VINEETA SHARMA v. RAKESH SHARMA & ORS.

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may well take by survivorship that in which they had during A the deceased’s lifetime a common interest and a common possession’.”

13. In N.R. Raghavachariar’s Hindu Law — Principles and Precedents, 8th Edn. (1987) at p. 230 under the heading “Rights of Coparceners” it is said thus: B “The following are the rights of a coparcener.—(1) Right by birth, (2) Right of survivorship, (3) Right to partition, (4) Right to joint possession and enjoyment, (5) Right to restrain unauthorised acts, (6) Right of alienation, (7) Right to accounts, and (8) Right to make self-acquisition.” C While dealing with “Right by Birth” learned author says thus: “Every coparcener gets an interest by birth in the coparcenary property. This right by birth relates back to the date of conception. This, however, must not be held to negative the position that coparcenary property may itself come into existence after the birth of the coparcener concerned.” While dealing with right of survivorship, it is said thus: “The system of a joint family with its incident of succession by survivorship is a peculiarity of the Hindu law. In such a family no member has any definite share and his death or somehow ceasing to be a member of the family causes no change in the joint status of the family. Where a coparcener dies without male issue his interest in the joint family property passes to the other coparceners by survivorship and not by succession to his own heir. Even where a coparcener becomes afflicted with lunacy subsequent to his birth, he does not lose his status as a coparcener which he has acquired by his birth, and although his lunacy may under the Hindu law disqualify him from demanding a share in a partition in his family, yet where all the other coparceners die and he becomes the sole surviving member of the coparcenary, he takes the whole joint family property by survivorship, and becomes a fresh stock of descent to the exclusion of the daughter of the last predeceased coparcener, a case of leprosy of the last surviving coparcener. The beneficial interest of each coparcener is liable to fluctuation, increasing by the death of another coparcener and decreasing by the birth of a new coparcener.” H

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A Therefore, it is now settled that a member of a coparcenary acquires a right in the property by birth. His share may fluctuate from time to time but his right by way of survivorship in coparcenary property in Mitakshara law is a settled proposition. (emphasis supplied)”

38Copy pinpoint38. In Rohit Chauhan v. Surinder Singh & Ors., (2013) 9 SCC 419, the concept of coparcenary of sharing equally with others and no definite share, was discussed thus: “11. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr Rao. In our opinion C coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession D (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition E an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a F son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.” (emphasis supplied)”

39Copy pinpoint39. A similar view was taken in Thamma Venkata Subramma (dead) by LR v. Thamnma Ratamma & Ors., (1987) 3 SCC 294, that G the share is not defined in coparcenary. It keeps on fluctuating on death and birth in the family.

40Copy pinpoint40. It is only on actual partition a coparcener becomes entitled to a definite share. The interest of a coparcener is called “undivided coparcenary interest,” which remains undivided as held by the Privy H Council in Katama Natchiar v. Srimat Rajah Moottoo Vijaya

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Raganadha Bodha Gooroo Swamy Periya Odaya Taver, (1863) 9 A MIA 543. In Shankara Cooperative Housing Society Ltd. v. M. Prabhakar &Ors., (2011) 5 SCC 607, it was observed that coparcenary be collective ownership. If a suit for recovery of property is filed, it is for the benefit of all co-owners. The position of ownership of co- B ownership property indicates a change when actual division takes place, and co-owner’s share becomes identifiable. In Shankara Cooperative, it was observed: “85. Shri Ranjit Kumar, learned Senior Counsel, contends that the writ petition was filed by one of the co-owners of late Mandal C Buchaiah and judgment and order passed would not bind the other parties. We cannot agree. It is a settled law that no co-owner has a definite right, title and interest in any particular item or portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu law by all the coparceners. Our conclusion is fortified by the view expressed by this Court in A. Viswanatha Pillai v. Tahsildar (LA), (1991) 4 SCC 17 in which this Court observed: (SCC p. 21, para 2) “2. … It is settled law that one of the co-owners can file a suit and recover the property against strangers and the decree would enure to all the co-owners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu law by all the coparceners. In KantaGoel v. B.P. F Pathak, (1977) 2 SCC 814, this Court upheld an application by one of the co-owners for eviction of a tenant for personal occupation of the co-owners as being maintainable. The same view was reiterated in Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184, and Pal Singh v. Sunder Singh, (1989) 1 SCC 444. A co-owner is as much an owner of the entire property as a sole owner of the G property. It is not correct to say that a co-owner’s property was not its own. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. That position will undergo a change only when partition takes place and division was effected H

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A by metes and bounds. Therefore, a co-owner of the property is an owner of the property acquired but entitled to receive compensation pro rata.”” (emphasis supplied)

41Copy pinpoint41. In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, (1986) B 1 SCC 366, a 3-Judge Bench of this Court held that character of a joint family property does not change with the severance in the status of the joint family before an actual partition takes place. It was observed thus: “14. …The character of any joint family property does not change with the severance of the status of the joint family and a joint C family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.”

42Copy pinpoint42. In Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari Kuer & Anr., AIR 1952 SC 72, it was held that once a coparcener separates himself from other members of the joint family, there is no presumption that rest of the coparceners continued to be joint, it would be a question of fact in each case. Following discussion was made: E “7. x xx The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but ……where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiff’s side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief….” In Ref. Unobstructed and obstructed heritage

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43Copy pinpoint43. In Mitakshara coparcenary, there is unobstructed heritage, A i.e., apratibandhadaya and obstructed heritage i.e., sapratibandhadaya. When right is created by birth is called unobstructed heritage. At the same time, the birthright is acquired in the property of the father, grandfather, or great grandfather. In case a coparcener dies without leaving a male issue, right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. It is obstructed because the accrual of right to it is obstructed by the owner’s existence. It is only on his death that obstructed heritage takes place. Mulla on Hindu Law has discussed the concept thus: “216. Obstructed and unobstructed heritage. – Mitakshara divides property into two classes, namely, apratibandha daya or unobstructed heritage, and sapratibandha daya or obstructed heritage. (1) Property in which a person acquires an interest by birth is called unobstructed heritage, because the accrual of the right to it is not obstructed by the existence of the owner. D

