Partition; Prakash Vs. Phulwati [Supreme Court of India, 16-10-2015]

Hindu Succession (Amendment) Act, 2005 – Whether will have retrospective effect – the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th 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.





OCTOBER 16, 2015




SLP (C) NOS.21814 OF 2008, 18744 OF 2010, 28702-28703 OF 2010, 28471 OF 2011, 4217-4218 OF 2012, 1299-1300 OF 2013, 17577-17578 OF 2013, 19816 OF 2014, 5619 OF 2015, 3805 OF 2008, 9390 OF 2015, 5680 OF 2015, 35209 OF 2011 AND 15557-15558 OF 2015 AND SLP. (C) ….15560 OF 2015

For Appellant(s) Mr. Anil C. Nishant,Adv. Mr. S.N. Bhat,Adv. Mr. A.K. Joseph,Adv. Mrs. Sudha Gupta,Adv. Mrs. S. Usha Reddy,Adv. Mr. Nanda Kishore,Adv. Mr. P.R.Kovilan,Adv. Ms. Geetha Kovilan,Adv. Mr. Shanth Kumar V. Mahale,Adv. Mr. Amith J.,Adv. Mr. Rajesh Mahale,Adv. Mr. Raghavendra S. Srivatsa,Adv. Mr. Charudatta Mohindrakar,Adv. Mr. A. Selvin Raja,Adv. Mr. Aniruddha P. Mayee,Adv. Mr. P.R. Ramasesh,Adv. Mr. Ankolekar Gurudatta,Adv. Mr. K.N. Rai,Adv. Mrs. Vaijayanthi Girish,Adv. Mr. G. Balaji,Adv.

For Respondent(s) for M/s. S.M. Jadhav & Company,Advs. Mr. Rauf Rahim,Adv. Mr. Sumeet Lall,Adv. Mr. Balaji Srinivasan,Adv. Mr. Mayank Kshirsagar,Adv. Ms. Srishti Govil,Adv. Ms. Vaishnavi Subrahmanyam,Adv. Mr. Tushar Singh,Adv. Mr. Virendra Sharma,Adv. Mr. Manjunath Meled,Adv. Mr. Vijaylaxmi,Adv. Mr. Anil Kumar,Adv. Mr. Somiran Sharma,Adv. Mr. B. Subrahmanya Prasad,Adv. Mr. Anirudh Sanganeria,Adv. Mr. Chinmay Deshpande,Adv. Mr. Amjid MaQBOOL,aDV. Mr. Shashibhushan P. Adgaonkar,Adv. Mr. T. Mahipal,Adv. Mr. G.N. Reddy,Adv. Mr. Rajinder Mathur,Adv. Mr. Shankar Divate,Adv. Mrs. K. Sarada Devi,Adv. Ms. Garima Prashad,Adv.



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 taken as a retrospective applicability of the law but only the law as it stands on the day being made applicable.

62. The suit, no doubt, might have been instituted in the year 1992 and even assuming that it was four years after the demise of Yeshwanth Chandrakant Upadhye, the position so far as the parties are concerned who are all members of the joint family, in terms of Section 6 as amended by Act No.39 of 2005 is that a female member is, by a fiction of law created in terms of the amended provision also becomes a coparcener and has a right in joint family property by birth. They are also sharer members of the coparcenary property at par with all male members. When a partition takes place, coparceners succeed to the property in equal measure. Such is the legal position in terms of Section 6 of the Hindu Succession Act as amended by Act No.39 of 2005 and as declared by the Supreme Court in the case of G.S. Sekar (supra). The only exception carved out to the applicability and operation of Section 6 of the Hindu Succession Act as amended by Act No.39 of 2005 being a situation or a factual position where there was a partition which had been effected by a registered partition deed or by a decree of the court which has attained finality prior to 20.12.2004 in terms of sub-section (5) to Section 6.

63. In the present case such being not the factual position, the exception available under sub-section (5) to Section 6 cannot be called in aid by the defendants and therefore, the liability in terms of the amended provisions operates. It is not necessary for us to multiply the judgment by going into details or discussing other judgments referred to and relied upon by the learned counsel for the parties at the Bar as one judgment of the Supreme Court if clinches the issue on the point, it is good enough for us, as a binding authority to apply that law and dispose of the case as declared in that judgment.”

10. The respondent-plaintiff was accordingly held entitled to 1/7th 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.

11. The defendants-appellants have questioned the judgment and order of the High Court with the contention that the amended provision of Section 6 has no application in the present case. Father of the plaintiff died on 18th February, 1988and was thus, not a coparcener on the date of commencement of the Amendment Act. The plaintiff could not claim to be “the daughter of a coparcener” at the time of commencement of the Act which was the necessary condition for claiming the benefit. On the death of plaintiff’s father on 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 a subsequent amendment in absence of express provision or necessary intendment to that effect. Moreover, the amending provision itself was expressly applicable “on and from” the commencement of the Amendment Act, i.e., 9th September, 2005. The High Court held that even if the provision was prospective, it could certainly apply to pending proceedings as has been held in some decisions of this Court. It is pointed out that the amendment could apply to pending proceedings, only if the amendment was applicable at all.

12. Learned counsel for the respondents would support the view taken by the High Court.

13. We have heard learned counsel for the parties in the present appeal as well as in connected matters for the rival view points which will be noticed hereinafter.

14. The contention raised on behalf of the appellants and other learned counsel supporting the said view is that the 2005 Amendment was not applicable to the claim of a daughter when her father who was a coparcener in the joint hindu family died prior to 9th September, 2005. This submission is based on the plain language of the statute and the established principle that in absence of express provision or implied intention to the contrary, an amendment dealing with a substantive right is prospective and does not affect the vested rights2. If such a coparcener had died prior to the commencement of the Amendment Act, succession opens out on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystalised even if partition by metes and bounds does not take place. It was pointed out that apparently conflicting provision in Explanation to Section 6(5) and the said Section was required to be given harmonious construction with the main provision. The explanation could not be read in conflict with the main provision. Main provision of Section 6(1) confers right of coparcener on a daughter only from commencement of the Act and not for any period prior to that. The proviso to Section 6(1) also applies only where the main provision of Section 6(5) applies. Since Section 6(5) applies to partition effected after 20th December, 2004, the said proviso and the Explanation also applies only when Section 6(1) applies. It is also submitted that the Explanation was merely a rule of evidence and not a substantive provision determining the rights of the parties. Date of a daughter becoming coparcener is on and from the commencement of the Act. Partitions effected before 20th December, 2004 remain unaffected as expressly provided. The Explanation defines partition, as partition made by a registered deed or effected by decree of a court. Its effect is not to wipe out a legal and valid partition prior to the said date, but to place burden of proof of genuineness of such partition on the party alleging it. In any case, statutory notional partition remains valid and effective.