[2015] 12 S.C.R. 579

PRAKASH & ORS.

v.

PHULAVATI & ORS.

(Civil Appeal No.7217 of2013)

OCTOBER 16, 2015

[ANIL R. DAVE AND ADARSH KUMAR GOEL, JJ.]

Hindu Succession (Amendment) Act, 2005:

A

B

ss. 6(1 ), 6(3), 6(5) - Whether the Act will have c

retrospective operation -Held: No -The legislature has.

expressly made the Amendment applicable on

and from its.

commencement.

s. 6(1 ), (5), proviso -Right of daughter of coparcener in

coparcenery properties -Held: Rights

under the amendment D

are applicable to Jiving daughters of living coparceners as

on

9th September,

2005 irrespective of when such daughters

are born -Proviso

to s. 6(1) and s. 6(5) clearly intend to

exclude the transactions referred

to therein which may have

taken place prior

to 2Qth December,

2004 on which date the E

Bill was introduced -Therefore, disposition or alienation

including partitions which may have taken place before 20th.

December, 2004 as per law applicable prior to the said date

to remain unaffected.

Interpretation of statutes:

Harmonious construction -Held: Normal rule

is to read

the words

of a statute in ordinary sense -In case of apparent

conflict, harmonious meaning

to advance the object and

F

intention of legislature has to be given. G

Proviso -Significance of -Held: Normal rule is that a

proviso excepts something out of the enactment which would

otherwise be within the purview

of the enactment but if the

text, context

or purpose so require a different rule may apply. H

579

580

A

B

c

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

Explanation -Significance of-Held: Is to explain the

meaning

of words of the section but if the language or purpose

so require, the explanation can be so interpreted.

Prospective operation:

Held:

An amendment of a substantive provision is

always prospective unless either expressly

or by necessary

intendment it

is retrospective -Even a social legislation

cannot be given retrospective effect unless so provided for

or so intended by the legislature.

Disposing of the

appeal, the Court

HELD: 1. The text of the amendment itself clearly

provides that the right conferred on a 'daughter of a

coparcener' is 'on and from the commencement

of Hindu

D Succession (Amendment) Act,

2005'. Section 6(3) talks

of death after the amendment for its applicability. In view

of plain language of the statute, there· is no scope for a

different interpretation than the one suggested

by the

text

of the amendment. An amendment of a substantive

E provision is

always prospective unless either expressly

or by necessary intendment it is retrospective. In the

present case, there is neither any express provision

for

.

giving retrospective effect to the amended provision nor

necessary intendment

to. that effect. Requirement of

F

partition being registered can have no

applicat!on to

statutory notional partition on opening of succession as

per unamended provision, having regard to nature

of

such partition which is by operation of law. [Para 17]

G [595-F-H; 596-A-B] .

H

2. Contention of the respondents that the

Amendment should be read as retrospective being a

piece

of

social legislation cannot be accepted. Even a

social legislation cannot be given retrospective effect

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

unless so provided for or so intended by the legislature. A

In the present case, the legislature has expressly made

the Amendment applicable on and from its

commencement and only if death of the coparcener in

question is after the amendment. Thus, no other

interpretation is possible in view of express language of B

the statute. The proviso keeping dispositions or

alienations or partitions prior to 20th December, 2004

unaffected can also not lead to the inference that the

daughter could be a coparcener prior to the

commencement of the Act. The proviso only means that C

the transactions not covered thereby will not affect the

extent

of coparcenary property which may be available

when the main provision is applicable. Similarly,

Explanation. has to be read harmoniously with the

0

substantive provision of Section 6(5) by being limited to

a transaction

of partition effected after 20th December, 2004. Notional partition, by its very nature, is not covered

either under proviso

or under sub-section 5 or under the

Explanation. [Para 18] [596-C-G]

E

· 3. Interpretation of a provision depends on the text

and the context. Normal rule is to read the words of a

statute in ordinary sense. In case of ambiguity, rational

meaning has to be given. In case of apparent conflict,

harmonious meaning to advance the object and intention F

of legislature has to be given. Normal

rule is that a proviso

excepts something

out of the enactmen_t which would

otherwise be within the purview of the enactment but if

the text, context or purpose so require a different rule G

may apply.

Similarly, an explanation is to explain the

meaning

of words of the section but if the language or

purpose so require, the explanation can be so

interpreted. Rules of interpretation of statutes are useful

servants

but difficult masters.

Object of interpretation is H

I

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

.

A to discover the intention of legislature. In this

background, the proviso to Section 6(1) and sub-section

(5) of Section 6 clearly intend to exclude the transactions

referred to therein which may have taken place prior to

20

1

h December, 2004 on which date the Bill ·was

B introduced. Explanation cannot permit reopening of

partitions which were valid when effected. Object of

giving finality to transactions prior to 20th December, 2004

is not to make the main provision retrospective in any

manner. The object is that by fake transactions available

C property at the introduction of the Bill is not taken away

and remains available as and when right conferred by

the statute becomes available and is to be enforced. Main

provision

of the Amendment in Section 6(1) and (3) is

0

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

1

h

December, 2004. In no case statutory notional partition

E even after 20

1

h December, 2004 could be covered by the

Explanation or the proviso in question. Accordingly, the

rights under the amendment are applicable to living

daughters of living coparceners as on 9

1

h September,

2005 irrespective of when such daughters are born.

