PRAKASH & ORS.versusPHULAVATI & ORS.

                    [2015] 12 S.C.R. 579


                     PRAKASH & ORS.                               A
                              v.
                    PHULAVATI & ORS.
               (Civil Appeal No.7217 of2013)
                                                                  B
                    OCTOBER 16, 2015
   [ANIL R. DAVE AND ADARSH KUMAR GOEL, JJ.]
     Hindu Succession (Amendment) Act, 2005:
      ss. 6(1 ), 6(3), 6(5) - Whether the Act will have c
retrospective operation - Held: No - The legislature has.
expressly made the Amendment applicable on and from its.
commencement.
      s. 6(1 ), (5), proviso - Right of daughter of coparcener in
coparcenery properties - Held: Rights under the amendment D
are applicable to Jiving daughters of living coparceners as
on 9th September, 2005 irrespective of when such daughters
are born - Proviso to s. 6(1) and s. 6(5) clearly intend to
exclude the transactions referred to therein which may have
taken place prior to 2Qth December, 2004 on which date the E
Bill was introduced - Therefore, disposition or alienation
including partitions which may have taken place before 20th.
December, 2004 as per law applicable prior to the said date
to remain unaffected.
                                                                  F
     Interpretation of statutes:
      Harmonious construction - Held: Normal rule is to read
the words of a statute in ordinary sense - In case of apparent
conflict, harmonious meaning to advance the object and
intention of legislature has to be given.                      G
      Proviso - Significance of - Held: Normal rule is that a
proviso excepts something out of the enactment which would
otherwise be within the purview of the enactment but if the
text, context or purpose so require a different rule may apply.   H
                             579
580         SUPREME COURT REPORTS                 [2015] 12 S.C.R.

A          Explanation - Significance of- Held: Is to explain the
      meaning of words of the section but if the language or purpose
      so require, the explanation can be so interpreted.
           Prospective operation:

 B         Held: An amendment of a substantive provision is
      always prospective unless either expressly or by necessary
      intendment it is retrospective - Even a social legislation
      cannot be given retrospective effect unless so provided for
      or so intended by the legislature.
c          Disposing of the appeal, the Court

           HELD: 1. The text of the amendment itself clearly
      provides that the right conferred on a 'daughter of a
      coparcener' is 'on and from the commencement of Hindu
 D    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
 E    provision is always prospective unless either expressly
      or by necessary intendment it is retrospective. In the
      present case, there is neither any express provision for .
      giving retrospective effect to the amended provision nor
      necessary intendment to. that effect. Requirement of
 F
      partition being registered can have no applicat!on 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. [Para 17]
 G    [595-F-H; 596-A-B] .

           2. 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
 H
        PRAKASH & ORS. v. PHULAVATI & ORS.                     58 'l


unless so provided for or so intended by the legislature.      A
In the present case, the legislature has expressly made
the Amendment applicable on and from its
commencement and only if death of the coparcener in
question is after the amendment. Thus, no other
interpretation is possible in view of express language of      B
the statute. The proviso keeping dispositions or
alienations or partitions prior to 20th December, 2004
unaffected can also not lead to the inference that the
daughter could be a coparcener prior to the
commencement of the Act. The proviso only means that           C
the transactions not covered thereby will not affect the
extent of coparcenary property which may be available
when the main provision is applicable. Similarly,
Explanation. has to be read harmoniously with the
                                                               0
substantive provision of Section 6(5) by being limited to
a transaction of partition effected after 20th December,
2004. Notional partition, by its very nature, is not covered
either under proviso or under sub-section 5 or under the
Explanation. [Para 18] [596-C-G]                                E
     · 3. Interpretation of a provision depends on the text
and the context. Normal rule is to read the words of a
statute in ordinary sense. In case of ambiguity, rational
meaning has to be given. In case of apparent conflict,
harmonious meaning to advance the object and intention F
of legislature has to be given. Normal rule is that a proviso
excepts something out of the enactmen_t which would
otherwise be within the purview of the enactment but if
the text, context or purpose so require a different rule G
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. Object of interpretation is H

                                                                    I
582      SUPREME COURT REPORTS              [2015] 12 S.C.R.

                                                     .
A to discover the intention of legislature. In this
  background, 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 to
  20 1h December, 2004 on which date the Bill ·was
B introduced. Explanation cannot permit reopening of
  partitions which were valid when effected. Object of
  giving finality to transactions prior to 20th December, 2004
  is not to make the main provision retrospective in any
  manner. The object is that by fake transactions available
C property at the introduction of the Bill is not taken away
  and remains available as and when right conferred by
  the statute becomes available and is to be enforced. Main
  provision of the Amendment in Section 6(1) and (3) is
  not in any manner intended to be affected but
0
  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 201h
  December, 2004. In no case statutory notional partition
E even after 201h December, 2004 could be covered by the
  Explanation or the proviso in question. Accordingly, the
  rights under the amendment are applicable to living
  daughters of living coparceners as on 91h September,
  2005 irrespective of when such daughters are born.
F Disposition or alienation including partitions which may
   have taken place before 201h December, 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. [Paras 19, 21 to 23] [596-
G G-H; 597-A, C-G; 598-A-D]
         Prema vs. Nanje Gowda 2011 (8) SCR 55: (2011)
         6 SCC 462; Ganduri Koteshwaramma vs. Chakiri
         Yanadi2011 (12) SCR 968: (2011) 9 SCC 788;
         V.K. Surendra vs. V.K. Thimmaiah 2013 (5)
 H
   PRAKASH & ORS. v. PHULAVATI & ORS                  583


SCR 386: (2013) 10 SCC 211; Ram Sarup vs.             A
Munshi (1963) 3 SCR 858; Dayawati vs. /nderjit
(1966) 3 SCR 275; Amarjit Kaur vs. Pritam Singh
1975 (1) SCR 606: (1974) 2 SCC 363; Lakshmi
Narayan Guin vs. Niranjan Modak 1985 (2) SCR
202: (1985) 1 sec 210; s. Sai Reddy vs. s.           . B
Narayana Reddy (1991) 3 SCC 647; State of
Maharashtra vs. Narayan Rao 1985 (3) SCR 358:
(1985) 2 SCC 321; State of Rajasthan vs. Mangi/al
Pindwal 1996 (3) Suppl. SCR 98 : (1996) 5 SCC
60; West U.P. Sugar Mills Asson. vs. State of U.P.    c
2002 (1) scR 897: (2002) 2 sec 645 - held
inapplicable.

