No Acts & Articles mentioned in this case
[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.
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