-deceased child of a pre-deceased son or
   of a pre-deceased daughter, as such child would have got had he
   or she been alive at the time of the partition, shall be allotted to the   C
   child of such pre-deceased child of the pre-deceased son or a
   pre-deceased daughter, as the case may be.
     Explanation.¯For the purposes of this sub-section, the interest
   of a Hindu Mitakshara coparcener shall be deemed to be the
   share in the property that would have been allotted to him if a            D
   partition of the property had taken place immediately before his
   death, irrespective of whether he was entitled to claim partition or
   not.
   (4) After the commencement of the Hindu Succession
   (Amendment) Act, 2005 (39 of 2005), no court shall recognise
                                                                              E
   any right to proceed against a son, grandson or great-grandson
   for the recovery of any debt due from his father, grandfather or
   great-grandfather solely on the ground of the pious obligation under
   the Hindu law, of such son, grandson or great-grandson to
   discharge any such debt:
       Provided that in the case of any debt contracted before the            F
   commencement of the Hindu Succession (Amendment) Act, 2005
   (39 of 2005), nothing contained in this sub-section shall affect¯
   (a) the right of any creditor to proceed against the son, grandson
   or great-grandson, as the case may be; or
   (b) any alienation made in respect of or in satisfaction of, any           G
   such debt, and any such right or alienation shall be enforceable
   under the rule of pious obligation in the same manner and to the
   same extent as it would have been enforceable as if the Hindu
   Succession (Amendment) Act, 2005 (39 of 2005) had not been
   enacted.                                                                   H
566              SUPREME COURT REPORTS                               [2018] 2 S.C.R.


A            Explanation.¯For the purposes of clause (a), the expression “son”,
             “grandson” or “great-grandson” shall be deemed to refer to the
             son, grandson or great-grandson, as the case may be, who was
             born or adopted prior to the commencement of the Hindu
             Succession (Amendment) Act, 2005 (39 of 2005).
B            (5) Nothing contained in this section shall apply to a partition,
             which has been effected before the 20th day of December, 2004.
             Explanation.¯For the purposes of this section “partition” means
             any partition made by execution of a deed of partition duly registered
             under the Registration Act, 1908 (16 of 1908) or partition effected
             by a decree of a court.]”
C
             21. The effect of this amendment has been the subject matter of
      pronouncements by various High Courts, in particular, the issue as to
      whether the right would be conferred only upon the daughters who are
      born after September 9, 2005 when Act came into force or even to
      those daughters who were born earlier. Bombay High Court in Vaishali
D     Satish Gonarkar v. Satish Keshorao Gonarkar2 had taken the view
      that the provision cannot be made applicable to all daughters born even
      prior to the amendment, when the Legislature itself specified the posterior
      date from which the Act would come into force. This view was contrary
      to the view taken by the same High Court in Sadashiv Sakharam Patil
E     v. Chandrakant Gopal Desale3. Matter was referred to the Full Bench
      and the judgment of the Full Bench is reported as Badrinarayan
      Shankar Bhandari v. Omprakash Shankar Bhandari 4. The Full
      Bench held that clause (a) of sub-section (1) of Section 6 would be
      prospective in operation whereas clause (b) and (c) and other parts of
      sub-section (1) as well as sub-section (2) would be retroactive in operation.
F     It held that amended Section 6 applied to daughters born prior to June
      17, 1956 (the date on which Hindu Succession Act came into force) or
      thereafter (between June 17, 1956 and September 8, 2005) provided
      they are alive on September 9, 2005 i.e. on the date when Amended Act,
      2005 came into force. Orissa, Karnataka and Delhi High Court have
G     also held to the same effect5.
      2
        AIR 2012 Bom 110
      3
        2011 (5) Bom CR 726
      4
        AIR 2014 Bom 151
      5
        AIR 2008 Ori 133: Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik; ILR 2007 Kar
         4790: Sugalabai v. Gundappa A. Maradi and 197 (2013) DLT 154: Rakhi Gupta v.
         Zahoor Ahmad
H
DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.                                  567
               [A. K. SIKRI, J.]

      22. The controversy now stands settled with the authoritative             A
pronouncement in the case of Prakash & Ors. v. Phulavati & Ors.6
which has approved the view taken by the aforesaid High Courts as
well as Full Bench of the Bombay High Court. Following discussion
from the said judgment is relevant:
         “17. The text of the amendment itself clearly provides that the        B
         right conferred on a “daughter of a coparcener” is “on and from
         the commencement of the Hindu Succession (Amendment) Act,
         2005”. Section 6(3) talks of death after the amendment for its
         applicability. In view of plain language of the statute, there is no
         scope for a different interpretation than the one suggested by the
         text of the amendment. An amendment of a substantive provision         C
         is always prospective unless either expressly or by necessary
         intendment it is retrospective. [Shyam Sunder v. Ram Kumar,
         (2001) 8 SCC 24, paras 22 to 27] In the present case, there is
         neither any express provision for giving retrospective effect to
         the amended provision nor necessary intendment to that effect.         D
         Requirement of partition being registered can have no application
         to statutory notional partition on opening of succession as per
         unamended provision, having regard to nature of such partition
         which is by operation of law. The intent and effect of the
         amendment will be considered a little later. On this finding, the
         view of the High Court cannot be sustained.                            E