F Disposition

or

alienation including partitions which may

have taken place before 20

1

h December, 2004 as per law

applicable prior to the said date will remain· unaffected.

Any transaction

of partition effected thereafter

will be

governed by the Explanation. [Paras 19, 21 to 23] [596-

G G-H; 597-A, C-G; 598-A-D]

H

Prema vs. Nanje Gowda 2011 (8) SCR 55: (2011)

6 SCC 462; Ganduri Koteshwaramma vs. Chakiri

Yanadi2011 (12) SCR 968: (2011) 9 SCC 788;

V.K. Surendra vs. V.K. Thimmaiah 2013 (5)

PRAKASH & ORS. v. PHULAVATI & ORS

SCR 386: (2013) 10 SCC 211; Ram Sarup vs.

Munshi (1963) 3 SCR 858; Dayawati vs. /nderjit

(1966) 3 SCR 275; Amarjit Kaur vs. Pritam Singh

1975 (1) SCR 606: (1974) 2 SCC 363; Lakshmi

Narayan Guin vs. Niranjan Modak 1985 (2) SCR

202: (1985) 1 sec 210; s. Sai Reddy vs. s.

Narayana Reddy (1991) 3 SCC 647; State of

Maharashtra vs. Narayan Rao 1985 (3) SCR 358:

(1985) 2 SCC 321; State of Rajasthan vs. Mangi/al

Pindwal 1996 (3) Suppl. SCR 98 : (1996) 5 SCC

60; West U.P. Sugar Mills Asson. vs. State of U.P.

2002 (1) scR 897: (2002) 2 sec 645 -held

inapplicable.

M. Prithviraj vs. Nee/amma N. ILR 2009 Kar. 3612

-referred to.

583

A

. B

c

D

584 SUPREME COURT REPORTS [2015] 12 S.C.R.

A From the Judgment and Order dated 16.04.2010 of the

B

Division Bench of the High Court of Karnataka, Circuit Bench

at Dharwad

in

Regular First Appeal No. 743 of 2007.

WITH

SLP (C)NOS. 21814 OF 2008, 18744 OF 2010, 28702-

287030F 2010, 28471OF2011,4217-42180F2012,1299-

1300 OF 2013, 17577-17578 OF 2013, 19816 OF 2014, 5619

OF 2015, 3805 OF 2008, 9390 OF 2015, 5680 OF 2015,

C 35209 OF

2011

AND 15557-15558 OF 2015 AND SLP (C)

NO. 15560 OF 2015

R. Basant, R. Venkataramani, HuzefaAhmadi, S. N. Bhat,

Ravi Panwar, D. P. Chaturvedi, Sushil Karanjkar, KarthikAshok

(forK.

N.

Hai),Aljo K. Joseph, Neelam Singh, Shelna K., Rohan

D Sharma, Yashraj Bundela (for Mrs. Sud ha Gupta), Azeem A.

Kalebudde, Ankolekar Gurudatta, Charudatta Mahindrakar, A.

Selvin Raja (for Aniruddha P. Mayee), P. R. Kovilan

Poongkuntran, Nanda Kishore, GirishAnanthamurthi (for Mrs.

Vaijay9nthi Girish), S. Usha Reddy, Rajesh Mahale,

E Raghavendra S. Srivatsa, P. R. Ramasesh, G. Balaji for the

Appellants.

Basava

Prabhu S. Patil, Sushil Kumar Jain, P.

Vishwanatha Shetty, B. Subrahmanya Prasad, Anirudh

F Sanganeria. Chinmay Deshpande, Amjid Maqbool, S. M.

Jadhav, Puneet Jain, Ms. Astha Deep, Anish R. Shah, Ms.

Ankita Gupta, Manu Maheshwari, Abhinav Gupta, Ashwin

Kotemath, (for Mis. S. M. Jadhav & Company), Mahesh Thakur,

Deepak S. Shetty (for G. N. Reddy), T. N. Raghupathy, G. V.

G Chandrashekhar, Alakh Alok Srivastava, Kedar Nath Tripathy,

Manjunath Meled, Anil Kumar, Nivedita Sharma, (for Ms.

Garima Prashad), M. Y. Deshmukh, Manu Mridul, Ms.

Priyambada Sharma, (for Surya Kant), Mayank Kshirsagar,

Balaji Srinivasan, Vaishnavi Subrahmanyam, Ms. Srishti Govil,

H Virendra Sharma, Tushar Singh,Alok Krishna Agarwal, Mayank

PRAKASH & ORS. v. PHULAVATI & ORS. 585

Bughani, T. Mahipal, Rauf Rahim, Shashibhushan P. A

Adgaonkar, Somiran Sharma, Sumeet Lall, Rajinder Mathur,

Shankar Divate, Mrs. K. Sarada Devi, Ashok Kumar Gupta,

Ms. E. R. Sumathy for the Respondents.

