Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7217 OF 2013

PRAKASH & ORS. …APPELLANTS

VERSUS

PHULAVATI & ORS. ...RESPONDENTS

WITH

SLP (C) NOS.21814 OF 2008, 18744 OF 2010,

28702-28703 OF 2010, 28471 OF 2011, 4217-4218

OF 2012, 1299-1300 OF 2013, 17577-17578 OF

2013, 19816 OF 2014, 5619 OF 2015, 3805 OF 2008,

9390 OF 2015, 5680 OF 2015, 35209 OF 2011 AND

15557-15558 OF 2015 AND SLP. (C) ….15560 OF

2015

J U D G M E N T

ADARSH KUMAR GOEL, J.

1.The only issue which has been raised in this batch of

matters is whether Hindu Succession (Amendment) Act,

2005 (‘the Amendment Act’) will have retrospective effect.

In the impugned judgment (reported in AIR 2011 Kar. 78

Phulavati vs. Prakash), plea of restrospectivity has been

upheld in favour of the respondents by which the

appellants are aggrieved.

Page 2 Civil Appeal No.7217 of 2013 etc.

2.Connected matters have been entertained in this

Court mainly on account of the said legal issue particularly

when there are said to be differing views of High Courts

which makes it necessary that the issue is decided by this

Court. It is not necessary to go into the facts of the

individual case or the correctness of the findings recorded

by the courts below on various other issues. It was made

clear during the hearing that after deciding the legal issue,

all other aspects may be decided separately in the light of

the judgment of this Court.

3.Only for the purpose of deciding the above legal

question, we refer to the brief facts in Civil Appeal No.7217

of 2013. The respondent-plaintiff, Phulavati filed suit

being O.S. No.12/1992 before Additional Civil Judge (Senior

Division), Belgaum for partition and separate possession to

the extent of 1/7

th

share in the suit properties in Schedule

‘A’ to ‘G’ except property bearing CTS No.3241 mentioned

in Schedule ‘A’ in which the share sought was 1/28

th

.

4.According to the case of the plaintiff, the suit

properties were acquired by her late father Yeshwanth

Chandrakant Upadhye by inheritance from his adoptive

2

Page 3 Civil Appeal No.7217 of 2013 etc.

mother Smt. Sunanda Bai. After the death of her father on

18

th

February, 1988, she acquired the share in the property

as claimed.

5.The suit was contested mainly with the plea that the

plaintiff could claim share only in the self acquired

property of her deceased father and not in the entire

property. During pendency of the suit, the plaintiff

amended the plaint so as to claim share as per the

Amended Act 39 of 2005. The trial court partly decreed

the suit to the extent of 1/28

th

share in certain properties

on the basis of notional partition on the death of her father

and in some of the items of property, no share was given,

while 1/7

th

share was given in some other properties as

mentioned in detail in the judgment of the trial court.

6.The respondent-plaintiff preferred first appeal before

the High Court with the grievance that the plaintiff became

coparcener under the Amendment Act 39 of 2005 and was

entitled to inherit the coparcenary property equal to her

brothers, apart from contentions based on individual

claims in certain items of property.

3

Page 4 Civil Appeal No.7217 of 2013 etc.

7.The stand of the defendants-appellants was that the

plaintiff could not claim any share in self acquired property

of the members of the joint family and that the claim of

the plaintiff had to be dealt with only under Section 6 of

the Hindu Succession Act, 1956 as it stood prior to the

amendment by Act 39 of 2005. The defendants relied

upon a division bench judgment of the High Court in M.

Prithviraj vs. Neelamma N.

1

laying down that if father

of a plaintiff had died prior to commencement of Act 39 of

2005, the amended provision could not apply. It was only

the law applicable on the date of opening of succession

which was to apply.

8.The High Court framed following question for

consideration on this aspect :

“(ii) Whether the plaintiff is entitled to a share

in terms of Section 6 of the Hindu Succession

Act as amended by Act No.39 of 2005?”

9.It was held that the amendment was applicable to

pending proceedings even if it is taken to be prospective.

The High Court held that :

1

ILR 2009 Kar. 3612

4

Page 5 Civil Appeal No.7217 of 2013 etc.

“61. The law in this regard is too well settled

in terms of the judgment of the Supreme Court

in the case of G. Sekar Vs. Geetha and others

reported in (2009) 6 SCC 99. Any development

of law inevitably applies to a pending

proceeding and in fact it is not even to be taken

as a retrospective applicability of the law but

only the law as it stands on the day being made

applicable.