         18. The contention of the respondents that the amendment should
         be read as retrospective being a piece of social legislation cannot
         be accepted. Even a social legislation cannot be given retrospective
         effect unless so provided for or so intended by the legislature. In
         the present case, the legislature has expressly made the               F
         amendment applicable on and from its commencement and only
         if death of the coparcener in question is after the amendment.
         Thus, no other interpretation is possible in view of the express
         language of the statute. The proviso keeping dispositions or
         alienations or partitions prior to 20-12-2004 unaffected can also      G
         not lead to the inference that the daughter could be a coparcener
         prior to the commencement of the Act. The proviso only means
         that the transactions not covered thereby will not affect the extent
         of coparcenary property which may be available when the main
6
    (2016) 2 SCC 36                                                             H
568      SUPREME COURT REPORTS                            [2018] 2 S.C.R.


A     provision is applicable. Similarly, Explanation has to be read
      harmoniously with the substantive provision of Section 6(5) by
      being limited to a transaction of partition effected after 20-12-
      2004. Notional partition, by its very nature, is not covered either
      under the proviso or under sub-section (5) or under the Explanation.
B     19. Interpretation of a provision depends on the text and the context.
      [RBI v. Peerless General Finance & Investment Co. Ltd., (1987)
      1 SCC 424, p. 450, para 33] Normal rule is to read the words of a
      statute in ordinary sense. In case of ambiguity, rational meaning
      has to be given. [Kehar Singh v. State (Delhi Admn.), (1988) 3
      SCC 609 : 1988 SCC (Cri) 711] In case of apparent conflict,
C     harmonious meaning to advance the object and intention of
      legislature has to be given. [District Mining Officerv. TISCO, (2001)
      7 SCC 358]
      20. There have been number of occasions when a proviso or an
      explanation came up for interpretation. Depending on the text,
D     context and the purpose, different rules of interpretation have been
      applied. [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC
      591]
      21. Normal rule is that a proviso excepts something out of the
      enactment which would otherwise be within the purview of the
E     enactment but if the text, context or purpose so require a different
      rule may apply. Similarly, an explanation is to explain the meaning
      of words of the section but if the language or purpose so require,
      the explanation can be so interpreted. Rules of interpretation of
      statutes are useful servants but difficult masters. [Keshavji Ravji
F     & Co. v. CIT, (1990) 2 SCC 231 : 1990 SCC (Tax) 268] Object of
      interpretation is to discover the intention of legislature.
      22. In this background, we find that the proviso to Section 6(1)
      and sub-section (5) of Section 6 clearly intend to exclude the
      transactions referred to therein which may have taken place prior
G     to 20-12-2004 on which date the Bill was introduced. Explanation
      cannot permit reopening of partitions which were valid when
      effected. Object of giving finality to transactions prior to 20-12-
      2004 is not to make the main provision retrospective in any manner.
      The object is that by fake transactions available property at the
      introduction of the Bill is not taken away and remains available as
H
DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.                                569
               [A. K. SIKRI, J.]

      and when right conferred by the statute becomes available and is        A
      to be enforced. Main provision of the amendment in Sections 6(1)
      and (3) is not in any manner intended to be affected but
      strengthened in this way. Settled principles governing such
      transactions relied upon by the appellants are not intended to be
      done away with for period prior to 20-12-2004. In no case statutory
                                                                              B
      notional partition even after 20-12-2004 could be covered by the
      Explanation or the proviso in question.
      23. Accordingly, we hold that the rights under the amendment are
      applicable to living daughters of living coparceners as on 9-9-
      2005 irrespective of when such daughters are born. Disposition
      or alienation including partitions which may have taken place before    C
      20-12-2004 as per law applicable prior to the said date will remain
      unaffected. Any transaction of partition effected thereafter will
      be governed by the Explanation.”
       23. The law relating to a joint Hindu family governed by the
Mitakshara law has undergone unprecedented changes. The said                  D
changes have been brought forward to address the growing need to
merit equal treatment to the nearest female relatives, namely daughters
of a coparcener. The section stipulates that a daughter would be a
coparcener from her birth, and would have the same rights and liabilities
as that of a son. The daughter would hold property to which she is            E
entitled as a coparcenary property, which would be construed as property
being capable of being disposed of by her either by a will or any other
testamentary disposition. These changes have been sought to be made
on the touchstone of equality, thus seeking to remove the perceived
disability and prejudice to which a daughter was subjected. The
fundamental changes brought forward about in the Hindu Succession             F
Act, 1956 by amending it in 2005, are perhaps a realization of the immortal
words of Roscoe Pound as appearing in his celebrated treaties, The
Ideal Element in Law, that “the law must be stable and yet it cannot
stand still. Hence all thinking about law has struggled to reconcile the
conflicting demands of the need of stability and the need of change.”         G
       24. Section 6, as amended, stipulates that on and from the
commencement of the amended Act, 2005, the daughter of a coparcener
shall by birth become a coparcener in her own right in the same manner
as the son. It is apparent that the status conferred upon sons under the
                                                                              H
570               SUPREME COURT REPORTS                          [2018] 2 S.C.R.