M. Prithviraj vs. Nee/amma N. ILR 2009 Kar. 3612
- referred to.                                        D
584         SUPREME COURT REPORTS               [2015] 12 S.C.R.



A           From the Judgment and Order dated 16.04.2010 of the
      Division Bench of the High Court of Karnataka, Circuit Bench
      at Dharwad in Regular First Appeal No. 743 of 2007.

                                 WITH
B      SLP (C)NOS. 21814 OF 2008, 18744 OF 2010, 28702-
  287030F 2010, 28471OF2011,4217-42180F2012,1299-
  1300 OF 2013, 17577-17578 OF 2013, 19816 OF 2014, 5619
  OF 2015, 3805 OF 2008, 9390 OF 2015, 5680 OF 2015,
C 35209 OF 2011 AND 15557-15558 OF 2015 AND SLP (C)
  NO. 15560 OF 2015
           R. Basant, R. Venkataramani, HuzefaAhmadi, S. N. Bhat,
  Ravi Panwar, D. P. Chaturvedi, Sushil Karanjkar, KarthikAshok
  (forK. N. Hai),Aljo K. Joseph, Neelam Singh, Shelna K., Rohan
D Sharma, Yashraj Bundela (for Mrs. Sud ha Gupta), Azeem A.
  Kalebudde, Ankolekar Gurudatta, Charudatta Mahindrakar, A.
  Selvin Raja (for Aniruddha P. Mayee), P. R. Kovilan
  Poongkuntran, Nanda Kishore, GirishAnanthamurthi (for Mrs.
  Vaijay9nthi Girish), S. Usha Reddy, Rajesh Mahale,
E Raghavendra S. Srivatsa, P. R. Ramasesh, G. Balaji for the
  Appellants.
         Basava Prabhu S. Patil, Sushil Kumar Jain, P.
   Vishwanatha Shetty, B. Subrahmanya Prasad, Anirudh
 F Sanganeria. Chinmay Deshpande, Amjid Maqbool, S. M.
   Jadhav, Puneet Jain, Ms. Astha Deep, Anish R. Shah, Ms.
   Ankita Gupta, Manu Maheshwari, Abhinav Gupta, Ashwin
   Kotemath, (for Mis. S. M. Jadhav & Company), Mahesh Thakur,
   Deepak S. Shetty (for G. N. Reddy), T. N. Raghupathy, G. V.
 G Chandrashekhar, Alakh Alok Srivastava, Kedar Nath Tripathy,
   Manjunath Meled, Anil Kumar, Nivedita Sharma, (for Ms.
   Garima Prashad), M. Y. Deshmukh, Manu Mridul, Ms.
   Priyambada Sharma, (for Surya Kant), Mayank Kshirsagar,
   Balaji Srinivasan, Vaishnavi Subrahmanyam, Ms. Srishti Govil,
 H Virendra Sharma, Tushar Singh,Alok Krishna Agarwal, Mayank
         PRAKASH & ORS. v. PHULAVATI & ORS.                          585


Bughani, T. Mahipal, Rauf Rahim, Shashibhushan P. A
Adgaonkar, Somiran Sharma, Sumeet Lall, Rajinder Mathur,
Shankar Divate, Mrs. K. Sarada Devi, Ashok Kumar Gupta,
Ms. E. R. Sumathy for the Respondents.
     The Judgment of the Court was delivered by                      B
     ADARSH KUMAR GOEL, J. 1. The only issue which
has been raised in this batch of matters is whether Hindu
Succession (Amendment) Act, 2005 ('the Amendment Act')
will have retrospective effect. In the impugned judgment C
(reported in AIR 2011 Kar. 78 Phulavati vs. Prakash), plea of
restrospectivity has been upheld in favour of the respondents
by which the appellants are aggrieved.

      2. Connected matters have been entertained in this
Court mainly on account of the said tegal issue particularly when D
there are said to be differing views of High Courts which makes
it necessary that the issue is decided by this Court. It is not
necessary to go into the' facts of the individual case or the
correctness of the findings recorded by the courts below on E
various other issues. It was made clear during the hearing that
after deciding the legal issue, all other aspects may be decided
separately in the light of the judgment of this Court.

       3. Only for the purpose of deciding the above legal
question, we refer to the brief facts in Civil Appeal No.7217 of F
2013. The respondent-plaintiff, Phulavati filed suit being O.S.
No.12/1992 before Additional Civil Judge (Senior Division),
Belgaum for partition and separate possession to the extent
of 1f7th share in the suit properties in Schedule 'P\ to 'G' except
property bearing CTS No.3241 mentioned in Schedule 'A' in G
which the share sought was 1/28th.

    4. According to the case of the plaintiff, the suit properties
were acquired by her _late father Yeshwanth Chandrakant
Upadhye by inheritance from his adoptive mother Smt                  H
586            SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A Sunanda Bai. After-the death of her father on .181h February,
  1988, she acquired the share in the property as claitned.

