IN THE SUPREME COURT OF INDIA
CIVIL APPEAL NO.7217 OF 2013
PRAKASH &
ORS. ………………APPELLANTS
VERSUS
PHULAVATI &
ORS. …………….RESPONDENTS
WITH
SLP
(C) NOS.21814 OF 2008, 18744 OF 2010,
28702-28703
OF 2010, 28471 OF 2011, 4217-4218
OF
2012, 1299-1300 OF 2013, 17577-17578 OF
2013,
19816 OF 2014, 5619 OF 2015, 3805 OF 2008,
9390
OF 2015, 5680 OF 2015, 35209 OF 2011 AND
15557-15558
OF 2015 AND SLP. (C) ….15560 OF
2015
J U D G M E N T
(Date 16/10/2015)
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.
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Civil Appeal
No.7217 of 2013 etc.
2. Connected
matters have been entertained in this
Court mainly on
account of the said legal issue particularly
when there are
said to be differing views of High Courts
which makes it
necessary that the issue is decided by this
Court. It is not
necessary to go into the facts of the
individual case
or the correctness of the findings recorded
by the courts
below on various other issues. It was made
clear during the
hearing that after deciding the legal issue,
all other
aspects may be decided separately in the light of
the judgment of
this Court.
3. Only for the
purpose of deciding the above legal
question, we
refer to the brief facts in Civil Appeal No.7217
of 2013. The
respondent-plaintiff, Phulavati filed suit
being O.S.
No.12/1992 before Additional Civil Judge (Senior
Division),
Belgaum for partition and separate possession to
the extent of
1/7th 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
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Civil Appeal No.7217
of 2013 etc.
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.
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Civil Appeal
No.7217 of 2013 etc.
7. The stand of
the defendants-appellants was that the
plaintiff could
not claim any share in self acquired property
of the members
of the joint family and that the claim of
the plaintiff
had to be dealt with only under Section 6 of
the Hindu
Succession Act, 1956 as it stood prior to the
amendment by Act
39 of 2005. The defendants relied
upon a division
bench judgment of the High Court in M.
Prithviraj vs. Neelamma N.1 laying down that if
father
of a plaintiff
had died prior to commencement of Act 39 of
2005, the
amended provision could not apply. It was only
the law
applicable on the date of opening of succession
which was to
apply.
8. The High
Court framed following question for
consideration on
this aspect :
“(ii) Whether the plaintiff is entitled to a share
in terms of Section 6 of the Hindu Succession
Act as amended by Act No.39 of 2005?”
9. It was held
that the amendment was applicable to
pending
proceedings even if it is taken to be prospective.
The High Court
held that :
1 ILR 2009 Kar. 3612
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Civil Appeal
No.7217 of 2013 etc.
“61. The law in this regard is too well settled
in terms of the judgment of the Supreme Court
in the case of G. Sekar Vs. Geetha and others
reported in (2009) 6 SCC 99. Any development
of law inevitably applies to a pending
proceeding and in fact it is not even to be taken
as a retrospective applicability of the law but
only the law as it stands on the day being made
applicable.
62. The suit, no doubt, might have
been instituted in the year 1992 and even
assuming that it was four years after the demise
of Yeshwanth Chandrakant Upadhye, the
position so far as the parties are concerned who
are all members of the joint family, in terms of
Section 6 as amended by Act No.39 of 2005 is
that a female member is, by a fiction of law
created in terms of the amended provision also
becomes a coparcener and has a right in joint
family property by birth. They are also sharer
members of the coparcenary property at par
with all male members. When a partition takes
place, coparceners succeed to the property in
equal measure. Such is the legal position in
terms of Section 6 of the Hindu Succession Act
as amended by Act No.39 of 2005 and as
declared by the Supreme Court in the case of
G.S. Sekar (supra). The only exception carved
out to the applicability and operation of Section
6 of the Hindu Succession Act as amended by
Act No.39 of 2005 being a situation or a factual
position where there was a partition which had
been effected by a registered partition deed or
by a decree of the court which has attained
finality prior to 20.12.2004 in terms of
sub-section (5) to Section 6.