A     old section and the old Hindu Law was to treat them as coparceners
      since birth. The amended provision now statutorily recognizes the rights
      of coparceners of daughters as well since birth. The section uses the
      words in the same manner as the son. It should therefore be apparent
      that both the sons and the daughters of a coparcener have been conferred
      the right of becoming coparceners by birth. It is the very factum of
B
      birth in a coparcenary that creates the coparcenary, therefore the sons
      and daughters of a coparcener become coparceners by virtue of birth.
      Devolution of coparcenary property is the later stage of and a
      consequence of death of a coparcener. The first stage of a coparcenary
      is obviously its creation as explained above, and as is well recognized.
C     One of the incidents of coparcenary is the right of a coparcener to seek
      a severance of status. Hence, the rights of coparceners emanate and
      flow from birth (now including daughters) as is evident from sub-s (1)(a)
      and (b).
             25. Reference to the decision of this Court, in the case of State
D     Bank of India v. Ghamandi Ram 7 in essential to understand the
      incidents of coparceneryship as was always inherited in a Hindu
      Mitakshara coparcenary:
               “According to the Mitakshara School of Hindu Law all the
               property of a Hindu joint family is held in collective ownership
               by all the coparceners in a quasi-corporate capacity. The
E
               textual authority of the Mitakshara lays down in express terms
               that the joint family property is held in trust for the joint family
               members then living and thereafter to be born (See
               Mitakshara, Ch. I. 1-27). The incidents of coparcenership
               under the Mitakshara law are: first, the lineal male
F              descendants of a person up to the third generation, acquire
               on birth ownership in the ancestral properties is common;
               secondly, that such descendants can at any time work out
               their rights by asking for partition; thirdly, that till partition
               each member has got ownership extending over the entire
               property, conjointly with the rest; fourthly, that as a result of
G
               such co-ownership the possession and enjoyment of the
               properties is common; fifthly, that no alienation of the property
               is possible unless it be for necessity, without the concurrence
               of the coparceners, and sixthly, that the interest of a deceased
               member lapses on his death to the survivors.”
H     7
          AIR 1969 SC 1330.
DANAMMA @ SUMAN SURPUR & ANR. v. AMAR AND ORS.                                   571
               [A. K. SIKRI, J.]

     26. Hence, it is clear that the right to partition has not been             A
abrogated. The right is inherent and can be availed of by any
coparcener, now even a daughter who is a coparcener.
       27. In the present case, no doubt, suit for partition was filed in the
year 2002. However, during the pendency of this suit, Section 6 of the
Act was amended as the decree was passed by the trial court only in the          B
year 2007. Thus, the rights of the appellants got crystallised in the year
2005 and this event should have been kept in mind by the trial court as
well as by the High Court. This Court in Ganduri Koteshwaramma &
Anr. v. Chakiri Yanadi & Anr.8 held that the rights of daughters in
coparcenary property as per the amended S. 6 are not lost merely
because a preliminary decree has been passed in a partition suit. So far         C
as partition suits are concerned, the partition becomes final only on the
passing of a final decree. Where such situation arises, the preliminary
decree would have to be amended taking into account the change in the
law by the amendment of 2005.
       28. On facts, there is no dispute that the property which was the         D
subject matter of partition suit belongs to joint family and Gurulingappa
Savadi was propositus of the said joint family property. In view of our
aforesaid discussion, in the said partition suit, share will devolve upon
the appellants as well. Since, Savadi died leaving behind two sons, two
daughters and a widow, both the appellants would be entitled to 1/5th            E
share each in the said property. Plaintiff (respondent No.1) is son of
Arun Kumar (defendant No.1). Since, Arun Kumar will have 1/5th share,
it would be divided into five shares on partition i.e. between defendant
No.1 Arun Kumar, his wife defendant No.2, his two daughters defendant
Nos.3 and 4 and son/plaintiff (respondent No.1). In this manner, the
plaintiff/respondent No.1 would be entitled to 1/25th share in the property.     F

       29. The appeals are allowed in the aforesaid terms and decree of
partition shall be drawn by the trial court accordingly.
         No order as to costs.
                                                                                 G
Divya Pandey                                                  Appeals allowed.




8
    (2011) 9 SCC 788                                                             H