Thus, property inherited by a Hindu from his father, father’s father, or father’s father’s father, but not from his maternal grandfather,1 is unobstructed heritage as regards his own male issue, i.e., his son, grandson, and great-grandson.2 His male issues acquire an interest in it from the moment of their birth. Their right to it arises from the mere fact of their birth in the family, and they become coparceners with their paternal ancestor in such property immediately on their birth, and in such cases ancestral property is unobstructed heritage. Property, the right to which accrues not by birth but on the death of the last owner without leaving a male issue, is called obstructed heritage. It is called obstructed, because the accrual of right to it is obstructed by the existence of the owner. Thus, property which devolves on parents, brothers, nephews, uncles, etc. upon the death of the last owner, is obstructed G 1 Muhamad Hussain v. Babu Kishava Nandan Sahai, (1937) 64 IA 250 : (1937) All 655: 39 Bom LR 979: 169 IC 1: AIR 1937 PC 223; Om Prakash v. Sarvjit Singh, AIR 1995 MP 92 (property inherited from person other than father, father’s father, or father’s father’s father is obstructed heritage). 2 Sirtaji v. Algu Upadhiya, (1937) 12 Luck 237: 163 IC 935: AIR 1936 Ori 331. H

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A heritage. These relations do not take a vested interest in the property by birth. Their right to it arises for the first time on the death of the owner. Until then, they have a mere spes successionis, or a bare chance of succession to the property, contingent upon their surviving the owner.3 B (2) Unobstructed heritage devolves by survivorship; obstructed heritage, by succession. There are, however, some cases in which obstructed heritage is also passed by survivorship.”

44Copy pinpoint44. It is apparent that unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner. It C is significant to note that under section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner’s death. Thus, coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6. In Ref. Section 6 of the Act of 1956

45Copy pinpoint45. Section 6 of the Act of 1956 before the substitution by Amendment Act, 2005 is reproduced hereunder : “6. Devolution of interest in coparcenary property.—When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara E coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relativespecified in Class I of the Schedule or a male relative F specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. G Explanation I.—For the purposes of this section, the interest of a HinduMitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before

H 3 Mitakshara, Ch.I, S 1, v 3.

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his death, irrespective of whether he was entitled to claim A partition or not.”

46Copy pinpoint46. The substituted provision of section 6 by the Amendment Act, 2005 is extracted hereunder: “6. Devolution of interest in coparcenary property.- B (1) On and from the commencement of the Hindu Succession (Amendment) Act, 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 in the same manner as the son; C (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a D 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 . E (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 testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 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 case may be, under this Act and not by survivorship, and the coparcenary 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; H

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A (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, 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 B of a pre- deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the pre- deceased son or a pre- deceased daughter, as the case may be. Explanation.- For the purposes of this sub- section, the interest of C a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession D (Amendment) Act, 2005 , no court shall recognise any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such debt: Provided that in the case of any debt contracted E before the commencement of the Hindu Succession (Amendment) Act, 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

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 manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.- For the purposes of clause (a), the expression” son”,” G 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.

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(5) Nothing contained in this section shall apply to a partition, A 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.’.” B

47Copy pinpoint47. Statement of Objects and Reasons behind the introduction of Bill is reproduced as under: “STATEMENT OF OBJECTS AND REASONS The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. The Act applies to every person who is a Hindu E by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

2. Section 6 of the Act deals with devolution of interest of a male hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakashara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her H

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A fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) B Act, 1975.

3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to C ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

4. The above proposals are based on the recommendations of the D Law Commission of India as contained in its 174th Report on “Property Rights of Women: Proposed Reform under the Hindu Law”.

5. The Bill seeks to achieve the above objects.

E NEW DELHI; The 16th December, 2004.”

48Copy pinpoint48. Section 6 deals with devolution of interest in coparcenary property of a joint Hindu family governed by the Mitakshara law. The originally enacted provision of section 6 excluded the rule of succession concerning Mitakshara coparcenary property. It provided the interest of a coparcener male Hindu who died after the commencement of Act of 1956, shall be governed by survivorship upon the surviving members of the coparcenary. The exception was provided that if the deceased had left 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 such coparcener shall devolve by testamentary or intestate succession, as the case may be, in order to ascertain the share of deceased coparcener, the partition has to be deemed before his death. Explanation 2 disentitled the separated person to make any claim in case of intestate succession. H

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49Copy pinpoint49. Though the widow or daughter could claim a share, being a A Class I heir in the property left by the deceased coparcener, and a widow was entitled, having a right to claim a share in the event of partition daughter was not treated as a coparcener. The goal of gender justice as constitutionally envisaged is achieved though belatedly, and the discrimination made is taken care of by substituting the provisions of B section 6 by Amendment Act, 2005.

50Copy pinpoint50. Concerning gender discrimination to a daughter who always remains a loving daughter, we quoteSavita Samvedi (Ms) & Anr. v. Union of India & Ors., 1996 (2) SCC 380, thus: “6. A common saying is worth pressing into service…. C “A son is a son until he gets a wife. A daughter is a daughter throughout her life.”

7. …The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), …..to claim the benefit….. D …(Otherwise, it would be) unfair, gender-biased and unreasonable, liable to be struck down under Article 14 of the Constitution. … It suffers from twin vices of gender discrimination inter se among women on account of marriage.” E

51Copy pinpoint51. The daughter is treated as a coparcener in the same manner as a son by birth with the same rights in coparcenary property and liabilities. However, the proviso of sub-section (1) contains a non-obstante clause providing that nothing contained in the sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before F 20.12.2004.