62. The suit, no doubt, might have

been instituted in the year 1992 and even

assuming that it was four years after the demise

of Yeshwanth Chandrakant Upadhye, the

position so far as the parties are concerned who

are all members of the joint family, in terms of

Section 6 as amended by Act No.39 of 2005 is

that a female member is, by a fiction of law

created in terms of the amended provision also

becomes a coparcener and has a right in joint

family property by birth. They are also sharer

members of the coparcenary property at par

with all male members. When a partition takes

place, coparceners succeed to the property in

equal measure. Such is the legal position in

terms of Section 6 of the Hindu Succession Act

as amended by Act No.39 of 2005 and as

declared by the Supreme Court in the case of

G.S. Sekar (supra). The only exception carved

out to the applicability and operation of Section

6 of the Hindu Succession Act as amended by

Act No.39 of 2005 being a situation or a factual

position where there was a partition which had

been effected by a registered partition deed or

by a decree of the court which has attained

finality prior to 20.12.2004 in terms of

sub-section (5) to Section 6.

63. In the present case such being

not the factual position, the exception available

under sub-section (5) to Section 6 cannot be

called in aid by the defendants and therefore,

the liability in terms of the amended provisions

operates. It is not necessary for us to multiply

the judgment by going into details or discussing

other judgments referred to and relied upon by

5

Page 6 Civil Appeal No.7217 of 2013 etc.

the learned counsel for the parties at the Bar as

one judgment of the Supreme Court if clinches

the issue on the point, it is good enough for us,

as a binding authority to apply that law and

dispose of the case as declared in that

judgment.”

10.The respondent-plaintiff was accordingly held

entitled to 1/7

th

share in all items in Schedules ‘A’ to ‘D’.

In respect of Schedule ‘F’, first item was given up by the

plaintiff. Out of the other two items, she was held entitled

to 1/7

th

share in Item No.2 and 1/7

th

share in 40%

ownership in Item No.3.

11.The defendants-appellants have questioned the

judgment and order of the High Court with the contention

that the amended provision of Section 6 has no application

in the present case. Father of the plaintiff died on 18

th

February, 1988and was thus, not a coparcener on the date

of commencement of the Amendment Act. The plaintiff

could not claim to be “the daughter of a coparcener” at

the time of commencement of the Act which

was the necessary condition for claiming the benefit. On

the death of plaintiff’s father on 18

th

February, 1988,

notional partition took place and shares of the heirs were

6

Page 7 Civil Appeal No.7217 of 2013 etc.

crystallized which created vested right in the parties.

Such vested right could not have been taken away by a

subsequent amendment in absence of express provision or

necessary intendment to that effect. Moreover,

the amending provision itself was expressly applicable “on

and from” the commencement of the Amendment Act, i.e.,

9

th

September, 2005. The High Court held that even if the

provision was prospective, it could certainly apply to

pending proceedings as has been held in some decisions

of this Court. It is pointed out that the amendment could

apply to pending proceedings, only if the amendment was

applicable at all.

12.Learned counsel for the respondents would support

the view taken by the High Court.

13.We have heard learned counsel for the parties in

the present appeal as well as in connected matters for

the rival view points which will be noticed hereinafter.

14.The contention raised on behalf of the appellants and

other learned counsel supporting the said view is that the

2005 Amendment was not applicable to the claim of a

7

Page 8 Civil Appeal No.7217 of 2013 etc.

daughter when her father who was a coparcener in the

joint hindu family died prior to 9

th

September, 2005. This

submission is based on the plain language of the statute

and the established principle that in absence of express

provision or implied intention to the contrary, an

amendment dealing with a substantive right is prospective

and does not affect the vested rights

2

. If such a

coparcener had died prior to the commencement of the

Amendment Act, succession opens out on the date of the

death as per the prevailing provision of the succession law

and the rights of the heirs get crystalised even if partition

by metes and bounds does not take place. It was pointed

out that apparently conflicting provision in Explanation to

Section 6(5) and the said Section was required to be given

harmonious construction with the main provision. The

explanation could not be read in conflict with the main

provision. Main provision of Section 6(1) confers right of

coparcener on a daughter only from commencement of

the Act and not for any period prior to that. The proviso to

Section 6(1) also applies only where the main provision of

Section 6(5) applies. Since Section 6(5) applies to partition

2

Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27

8

Page 9 Civil Appeal No.7217 of 2013 etc.