The Judgment of the Court was delivered by

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')

B

will have retrospective effect. In the impugned judgment C

(reported in AIR 2011 Kar. 78 Phulavati vs. Prakash), plea of

restrospectivity

has been

upheld in favour of the respondents

by which the appellants are aggrieved.

2. Connected matters have been entertained in this

Court mainly on account of the said tegal issue particularly when D

there are said to be differing views of High Courts which makes

it necessary that the issue is decided by this Court. It is not

necessary

to go into the' facts of the

individual case or the

correctness of the findings recorded

by the courts

below on E

various other issues. It was made clear during the hearing that

after

deciding the

legal issue, all other aspects may be decided

separately in the light of the judgment of this Court.

3. Only for the purpose of deciding the above legal

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

2013. The respondent-plaintiff, Phulavati filed suit being O.S.

No.12/1992 before Additional Civil Judge (Senior Division),

Belgaum for partition and separate possession to the extent

of 1

f7th share in the suit properties in

Schedule 'P to 'G' except

property bearing CTS No.3241 mentioned in Schedule 'A' in G

which the share sought was 1 /28th.

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

were acquired by her _late father Yeshwanth Chandrakant

Upadhye by inheritance from his adoptive mother Smt H

586 SUPREME COURT REPORTS [2015] 12 S.C.R.

A Sunanda Bai. After-the death of her father on .18

1

h

February,

1988, she acquired the share in the property as

claitned.

5. The suit was conte~ted mainly with the plea that the

plaintiff could claim share only in the self acquired property of

B her deceased father

and not in the entire property. During

pendency of

the suit, the plaintiff amended the plaint so as to

claim share as per the Amended Act 39 of 2005. The trial

court partly decreed the suit to the extent of 1/28

1

h

share in

certain properties on the basis of notional partition on the death

C of her father and in some of the items of property, no share

was given, while 1f7

1

h

share was given in some other properties

as mentioned in

detail in the judgment of the trial court.

6. The respondent-plaintiff preferred first appeal before

o the High Court with the grievance that the plaintiff became

coparcener under the Amendment Act

39 of

2005 and was

entitled to inherit the coparcenary property equal to her brothers,

apart from contentions based on individual claims in certain

items of

property.

E

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

plaintiff

could not claim any share in self acquired property of

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

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

F Succession

Act, 1956 as it stood prior to the amendment by

Act 39 of

2005. The defendants relied upon a division bench

judgment of the

High

Court in M. Prithviraj vs. Neelamma

N.

1

laying down that if father of a plaintiff had died prior to

commencement of Act 39 of 2005, the amended provision

G could not apply. It was only the law applicable on the date of

opening of succession

which was to

~pply.

8. The High Court framed following question for

consideration

on this aspect:

H

1

ILR 2009 Kar. 3612

PRAKASH & ORS. v. PHULAVATI & ORS. 587

[ADARSH KUMAR GOEL, J.]

"(ii) Whether the plaintiff is entitled to a share in terms A

of Section 6 of the Hindu Succession Act as amended

by Act No.39 of 2005?"

9. It was held that the amendment was applicable to

pending proceedings even if it is taken to be prospective. The

8

High Court held that:

"61. The law in this regard is too well settled in terms of

the judgment of the Supreme Court in the case of G.

Sekar Vs. Geetha and others reported in (2009) 6 SCC

99. Any development of law inevitably applies to a C

pending proceeding and in fact it is not even to be taken

as a retrospective applicability

of the law but only the

law as it stands on the day being made applicable.

62. The suit, no doubt, might have been instituted in D

the year 1992 and even assuming that it was four years

after the demise ofYeshwanth Chandrakant Upadhye,

the position so far as the parties are concerned who

are all members

of the joint family, in terms of

Section

6 as amended by Act No.39 of 2005 is that a female E

member is, by a fiction of law created in terms of the

amended provision also becomes a coparcener

and

has a right in joint family property by birth. They are

also sharer members

of the coparcenary property at

par with all male members. When a partition takes F

place, coparceners succeed to the property in equal

measure. Such is the legal position in terms of Section

6 of the Hindu Succession Act as amended by Act

No.39 of 2005 and as declared by the Supreme Court

in the case

of G.

S. Sekar (supra). The only exception G

carved out to the applicability and operation of Section

6 of the Hindu Succession Act as amended by Act

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

where there was a partition which

had been effected by H

588

A

B

c

D

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

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 the learned

counsel for the parties at the

Bar as one judgment of

the Supreme Court if clinches the issue on the point, it

is good enough for

us, as a bihding authority to apply

that law and dispose of the case as declared in that

judgment."