52Copy pinpoint52. It is apparent from the provisions of section 6 that the discrimination with the daughter has been done away with, and they have been provided equal treatment in the matter of inheritance with Mitakshara coparcenary. In several States viz., Andhra Pradesh, Tamil G Nadu, Karnataka, and Maharashtra, the State Amendments in the Act of 1956 were made to extend equal rights to daughters in Hindu Mitakshara coparcenary property. An amendment was made on 30.7.1994 by the insertion of Section 6A by Karnataka Act 23 of 1994 in the Act of 1956. In-State of Andhra Pradesh, the amendment was made, H

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A w.e.f. 5.9.1985, Tamil Nadu w.e.f 25.3.1989 and Maharashtra w.e.f. 26.9.1994 by the addition of Section 29A in the Act of 1956. In Kerala, the Act was enacted in 1975.

53Copy pinpoint53. Before the amendment, section 6 provided that on the death of a male Hindu, a coparcener’s interest in Mitakshara coparcenary B shall devolve by survivorship upon the surviving members of the coparcenary under the uncodified Hindu law and not in accordance with the mode of succession provided under the Act of 1956. It was provided by the proviso to section 6, in case a male Hindu of Mitakshara coparcenary has left surviving a female relative of Class I heir or a male relative who claims through such female relative of Class I. The Schedule C containing categories of Class I heirs is extracted hereunder: “THE SCHEDULE (See section 8) HEIRS IN CLASS I AND CLASS II D Class I Son, daughter, widow; mother; son of a pre-deceased son; daughter of a pre-deceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter; widow of a pre-deceased son, son of a pre-deceased son of a pre-deceased son; daughter of a pre- E deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; [son of a pre-deceased daughter of a pre-deceased daughter, daughter of a pre-deceased daughter of a pre-deceased daughter, daughter of a pre-deceased son of a pre-deceased daughter, daughter of a pre-deceased daughter of F a pre-deceased so.”

54Copy pinpoint54. In view of the provisions contained in section 6 when a coparcener is survived by a female heir of Class I or male relative of such female, it was necessary to ascertain the share of the deceased, as such, a legal fiction was created. The Explanation I provided legal fiction of partition as if it had taken place immediately before his death, notwithstanding whether he had the right to claim it or not. However, a separated Hindu could not claim an interest in the coparcenary based on intestacy in the interest left by the deceased.

55Copy pinpoint55. The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred

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the right. Section 6(1)(a) makes daughter by birth a coparcener “in her own right” and “in the same manner as the son.” Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property “as she would have had if she had been a son”. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. C At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. D

56Copy pinpoint56. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act.

57Copy pinpoint57. The concept of retrospective and retroactive statute was stated by this Court in Darshan Singh etc. v. Ram Pal Singh &Anr., (1992 Supp. (1) SCC 191, thus: “35. Mr Sachar relies on Thakur Gokulchand v. Parvin Kumari, AIR 1952 SC 231, Garikapatti Veeraya v. N. Subbiah Choudhury, AIR 1957 SC 540, Jose Da Costa v. Bascora G Sadasiva Sinai Narcornim, (1976) 2 SCC 917, Govind Das v. ITO, (1976) 1 SCC 906, Henshall v. Porter, (1923) 2 KBD 193, United Provinces v. Mst. Atiga Begum, AIR 1941 FC 16, in support of his submission that the Amendment Act was not made retrospective by the legislature either expressly or by necessary H

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A implication as the Act itself expressly provided that it shall be deemed to have come into force on January 23, 1973; and therefore there would be no justification to giving it retrospective operation. The vested right to contest which was created on the alienation having taken place and which had been litigated in the court, argues Mr Sachar, could not be taken away. In other words, the vested right to contest in appeal was not affected by the Amendment Act. However, to appreciate this argument we have to analyse and distinguish between the two rights involved, namely, the right to contest and the right to appeal against lower court’s decision. Of these two rights, while the right to contest is a customary right, the right to appeal is always a creature of statute. The change of the forum for appeal by enactment may not affect the right of appeal itself. In the instant case we are concerned with the right to contest and not with the right to appeal as such. There is also no dispute as to the propositions of law regarding vested rights being not taken away by an enactment which is ex facie or by implication not retrospective. But merely because an Act envisages a past act or event in the sweep of its operation, it may not necessarily be said to be retrospective. Retrospective, according to Black’s Law Dictionary, means looking backward; contemplating what is past; having reference to a statute or things existing before the Act in question. Retrospective law, according to the same dictionary, means a law which looks backward or contemplates the past; one which is made to affect acts or facts occurring, or rights occurring, before it came into force. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. Retroactive statute means a statute which creates a new obligation on transactions or considerations already past or destroys or impairs vested rights.

36. In Halsbury’s Laws of England (4th edn., Vol. 44, at paragraph G 921) we find: “921. Meaning of ‘retrospective’.— It has been said that ‘retrospective’ is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as H

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retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; or is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing.”

37. We are inclined to take the view that in the instant case legislature looked back to January 23, 1973 and not beyond to put an end to the custom and merely because on that cut off date some contests were brought to abrupt end would not make the Amendment Act retrospective. In other words, it would not be retrospective merely because a part of the requisites for its action was drawn from a time antecedent to the Amendment Act coming into force. We are also of the view that while providing that “no person shall contest any alienation of immovable property whether ancestral or non-ancestral or any appointment of an heir to such property”, without preserving any right to contest such alienations or appointments as were made after the coming into force of the Principal Act and before the coming into force of the Amendment Act, the intention of the legislature was to cut off even the vested right; and that it was so by implication as well. There is no dispute as to the proposition that retrospective effect is not to be given to an Act unless, the legislature made it so by express words or necessary implication. But in the instant case it appears that this was the intention of the legislature. Similarly courts will construe a provision as conferring power to act retroactively when clear words are used. We find both the intention and language of the Amendment Act clear in these respects.”

58Copy pinpoint58. In G. Sekar v. Geetha &Ors., (2009) 6 SCC 99 with respect to the operation of Amendment Act, 2005, it was observed that the same is prospective in nature and not retrospective thus: G “30. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. The High Court might have committed a mistake in opining that the operation of Section 3 of the 2005 Act is retrospective in H

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A character, but, for the reasons aforementioned, it does not make any difference. What should have been held was that although it is not retrospective in nature, its application is prospective.”