effected after 20

th

December, 2004, the said proviso and

the Explanation also applies only when Section 6(1)

applies. It is also submitted that the Explanation was

merely a rule of evidence and not a substantive provision

determining the rights of the parties. Date of a daughter

becoming coparcener is on and from the commencement

of the Act. Partitions effected before 20

th

December, 2004

remain unaffected as expressly provided. The Explanation

defines partition, as partition made by a registered deed or

effected by decree of a court. Its effect is not to wipe out

a legal and valid partition prior to the said date, but to

place burden of proof of genuineness of such partition on

the party alleging it. In any case, statutory notional

partition remains valid and effective.

15.On the contrary, stand on behalf of the respondents

is that the amendment being piece of social legislation to

remove discrimination against women in the light of 174

th

Report of the Law Commission, the amendment should be

read as being retrospective as interpreted by the High

Court in the impugned judgment. A daughter acquired

right by birth and even if her father, who was a

9

Page 10 Civil Appeal No.7217 of 2013 etc.

coparcener, had died prior to coming into force of the

amendment, the shares of the parties were required to be

redefined. It was submitted that any partition which may

have taken place even prior to 20

th

December, 2004 was

liable to be ignored unless it was by a registered deed of

partition or by a decree of the Court. If no registered

partition had taken place, share of the daughter will stand

enhanced by virtue of the amendment.

16.We have given due consideration to the rival

submissions. We may refer to the provision of Section 6

of the Hindu Succession Act as it stood prior to the 2005

Amendment and as amended :

Section 6 of the Hindu

Succession Act

Section 6 on and from the

commencement of the Hindu

Succession (Amendment) Act,

2005

6. Devolution of interest of

coparcenary property. When

a male Hindu dies after the

commencement of this Act,

having at the time of his death

an interest in a Mitakshara

coparcenary property, his

interest in the property shall

devolve by survivorship upon

the surviving members of the

coparcenary and not in

accordance with this Act:

PROVIDED that, if the deceased

6. Devolution of interest in

coparcenary property.-( 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;

(b) have the same rights in the

coparcenary property as she would

10

Page 11 Civil Appeal No.7217 of 2013 etc.

had left him surviving a female

relative specified in class I of

the Schedule or a male relative

specified in that class who

claims through such female

relative, the interest of the

deceased in the Mitakshara

coparcenary property shall

devolve by testamentary or

intestate succession, as the

case may be, under this Act

and not by survivorship.

Explanation I: For the purposes

of this section, the interest of a

Hindu Mitakshara coparcener

shall be deemed to be the

share in the property that

would have been allotted to

him if a partition of the

property had taken place

immediately before his death,

irrespective of whether he was

entitled to claim partition or

not. Explanation 2: Nothing

contained in the proviso to this

section shall be construed as

enabling a person who has

separated himself from the

coparcenary before the death

of the deceased or any of his

heirs to claim on intestacy a

share in the interest referred to

therein. 7. Devolution of

interest in the property of a

tarwad,

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 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.

(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;

(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

11

Page 12 Civil Appeal No.7217 of 2013 etc.

predeceased son or of such

pre-deceased daughter; and

(c) the share of the pre-deceased

child of a pre-deceased son or of a

pre-deceased daughter, as such child

would have got had he or she been

alive at the time of the partition,

shall be allotted to the child of such

pre-deceased child of the

pre-deceased son or a pre-deceased

daughter, as the case may be.

Explanation.- For the purposes of this

sub-section, the interest of a Hindu

Mitakshara coparcener shall be

deemed to be the share in the

property that would have been

allotted to him if a partition of the

property had taken place

immediately before his death,

irrespective of whether he was

entitled to claim partition or not.

(4) After the commencement of the

Hindu Succession (Amendment) Act,

2005, 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 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

(b) any alienation made in respect of

or in satisfaction of, any such debt,

and any such right or alienation shall

12

Page 13 Civil Appeal No.7217 of 2013 etc.

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",

"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.

(5) Nothing contained in this section

shall apply to a partition, which has

been effected before the 20th day of

December, 2004.

Explanation.- For the purposes of this

section "partition" means any

partition made by execution of a

deed of partition duly registered

under the Registration Act, 1908 (16

of 1908) or partition effected by a

decree of a court.'