        5. The suit was conte~ted mainly with the plea that the
  plaintiff could claim share only in the self acquired property of
B her deceased father and not in the entire property. During
  pendency of the suit, the plaintiff amended the plaint so as to
  claim share as per the Amended Act 39 of 2005. The trial
  court partly decreed the suit to the extent of 1/281h share in
  certain properties on the basis of notional partition on the death
C of her father and in some of the items of property, no share
  was given, while 1f71h share was given in some other properties
  as mentioned in detail in the judgment of the trial court.

              6. The respondent-plaintiff preferred first appeal before
o the High Court with the grievance that the plaintiff became
      coparcener under the Amendment Act 39 of 2005 and was
      entitled to inherit the coparcenary property equal to her brothers,
      apart from contentions based on individual claims in certain
      items of property.
E
         7. The stand of the defendants-appellants was that the
  plaintiff could not claim any share in self acquired property of
  the members of the joint family and that the claim of the plaintiff
  had to be dealt with only under Section 6 of the Hindu
F Succession Act, 1956 as it stood prior to the amendment by
  Act 39 of 2005. The defendants relied upon a division bench
  judgment of the High Court in M. Prithviraj vs. Neelamma
  N. 1 laying down that if father of a plaintiff had died prior to
  commencement of Act 39 of 2005, the amended provision
G could not apply. It was only the law applicable on the date of
  opening of succession which was to ~pply.

           8. The High Court framed following question for
      consideration on this aspect:
 H    1
          ILR 2009 Kar. 3612
        PRAKASH & ORS. v. PHULAVATI & ORS.                      587
            [ADARSH KUMAR GOEL, J.]

     "(ii) Whether the plaintiff is entitled to a share in terms A
     of Section 6 of the Hindu Succession Act as amended
     by Act No.39 of 2005?"

     9. It was held that the amendment was applicable to
pending proceedings even if it is taken to be prospective. The 8
High Court held that:
      "61. The law in this regard is too well settled in terms of
     the judgment of the Supreme Court in the case of G.
     Sekar Vs. Geetha and others reported in (2009) 6 SCC
     99. Any development of law inevitably applies to a C
     pending proceeding and in fact it is not even to be taken
     as a retrospective applicability of the law but only the
     law as it stands on the day being made applicable.
     62. The suit, no doubt, might have been instituted in      D
     the year 1992 and even assuming that it was four years
     after the demise ofYeshwanth Chandrakant Upadhye,
     the position so far as the parties are concerned who
     are all members of the joint family, in terms of Section
     6 as amended by Act No.39 of 2005 is that a female          E
     member is, by a fiction of law created in terms of the
     amended provision also becomes a coparcener and
     has a right in joint family property by birth. They are
     also sharer members of the coparcenary property at
     par with all male members. When a partition takes           F
     place, coparceners succeed to the property in equal
     measure. Such is the legal position in terms of Section
     6 of the Hindu Succession Act as amended by Act
     No.39 of 2005 and as declared by the Supreme Court
     in the case of G. S. Sekar (supra). The only exception     G
     carved out to the applicability and operation of Section
      6 of the Hindu Succession Act as amended by Act
      No. 39 of 2005 being a situation or a factual position
      where there was a partition which had been effected by     H
588         SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A           a registered partition deed or by a decree of the court
            which has attained finality prior to 20. 12. 2004 in terms
            of sub-section (5) to Section 6.
            63. In the present case such being not the factual
           position, the exception available under sub-section (5)
B
            to Section 6 cannot be called in aid by the defendants
            and therefore, the liability in terms of the amended
           provisions operates. It is not necessary for us to multiply
            the judgment by going into details or discussing other
c          judgments referred to and relied upon by the learned
            counsel for the parties at the Bar as one judgment of
            the Supreme Court if clinches the issue on the point, it
           is good enough for us, as a bihding authority to apply
            that law and dispose of the case as declared in that
D          judgment."

             10. The respondent-plaintiff was accordingly held entitled
      to 1/?th share in all items in Schedules'/:\ to 'D'. In respect of
      Schedule 'F', first item was given up by the plaintiff. Out of the
E     other two items, she was held entitled to 1/?th share in Item
      No.2 and 1/71h share in 40% ownership in Item No.3.

        11. The defendants-appellants have questioned the
  judgment and order of the High Court with the contention that
  the amended provision of Section 6 has no application in ~he
F present case. Father of the plaintiff died on 18th February,
   1988 and was thus, not a coparcener on the date of
  commencement oftheAmendmentAct. The plaintiff could not
  claim to be "the daughter of a coparcener" at the time of
G commencement of the Act which was the necessary condition
  for claiming the benefit. On the death of plaintiff's father on
  18th February, 1988, notional partition took place and shares
  of the heirs were crystallized which created vested right in the
  parties. Such vested right could not have been taken away by
H a subsequent amendment in absence of express provision or
        PRAKASH & ORS. v. PHULAVATI & ORS.                      589
            [ADARSH KUMAR GOEL, J.]

necessary intendment to that effect. Moreover, the amending A
provision itself was expressly applicable "on and from" the
commencement of the Amendment Act, i.e., gth September,
2005. The High Court held that even if the provision was
prospective, it could certainly apply to pending proceec:lings
as has been held in some decisions of this Court. It is pointed B
out that the amendment could apply to pending proceedings,
only if the amendment was applicable at all.