10. The respondent-plaintiff was accordingly held entitled

to

1/?th share in all items in

Schedules'/: to 'D'. In respect of

Schedule 'F', first item was given up by the plaintiff. Out of the

E other two items, she was held entitled to

1/?th share in

Item

No.2 and 1/7

1

h share in 40% ownership in Item No.3.

11. The defendants-appellants have questioned the

judgment and order

of the High

Court with the contention that

the amended provision

of Section 6 has no application in

~he

F present case. Father of the plaintiff died on 18th February,

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

commencement oftheAmendmentAct. The plaintiff could not

claim to be "the daughter of a coparcener" at the time of

G commencement of the Act which was the necessary condition

for claiming the benefit. On the death of plaintiff's father on

18th February, 1988, notional partition took place and shares

of the heirs were crystallized which created vested right in the

parties. Such vested right could not have been taken away by

H a subsequent amendment

in absence of express provision or

PRAKASH & ORS. v. PHULAVATI & ORS. 589

[ADARSH KUMAR GOEL, J.]

necessary intendment to that effect. Moreover, the amending A

provision itself was expressly applicable "on and from" the

commencement of the Amendment

Act, i.e., gth September, 2005. The High Court held that even if the provision was

prospective,

it

could certainly apply to pending proceec:lings

as has been held in some decisions of this Court. It is pointed B

out that the amendment could apply to pending proceedings,

only if the amendment was applicable at all.

12. Learned counsel for the respondents would support

the view taken

by the High Court.

C

13. We have heard learned counsel for the parties in the

present appeal as well as in connected matters for the rival

view points which will be noticed hereinafter.

14. The contention raised on behalf of the appellants and

other learned counsel supporting the said view is that the 2005

Amendment was not applicable to the claim of a daughter when

D

her father who was a coparcener in the joint hindu family died

prior to 9

1

h September, 2005. This submission is based on E

the plain language of the statute and the established principle

that in absence of express provision or implied intention to the

contrary, an amendment dealing with a substantive right is

prospective and does not affect the vested rights

2

. If such a

coparcener

had died prior to the commencement of the F

AmendmentAct,

succession opens out on the date of the death

as per the prevailing provision of the succession

law and the

rights of the heirs get crystalised

even if partition by metes

and bounds does not take

place. It was pointed out that

apparently conflicting provision in Explanation to Section 6(5) G

and the said Section was required to be given harmonious

construction with the

main provision. The explanation

could

not be read in conflict with the main provision. Main provision

of Section

6( 1) confers right of coparcener on a daughter

only

2

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

590 SUPREME COURT REPORTS (2015] 12 S.C.R.

A from commencement of the Act and not for any period prior to

that. The proviso to Section 6(1) also applies only where the

main provision of Section 6(5) applies. Since Section 6(5)

applies to partition effected after 20

1

h December, 2004, the

said. proviso and the Explanation also applies only when

B Section 6(1) applies. It is also submitted thatthe Explanation

was merely a rule of evidence and not a substantive provision

determining the rights of the parties. Date of a daughter

becoming coparcener is on and from the commencement of

the Act. Partitions effected before 2ot11 December, 2004 remain

C unaffected as expressly provided. The Explanation defines

partition,

as partition made by a registered deed or effected

by decree of a court.

Its effect is not to wipe out a legal and

valid partition prior to the said date, but to place burden of

D proof of

genuineness of such partition on the party alleging it. In any case, statutory notional partition remailJ~lid and

effective.

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

is that the amendment being piece of social legislation to

E remove discriminatiqn'°aga~st women in the light of 174

1

h

Report of the Law Co_mmlssion, the amendment should be

read as being retrospective as interpreted by the High Court

in the impugned judgment. A daughter acquired right by birth

F and even if her father, who was a coparcener, had died prior

to coming into force of the amendment, the shares of the

parties were required to be redefined. It was submitted that

any partition which may have taken place even prior to 20

1

h

December, 2004 was liable to be ignored unless it was by a

G

registered deed of partition or by a decree of the Court.

If no

registered partition had taken place, share of the daughter will

stand enhanced by virtue of the amendment.

16. We have given due consideration to the rival

submissions. We may refer to the provision of Section 6 of the

H

. PRAKASH & ORS. v. PHULAVATI & ORS. 591

[ADARSH KUMAR GOEL, J.]

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

and as amended :

Section 6

of the Hindu

Succession Act

.

Section 6 on and from the

cdmmencement

of the

Hindu Succession

(Amendment) Act,

2005

6. Devolution of interest 6. Devolution of interest in

of coparcenary property. coparcenary property.-(1)

When a

male Hindu dies ' On and from the

after the commencement commencement of the Hindu

of this

Act, having at the Succession (Amendment)

time

of his death an

Act, 2005, in a Joint Hindu

interest in a Mitakshara family governed by the

coparcenary property,

his Mitakshara

law, the daughter

interest in

the property of a coparcener

shall.-

shall devolve by

survivorship upon the (a) by birth become a

surviving members of

the coparcener in her own right in

coparcenary

and not in the same manner as the son;

accordance with this Act: PROVIDED that, if the

deceased had left him

surviving a female relative

specified in class I of the

Schedule or a male

relative specified in that

class who claims through

such female relative, the

interest of the deceased

in the Mitakshara

coparcenary property

shall devolve by

testamentary or intestate

succession,

as the case

may be. under this Act

and not by survivorship.