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 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

13

Page 14 Civil Appeal No.7217 of 2013 etc.

always prospective unless either expressly or by necessary

intendment it is retrospective

3

. 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.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 express language

3

Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27

14

Page 15 Civil Appeal No.7217 of 2013 etc.

of the statute. The proviso keeping dispositions or

alienations or partitions prior to 20

th

December, 2004

unaffected can also not lead to the inference that the

daughter could be a coparcener prior to the

commencement of the Act. The proviso only means that

the transactions not covered thereby will not affect the

extent of 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

th

December,

2004. Notional partition, by its very nature, is not covered

either under proviso or under sub-section 5 or under the

Explanation.

19.Interpretation of a provision depends on the text and

the context

4

. Normal rule is to read the words of a statute

in ordinary sense. In case of ambiguity, rational meaning

has to be given

5

. In case of apparent conflict, harmonious

meaning to advance the object and intention of legislature

has to be given

6

.

4

RBI vs. Peerless (1987) 1 SCC 424, para 33

5

Kehar Singh vs. State (1988) 3 SCC 609

6

District Mining Officer vs. Tata Iron and Steel Co. (2001) 7 SCC 358

15

Page 16 Civil Appeal No.7217 of 2013 etc.

20.There have been number of occasions when a

proviso or an explanation came up for interpretation.

Depending on the text, context and the purpose, different

rules of interpretation have been applied

7

.

21.Normal rule is that a proviso excepts something out

of the enactment which would otherwise be within the

purview of the enactment but if the text, context or

purpose so require a different rule may apply. Similarly, an

explanation is to explain the meaning of words of the

section but if the language or purpose so require, the

explanation can be so interpreted. Rules of interpretation

of statutes are useful servants but difficult masters

8

.

Object of interpretation is to discover the intention of

legislature.

22.In this background, we find that the proviso to

Section 6(1) and sub-section (5) of Section 6 clearly intend

to exclude the transactions referred to therein which may

have taken place prior to 20

th

December, 2004 on which

date the Bill was introduced. Explanation cannot permit

reopening of partitions which were valid when effected.

7

S. Sundaram Pillai vs. R. Pattabiraman (1985) 1 SCC 591

8

Keshavji Ravji & Co. vs. CIT (1990) 2 SCC 231

16

Page 17 Civil Appeal No.7217 of 2013 etc.

Object of giving finality to transactions prior to 20

th

December, 2004 is not to make the main provision

retrospective in any manner. The object is that by fake

transactions available property at the introduction of the

Bill is not taken away and remains available as and when

right conferred by the statute becomes available and is to

be enforced. Main provision of the Amendment in Section

6(1) and (3) is not in any manner intended to be affected

but strengthened in this way. Settled principles governing

such transactions relied upon by the appellants are not

intended to be done away with for period prior to 20

th

December, 2004. In no case statutory notional partition

even after 20

th

December, 2004 could be covered by the

Explanation or the proviso in question.

23.Accordingly, we hold that the rights under the

amendment are applicable to living daughters of living

coparceners as on 9

th

September, 2005 irrespective of

when such daughters are born. Disposition or alienation

including partitions which may have taken place before

20

th

December, 2004 as per law applicable prior to the said

17

Page 18 Civil Appeal No.7217 of 2013 etc.

date will remain unaffected. Any transaction of partition

effected thereafter will be governed by the Explanation.

24.On above interpretation, Civil Appeal No.7217 of

2013 is allowed. The order of the High Court is set aside.

The matter is remanded to the High Court for a fresh

decision in accordance with law. All other matters may be

listed for hearing separately for consideration on 24

th

November, 2015.

25.The view which we have taken above is consistent

with and not in conflict with any of the earlier decisions.

We may now refer to the decisions cited by the parties.

Main decisions cited by the respondents are: Prema vs.

Nanje Gowda

9

, Ganduri Koteshwaramma vs. Chakiri

Yanadi

10

, V.K. Surendra vs. V.K. Thimmaiah

11

, Ram

Sarup vs. Munshi

12

, Dayawati vs. Inderjit

13

, Amarjit

Kaur vs. Pritam Singh

14

, Lakshmi Narayan Guin vs.

Niranjan Modak

15

, S. Sai Reddy vs. S. Narayana

9

(2011) 6 SCC 462

10

(2011) 9 SCC 788

11

(2013) 10 SCC 211, para 18

12

(1963) 3 SCR 858

13

(1966) 3 SCR 275

14

(1974) 2 SCC 363

15

(1985) 1 SCC 270

18

Page 19 Reddy

16

and State of Maharashtra vs. Narayan Rao

17

.