63. In the present case such being
not the factual position, the exception available
under sub-section (5) to Section 6 cannot be
called in aid by the defendants and therefore,
the liability in terms of the amended provisions
operates. It is not necessary for us to multiply
the judgment by going into details or discussing
other judgments referred to and relied upon by
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No.7217 of 2013 etc.
the learned counsel for the parties at the Bar as
one judgment of the Supreme Court if clinches
the issue on the point, it is good enough for us,
as a binding authority to apply that law and
dispose of the case as declared in that
judgment.”
10. The
respondent-plaintiff was accordingly held
entitled to 1/7th
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
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Civil Appeal
No.7217 of 2013 etc.
crystallized
which created vested right in the parties.
Such vested
right could not have been taken away by a
subsequent
amendment in absence of express provision or
necessary
intendment to that effect. Moreover,
the amending
provision itself was expressly applicable “on
and from” the
commencement of the Amendment Act, i.e.,
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
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Civil Appeal
No.7217 of 2013 etc.
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
2 Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27
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Civil Appeal
No.7217 of 2013 etc.
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.
15. On the
contrary, stand on behalf of the respondents
is that the
amendment being piece of social legislation to
remove
discrimination against women in the light of 174th
Report of the
Law Commission, the amendment should be
read as being
retrospective as interpreted by the High
Court in the
impugned judgment. A daughter acquired
right by birth
and even if her father, who was a
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No.7217 of 2013 etc.
coparcener, had
died prior to coming into force of the
amendment, the
shares of the parties were required to be
redefined. It
was submitted that any partition which may
have taken place
even prior to 20th December, 2004 was
liable to be
ignored unless it was by a registered deed of
partition or by
a decree of the Court. If no registered
partition had
taken place, share of the daughter will stand
enhanced by
virtue of the amendment.
16. We have
given due consideration to the rival
submissions. We
may refer to the provision of Section 6
of the Hindu
Succession Act as it stood prior to the 2005
Amendment and as
amended :
Section
6 of the Hindu
Succession
Act
Section
6 on and from the
commencement
of the Hindu
Succession
(Amendment) Act,
2005
6.
Devolution of interest of
coparcenary
property. When
a male Hindu
dies after the
commencement of
this Act,
having at the
time of his death
an interest in a
Mitakshara
coparcenary
property, his
interest in the
property shall
devolve by
survivorship upon
the surviving
members of the
coparcenary and
not in
accordance with
this Act:
PROVIDED that,
if the deceased
6.
Devolution of interest in
coparcenary
property.-(1) On and
from the
commencement of the
Hindu Succession
(Amendment) Act,
2005,
in a Joint Hindu family
governed by the
Mitakshara law, the
daughter of a
coparcener shall,-
(a) by birth
become a coparcener in
her own right in
the same manner as
the son;
(b) have the
same rights in the
coparcenary
property as she would
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had left him
surviving a female
relative
specified in class I of
the Schedule or
a male relative
specified in
that class who
claims through
such female
relative, the
interest of the
deceased in the
Mitakshara
coparcenary
property shall
devolve by
testamentary or
intestate
succession, as the
case may be,
under this Act
and not by
survivorship.
Explanation I:
For the purposes
of this section,
the interest of a
Hindu Mitakshara
coparcener
shall be deemed
to be the
share in the
property that
would have been
allotted to
him if a
partition of the
property had
taken place
immediately
before his death,
irrespective of
whether he was
entitled to
claim partition or
not. Explanation
2: Nothing
contained in the
proviso to this
section shall be
construed as
enabling a
person who has
separated
himself from the
coparcenary
before the death
of the deceased
or any of his
heirs to claim
on intestacy a
share in the
interest referred to
therein. 7.