(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

reference

to a daughter of a

coparcener:

B

c

D

E

F

G

H

592

A

B

c

D

E

F

G

H

S~PREMECOURTREPORTS [2015] 12 S.C.R.

Explanation I: For he Provided that nothing

purposes of this section, contained in this sub-section

the interest of a Hindu shall affect or invalidate any

Mitakshara coparcener disposition

or

alienation

shall be deemed to be the inducting any partition or

share in the property that testamentary disposition of

would have been allotted property which had taken

to him if a partition of the place before the 20th day of

property

had taken

place December, 2004.

1

immediately before his 1·

death. irrespective of (2) Any property to which a

1

whether he was entitled to female Hindu becomes

claim partition or not. entitled by virtue of sub­

Explanation 2: Nothing section -(1) shall be held by

contained

in the proviso to her with the incidents of

this section

shal! be coparcenary ownership and

construed as enabling a shall be regarded, I

person who has separated notwithstanding anything

himself from the contained in this Act, or any

coparcenary before the other law for the time being in

death of the deceased

or force, as property

capable of

any of his heirs to claim on being disposed of by her by

intestacy a share

in the testamentary disposition.

interest referred

to therein.

7.

Devolution of interest in

the property of a tarwad,

(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,-

PRAKASH & ORS. v. PHULAVATI & ORS. 593

[ADARSH KUMAR GOEL, J.]

(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

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.

A

B

c

D

E

F

G

H

594

A

B

c

D

E

F

G

H

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

(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 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.

PRAKASH & ORS. v. PHULAVATI & ORS. 595

[ADARSH KUMAR GOEL, J.]

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.'

A

B

c

D

E

17. The text of the amendment itself clearly provides that F

the right conferred on a 'daughter

of a coparcener' is 'on and

from the commencement

of Hindu Succession (Amendment)

Act,

2005'. Section 6(3) talks of death after the amendment

for its applicability. In view of plain language of the statute, G

there is no scope for a different interpretation than the one

suggested by the text of the amendment. An amendment

of a

substantive provision is

always prospective unless either

expressly or by necessary intendment it is retrospective

3

. In

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

596 SUPREME COURT REPORTS [2015] 12 S.C.R.

A the present case, there is neither any express provision for

giving retrospective effect

to the amended provision nor

necessary intendment

to that effect. Requirement of partition

·

being registered can have no application to statutory notional

partition on opening of succession as per unamended

B

provision, having regard to nature of such partition which is by

operation of

law. The intent and effect of the Amendment will

be considered a little later. On this finding, the view of the

High Court cannot be sustained.

C 18. Contention of the respondents that theAmendment

should be read as retrospective being a piece of social

legislation cannofbe accepted. Even a social legislation cannot

be given retrospective effect unless so provided for or so

intended by the legislature. In the present case, the legislature

D

has expressly made the Amendment applicable on and from

its commencement and only if death of the coparcener in

question is after the Amendment. Thus, no other interpretation

is possible in view of express

language of the statute. The

proviso

keeping dispositions or alienations or partitions prior

E

to

20th December, 2004 unaffected can also not lead to the

inference that

the daughter

could be a coparcener prior to the

commencement of

the Act. The proviso only means that the

transactions not

covered thereby

will not affect the extent of

F coparcenary property

which may be

available when the main

provision is applicable. Similarly, Explanation has to be read

harmoniously with the substantive provision of Section 6(5) by

being limited to a transaction of partition effected after 20th

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

G

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

the Explanation.

19. Interpretation of a provision depends on the text and

the context

4

.

Normal rule is to read the words of a statute in

H

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

--PRAKASH & ORS. v. PHULAVATI & ORS. 597

[ADARSH KUMAR GOEL, J.]

ordinary sense. In case of ambiguity, rational meaning has to A

be given

5

. In case of apparent conflict, harmonious meaning

to advance the object and intention of legislature has to be

given

6

.

20. There have been number of occasions when a proviso B

or an explanation came up for interpretation. Depending on

the text, context and the purpose, different rules of interpretation

have been applied

7

.

21. Normal rule is that a proviso excepts something out c

of the enactment which would otherwise be within the purview

of

the enactment but if the text, context or purpose so require a

different

rule may apply. Similarly, an explanation is to explain

the meaning of words of the section but if the language or

purpose so require, the explanation can be so interpreted. D

Rules of interpretation of statutes are useful servants but difficult

masters

8

.

Object of interpretation is to

discover the intention

of legislature.

22.

