.IMPORTANT POINTS
A daughter could not be a coparcener prior to the commencement of the Amendment Act, 2005.
Giving finality to transactions prior to the cut-off date does not make the provisions retrospective.
Any transaction of partition effected after 20th December, 2004 will be governed by the Explanation to section 6(5).
A PIL concerning gender discrimination in Muslim community directed to be registered separately.

Headnote:(a) Hindu Succession Act, 1956 – Section 6 – Rights conferred on daughter of a coparcener – From ‘on and from the commencement of Hindu Succession (Amendment) Act, 2005’ – Provisions of Amendment Act apply on death of coparcener after coming into force of the Act – In absence of any express provision or implied intendment, the amendment Act, even though a social legislation, is prospective – Therefore a daughter could not be a coparcener prior to the commencement of the amendment Act – Amendment providing for notional statutory partition by operation of law – Requirement of a partition being registered cannot apply to such notional partition. (Para 17, 18)
       (2001) 8 SCC 24 – Relied upon
       (b) Interpretation of statute – Proviso and Explanation – Interpretation depends upon text, context and purpose – Rational meaning, harmonious meaning – Different rules of interpretation may be applied depending upon text, context and purpose of the statute – A proviso excepts something out of the enactment which would otherwise be within the purview of the enactment – An explanation is to explain the meaning of words of the section. (Para 19, 20, 21)
       (1987) 1 SCC 424; (1988) 3 SCC 609; (2001) 7 SCC 358; (1985) 1 SCC 591; (1990) 2 SCC 231 – Relied upon
       (c) Section 6(1), Proviso and section 6(5), Explanation – Giving finality to transactions prior to 20th December, 2004 – Does not make the provisions retrospective – Statutory notional partition even after 20th December, 2004 cannot be covered by the Explanation or the proviso – Accordingly, rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when they were born – Disposition or alienation including partitions already taken place before 20th December, 2004 as per prevailing applicable law prior to the said date will remain unaffected – Any transaction of partition effected thereafter will be governed by the Explanation. (Para 22, 23)
       (2006) 8 SCC 581; (2009) 6 SCC 99; (1978) 3 SCC 383; (1994) 6 SCC 342; (2006) 8 SCC 656; (1976) 3 SCC 119; (1995) Supp. 2 SCC 428; (2001) 3 SCC 179; (1965) 2 SCR 100; AIR 1945 FC 25 – Relied upon
       AIR 2005 Mad 250 (DB); AIR 2014 BOM 151; 1969 (2) MLJ 277; ILR 2009 Kar. 3612 – Cited with approval
       (2011) 6 SCC 462; (2011) 9 SCC 788; (2013) 10 SCC 211; (1963) 3 SCR 858; (1966) 3 SCR 275; (1974) 2 SCC 363; (1985) 1 SCC 270; (1991) 3 SCC 647; (1985) 2 SCC 321; (1996) 5 SCC 60; (2002) 2 SCC 645; AIR 2012 BOM 101 – Distinguished
       AIR 2011 Kar. 78 – Set aside
       (d) Civil law – Gender Discrimination of Muslim women – Polygamy in Muslim community and plight of women – Constitution of India – Articles 21, 15 – Muslim Women (Protection of Rights on Divorce) Act, 1986 – Court directing that a PIL be separately registered and put up before the appropriate Bench. (Para 28, 29, 30, 31)
       (1997) 3 SCC 573; (1995) 3 SCC 635; (1996) 5 SCC 125; (2001) 7 SCC 740; (2003) 8 SCC 369; (2003) 6 SCC 611; (2015) 1 SCC 192 – Referred
       Facts of the case:
       The only issue which has been raised in this batch of matters is whether Hindu Succession (Amendment) Act, 2005 will have retrospective effect. In the impugned judgment (reported in AIR 2011 Kar. 78 Phulavati vs. Prakash), plea of restrospectivity has been upheld in favour of the respondents by which the appellants are aggrieved.
       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 1/7th share in the suit properties in Schedule ‘A’ to ‘G’ except property bearing CTS No.3241 mentioned in Schedule ‘A’ in which the share sought was 1/28th.
       According to the the plaintiff, the suit properties were acquired by her late father Yeshwanth Chandrakant Upadhye by inheritance from his adoptive mother Smt. Sunanda Bai. After the death of her father on 18th February, 1988, she acquired the share in the property as claimed.
       The suit was contested mainly with the plea that the plaintiff could claim share only in the self acquired property of her deceased father and not in the entire property. During pendency of the suit, the plaintiff amended the plaint so as to claim share as per the Amended Act 39 of 2005.
       The trial court partly decreed the suit to the extent of 1/28th share in certain properties on the basis of notional partition on the death of her father and in some of the items of property, no share was given, while 1/7th share was given in some other properties.
       The respondent-plaintiff preferred first appeal before the High Court with the grievance that the plaintiff became coparcener under the Amendment Act 39 of 2005 and was entitled to inherit the coparcenary property equal to her brothers, apart from contentions based on individual claims in certain items of property.
       The High Court held that the amendment was applicable to pending proceedings even if it is taken to be prospective.
       10. The respondent-plaintiff was accordingly held entitled to 1/7th share in all items in Schedules ‘A’ to ‘D’. In respect of Schedule ‘F’, first item was given up by the plaintiff. Out of the other two items, she was held entitled to 1/7th share in Item No.2 and 1/7th share in 40% ownership in Item No.3.
       Finding of the Court:
       Provisions of Amendment Act apply on death of coparcener after coming into force of the Act.
       Result:
       Civil Appeal No.7217 of 2013 allowed.