Devolution of
interest in the
property of a
tarwad,
have had if she
had been a son;
(c) be subject
to the same liabilities
in respect of
the said coparcenary
property as that
of a son,
and any
reference to a Hindu
Mitakshara
coparcener shall be
deemed to
include a reference to a
daughter of a
coparcener:
Provided that
nothing contained in
this sub-section
shall affect or
invalidate any
disposition or
alienation
including any partition or
testamentary
disposition of property
which had taken
place before the
20th day of
December, 2004.
(2) Any property
to which a female
Hindu becomes
entitled by virtue of
sub-section -(1)
shall be held by her
with the
incidents of coparcenary
ownership and
shall be regarded,
notwithstanding
anything contained
in this Act, or
any other law for the
time being in
force, as property
capable of being
disposed of by her
by testamentary
disposition.
(3) Where a
Hindu dies after the
commencement of
the Hindu
Succession
(Amendment) Act, 2005,
his interest in
the property of a Joint
Hindu family
governed by the
Mitakshara law,
shall devolve by
testamentary or
intestate
succession, as
the case may be,
under this Act
and not by
survivorship,
and the coparcenary
property shall
be deemed to have
been divided as
if a partition had
taken place
and,-
(a) the daughter
is allotted the same
share as is
allotted to a son;
(b) the share of
the pre-deceased
son or a
pre-deceased daughter, as
they would have
got had they been
alive at the
time of partition, shall be
allotted to the
surviving child of such
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predeceased son
or of such
pre-deceased
daughter; and
(c) the share of
the pre-deceased
child of a
pre-deceased son or of a
pre-deceased
daughter, as such child
would have got
had he or she been
alive at the
time of the partition,
shall be
allotted to the child of such
pre-deceased
child of the
pre-deceased son
or a pre-deceased
daughter, as the
case may be.
Explanation.-
For the purposes of this
sub-section, the
interest of a Hindu
Mitakshara
coparcener shall be
deemed to be the
share in the
property that would
have been
allotted to him
if a partition of the
property had
taken place
immediately
before his death,
irrespective of
whether he was
entitled to
claim partition or not.
(4) After the
commencement of the
Hindu Succession
(Amendment) Act,
2005, no court
shall recognise any
right to proceed
against a son,
grandson or
great-grandson for the
recovery of any
debt due from his
father,
grandfather or
great-grandfather
solely on the
ground of the
pious obligation under
the Hindu law,
of such son, grandson
or
great-grandson to discharge any
such debt:
Provided that in
the case of any debt
contracted
before the
commencement of
the Hindu
Succession
(Amendment) Act, 2005,
nothing
contained in this sub-section
shall affect-
(a) the right of
any creditor to
proceed against
the son, grandson or
great-grandson,
as the case may be;
or
(b) any
alienation made in respect of
or in
satisfaction of, any such debt,
and any such
right or alienation shall
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Civil Appeal
No.7217 of 2013 etc.
be enforceable
under the rule of
pious obligation
in the same manner
and to the same
extent as it would
have been
enforceable as if the
Hindu Succession
(Amendment) Act,
2005 had not
been enacted.
Explanation.-For
the purposes of
clause (a), the
expression "son",
"grandson"
or "great-grandson" shall
be deemed to
refer to the son,
grandson or
great-grandson, as the
case may be, who
was born or
adopted prior to
the commencement
of the Hindu
Succession
(Amendment) Act,
2005.
(5) Nothing
contained in this section
shall apply to a
partition, which has
been effected
before the 20th day of
December, 2004.
Explanation.-
For the purposes of this
section
"partition" means any
partition made
by execution of a
deed of
partition duly registered
under the
Registration Act, 1908 (16
of 1908) or
partition effected by a
decree of a
court.'