Many of these decisions deal with situations where change

in law is held to be applicable to pending proceedings

having regard to intention of legislature in a particular law.

There is no dispute with the propositions laid down in the

said decisions. Question is of application of the said

principle in the light of a particular amending law. The

decisions relied upon do not apply to the present case to

support the stand of the respondents.

25.1.In Ram Sarup case (supra), the question for

consideration was of amendment to the Punjab

Pre-emption Act, 1930 by Punjab Act 10 of 1960 restricting

the pre-emption right. Section 31 inserted by way of

amendment prohibited passing of a decree which was

inconsistent with the amended provisions. It was held that

the amendment was retrospective and had retrospective

operation in view of language employed in the said

provision.

25.2.In Dayawati case (supra), Section 6 of the Punjab

Relief of Indebtedness Act, 1956 expressly gave

16

(1991) 3 SCC 647

17

(1985) 2 SCC 321, paras 8 to 10

Page 20 retrospective effect and made the statute applicable to all

pending suits on the commencement of the Act. The Act

sought to reduce the rate of interest in certain

transactions to give relief against indebtedness to certain

specified persons.

25.3.In Lakshmi Narayan Guin case (supra), the

question was of applicability of Section 13 of the West

Bengal Premises Tenancy Act, 1956 which expressly

provided that no order could be passed by the Court

contrary to the scheme of the new law.

25.4.In Amarjit Kaur case (supra), Section 3 of the

Punjab

Pre-emption (Repeal) Act, 1973 was considered which

expressly prohibited the Court from passing any

pre-emption decree after the commencement of the Act.

25.5.There is also no conflict with the principle laid down

in V.K. Surendra case (supra) which deals with a

presumption about the nature of a joint family property

and burden of proof being on the person claiming such

Page 21 property to be separate. The said decision only lays down

a rule of evidence.

25.6. In S. Sai Reddy case (supra) , the question for

consideration was whether even after a preliminary decree

is passed determining the shares in partition, such shares

could be varied on account of intervening events at the

time of passing of the final decree. In the said case,

partition suit was filed by a son against his father in which

a preliminary decree was passed determining share of the

parties. Before final decree could be passed, there was an

amendment in the Hindu Succession Act (vide A.P.

Amendment Act, 1986) allowing share to the unmarried

daughters. Accordingly, the unmarried daughters applied

to the court for their shares which plea was upheld. The

said judgment does not deal with the issue involved in the

present matter. It was not a case where the coparcener

whose daughter claimed right was not alive on the date of

the commencement of the Act nor a case where shares of

the parties stood already crystalised by operation of law to

which the amending law had no application. Same is the

position in Prema and Ganduri cases (supra) .

Page 22 25.7.In Narayan Rao case (supra) , it was observed that

even after notional partition, the joint family continues.

The proposition laid down in this judgment is also not

helpful in deciding the question involved herein. The text

of the Amendment itself shows that the right conferred by

the Amendment is on a ‘daughter of a coparcener’ who is

member of a coparcenary and alive on commencement of

the Act.

25.8.We also do not find any relevance of decisions in

State of Rajasthan vs. Mangilal Pindwal

18

and West

U.P. Sugar Mills Asson. vs. State of U.P.

19

or other

similar decisions for deciding the issue involved herein.

The said decisions deal with the effect of repeal of a

provision and not the issue of restrospectivity with which

the Court is concerned in the present case.

26.We now come to the decisions relied upon by the

appellants. In M. Prithviraj case (supra), the view

taken appears to be consistent with what has been said

above. It appears that this was a binding precedent before

the Bench of the High Court which passed the impugned

18

(1996) 5 SCC 60

19

(2002) 2 SCC 645

Page 23 order but does not appear to have been referred to in the

impugned judgment. Judgments of this Court in Sheela

Devi vs. Lal Chand

20

and G. Sekar vs. Geetha

21

and

the judgment of Madras High Court in Bagirathi vs. S.

Manivanan

22

have been relied upon therein. In Sheela

Devi case (supra), this Court observed:

21. The Act indisputably would prevail over the

old Hindu Law. We may notice that the

Parliament, with a view to confer right upon the

female heirs, even in relation to the joint family

property, enacted Hindu Succession Act, 2005.