59Copy pinpoint59. The decision in G. Sekar (supra) concerned with the provisions of section 23 of the Hindu Succession Act prior to its deletion, w.e.f. B 9.9.2005. The question involved therein was the effect of the deletion by Amendment Act of 2005. The suit for partition of the residential dwelling house was not maintainable under section 23. In that context, the observations were made by this Court. In Sheela Devi (supra), the question was whether Section 8 of the Act of 1956 would apply or the law applicable prior to the Act of 1956. C

60Copy pinpoint60. Section 6(2) provides when the female Hindu shall hold the property to which she becomes entitled under section 6(1), she will be bound to follow rigors of coparcenary ownership, and can dispose of the property by testamentary mode.

61Copy pinpoint61. With respect to a Hindu who dies after the commencement of the Amendment Act, 2005, as provided in section 6(3) his interest shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares which would have been allotted to his heirs had there been a partition. The daughter is to be allotted the same share as a E son; even surviving child of pre-deceased daughter or son are given a share in case child has also died then surviving child of such pre-deceased child of a pre-deceased son or pre-deceased daughter would be allotted the same share, had they been alive at the time of deemed partition. Thus, there is a sea-change in substituted section 6. In case of death of coparcener after 9.9.2005, succession is not by survivorship but in accordance with section 6(3)(1). The Explanation to section 6(3) is the same as Explanation I to section 6 as originally enacted. Section 6(4) makes a daughter liable in the same manner as that of a son. The daughter, grand-daughter, or great-grand-daughter, as the case may be, is equally bound to follow the pious obligation under the Hindu Law to discharge any such debt. The proviso saves the right of the creditor with respect to the debt contracted before the commencement of Amendment Act, 2005. The provisions contained in section 6(4) also make it clear that provisions of section 6 are not retrospective as the rights and liabilities are both from the commencement of the Amendment Act. H

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[ARUN MISHRA, J.]

62Copy pinpoint62. The proviso to section 6(1) and section 6(5) saves any partition A effected before 20.12.2004. However, Explanation to section 6(5) recognises partition effected by execution of a deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. Other forms of partition have not been recognised under the definition of ‘partition’ in the Explanation. B

63Copy pinpoint63. Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of section 6(1)(a) and 6(1)(b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcenerby obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).

64Copy pinpoint64. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3).

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A In ref: Effect of enlargement of daughter’s rights

65Copy pinpoint65. Under the proviso to section 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Section 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to section 6 as it stood before amendment.

66Copy pinpoint66. As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said principle of administration of Mitakshara coparcenary carried forward in statutory provisions of section 6. Even if a coparcener had left behind female heir of Class I or a male claiming through such female Class I heir, there is no disruption of coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastric Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution.

67Copy pinpoint67. There can be a sole surviving coparcener in a given case the property held by him is treated individual property till a son is born. In case there is a widow or daughter also, it would be treated as joint family property. If the son is adopted, he will become a coparcener. An adoption by a widow of a deceased coparcener related to the date of her husband’s death, subject to saving the alienations made in the intermittent period. In Ref.Acquisition of Rights in Coparcenary Property

68Copy pinpoint68. It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise. H

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[ARUN MISHRA, J.]

69Copy pinpoint69. The argument raised that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to section 6 does not come in the way offormation of a coparcenary, and who can be a coparcener. The proviso to section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener. The precise declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature.Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9.9.2005 by section 6(3).

70Copy pinpoint70. The decision in Bireswar Mookerji & Ors. v. Shib Chunder Roy (supra), was relied upon to contend that adoption is only of a male and not a female as held in Amarendra Man Singh Bhramarbar & Anr. v. Sanatan Singh & Ors., (supra), a male becomes a coparcener by birth or adoption. There is no dispute with the custom, which was prevalent earlier that there could be the adoption of a male child and not that of females. There is no dispute with the proposition that a coparcenary right accrued to males under the prevalent law by birth or adoption. In the same manner, right is accrued by birth to the daughter under the provisions of section 6. The legislature in section 6 used the term that a daughter becomes coparcener by birth. The claim based on birth is distinguishable and is different from modes of succession. H

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71Copy pinpoint71. It was argued that in case Parliament intended that the incident of birth prior to 2005 would be sufficient to confer the status of a coparcener, Parliament would need not have enacted the proviso to section 6(1). When we read the provisions conjointly, when right is given to the daughter of a coparcener in the same manner as a son by birth, it became necessary to save the dispositions or alienations, including any partition or testamentary succession, which had taken place before 20.12.2004. A daughter can assert the right on and from 9.9.2005, and the proviso saves from invalidation above transactions.

72Copy pinpoint72. It was argued that in the eventuality of the death of a father or other coparcener, the parties would have not only partitioned their assets but also acted in pursuance of such partition. However, partitions have been taken care of by the proviso to section 6(1) and 6(5). Parliament has not intended to upset all such transactions as specified in the proviso to section 6(1).

73Copy pinpoint73. It was vehemently argued that if the daughter is given the right to be a coparcener by birth and deemed to become a coparcener at any point in the past, in the normal working of the law, uncertainty would be caused. In our opinion, no uncertainty is brought about by the provisions of section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. E Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively. There is no doubt about it that advancement brings about F the enlargement of the size of the coparcenary and disabling it from treating the daughter unequally. Even otherwise, its size could be enlarged by the birth of a son also. By applying section 8, the joint possession was not repudiated by the fact that a female, whether a wife or daughter, inherited the share of coparcener under the proviso to original section 6. G She was an equal member of the joint Hindu family and deemed statutory partition did not bring disruption of the coparcenary.

74Copy pinpoint74. In Prakash v. Phulavati, father died in the year 1988, daughters filed a suit for partition in 1992, same was dismissed in 2007, entitlement was given to the daughters to a share on a notional partition H under the proviso to section 6 in the share of the coparcener father.

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[ARUN MISHRA, J.]