      12. Learned counsel for the respondents would support
the view taken by the High Court.                           C

     13. We have heard learned counsel for the parties in the
present appeal as well as in connected matters for the rival
view points which will be noticed hereinafter.
                                                                 D
       14. The contention raised on behalf of the appellants and
other learned counsel supporting the said view is that the 2005
Amendment was not applicable to the claim of a daughter when
her father who was a coparcener in the joint hindu family died
prior to 91h September, 2005. This submission is based on E
the plain language of the statute and the established principle
that in absence of express provision or implied intention to the
contrary, an amendment dealing with a substantive right is
prospective and does not affect the vested rights 2 . If such a
coparcener had died prior to the commencement of the F
AmendmentAct, succession opens out on the date of the death
as per the prevailing provision of the succession law and the
rights of the heirs get crystalised even if partition by metes
and bounds does not take place. It was pointed out that
apparently conflicting provision in Explanation to Section 6(5) G
and the said Section was required to be given harmonious
construction with the main provision. The explanation could
not be read in conflict with the main provision. Main provision
of Section 6( 1) confers right of coparcener on a daughter only
 2
   Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27    H
590         SUPREME COURT REPORTS                (2015] 12 S.C.R.


A from commencement of the Act and not for any period prior to
  that. The proviso to Section 6(1) also applies only where the
  main provision of Section 6(5) applies. Since Section 6(5)
  applies to partition effected after 201h December, 2004, the
  said. proviso and the Explanation also applies only when
B Section 6(1) applies. It is also submitted thatthe Explanation
  was merely a rule of evidence and not a substantive provision
  determining the rights of the parties. Date of a daughter
  becoming coparcener is on and from the commencement of
  the Act. Partitions effected before 2ot11 December, 2004 remain
C unaffected as expressly provided. The Explanation defines
  partition, as partition made by a registered deed or effected
  by decree of a court. Its effect is not to wipe out a legal and
  valid partition prior to the said date, but to place burden of
D proof of genuineness of such partition on the party alleging it.
  In any case, statutory notional partition remailJ~lid and
  effective.

           15. On the contrary, stand on behalf of the respondents
   is that the amendment being piece of social legislation to
 E remove discriminatiqn'°aga~st women in the light of 1741h
   Report of the Law Co_mmlssion, the amendment should be
   read as being retrospective as interpreted by the High Court
   in the impugned judgment. A daughter acquired right by birth
 F and even if her father, who was a coparcener, had died prior
   to coming into force of the amendment, the shares of the
   parties were required to be redefined. It was submitted that
   any partition which may have taken place even prior to 201h
   December, 2004 was liable to be ignored unless it was by a
 G registered deed of partition or by a decree of the Court. If no
   registered partition had taken place, share of the daughter will
   stand enhanced by virtue of the amendment.

          16. We have given due consideration to the rival
      submissions. We may refer to the provision of Section 6 of the
 H
       . PRAKASH & ORS. v. PHULAVATI & ORS.                      591
             [ADARSH KUMAR GOEL, J.]

Hindu Succession Act as it stood prior to the 2005Amendment A
and as amended :

 Section 6 of the Hindu        Section 6 on and from the
 Succession Act                cdmmencement of the
                               Hindu Succession                  B
                               (Amendment) Act, 2005
                  .



 6. Devolution of interest 6. Devolution of interest in
 of coparcenary property. coparcenary property.-(1)
 When a male Hindu dies ' On           and      from       the
 after the commencement commencement of the Hindu                c
 of this Act, having at the Succession         (Amendment)
 time of his death an Act, 2005, in a Joint Hindu
 interest in a Mitakshara family governed by the
 coparcenary property, his Mitakshara law, the daughter
 interest in the property of a coparcener shall.-
                                                                 D
 shall       devolve       by
 survivorship     upon    the (a) by birth become a
 surviving members of the coparcener in her own right in
 coparcenary and not in the same manner as the son;
 accordance with this Act:
                              (b) have the same rights in        E
 PROVIDED that, if the the coparcenary property as
 deceased had left him she would have had if she
 surviving a female relative had been a son;
 specified in class I of the
 Schedule or a male (c) be subject to the same
 relative specified in that liabilities in respect of the said   F
 class who claims through coparcenary property as that
 such female relative, the of a son,
 interest of the deceased
 in      the     Mitakshara and any reference to a Hindu
 coparcenary         property Mitakshara coparcener shall
 shall       devolve      by be deemed to include a              G
 testamentary or intestate reference to a daughter of a
 succession, as the case coparcener:
 may be. under this Act
 and not by survivorship.
                                                                 H
592       S~PREMECOURTREPORTS                        [2015] 12 S.C.R.


A
      Explanation I: For he             Provided      that      nothing
      purposes of this section,         contained in this sub-section
      the interest of a Hindu           shall affect or invalidate any
      Mitakshara        coparcener      disposition    or    alienation
      shall be deemed to be the         inducting any partition or
 B    share in the property that        testamentary disposition of
      would have been allotted          property which had taken
      to him if a partition of the      place before the 20th day of
      property had taken place          December, 2004.
                                                                          1
      immediately before his                                              1·




      death.     irrespective     of    (2) Any property to which a
c     whether he was entitled to        female     Hindu      becomes
                                                                          1




      claim partition or not.           entitled by virtue of sub-
      Explanation 2: Nothing            section -(1) shall be held by
      contained in the proviso to       her with the incidents of
      this   section     shal! be       coparcenary ownership and
D     construed as enabling a           shall       be       regarded, I
      person who has separated          notwithstanding       anything
      himself        from       the     contained in this Act, or any
      coparcenary before the            other law for the time being in
      death of the deceased or          force, as property capable of
      any of his heirs to claim on      being disposed of by her by
 E    intestacy a share in the          testamentary disposition.
      interest referred to therein.
      7. Devolution of interest in       (3) Where a Hindu dies after
      the property of a tarwad,          the commencement of the
                                         Hindu             Succession
                                         (Amendment) Act, 2005, his
 F                                       interest in the property of a
                                         Joint Hindu family governed
                                         by the Mitakshara law, shall
                                         devolve by testamentary or
                                         intestate succession, as the
                                         case may be, under this Act
G                                        and not by survivorship, and
                                         the coparcenary property
                                         shall be deemed to have
                                         been divided as if a partition
                                       . had taken place and,-
 H
PRAKASH & ORS. v. PHULAVATI & ORS.                  593
    [ADARSH KUMAR GOEL, J.]