Such a provision was enacted as far back in

1987 by the State of Andhra Pradesh. The

succession having opened in 1989, evidently,

the provisions of Amendment Act, 2005 would

have no application. Sub-section (1) of Section

6 of the Act governs the law relating to

succession on the death of a coparcener in the

event the heirs are only male descendants. But,

the proviso appended to Sub-section (1)

of Section 6 of the Act creates an exception.

First son of Babu Lal, viz., Lal Chand, was, thus,

a coparcener. Section 6 is exception to the

general rules. It was, therefore, obligatory on

the part of the respondents-plaintiffs to show

that apart from Lal Chand, Sohan Lal will also

derive the benefit thereof. So far as the Second

son, Sohan Lal is concerned, no evidence has

been brought on records to show that he was

born prior to coming into force of Hindu

Succession Act, 1956.”

20

(2006) 8 SCC 581

21

(2009) 6 SCC 99, para 30

22

AIR 2005 Mad 250 (DB)

Page 24 Full Bench judgment of Bombay High Court in

Badrinarayan Shankar Bhandari Vs. Ompraskash

Shankar Bhandari

23

also appears to be consistent with

the view taken hereinabove.

26.1.In Gurupad Khandappa Magdum vs. Hirabai

Khandappa Magdum

24

, Shyama Devi vs. Manju

Shukla

25

and Anar Devi vs. Parmeshwari Devi

26

cases this Court interpreted the Explanation 1 to Section 6

(prior to 2005 Amendment) of the Hindu Succession Act. It

was held that the deeming provision referring to partition

of the property immediately before the death of the

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 and

Anar Devi cases, same view was followed.

26.2.In Vaishali Satish Ganorkar vs. Satish

Keshaorao Ganorkar

27

, the Bombay High Court held that

the amendment will not apply unless the daughter is born

23

AIR 2014, BOM 151. paras 40-57

24

(1978) 3 SCC 383, paras 6,11 and 13

25

(1994) 6 SCC 342, para 7

26

(2006) 8 SCC 656, paras 10,11

27

AIR 2012, BOM 101, paras 13 to 37

Page 25 after the 2005 Amendment, but on this aspect a different

view has been taken in the later larger Bench judgment.

We are unable to find any reason to hold that birth of the

daughter after the 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.

26.3.Kale vs. Dy. Director of Consolidation

28

and

Digambar Adhar Patil vs. Devram Girdhar Patil

29

have been cited to submit that the family settlement was

not required to be registered. Santosh Hazari vs.

Purushottam Tiwari

30

lays down that the Appellate Court

must deal with reasons of the trial court while reversing its

findings.

26.4Kannaiyan vs. The Assistant Collector of

Central Excise

31

, C.I.T. Gujarat vs. Keshavlal

Lallubhai Patel

32

, Umayal Achi vs. Lakshmi Achi

33

and

Shivappa Laxman vs. Yellawa Shivappa

28

(1976) 3 SCC 119, para 9

29

(1995) Supp. 2 SCC 428 at page 430

30

(2001) 3 SCC 179, para 15.

31

1969 (2) MLJ 277,

32

(1965) 2 SCR 100

33

AIR 1945 FC 25 at 31(d)

Page 26 Shivagannavar

34

have been cited to canvass that

partition was recognition of pre-existing rights and did not

create new rights.

26.5This would normally have ended our order with the

operative part being in para 24 which disposes of Civil

Appeal No.7217 of 2013 and directs listing of other

matters for being dealt with separately. However, one

more aspect relating to gender discrimination against

muslim women which came up for consideration needs to

be gone into as Part II of this order.

Part II

27.An important issue of gender discrimination which

though not directly involved in this appeal, has been

raised by some of the learned counsel for the parties

which concerns rights to muslim women. Discussions on

gender discrimination led to this issue also. It was pointed

out that inspite of guarantee of the Constitution, muslim

women are subjected to discrimination. There is no

safeguard against arbitrary divorce and second marriage

by her husband during currency of the first marriage,

34

AIR 1954 BOM 47, para 4

Page 27 resulting in denial of dignity and security to her. Although

the issue was raised before this Court in Ahmedabad

Women Action Group(AWAG) vs. Union of India

35

,

this Court did not go into the merits of the discrimination

with the observation that the issue involved state policy

to be dealt with by the legislature

36

. It was observed that

challenge to the Muslim Women (Protection of Rights on

Divorce) Act, 1986 was pending before the Constitution

Bench and there was no reason to multiply proceedings on

such an issue.