In this background, we find that the proviso to Section E

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

the transactions referred to therein which may have taken place

prior to 20th December, 2004 on which date the Bill was

introduced. Explanation cannot permit reopening of partitions

which were valid when effected. Object of giving finality to F

transactions prior

to 2Qth December,

2004 is not to make the

main provision retrospective in any manner. The object is that

by fake transactions available property at the introduction of

the Bill is not taken away and remains available as and when

right conferred by the statute becomes available and is to be G

enforced.

Main provision of the Amendment in

Section 6( 1)

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

5

Kehar Singh vs. State (1988) 3 SCC 609

6

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

7

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

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

598 SUPREME COURT REPORTS [2015] 12 S.C.R.

A strengthened in this way. Settled principles governing such

transactions relied upon by the appellants are not intended to

IJe done away with for period prior to 20th December, 2004. In

no case statutory notional partition even after 2Qth December,

2004 could be covered by the Explanation or the proviso in

B question.

23. Accordingly, we hold that the rights under the

amendment are applicable to living daughters of living

coparceners as on 9th September, 2005 irrespective of when

C such daughters are born. Disposition or alienation including

partitions which may have taken place before 20lh December,

2004 as per law applicable prior to the said date will remain

unaffected. Any transaction of partition effected thereafter will

D

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

E

hearing separately for consideration on 24th November,

2015.

25. The view which we have taken above is consistent

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

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

F dec:isbns c:i1Bd by the respondents are: Prema VS. Nanje

Gowda

9

,

Ganduri Koteshwaramma vs. Chakiri

Yanadi

10

,

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

11

, Ram Sarup vs.

Munshi

12

,

Dayawati vs. lnderjit

13

, Amarjit Kaur vs.

Pritam

Singh

14

,

Lakshmi Narayan Guin vs. Niranjan Modak

15

, S.

G Sai Reddy vs. S. Narayana Reddy

16

and State of

Maharashtra vs. Narayan Rao

17

• Many of these decisions

H

'(2011)6 sec 462

10 (2011) 9 sec 788

11(2013)10 sec 211, para 18

12 (1963) 3 SCR 858

" ( 1966) 3 SCR 275

"(1974) 2 sec 363

" (1985) 1 sec 270

" (1991) 3 sec 647

17 (1985) 2 sec 321, paras 8 to 10

PRAKASH & ORS. v. PHULAVATI & ORS. 599

[ADARSH KUMAR GOEL, J.]

deal with situations where change in law is held to be applicable A

to pending proceedings having regard to intention

of legislature in a particular law. There is no dispute with the

propositions laid down in the said decisions. Question is of

application of the said principle in the light of a particular

amending law. The decisions relied upon do not apply to the B

present

case to support the stand of the respondents.

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

consid~{,ation was of amendment to the Punjab Pre-emption

Act, 1 ~Q.by Punjab Act 10of1960 restricting the pre-emption C

right. · $ection 31 inserted by way of amendment prohibited

passing bf a decree which was inconsistent with the amended

provisions, It was held that the amendment was retrospective

and had retrospective operation in view of language employed

in the said provision. D

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

Relief of Indebtedness Act, 1956 expressly gave retrospective

effect and made the statute applicable to all p~f1ding suits on

the commencement of the Act. The Act soug~ to reduce the E

rate of interest in certain transactions to give relief against

indebtedness

to certain specified persons.

25.3.

In Lakshmi Narayan Guin case (supra), the

question was of applicability of Section 13 of the West Bengal F

Premises Tenancy Act, 1956 which expressly provided that

no order could be passed by the Court contrary to the scheme

of the new law.

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

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

expressly prohibited the Court from passing any pre-emption

decree after

the commencement of the Act.

25.5. There is also no conflict with the

principle laid down

H

. 600 SUPREME COURT REPORTS [2015] 12 S.C.R.

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

presumption about

the nature of a joint

family property and

burden of proof being on the person claiming such property to

be separate. The said decision only lays down a rule of

evidence.

B

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

consideration

was whether even after a

preliminary decree is

passed determining the shares in partition, such shares could

be varied on account of intervening events at the time of

C passing of the final decree. In the said case, partition suit was

filed by a son against his father in which a preliminary decree

was passed determining share of the parties. Before final

decree could be passed, there was an amendment in the Hindu

Succession Act (vide A. P. Amendment Act, 1986) allowing

D share to the unmarried daughters. Accordingly, the unmarried

daughters applied to the court for their shares which plea was

upheld. The said judgment does not deal with the issue

involved in the present matter. It was not a case where the

coparcener whose daughter claimed right was not alive on

E the date of the commencement of the Act nor a case where

shares of the parties stood already crystal1sed by operation of

law to which the amending law had no application. Same is

the position in Prema and Ganduri cases (supra).

F 25.7. In Narayan Rao case (supra), it was observed

that even after notional partition, the joint family continues. The

proposition laid down in this judgment is also not helpful in

deciding the question involved herein. The text of the

Amendment itself shows that the right conferred

by the

G Amendment

is on a 'daughter of a coparcener' who is member

of a coparcenary and

alive on commencement of the Act.