                                                    A
                 (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-             B
                 deceased daughter, as they
                 would have got had they
                 been alive at the time of
                 partition, shall be allotted to
                 the surviving child of such
                 predeceased son or of such         c
                 pre-deceased daughter; and

                 (c) the share of the pre-
                 deceased child of a pre-
                 deceased son or of a pre-
                                                    D
                 deceased daughter, as such
                 child would have got had he
                 or she been alive at the time ·
                 of the partition, shall be
                 allotted to the child of such
                 pre-deceased child of the pre-     E
                 deceased son or a pre-
                 deceased daughter, as the
                 case may be.

                 Explanation.-        For    the
                 purposes of this sub-section,      F
                 the interest of a Hindu ·
                 Mitakshara coparcener shall
                 be deemed to be the share in
                 the property that would have
                 been allotted to him if a
                 partition of the property had      G
                 taken     place     immediately
                 before his death, irrespective
                 of whether he was entitled to
                 claim partition or not.
                                                    H
594   SUPREME COURT REPORTS         [2015] 12 S.C.R.


A
                    (4) After the commencement of
                    the       Hindu     Succession
                    (Amendment) Act, 2005, no
                    court shall recognise any right
                    to proceed against a son,
B                   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
c                   under the Hindu law, of such
                    son, grandson or great-
                    grandson to discharge any
                    such debt:

                    Provided that in the case of
D
                    any debt contracted before the
                    commencement of the Hindu
                    Succession (Amendment) Act,
                    2005, nothing contained in this
                    sub-section shall affect-
E
                    (a) the right of any creditor to
                    proceed against the son,
                    grandson or great-grandson,
                    as the case may be; or

 F                  (b) any alienation made in
                    respect of or in satisfaction of,
                    any such debt, and any such
                    right or alienation shall be
                    enforceable under the rule of
                    pious obligation in the same
G                   manner and to the same
                    extent as it would have been
                    enforceable as if the Hindu
                    Succession (Amendment) Act,
                    2005 had not been enacted.
 H
          PRAKASH & ORS. v. PHULAVATI & ORS.                        595
              [ADARSH KUMAR GOEL, J.]

                                                                    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          B
                               may be, who was born or
                               adopted      prior   to   the
                               commencement of the Hindu
                               Succession (Amendment) Act,
                               2005.                                c
                                (5) Nothing contained in this
                                section shall · apply to a
                                partition, which has been
                                effected before the 20th day of
                                December, 2004.                     D
                                Explanation- For the purposes
                                of this section "partition" means
                                any      partition    made     by
                                execution of a deed of partition
                                duly registered under the           E
                                Registration Act, 1908 ( 16 of
                                1908) or partition effected by a
                                decree of a court.'


       17. The text of the amendment itself clearly provides that F
the right conferred on a 'daughter of a coparcener' is 'on and
from the commencement of 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, G
there is no scope for a different interpretation than the one
suggested by the text of the amendment. An amendment of a
substantive provision is always prospective unless either
expressly or by necessary intendment it is retrospective 3 . In
' Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27        H
596         SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A the present case, there is neither any express provision for
  giving retrospective effect to the amended provision nor
  necessary intendment to that effect. Requirement of partition ·
  being registered can have no application to statutory notional
  partition on opening of succession as per unamended
B 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.

C            18. Contention of the respondents that theAmendment
      should be read as retrospective being a piece of social
      legislation cannofbe 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
 D    has expressly made the Amendment applicable on and from
      its commencement and only if death of the coparcener in
      question is after the Amendment. Thus, no other interpretation
      is possible in view of express language of the statute. The
      proviso keeping dispositions or alienations or partitions prior
 E    to 20th December, 2004 unaffected can also not lead to the
      inference that the daughter could be a coparcener prior to the
      commencement of the Act. The proviso only means that the
      transactions not covered thereby will not affect the extent of
 F    coparcenary property which may be available when the main
      provision is applicable. Similarly, Explanation has to be read
      harmoniously with the substantive provision of Section 6(5) by
      being limited to a transaction of partition effected after 20th
      December, 2004. Notional partition, by its very nature, is not
 G    covered either under proviso or under sub-section 5 or under
      the Explanation.

           19. Interpretation of a provision depends on the text and
      the context4 . Normal rule is to read the words of a statute in
 H ' RBI vs. Peerless (1987) 1 SCC 424, para 33
       -- PRAKASH & ORS. v. PHULAVATI & ORS.                             597
              [ADARSH KUMAR GOEL, J.]

ordinary sense. In case of ambiguity, rational meaning has to A
be given 5 . In case of apparent conflict, harmonious meaning
to advance the object and intention of legislature has to be
given6 .

      20. There have been number of occasions when a proviso             B
or an explanation came up for interpretation. Depending on
the text, context and the purpose, different rules of interpretation
have been applied 7.

      21. Normal rule is that a proviso excepts something out c
of the enactment which would otherwise be within the purview
of the 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. D
Rules of interpretation of statutes are useful servants but difficult
masters 8 . Object of interpretation is to discover the intention
of legislature.

       22. In this background, we find that the proviso to Section E
6(1) and sub-section (5) of Section 6 clearly intend to exclude
the transactions referred to therein which may have taken place
prior to 20th December, 2004 on which date the Bill was
introduced. Explanation cannot permit reopening of partitions
which were valid when effected. Object of giving finality to F
transactions prior to 2Qth December, 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 and when
right conferred by the statute becomes available and is to be G
enforced. Main provision of the Amendment in Section 6( 1)
and (3) is not in any manner intended to be affected but
5
  Kehar Singh vs. State (1988) 3 SCC 609
6
  District Mining Officer vs. Tata Iron and Steel Co. (2001) 7 SCC 358
7
  S. Sundaram Pillai vs. R. Pattabiraman (1985) 1 SCC 591
' Keshavji Ravji & Co. vs. CIT (1990) 2 SCC 231                          H
598        SUPREME COURT REPORTS                      [2015] 12 S.C.R.