However, the High Court applied the amended provisions of section 6 to the pending proceedings and treated daughters equally with sons. As such, the matter travelled to this Court. It was held that the proviso is not retrospective. The requirement of partition being registered can have no application to statutory notional partition, on the opening of succession as per the unamended proviso to section 6, having regard to the nature of such partition, which is by operation of law. It was opined: “17. 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 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 is always prospective unless either expressly or by necessary intendment it is retrospective.[Shyam Kumar 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. 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.

18. The contention of the respondents that the amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent H

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A of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20-12-

2004. Notional partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation. B

xxx

23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners C as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 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. D x xx 27.2. In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum(1978) 3 SCC 383, Shyama Devi v. Manju Shukla (1994) 6 SCC 342 and Anar Devi v. Parmeshwari Devi (2006) 8 SCC 656 cases this Court interpreted Explanation E 1 to Section 6 (prior to the 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 coparcener was to be given due and full effect in view of settled principle of interpretation of a provision incorporating a deeming fiction. In Shyama Devi (supra) and Anar Devi (supra) cases, same view was followed. 27.3. In Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar, AIR 2012 Bom. 101, the Bombay High Court held that the amendment will not apply unless the daughter is born after the 2005 Amendment, but on this aspect a different view has been taken in the later larger Bench judgment [AIR 214 Bom 151]. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment.” H

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[ARUN MISHRA, J.]

75Copy pinpoint75. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living coparcener”, as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted section 6, the expression ‘daughter of a living coparcener’ C has not been used. Right is given under section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener D shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.

76Copy pinpoint76. In Mangammal v. T.B. Raju & Ors. (supra), the Court E considered the provisions made in the State of Tamil Nadu, the State Government enacted the Hindu Succession (Tamil Nadu Amendment) Act, 1989, made effective from 25.3.1989, adding section 29-A in the Hindu Succession Act, 1956. Section 29A was held to be valid regarding succession by survivorship. Section 29A provided equal rights to daughters in coparcenary property. The provisions were more or less similar, except section 29A(iv) treated a married daughter differently. The provisions were not applicable to the daughters married before the date of commencement of Amendment Act, 1989. Thus, married daughters were not entitled to equal rights. That too, has been taken care of in section 6, as substituted by Act of 2005, and no discrimination is made against married daughters. In the said case, Mangammal got married in 1981, and Indira got married in or about 1984, i.e., before the 1989 Amendment. Therefore, it was held that because of section 29-A(iv) of the Amendment Act, the appellant could not institute a suit for partition and separate possession as they were not coparceners. The decisions in Prakash v. H

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A Phulavati and Danamma were referred, and it was opined that Prakash v. Phulavati would still hold the value of precedent for right of a daughter in ancestral property and only “living daughters of living coparceners” as on 9.9.2005 would be entitled to claim a share in the coparcenary property. In Mangammal, the Court opined thus: B “15. Moreover, under Section 29-A of the Act, the legislature has used the word “the daughter of a coparcener.” Here, the implication of such wordings mean both the coparcener as well as daughter should be alive to reap the benefits of this provision at the time of commencement of the amendment of

1989. The similar issue came up for the consideration before this C Court in Prakash v. Phulavati, (2016) 2 SCC 36, wherein this Court while dealing with the identical matter held at para 23 as under (SCC p. 49) “23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living D coparceners as on 9-9-2005 irrespective of when such daughters are born.” (emphasis supplied)

16. It is pertinent to note here that recently, this Court in E Danamma v. Amar, (2018) 3 SCC 343, dealt, inter alia, with the dispute of daughter’s right in the ancestral property. In the above case, father of the daughter died in 2001, yet court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma(supra), it is evident F that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who was born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash, G (2016) 2 SCC 36, would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property.

17. Hence, without touching any other aspect in the present case, we are of the view that the appellants were not the H

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[ARUN MISHRA, J.]

coparceners in the Hindu joint family property in view of the 1989 A amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance. At the most, they could claim maintenance and marriage expenses if situation warranted.” It is apparent that the question of living daughter of a living B coparcener was not involved in the matter, once this Court held that the married daughters were not entitled to claim partition and separate possession as marriage had taken place prior to the enforcement of the 1989 amendment, as observed in para 17 quoted above. However, this Court opined that the decision in Prakash v. Phulavati, laying down that only living daughters of living coparceners would be entitled to claim C a share in the ancestral property under section 6 of the Act of 1956. The opinion expressed cannot be accepted for the reasons mentioned above. Moreover, it was not necessary to go into the aforesaid question.

77Copy pinpoint77. In Danamma, a Division Bench of this Court dealt with the interpretation of amended provisions of section 6. The decision in Anar D Devi v. Parmeshwari Devi (supra) was relied upon. It was observed that the controversy concerning the interpretation of section 6 now stands settled with authoritative pronouncement in Prakash v. Phulavati which affirmed the view taken by the High Court as well as a Full Bench in Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, E AIR 2014 Bom. 151. In Danamma, the Court further opined: “23. 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 Law was to treat them as coparceners since birth. The amended provision now statutorily recognises 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 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 H

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A death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and is well recognised. 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-sections (1)(a) and (b). B

25. Hence, it is clear that 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 coparcener.

26. In the present case, no doubt, suit for partition was C filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 D SCC 788, held that the rights of daughters in coparcenary property as per the amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

27. On facts, there is no dispute that the property which was the subject-matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property. In view of our aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since, Savadi died leaving behind two sons, two daughters and a widow, both the appellants would be entitled to 1/5th share each in the said property. The plaintiff (Respondent 1) is son of Arun Kumar (Defendant 1). Since, Arun Kumar will have 1/5th share, it would be divided into five shares on partition i.e. between Defendant 1 Arun Kumar, his wife Defendant 2, his two daughters Defendants 3 and 4 and son/plaintiff (Respondent 1). In this manner, Respondent 1-plaintiff would be entitled to 1/25th share in the property.” H

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[ARUN MISHRA, J.]