25.8. We also do not find any relevance of decisions

in State of Rajasthan vs. Mangila/ Pindwa/

18

and West U.P.

H " (1996) s sec 60

PRAKASH & ORS. v. PHULAVATI & ORS. 601

[ADARSH KUMAR GOEL, J.]

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

19

or other similar A

decisions for deciding the issue involved herein. The said

decisions deal

with the effect of repeal of a provision and not

the issue of restrospectivity with which the Court is concerned

in the present case.

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

appellants. In M. Prithviraj cast,) (supra), the view taken

appears

to be consistent with what has been said above.

It

appears that this was a binding precedent before the Bench

B

of the High Court which passed the impugned order but does C

not appear to have been referred to in the impugned judgment.

Judgments of this Court

in

Sheela Devi vs. Lal ChancP

0

and

G Sekarvs. 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: D

21. The Act indisputably would prevail over the old

Hindu

Law. We may notice that the Parliament, with a

view to. confer right upon the female heirs, even

in

relation to the joint family property, enacted Hindu E

Succession Act,

2005. Such a provision was enacted

as far back

in 1987 by the

State of Andhra Pradesh.

The succession having opened in 1989, evidently, the

provisions

of Amendment Act,

2005 would have no

application. Sub-section

(1) of

Section 6 of the Act F

governs the law relating to succession on the death of

a coparcener in the event the· heirs are only male

descendants.

But, the proviso appended to Sub-section

(1) of

Section 6 of the Act creates an exception. First

son of Babu Lal, viz., Lal Chand, was, thus, a G

coparcener. Section 6 is exception to the general rules.

1

•

(2002)

2 sec 645

20

(2006) s sec 581

21

(2009) 6 sec 99, para 30

22

AIR 2005 Mad 250 (DB}

602 SUPREMECOURTR~PORTS [2015] 12 S.C.R.

A It was, therefore, obligatory on the part of the

respondents-plaintiffs

to show that apart from Lal

Chand,

Sohan Lal will also derive the benefit thereof.

So far as the Second son, Sohan Lal is concerned, no

evidence has been brought on records to show that he

B was born prior to coming into force of Hindu Succession

Act, 1956."

Full Bench judgment of Bombay High Court in

Badrinarayan Shankar Bhandari Vs. Ompraskash

C Shankar Bhandari

23

also appears to be consistent with the

view taken hereinabove.

26.1. In Gurupad Khandappa Magdum vs. Hirabai

Khandappa Magdum

24

,

Sh ya ma Devi vs. Man ju Shukla

25

,

D and Anar Devi vs. Parmeshwari Devi

26

cases this Court

interpre.ted the Explanation

1 to

Section 6 (prior to 2005

Amendment) of the Hindu Succession Act. It was held that the

deeming provision referring to partition of the property

immediately before the death of the coparcenerwas to be given

E due and full effect in view of settled principle of interpretation

of a provision incorporating a deeming fiction. In Shyama

Devi and Anar Devi cases, same view was followed.

26.2. In Vaishali Satish Ganorkar vs. Satish

F Keshaorao Ganorkar

7

, the Bombay High Court held that the

amendment will not apply unless the daughter .is born after the

2005Amendment, but on this aspect a different view has been

taken in the later larger Bench judgment. We are unable to

find

any reason to hold that birth of the daughter after the

G amendment was a necessary condition for its applicability.

All

that is required is that daughter should be alive and her father

23

AIR 2014, BOM 151. paras 40-57

24

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

25

(1994) 6 sec 342, para 7

26

(2006) 8 sec 656, paras 10,11

H

27

AIR 2012, SOM 101, paras 13 to 37

PRAKASH & ORS. v. PHULAVATI & ORS. 603

[ADARSH KUMAR GOEL, J.]

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

26.3.

Kale vs. Dy. Director of Conso/idation

28

and

Digambar AdharP.atil vs. Devram Girdhar Patil

29

have

been

cited to submit that the family settlement was not required to

be registered. Santosh Hazari vs. Purushottam Tiwari3° B

lays down that the Appellate Court must deal with reasons of

the trial court while reversing its findings.

26.4

Kannaiyan vs. The Assistant Collector of

Central Excise

31

, C.I. T. Gujarat vs. Keshavlal Lallubhai

C

Pate/3

2

, Umayal Achi vs. Lakshmi Achi3

3

and Shivappa

Laxman vs. Yellawa Shivappa Shivagannavaf3

4

have been

cited to canvass that partition was recognition of pre-existing

rights

and did not create new rights.

26.5 This would

normally have ended our order with the

D

operative part

being in para 24 which disposes of

Civil Appeal

No.7217 of 2013 and directs listing of other matters for being

dealt

with separately. However, one more aspect relating to

gender discrimination against muslim women which came up E

for consideration needs

to be gone into as Part

II of this order.

Part II

27. An important issue of gender discrimination which

though not directly

involved in this appeal, has been raised by F

some of the learned counsel for the parties which concerns

rights to muslim women. Discussions on gender discrimination

·Jed to this issue also. It was pointed out that inspite of guarantee

of the Constitution, muslim women are subjected to

"(1976) 3 sec 119, para 9

29

(1995) Supp. 2 SCC 428 at page 430

30

(2001) 3 sec 179, para 15.