A strengthened in this way. Settled principles governing such
  transactions relied upon by the appellants are not intended to
  IJe done away with for period prior to 20th December, 2004. In
  no case statutory notional partition even after 2Qth December,
  2004 could be covered by the Explanation or the proviso in
B question.

          23. Accordingly, we hold that the rights under the
   amendment are applicable to living daughters of living
   coparceners as on 9th September, 2005 irrespective of when
 C such daughters are born. Disposition or alienation including
   partitions which may have taken place before 20lh December,
   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.
 D
          24. On above interpretation, Civil Appeal No.7217 of
   2013 is allowed. The order of the High Court is set aside.
   The matter is remanded to the High Court for a fresh decision
   in accordance with law. All other matters may be listed for
 E hearing separately for consideration on 24th November, 2015.

         25. The view which we have taken above is consistent
   with and not in conflict with any of the earlier decisions. We
   may now refer to the decisions cited by the parties. Main
 F dec:isbns c:i1Bd by the respondents are: Prema VS. Nanje
   Gowda9 , Ganduri Koteshwaramma vs. Chakiri Yanadi 10 ,
   V. K. Surendra vs. V.K. Thimmaiah 11, Ram Sarup vs.
   Munshi12, Dayawati vs. lnderjit13, Amarjit Kaur vs. Pritam
   Singh 14, Lakshmi Narayan Guin vs. Niranjan Modak15, S.
 G Sai Reddy vs. S. Narayana Reddy16 and State of
   Maharashtra vs. Narayan Rao 17• Many of these decisions
      '(2011)6 sec 462               "(1974) 2 sec 363
      10 (2011) 9 sec 788            " (1985) 1 sec 270
      11 (2013)10 sec 211, para 18   " (1991) 3 sec 647
      12 (1963) 3 SCR 858            17 (1985) 2 sec 321, paras 8 to 10
 H    " ( 1966) 3 SCR 275
         PRAKASH & ORS. v. PHULAVATI & ORS.                         599
             [ADARSH KUMAR GOEL, J.]

deal with situations where change in law is held to be applicable A
to pending proceedings having regard to intention of
legislature in a particular law. There is no dispute with the
propositions laid down in the said decisions. Question is of
application of the said principle in the light of a particular
amending law. The decisions relied upon do not apply to the B
present case to support the stand of the respondents.

      25.1.· In Ram Sarup case (supra), the question for
consid~{,ation was of amendment to the Punjab Pre-emption
Act, 1~Q.by Punjab Act 10of1960 restricting the pre-emption C
right. ·$ection 31 inserted by way of amendment prohibited
passing bf a decree which was inconsistent with the amended
provisions, It was held that the amendment was retrospective
and had retrospective operation in view of language employed
in the said provision.                                       D

      25.2. In Dayawati case (supra), Section 6 of the Punjab
Relief of Indebtedness Act, 1956 expressly gave retrospective
effect and made the statute applicable to all p~f1ding suits on
the commencement of the Act. The Act soug~ to reduce the E
rate of interest in certain transactions to give relief against
indebtedness to certain specified persons.

      25.3. In Lakshmi Narayan Guin case (supra), the
question was of applicability of Section 13 of the West Bengal F
Premises Tenancy Act, 1956 which expressly provided that
no order could be passed by the Court contrary to the scheme
of the new law.

     25.4. In Amarjit Kaur case (supra), Section 3 of the G
Punjab Pre-emption (Repeal) Act, 1973 was considered which
expressly prohibited the Court from passing any pre-emption
decree after the commencement of the Act.

     25.5. There is also no conflict with the principle laid down
                                                                    H
. 600         SUPREME COURT REPORTS                 [2015] 12 S.C.R.


  A in V.K. Surendra case (supra) which deals with a
    presumption about the nature of a joint family property and
    burden of proof being on the person claiming such property to
    be separate. The said decision only lays down a rule of
    evidence.
  B
          25.6. In S. Sai Reddy case (supra), the question for
    consideration was whether even after a preliminary decree is
    passed determining the shares in partition, such shares could
    be varied on account of intervening events at the time of
  C passing of the final decree. In the said case, partition suit was
    filed by a son against his father in which a preliminary decree
    was passed determining share of the parties. Before final
    decree could be passed, there was an amendment in the Hindu
    Succession Act (vide A. P. Amendment Act, 1986) allowing
  D share to the unmarried daughters. Accordingly, the unmarried
    daughters applied to the court for their shares which plea was
     upheld. The said judgment does not deal with the issue
     involved in the present matter. It was not a case where the
    coparcener whose daughter claimed right was not alive on
  E the date of the commencement of the Act nor a case where
     shares of the parties stood already crystal1sed by operation of
     law to which the amending law had no application. Same is
    the position in Prema and Ganduri cases (supra).

   F       25.7. In Narayan Rao case (supra), it was observed
     that even after notional partition, the joint family continues. The
     proposition laid down in this judgment is also not helpful in
     deciding the question involved herein. The text of the
     Amendment itself shows that the right conferred by the
   G Amendment is on a 'daughter of a coparcener' who is member
     of a coparcenary and alive on commencement of the Act.

              25.8.   We also do not find any relevance of decisions
        in State of Rajasthan vs. Mangila/ Pindwa/ 18 and West U.P.
   H    " (1996) s sec 60
           PRAKASH & ORS. v. PHULAVATI & ORS.                     601
               [ADARSH KUMAR GOEL, J.]