28.It is pointed out that the matter needs consideration

by this Court as the issue relates not merely to a policy

matter but to fundamental rights of women under Articles

14, 15 and 21 and international conventions and

covenants. One of the reasons for the court having not

gone into the matter was pendency of an issue before the

Constitution Bench which has since been decided by this

Court in Danial Latifi vs. Union of India

37

. The

35

(1997) 3 SCC 573

36

This Court referred to the observations of Sahai, J. in Sarla Mudgal vs. Union of India (1995) 3

SCC 635 that a climate was required to be built for a uniform civil code. Reference was also made to

observations in Madhu Kishwar vs. State of Bihar (1996 (5) SCC 125 to the effect that the court could

at best advise and focus attention to the problem instead of playing an activist role.

37

(2001) 7 SCC 740

Page 28 Constitution Bench did not address the said issue but the

Court held that Article 21 included right to live with

dignity

38

which supports the plea that a muslim woman

could invoke fundamental rights in such matters. In Javed

vs. State of Haryana

39

, a Bench of three judges

observed that practice of polygamy is injurious to public

morals and can be superseded by the State just as

practice of ‘sati’

40

. It was further observed that conduct

rules providing for monogamy irrespective of religion are

valid and could not be struck down on the ground of

violation of personal law of muslims

41

. In John

38

“ Para 33……. This Court in Olga Tellis v. Bombay Municipal Corpn. [1985(3) SCC 545] and

Maneka Gandhi v. Union of India [1978 (1) SCC 248] held that the concept of “right to life and

personal liberty” guaranteed under Article 21 of the Constitution would include the “right to live with

dignity”. Before the Act, a Muslim woman who was divorced by her husband was granted a right to

maintenance from her husband under the provisions of Section 125 CrPC until she may remarry and

such a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act

depriving the divorced Muslim women of such a right to maintenance from her husband and providing

for her maintenance to be paid by the former husband only for the period of iddat and thereafter to

make her run from pillar to post in search of her relatives one after the other and ultimately to knock at

the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of

Section 125 CrPC. Such deprivation of the divorced Muslim women of their right to maintenance from

their former husbands under the beneficial provisions of the Code of Criminal Procedure which are

otherwise available to all other women in India cannot be stated to have been effected by a reasonable,

right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of

the Code of Criminal Procedure, a divorced Muslim woman has obviously been unreasonably

discriminated and got out of the protection of the provisions of the general law as indicated under the

Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to

any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of

the Constitution mandating equality and equal protection of law to all persons otherwise

similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any

discrimination on the ground of religion as the Act would obviously apply to Muslim divorced

women only and solely on the ground of their belonging to the Muslim religion.”

39

(2003) 8 SCC 369

40

Para 46

41

Paras 54 to 59

Page 29 Vallamattom vs. UOI

42

, it was observed that Section 118

of Indian Succession Act, 1925 restricting right of

christians to make Will for charitable purpose was without

any rational basis, was discriminatory against christians

and violated Article 14

43

. Laws dealing with marriage and

succession are not part of religion

44

. Law has to change

with time

45

. International covenants and treaties could be

referred to examine validity and reasonableness of a

provision

46

.

29.In Charu Khurana vs. UOI

47

, this Court considered

the issue of gender discrimination in the matter of denial

of membership of “Cine Costume Make-up Artists and Hair

Dressers Association” in film industry. It was held that

such discrimination violates basic constitutional rights.

30.It was thus submitted that this aspect of the matter

may be gone into by separately registering the matter as

Public Interest Litigation (PIL). We are of the view that the

suggestion needs consideration in view of earlier decisions

42

(2003) 6 SCC 611

43

Paras 28 and 29

44

Para 44

45

Paras 33 to 36

46

Paras 30 to 32

47

(2015) 1 SCC 192

Page 30 of this Court. The issue has also been highlighted in recent

Articles appearing in the press on this subject

48

.

31.For this purpose, a PIL be separately registered and

put up before the appropriate Bench as per orders of

Hon’ble the Chief Justice of India.

32.Notice be issued to learned Attorney General and

National Legal Services Authority, New Delhi returnable on

23

rd

November, 2015. We give liberty to learned counsel

already appearing in this matter to assist the Court on this

aspect of the matter, if they wish to volunteer, for either

view point.