78Copy pinpoint78. In Danamma, it is pertinent to mention that Gurulingappa, A propositus of a Hindu joint family and the father of living daughter coparcener died in 2001, before the Amendment Act, 2005 came into force, leaving behind two daughters, son and a widow. Daughters were given equal rights by this Court. We agree with certain observations made in paras 23 and 25 to 27 (supra) but find ourselves unable to agree B with the earlier part approving the decision in Prakash v. Phulavati and the discussion with respect to the effect of the statutory partition. As a matter of fact, in substance, there is a divergence of opinion in Prakash v. Phulavati and Danamma with respect to the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living daughter of a living coparcener was not dealt with specifically. However, C the effect of reasons given in para 23 had been carried out to logical end by giving an equal share to the daughter. In Ref. Partition and Effect of Statutory Fiction

79Copy pinpoint79. The right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition. The D daughter has now become entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital change brought about by the statute. A coparcener enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter are paripassu with a son. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away.

80Copy pinpoint80. We deem it appropriate to refer to the decision in Hardeo Rai v. Sakuntala Devi & Ors., (2008) 7 SCC 46 laying down that when an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. After taking a definite share in the property, a coparcener becomes the owner of that share, and, as such, he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. It was observed: G “22. For the purpose of assigning one’s interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of H

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A a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as “joint tenants” but as “tenants-in-common”. The decision of this Court in SBI, (1969) 2 SCC 33, therefore, is not applicable to the present case.

B 23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.”

81Copy pinpoint81. It is settled proposition of law that without partition, only undivided share can be sold but not specific property, nor joint possession can be disrupted by such alienation. Whether the consent of other coparcener is required for sale or not, depends upon by which School of Mitakshara law, parties are governed, to say, in Benares School, there is a prohibition on the sale of property without the consent of other coparceners. The Court in the abovesaid decision made general observation but was not concerned with the aspect when the partition was completed, the effect of intervening events and effect of statutory provisions as to partition, as such, it cannot be said to be an authority as to provisions of section 6 as substituted and as to enlargement of the right by operation of law achieved thereunder. Shares of coparceners can undergo a change in coparcenary by birth and death unless and until the final division is made. The body of coparcenary is increased by the operation of law as daughters have been declared as a coparcener, full effect is required to be given to the same. The above decision cannot be said to be an authority for the question involved in the present matters.

82Copy pinpoint82. In Man Singh (D) by LRs. v. Ram Kala (D) by LRs., AIR 2011 SC 1542, the question of devolution of interest in coparcenary property arose on the death of male Hindu leaving behind wife, son and three daughters, and determination of their shares. It was observed that until the disruption of joint family status occurs, the definite share cannot be claimed with certainty, and share cannot be predicated in joint and G undivided property. The question of disruption of joint family status by a definite and unequivocal declaration of intention to separate himself from the family was also considered. The question in the present case is when the partition has not taken place whether the statutory fiction contained in the proviso to section 6 with respect to the determination of shares of H a deceased coparcener and its devolution thereunder would disrupt

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[ARUN MISHRA, J.]

coparcenary. The answer is in the negative. In Man Singh (supra), it was observed that the wife has a right to claim an equal share in the husband’s property as that of a son, and she can enjoy the share separately even from her husband thus: “12. …Till disruption of joint family status takes place, neither coparcener nor the other heirs entitled to share in the joint family property can claim with certainty the exact share in that property. In the case of Appovier Alias Seetaramier v. Rama Subba Aiyan & Ors., (1866) 11 MIA 75, Lord Westbury speaking for the Judicial Committee (Privy Council) observed, ‘According to the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share.’

15. In Principles of Hindu Law by Mulla, Vol. I (17th Edition) as regards the right of wife, it is stated that a wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled (except in Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband (Article 315 at Page 506).”

83Copy pinpoint83. In Girja Bai v. Sadashiv, AIR 1916 PC 104, Kawal Nain v. E Prabhulal, AIR 1917 PC 39 and Ramalinga v. Narayana, AIR 1922 PC 201, it was laid that the institution of a suit for partition by a member of a joint family is a clear intimation of his intention to separate and the decisions indicate that there was consequential severance of joint status from the date when the suit was filed though there was an assertion of F his right to separate by filing of the suit whether the consequential judgment is passed or not. However, we add a rider that if subsequently, the law confers a right, or such other event takes place, its effect has to be worked out even after passing of the preliminary decree.

84Copy pinpoint84. In Kedar Nath v. Ratan Singh, (1910) 37 IA 161 and Palani G Ammal v. Muthuvenkatachala, AIR 1925 PC 49, it was observed that if the suit is withdrawn before trial and passing of the decree, the plaintiff ultimately has not chosen to go for separation. It was laid down that there was no severance of the joint status of the family by filing of the suit. H

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85Copy pinpoint85. In Joala Prasad Singh v. Chanderjet Kuer, AIR 1938 Pat 278, it was held that the filing of a suit is a shred of strong evidence, but not conclusive evidence of an intention to separate. However, in our opinion, the intention to separate need not be confused with the change of rights during the pendency of the suit, which has to be given full effect, to do complete justice. B

86Copy pinpoint86. In Chokalingam v. Muthukaruppan, AIR 1938 Mad 849, it was laid down that even a decree passed by consent does not affect a severance; it had no validity if its terms were not executed and the members continue to live together having abandoned their decision to separate. C

87Copy pinpoint87. In Mukund Dharman Bhoir & Ors. v. Balkrishna Padmanji & Ors., AIR 1927 PC 224, a distinction was made between severance of the joint status, which is a matter of individual decision and the division of the property where the allotment of shares may be effected by private arrangements, by arbitrators or as a last resort, by the Court. It was observed: “In the first place, there is separation, which means the severance of the status of jointness. That is matter of individual volition; and it must be shown that an intention to become divided has been clearly and unequivocally expressed, it may be by explicit declaration or by conduct. Secondly, there is the partition or division of the joint estate, comprising the allotment of shares, which may be effected by different methods.”