Sugar Mills Asson. vs. State of U.P. 19 or other similar A
decisions for deciding the issue involved herein. The said
decisions deal with the effect of repeal of a provision and not
the issue of restrospectivity with which the Court is concerned
in the present case.
                                                              B
      26. We now come to the decisions relied upon by the
appellants. In M. Prithviraj cast,) (supra), the view taken
appears to be consistent with what has been said above. It
appears that this was a binding precedent before the Bench
of the High Court which passed the impugned order but does C
not appear to have been referred to in the impugned judgment.
Judgments of this Court in Sheela Devi vs. Lal ChancP0 and
G Sekarvs. Geetha21 and the judgment of Madras High Court
in Bagirathi vs. S. Manivanan 22 have been relied upon
therein. In Sheela Devi case (supra), this Court observed:    D

      21. The Act indisputably would prevail over the old
      Hindu Law. We may notice that the Parliament, with a
      view to. confer right upon the female heirs, even in
      relation to the joint family property, enacted Hindu E
      Succession Act, 2005. Such a provision was enacted
      as far back in 1987 by the State of Andhra Pradesh.
      The succession having opened in 1989, evidently, the
      provisions of Amendment Act, 2005 would have no
      application. Sub-section (1) of Section 6 of the Act F
      governs the law relating to succession on the death of
      a coparcener in the event the· heirs are only male
      descendants. But, the proviso appended to Sub-section
      (1) of Section 6 of the Act creates an exception. First
      son of Babu Lal, viz., Lal Chand, was, thus, a G
      coparcener. Section 6 is exception to the general rules.
1
 • (2002) 2 sec 645
20
   (2006) s sec 581
21
   (2009) 6 sec 99, para 30
22
   AIR 2005 Mad 250 (DB}
602          SUPREMECOURTR~PORTS                  [2015] 12 S.C.R.


A           It was, therefore, obligatory on the part of the
            respondents-plaintiffs to show that apart from Lal
            Chand, Sohan Lal will also derive the benefit thereof.
            So far as the Second son, Sohan Lal is concerned, no
            evidence has been brought on records to show that he
 B          was born prior to coming into force of Hindu Succession
            Act, 1956."

            Full Bench judgment of Bombay High Court in
   Badrinarayan Shankar Bhandari Vs. Ompraskash
 C Shankar Bhandari23 also appears to be consistent with the
      view taken hereinabove.

            26.1. In Gurupad Khandappa Magdum vs. Hirabai
   Khandappa Magdum24 , Shya ma Devi vs. Manju Shukla25 ,
 D and Anar Devi vs. Parmeshwari Devi26 cases this Court
   interpre.ted the Explanation 1 to Section 6 (prior to 2005
   Amendment) of the Hindu Succession Act. It was held that the
   deeming provision referring to partition of the property
   immediately before the death of the coparcenerwas to be given
 E due and full effect in view of settled principle of interpretation
   of a provision incorporating a deeming fiction. In Shyama
   Devi and Anar Devi cases, same view was followed.

         26.2. In Vaishali Satish Ganorkar vs. Satish
 F Keshaorao Ganorkar7, the Bombay High Court held that the
   amendment will not apply unless the daughter .is born after the
   2005Amendment, but on this aspect a different view has been
   taken in the later larger Bench judgment. We are unable to
   find any reason to hold that birth of the daughter after the
 G amendment was a necessary condition for its applicability. All
   that is required is that daughter should be alive and her father
      23 AIR 2014,   BOM 151. paras 40-57
      24 (1978) 3   sec 383, paras 6, 11 and 13
      25
         (1994) 6 sec 342, para 7
      26 (2006) 8 sec 656, paras 10,11
 H    27
         AIR 2012, SOM 101, paras 13 to 37
           PRAKASH & ORS. v. PHULAVATI & ORS.                           603
               [ADARSH KUMAR GOEL, J.]

should also be alive on the date of the amendment.                      A

       26.3. Kale vs. Dy. Director of Conso/idation 28 and
Digambar AdharP.atil vs. Devram Girdhar Patil29 have been
cited to submit that the family settlement was not required to
be registered. Santosh Hazari vs. Purushottam Tiwari3° B
lays down that the Appellate Court must deal with reasons of
the trial court while reversing its findings.

      26.4 Kannaiyan vs. The Assistant Collector of
Central Excise 31, C.I. T. Gujarat vs. Keshavlal Lallubhai C
Pate/3 2, Umayal Achi vs. Lakshmi Achi33 and Shivappa
Laxman vs. Yellawa Shivappa Shivagannavaf34 have been
cited to canvass that partition was recognition of pre-existing
rights and did not create new rights.
                                                                        D
      26.5 This would normally have ended our order with the
operative part being in para 24 which disposes of Civil Appeal
No.7217 of 2013 and directs listing of other matters for being
dealt with separately. However, one more aspect relating to
gender discrimination against muslim women which came up                E
for consideration needs to be gone into as Part II of this order.

      Part II

        27. An important issue of gender discrimination which
 though not directly involved in this appeal, has been raised by        F
 some of the learned counsel for the parties which concerns
 rights to muslim women. Discussions on gender discrimination
·Jed to this issue also. It was pointed out that inspite of guarantee
 of the Constitution, muslim women are subjected to
                                                                        G
"(1976) 3 sec 119, para 9
29
   (1995) Supp. 2 SCC 428 at page 430
30
   (2001) 3 sec 179, para 15.
31
   1969 (2) MLJ 277,
32
   (1965) 2 SCR 100
33
   AIR 1945 FC 25 at 31 (d)
"AIR 1954 BOM 47, para 4                                                H
604          SUPREME COURT REPORTS                            [2015] 12 S.C.R.