……………………………………………… ..J.

[ ANIL R. DAVE ]

……………………………………………… ..J.

[ ADARSH KUMAR GOEL ]

NEW DELHI

OCTOBER 16, 2015

48

“The Tribune” dated 24.09.2015 “Muslim Women’s quest for equality” by Vandana Shukla and

“Sunday Express Magazine” dated 04.10.2015 “In Her Court” by Dipti Nagpaul D’Souza.

Page 31 ITEM NO.1A COURT NO.3 SECTION IVA

(For judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No(s).7217/2013

PRAKASH & ORS.

Appellant(s)

VERSUS

PHULAVATI & ORS.

Respondent(s)

WITH

SLP(C)No.21814/2008

SLP(C)No.18744/2010

SLP(C)Nos.28702-28703/2010

SLP(C)No.28471/2011

SLP(C)Nos.4217-4218/2012

SLP(C)Nos.1299-1300/2013

SLP(C)Nos.17577-17578/2013

SLP(C)No.19816/2014

SLP(C)No.5619/2015

SLP(C)No.3805/2008

SLP(C)No.9390/2015

SLP(C)No.5680/2015

SLP(C)No.35209/2011

SLP(C)Nos.15557-15558/2015

S.L.P.(C)No......../2015 (CC No.15560/2015)

Date : 16/10/2015 These appeals were called on for

pronouncement

of judgment today.

For Appellant(s) Mr. Anil C. Nishant,Adv.

Mr. S.N. Bhat,Adv.

Mr. A.K. Joseph,Adv.

Mrs. Sudha Gupta,Adv.

Mrs. S. Usha Reddy,Adv.

Mr. Nanda Kishore,Adv.

Mr. P.R.Kovilan,Adv.

Ms. Geetha Kovilan,Adv.

Page 32 Civil Appeal No.7217 of 2013 etc.

Mr. Shanth Kumar V. Mahale,Adv.

Mr. Amith J.,Adv.

Mr. Rajesh Mahale,Adv.

Mr. Raghavendra S. Srivatsa,Adv.

Mr. Charudatta Mohindrakar,Adv.

Mr. A. Selvin Raja,Adv.

Mr. Aniruddha P. Mayee,Adv.

Mr. P.R. Ramasesh,Adv.

Mr. Ankolekar Gurudatta,Adv.

Mr. K.N. Rai,Adv.

Mrs. Vaijayanthi Girish,Adv.

Mr. G. Balaji,Adv.

For Respondent(s)

for M/s. S.M. Jadhav & Company,Advs.

Mr. Rauf Rahim,Adv.

Mr. Sumeet Lall,Adv.

Mr. Balaji Srinivasan,Adv.

Mr. Mayank Kshirsagar,Adv.

Ms. Srishti Govil,Adv.

Ms. Vaishnavi Subrahmanyam,Adv.

Mr. Tushar Singh,Adv.

Mr. Virendra Sharma,Adv.

Mr. Manjunath Meled,Adv.

Mr. Vijaylaxmi,Adv.

Mr. Anil Kumar,Adv.

Mr. Somiran Sharma,Adv.

Mr. B. Subrahmanya Prasad,Adv.

Mr. Anirudh Sanganeria,Adv.

Mr. Chinmay Deshpande,Adv.

Mr. Amjid MaQBOOL,aDV.

Mr. Shashibhushan P. Adgaonkar,Adv.

Mr. T. Mahipal,Adv.

Mr. G.N. Reddy,Adv.

Mr. Rajinder Mathur,Adv.

Mr. Shankar Divate,Adv.

32

Page 33 Civil Appeal No.7217 of 2013 etc.

Mrs. K. Sarada Devi,Adv.

Ms. Garima Prashad,Adv.

Hon'ble Mr. Justice Adarsh Kumar Goel

pronounced the reportable judgment of the Bench

comprising Hon'ble Mr. Justice Anil R. Dave and

His Lordship.

Civil appeal No.7217/2013 is allowed, all

the pending applications stand disposed of and

the connected Special Leave Petitions may be

listed for hearing separately for consideration

on 24

th

November, 2015, in terms of signed

Reportable Judgment.

All the pending applications stand disposed

of.

(Anita Malhotra) (Sneh Bala Mehra)

Court Master Assistant Registrar

(Signed Reportable judgment is placed on the file)

33