JUDGMENT

Adarsh Kumar Goel, J.

1. The only issue which has been raised in this batch of matters is whether Hindu Succession (Amendment) Act, 2005 (‘the Amendment Act’) will have retrospective effect. In the impugned judgment (reported in AIR 2011 Kar. 78 Phulavati vs. Prakash), plea of restrospectivity has been upheld in favour of the respondents by which the appellants are aggrieved.

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

3. Only for the purpose of deciding the above legal question, we refer to the brief facts in Civil Appeal No.7217 of 2013. The respondent-plaintiff, Phulavati filed suit being O.S. No.12/1992 before Additional Civil Judge (Senior Division), Belgaum for partition and separate possession to the extent of 1/7th share in the suit properties in Schedule ‘A’ to ‘G’ except property bearing CTS No.3241 mentioned in Schedule ‘A’ in which the share sought was 1/28th.

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. Sunanda Bai. After the death of her father on 18th February, 1988, she acquired the share in the property as claimed.

5. The suit was contested mainly with the plea that the plaintiff could claim share only in the self acquired property of her deceased father and not in the entire property. During pendency of the suit, the plaintiff amended the plaint so as to claim share as per the Amended Act 39 of 2005. The trial court partly decreed the suit to the extent of 1/28th share in certain properties on the basis of notional partition on the death of her father and in some of the items of property, no share was given, while 1/7th share was given in some other properties as mentioned in detail in the judgment of the trial court.

6. The respondent-plaintiff preferred first appeal before the High Court with the grievance that the plaintiff became coparcener under the Amendment Act 39 of 2005 and was entitled to inherit the coparcenary property equal to her brothers, apart from contentions based on individual claims in certain items of property.

7. The stand of the defendants-appellants was that the plaintiff could not claim any share in self acquired property of the members of the joint family and that the claim of the plaintiff had to be dealt with only under Section 6 of the Hindu Succession Act, 1956 as it stood prior to the amendment by Act 39 of 2005. The defendants relied upon a division bench judgment of the High Court in M. Prithviraj vs. Neelamma N., ILR 2009 Kar. 3612 laying down that if father of a plaintiff had died prior to commencement of Act 39 of 2005, the amended provision could not apply. It was only the law applicable on the date of opening of succession which was to apply.

8. The High Court framed following question for consideration on this aspect :

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

9. It was held that the amendment was applicable to pending proceedings even if it is taken to be prospective.

The High Court held that :

“61. The law in this regard is too well settled in terms of the judgment of the Supreme Court in the case of G. Sekar Vs. Geetha and others reported in (2009) 6 SCC 99. Any development of law inevitably applies to a pending proceeding and in fact it is not even to be

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2015 Supreme(SC) 1021

Cases Referred (38)