A discrimination. There is no safeguard against arbitrary divorce
  and second marriage by her husband during currency of the
  first marriage, resulting in denial of dignity and security to her.
  Although the issue was raised before this Court in Ahmedabad
  Women Action Group(AWAG) vs. Union of lndia 35, this
B Court did not go into the merits of the discrimination with the
  observation that the issue involved state policy to be dealt
  with by the legislature36 . It was observed that challenge to the
  Muslim Women (Protection of Rights on Divorce) Act, 1986
  was pending before the Constitution Bench and there was no
C rea~on to multiply proceedings on such an issue.

         28. It is pointed out that the matter needs consideration
   by this Court as the issue relates not merely to a policy matter
   but to fundamental rights of women under Articles 14, 15 and
 D 21  and international conventions and covenants. One of the
   reasons for the court having not gone into the matter was
   pendency of an issue before the Constitution Bench which has
   since been decided by this Court in Danial Latifi vs. Union
   of /ndia 37 • The Constitution Bench did not address the -said
 E issue but the Court held that Article 21 included right to live
   with dignity38 which supports the plea that a muslim woman
      "(1997) 3 sec 573
      36
         This Court referred to the observations of Sahai. J. in Sarla Mudgal vs.
      Union of India (1995) 3 sec 635 that a climate wa~ required to be built for a
 F    uniform civil code. Reference was also made to observations in Madhu
      l<ishwar vs. State of Bihar (1996 (5) sec 125 to the effect that the court could
      at best advise and focus attention to the problem instead of playing an activist
      role.
      " (2001 l 7 sec 740
      ""Para 33 ....... This Court in Olga Tellis v. Bombay Municipal Corpn. [1985(3}
      SCC 545] and Maneka Gandhi v. Union of India [1978 (1) SCC 248] held that
 G    the concept of"right to life and personal liberty" guaranteed under Article 21 of
      the Constitution would include the "right to live with dignity". Before the Act, a
       Muslim woman who was divorced by her husband was granted a right to
       maintenance from her husband under the provisions of Section 125 CrPC
       until she may remarry and such a right, if deprived, would not be reasonable,
       just and fair. Thus the provisions of the Act depriving the divorced Muslim
 H     women of such a right to maintenance from her husband and providing for
       her maintenance to be paid by the former husband only for the period of iddat
           PRAKASH & ORS. v. PHULAVATI & ORS.                                   605
               [ADARSH KUMAR GOEL, J.]

could invoke fundamental rights in such matters. In Javed vs. A
State of Haryana 39, a Bench of three judges observed that
practice of polygamy is injurious to public morals and can be
superseded by the State just as practice of 'sati' 40 . It was
further observed that conduct rules providing for monogamy
irrespective of religion are valid and could not be struck down B
on the ground of violation of personal law of muslims41 . In John
Vallamattom vs. U0/42, it was observed that Section 118 ·of
Indian Succession Act, 1925 restricting right of christians to
make Will for charitable purpose was without any rational basis,
was discriminatory against christians and violated Article 1443 . c
Laws dealing with marriage and succession are not part of
religion 44 . Law has to change with time 45 . International
covenants and treaties could be referred to examine validity
and reasonableness of a provision 46 .
                                                                  D
and thereafter to make her run from pillar to post in search of her relatives
one after the other and ultimately to knock at the doors of the Wakf Board
does not appear to be reasonable and fair' substitute of the provisions of
Section 125 CrPC. Such deprivation of the divorced Muslim women of their
right to maintenance from their former husbands under the beneficial
provisions of the Code of Criminal Procedure which are otherwise available
to all other women in India cannot be stated to have been effected by a E
reasonable, right, just and fair law and. if these provisions are less beneficial
than the provisions of Chapter IX of the Code of Criminal Procedure. a divorced
Muslim woman has obviously been unreasonably discriminated and got out
of the protection of the provisions of the general law as indicated under the
~ode which are available to Hindu, Buddhist, Jain, Parsi or Christian women
or women belonging to any other community. The provisions prima facie,
therefore, appear to be violative of Article 14 of the Constitution mandating F
equality and equal protection of law to all persons otherwise similarly
circumstanced and also violative of Article 15 of the Constitution which
prohibits any discrimination on the ground of religion as the Act would
obviously apply to Muslim divorced women only and solely on the ground
of their belonging to the Muslim religion."
"(2003) a sec 369
" Para 46                                                                         G
" Paras 54 to 59
"(2003) 6 sec 611
43
   Paras 28 and 29
44
   Para 44
" Paras 33 to 36
46
   Paras 30 to 32                                                                 H
606          SUPREME COURT REPORTS                             [2015] 12 S.C.R.


A           29. In Charu Khurana vs. U0/47, this Court considered
      the issue of gender discrimination in the matter of denial of
      membership of "Cine Costume Make-up Artists and Hair
      Dressers Association" in film industry. It was held that such
      discrimination violates basic constitutional rights.
 B
         30. It was thus submitted that this aspect of the matter
   may be gone into by separately registering the matter as Public
   Interest Litigation (PIL). We are of the view that the suggestion
   needs consideration in view of earlier decisions of this Court.
 C The issue has also been highlighted in recentArticles appearing
   in the press on this subject48 •

           31. For this purpose, a PIL be separately registered and
      put up before the appropriate Bench as per orders of Hon'ble
 o    the Chief Justice of India.

           32. Notice be issued to learned Attorney General and
      National Legal Services Authority, New Delhi returnable on 23rct
   November, 2015. We give liberty to learned counsel already
 E appearing in this matter to assist the Court on this aspect of
   the matter, if they wish to volunteer, for either view point.

      Devika Gujral                                               Appeal disposed of.




      " (2015) 1 sec rn2
      '"""The Tribune"" dated 24.09.2015 '"Muslim Women's quest for equality"' by
      Vandana Shukla and ··Sunday Express Magazine·· dated 04.10.2015 '"In Her
      l"ourr· by llipti Nagpaul D"Souza.