88Copy pinpoint88. In Palani Ammal (supra), Ramabadra v. Gopalaswami, AIR 1931 Mad 404 and Gangabai v. Punau Rajwa, AIR 1956 Nag 261, it was laid down that joint family does not get disrupted merely by ascertainment of the shares of the coparcener. In order to constitute a partition, the shares should be defined with the intention of an immediate separation. G

89Copy pinpoint89. In Poornandachi v. Gopalasami, AIR 1936 PC 281, only one of the members was given the share by way of instrument of partition. It was also provided that the rest of the property was to remain joint. It was held that there was no partition between the other members.In I.T. Officer, Calicut v. N.K. Sarada Thampatty, AIR 1991 SC 2035, it was H held that if a preliminary decree for partition is passed, it will not amount

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to a partition unless an actual physical partition is carried out pursuant to A a final decree.

90Copy pinpoint90. In S. Sai Reddy v. S. Narayana Reddy &Ors. (1991) 3 SCC 647, a suit for partition, was filed. A preliminary decree determining the shares was passed. The final decree was yet to be passed. It was observed that unless and until the final decree is passed and the allottees B of the shares are put in possession of the respective property, the partition is not complete. A preliminary decree does not bring about the final partition. For, pending the final decree, the shares themselves are liable to be varied on account of the intervening events, and the preliminary decree does not bring about any irreversible situation. The concept of partition that the legislature had in mind could not be equated with a C mere severance of the status of the joint family, which could be effected by an expression of a mere desire by a family member to do so. The benefit of the provision of section 29A could not have been denied to women whose daughters were entitled to seek shares equally with sons in the family. In S. Sai Reddy (supra), it was held: D “7. The question that falls for our consideration is whether the preliminary decree has the effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned counsel placed reliance on clause (iv) of Section 29-A to support his contention that it does. Clause (ii) of the section provides that a daughter shall be allotted share like a son in the same manner treating her to be a son at the partition of the joint family property. However, the legislature was conscious that prior to the enforcement of the amending Act, partitions will already have taken place in some families and arrangements with regard to the disposition of the properties would have been made and marriage expenses would have been incurred etc. The legislature, therefore, did not want to unsettle the settled positions. Hence, it enacted clause (iv) providing that clause (ii) would not apply to a daughter married prior to the partition or to a partition which had already been effected before the commencement of the amending Act. Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share in the property. Similarly, if the partition had been effected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was not given a share in the family property. The crucial H

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A question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a H vast section of women of its benefits.

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8. Hence, in our opinion, the High Court has rightly held that since A the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29-A was not attracted in the present case and the respondent-daughters were entitled to their share in the family property.” (emphasis supplied) B

91Copy pinpoint91. In Prema v. Nanje Gowda, AIR 2011 SC 2077, insertion of section 6A by the amendment made by the State of Karnataka in the Hindu Succession Act, 1956, was considered. Equal rights were given to the daughter in coparcenary property in a suit for partition. A preliminary decree was passed. Amendment in the Act was made during the final C decree proceedings. It was held that the discrimination practiced against the unmarried daughter was removed. Unmarried daughters had equal rights in the coparcenary property. The amendment’s effect was that the unmarried daughter could claim an equal share in the property in terms of section 6A inserted in Karnataka. In Prema (supra), the Court opined: D

“11. … in R. Gurubasaviah v. Rumale Karibasappa and others, AIR 1955 Mysore 6, Parshuram Rajaram Tiwari v. Hirabai Rajaram Tiwari, AIR 1957 Bombay 59 and Jadunath Royand others v. Parameswar Mullick and others, AIR 1940 PC 11, and held that if after passing of preliminary decree in a partition E suit but before passing of final decree, there has been enlargement or diminution of the shares of the parties or their rights have been altered by statutory amendment, the Court is duty-bound to decide the matter and pass final decree keeping in view of the changed scenario.” F “14. We may add that by virtue of the preliminary decree passed by the trial court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and G completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before the conclusion of the final decree H

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A proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court seized with the final decree proceedings is not only entitled but is duty-bound to take notice of such change and pass appropriate order…” B (emphasis supplied) It was held that if after passing of a preliminary decree in a partition suit but before passing of the final decree, there has been enlargement or diminution of the shares of the parties or their rights have been altered by statutory amendment; the Court is duty-bound to decide the matter and pass final decree keeping in view the changed scenario. In Prema (supra), the Court further opined: “20. In our view, neither of the aforesaid three judgments can be read as laying down a proposition of law that in a partition suit, preliminary decree cannot be varied in the final decree proceedings despite amendment of the law governing the parties by which the discrimination practiced against unmarried daughter was removed and the statute was brought in conformity with Articles 14 and 15 of the Constitution. We are further of the view that the ratio of Phoolchand v. Gopal Lal, (AIR 1967 SC 1470) (supra) and S. Sai E Reddy v. S. Narayana Reddy, (1991 AIR SCW 488) (supra) has direct bearing on this case and the trial court and the High Court committed serious error by dismissing the application filed by the appellant for grant of equal share in the suit property in terms of Section 6A of the Karnataka Act No.23 of 1994.” F It was laid down that by the change of law, the share of daughter can be enlarged even after passing a preliminary decree, the effect can be given to in final decree proceedings.

92Copy pinpoint92. In Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (supra), this Court considered the amendment made in section 6 of G the Hindu Succession Act in 2005 and held that the right of a daughter in coparcenary property is not lost bypassing of a preliminary decree for partition before stipulated date i.e., 20th December, 2004. A partition suit does not stand disposed of bypassing a preliminary decree. Relying inter alia, on S. Sai Reddy (supra), it was held that the preliminary decree can be amended in order to fully recognise the rights of a daughter: H

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“16. The legal position is settled that partition of a joint Hindu A family can be effected by various modes, inter alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the Court. In the present case, admittedly, the partition has not been effected before 20-12-2004 either by a registered instrument of partition or by a decree of the Court. The B only stage that has reached in the suit for partition filed by Respondent 1 is the determination of shares vide preliminary decree dated 19-3-1999, which came to be amended on 27-9-2003 and the receipt of the report of the Commissioner.

17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. We are fortified in our view by a three-Judge Bench decision of this Court in Phoolchand & Anr. v. E Gopal Lal, AIR 1967 SC 1470, wherein this Court stated as follows: “We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. … So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; … there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. … for it H

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A must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. … a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree…..”