31

1969 (2) MLJ 277,

32

(1965) 2 SCR 100

33

AIR 1945 FC 25 at 31 (d)

"AIR 1954 BOM 47, para 4

G

H

604 SUPREME COURT REPORTS [2015] 12 S.C.R.

A discrimination. There is no safeguard against arbitrary divorce

and second marriage

by her husband during currency of the

first marriage,

resulting in denial of dignity and security to her.

Although the issue was raised before this Court in Ahmedabad

Women Action Group(AWAG)

vs.

Union of lndia

35

, this

B Court

did not go into the merits of the discrimination with the

observation that the issue

involved state policy to be dealt

with by the 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

C rea~on to multiply proceedings on such an issue.

28. It is pointed out that the matter needs consideration

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

but

to

fundamental rights of women under Articles 14, 15 and

D

21 and

international conventions and covenants. One of the

reasons for the court having not gone into the matter was

pendency of

an issue before the Constitution Bench which has

since been decided by this Court in Danial Latifi vs.

Union

of /ndia

37

• The Constitution Bench did not address the -said

E issue but the Court held that Article 21 included right to live

with dignity

38

which supports the plea that a muslim woman

"(1997) 3 sec 573

36

This Court referred to the observations of Sahai. J. in Sarla Mudgal vs.

Union of India (1995) 3 sec 635 that a climate wa~ required to be built for a

F uniform civil code. Reference was also made to observations in Madhu

l<ishwar vs. State of Bihar (1996 (5) sec 125 to the effect that the court could

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

role.

"

(2001 l

7 sec 740

""Para 33 ....... This Court in Olga Tellis v. Bombay Municipal Corpn. [1985(3}

SCC 545] and Maneka Gandhi v. Union of India [1978 (1) SCC 248] held that

G the concept of"right to life and personal liberty" guaranteed under Article 21 of

the Constitution would include the "right to live with dignity". Before the Act, a

Muslim woman who was divorced by her husband was granted a right to

maintenance from her husband under the provisions

of

Section 125 CrPC

until she may remarry and such a right, if deprived, would not be reasonable,

just and fair. Thus the provisions of the Act depriving the divorced Muslim

H women of such a right to maintenance from her husband and providing for

her maintenance to

be paid by the former husband

only for the period of iddat

PRAKASH & ORS. v. PHULAVATI & ORS.

[ADARSH KUMAR GOEL, J.]

605

could invoke fundamental rights in such matters. In Javed vs. A

State of Haryana

39

, a Bench of three judges observed that

practice of polygamy is injurious to public morals and can be

superseded by the State just as practice of 'sati'

40

. It was

further observed that conduct rules providing for monogamy

irrespective of religion

are

valid and could not be struck down

B

on the ground of violation of personal law of muslims

41

. In John

Vallamattom

vs.

U0/

42

, it was observed that Section 118 ·of

Indian Succession Act, 1925 restricting right of christians to

make Will for charitable purpose was without any rational basis,

was discriminatory against christians and violated Article 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

.

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

c

D

to all other women in India cannot be stated to have been effected by a E

reasonable, right, just and fair law and. if these provisions are less beneficial

than the provisions of Chapter IX of the Code of Criminal Procedure. a divorced

Muslim woman has obviously been unreasonably discriminated and got out

of the protection of the provisions of the general law as indicated under the

~ode which are available to Hindu, Buddhist, Jain, Parsi or Christian women

or women belonging to any other community. The provisions prima facie,

therefore, appear

to be violative of Article 14 of the Constitution mandating F

equality and equal protection of law to

all persons otherwise similarly

circumstanced and also violative

of Article 15 of the Constitution which

prohibits any discrimination on the ground of religion as the Act

would

obviously apply to Muslim divorced women only and solely on the ground

of their belonging to the Muslim religion."

"(2003) a sec 369

" Para 46

" Paras 54 to 59

"(2003) 6 sec 611

43

Paras 28 and 29

44

Para 44

" Paras 33 to 36

46

Paras 30 to 32

G

H

606 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 29. In Charu Khurana vs. U0/

47

, this Court considered

B

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 of this Court.

C The issue has also been highlighted in recentArticles 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

o the Chief Justice of India.

32. Notice be issued to learned Attorney General and

National Legal Services Authority, New Delhi returnable on 23rct

November, 2015. We give liberty to learned counsel already

E appearing in this matter to assist the Court on this aspect of

the matter, if they wish to volunteer, for either view point.

Devika Gujral Appeal disposed of.

" (2015) 1 sec rn2

'"""The Tribune"" dated 24.09.2015 '"Muslim Women's quest for equality"' by

Vandana Shukla and ··Sunday Express Magazine·· dated 04.10.2015 '"In Her

l"ourr· by llipti Nagpaul D"Souza.