19. The above legal position is wholly and squarely applicable to the present case. It surprises us that the High Court was not apprised of the decisions of this Court in Phoolchand, (AIR 1967 SC 1470) and S. Sai Reddy, (1991 AIR SCW 488). High Court considered the matter as follows: “ xxx.”

D 20. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule 18 of CPC. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the Government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The Court would thereafter proceed for preparation of final decree. In Phoolchand, this Court has stated the legal position that CPC creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The Court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings.

21. Section 97 of C.P.C. that provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be

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precluded from disputing its correctness in any appeal which may be preferred from the final decree does not create any hindrance or obstruction in the power of the Court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require.

22. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree.” C (emphasis supplied) The effect of the legislative provision concerning partition was considered, and it was held that a preliminary decree merely declares the shares and on which law confers equal rights upon the daughter that is required to be recognised. D

93Copy pinpoint93. The concept of partition and its effect was considered by this Court in Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna and Ors., (2009) 9 SCC 689 thus: “The issue E

5. “Partition” is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. F

6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. “Separation of share” is a species of “partition”. When all co-owners get separated, it is a partition. Separation of share(s) refers to a division G where only one or only a few among several co-owners/ coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a H

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A partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. ***

18. The following principles emerge from the above discussion regarding partition suits: 18.3.As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is, division by metes and bounds takes place by passing a final decree. An application requesting the Court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of the D Limitation Act). It is only a reminder to the Court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion. 20.On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the Court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.” (emphasis supplied) G

94Copy pinpoint94. In Laxmi Narayan Guin&Ors. v. Niranjan Modak, (1985) 1 SCC 270, it was laid down that change in law during the pendency of the appeal has to be taken into consideration thus: “9. That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the H

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parties was laid down by this Court in Ram Sarup v. Munshi, A AIR 1963 SC 553 which was followed by this Court in Mula v. Godhu, (1969) 2 SCC 653. We may point out that in Dayawati v. Inderjit, AIR 1966 SC 1423 this Court observed: “If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance.” Reference may also be made to the decision of this Court in Amarjit Kaur v. Pritam Singh, (1974) 2 SCC 363 where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. Mangammal, ILR (1902) 26 Mad 91 (FB) by BhashyamAyyangar, J., that the hearing of an appeal was, under the processual law of this country, in the nature of a re-hearing of the suit. In Amarjit Kaur, (1974) 2 SCC 363 this Court referred also to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 in which the Federal Court had laid down that once a decree passed by a court had been appealed against the matter became sub judice again and thereafter the appellate court acquired seisin of the whole case, except that for certain purposes, for example, execution, the decree was regarded as final and the Court below retained jurisdiction.”

95Copy pinpoint95. In United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. & Ors., AIR 2000 SC 2957, with respect to change in law during the pendency of proceedings, it was observed: F “20. Now, it is well settled that it is the duty of a court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn., p. 406). If, while a suit is pending, a law like the 1993 Act that the G Civil Court shall not decide the suit, is passed, the Civil Court is bound to take judicial notice of the statute and hold that the suit — even after its remand — cannot be disposed of by it.”

96Copy pinpoint96. In Gurupad Khandappa Magdum (supra), the question of Explanation I to section 6 of the Hindu Succession Act, 1956 came up H

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A for consideration with respect to the determination of widow’s interest in the coparcenary property. Court held that a widow’s share in the coparcenary property must be ascertained by adding the share to which she is entitled at a notional partition during her husband’s lifetime and the share she would have obtained in her husband’s interest upon his death. The first step is to ascertain the share of the deceased in the coparcenary property that would be worked out ultimately, and that shall be deemed to be the share in the property that should have been allotted to the deceased. What is therefore required to be assumed is that a partition had, in fact, taken place between the deceased and his coparceners immediately before his death. The assumption must permeate the entire process of ascertainment of the ultimate share of the heirs. All the consequences must be taken to a logical end. It was opined: “13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant’s share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that 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 that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one’s imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from

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one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.” The only question involved in the aforesaid matter was with respect to the Explanation of section 6 and the determination of the widow’s share. In that case, the question was not of fluctuation in the coparcenary body by a legal provision or otherwise. Everything remained static. No doubt about it, the share of the deceased has to be worked out as per the statutory fiction of partition created. However, in case of change of body of the coparceners by a legal provision or otherwise, unless and until the actual partition is finally worked out, rights have to be recognised as they exist at the time of the final decree. It is only the share of the deceased coparcener, and his heirs are ascertained under the Explanation to section 6 and not that of other coparceners, which keep on changing with birth and death. E

97Copy pinpoint97. In Anar Devi & Ors. v. Parmeshwari Devi & Ors (supra), the decision in Gurupad (supra) was considered, and it was held that when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative claiming through such female relative, his undivided interest is not devolved by survivorship but upon his heir by intestate succession thus: “8. According to the learned author, at page 253, the undivided interest”of the deceased coparcener for the purpose of giving effect to the rule laid down in the 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 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 H

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A 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 ascertainment of the persons who would have been entitled to a share on the notional partition”.

11. Thus we hold that according to Section 6 of the Act when a B 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 upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act C 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 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 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.” In Anar Devi (supra), the question of enlargement of right by a legal provision or otherwise change in the coparcener’s share was not involved. The decision cannot help the cause set up of partition created by statutory fiction. Statutory fiction is with respect to the extent of the share of deceased coparcener in exigency provided in the proviso to section 6. Co-parcenary or HUF, as the case may be, does not come to an end by statutory fiction. Disruption of coparcenary by statutory fiction takes place, is not the proposition laid down in the aforesaid decision.

98Copy pinpoint98. In Puttrangamma & Ors. v. M.S. Rangamma & Ors., AIR 1968 SC 1018, this Court considered the doctrine of Hindu law, separation in status by a definite, unequivocal and unilateral declaration thus: “(4) It is now a settled doctrine of Hindu Law that a member of a H joint Hindu family can bring about his separation in status by a