17. The text of
the amendment itself clearly provides that
the right
conferred on a ‘daughter of a coparcener’ is ‘on
and from the
commencement of Hindu Succession
(Amendment) Act,
2005’. Section 6(3) talks of death after
the amendment
for its applicability. In view of plain
language of the
statute, there is no scope for a different
interpretation
than the one suggested by the text of the
amendment. An
amendment of a substantive provision is
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Civil Appeal
No.7217 of 2013 etc.
always
prospective unless either expressly or by necessary
intendment it is
retrospective3. In the present case,
there is
neither any
express provision for giving retrospective effect
to the amended
provision nor necessary intendment to that
effect.
Requirement of partition being registered can have
no application
to statutory notional partition on opening of
succession as
per unamended provision, having regard to
nature of such
partition which is by operation of law. The
intent and
effect of the Amendment will be considered a
little later. On
this finding, the view of the High Court
cannot be
sustained.
18. Contention
of the respondents that the Amendment
should be read
as retrospective being a piece of social
legislation
cannot be accepted. Even a social legislation
cannot be given
retrospective effect unless so provided for
or so intended
by the legislature. In the present case, the
legislature has
expressly made the Amendment applicable
on and from its
commencement and only if death of the
coparcener in
question is after the Amendment. Thus, no
other
interpretation is possible in view of express language
3 Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27
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Civil Appeal
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of 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
the transactions
not covered thereby will not affect the
extent of
coparcenary property which may be available
when the main
provision is applicable. Similarly,
Explanation has
to be read harmoniously with the
substantive
provision of Section 6(5) by being limited to a
transaction of
partition effected after 20th December,
2004. Notional
partition, by its very nature, is not covered
either under
proviso or under sub-section 5 or under the
Explanation.
19.
Interpretation of a provision depends on the text and
the context4.
Normal rule is to read the words of a statute
in ordinary
sense. In case of ambiguity, rational meaning
has to be given5.
In case of apparent conflict, harmonious
meaning to
advance the object and intention of legislature
has to be given6.
4 RBI vs. Peerless (1987) 1 SCC 424, para 33
5 Kehar Singh vs. State (1988) 3 SCC 609
6 District Mining Officer vs. Tata Iron and Steel Co. (2001) 7
SCC 358
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Civil Appeal
No.7217 of 2013 etc.
20. There have
been number of occasions when a
proviso or an
explanation came up for interpretation.
Depending on the
text, context and the purpose, different
rules of
interpretation have been applied7.
21. Normal rule
is that a proviso excepts something out
of the enactment
which would otherwise be within the
purview of the
enactment but if the text, context or
purpose so
require a different rule may apply. Similarly, an
explanation is
to explain the meaning of words of the
section but if
the language or purpose so require, the
explanation can
be so interpreted. Rules of interpretation
of statutes are
useful servants but difficult masters8.
Object of
interpretation is to discover the intention of
legislature.
22. In this
background, we find that the proviso to
Section 6(1) and
sub-section (5) of Section 6 clearly intend
to exclude the
transactions referred to therein which may
have taken place
prior to 20th December, 2004 on which
date the Bill
was introduced. Explanation cannot permit
reopening of
partitions which were valid when effected.
7 S. Sundaram Pillai vs. R. Pattabiraman (1985) 1 SCC 591
8 Keshavji Ravji & Co. vs. CIT (1990) 2 SCC 231
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Civil Appeal
No.7217 of 2013 etc.
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 property at the introduction of the
Bill is not
taken away and remains available as and when
right conferred
by the statute becomes available and is to
be enforced.
Main provision of the Amendment in Section
6(1) and (3) is
not in any manner intended to be affected
but strengthened
in this way. Settled principles governing
such
transactions relied upon by the appellants are not
intended to be
done away with for period prior to 20th
December, 2004.
In no case statutory notional partition
even after 20th
December, 2004 could be covered by the
Explanation or
the proviso in question.
23. Accordingly,
we hold that the rights under the
amendment are
applicable to living daughters of living
coparceners as
on 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
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Civil Appeal
No.7217 of 2013 etc.
date will remain
unaffected. Any transaction of partition
effected
thereafter will be governed by the Explanation.
24. On above
interpretation, Civil Appeal No.7217 of
2013 is allowed.
The order of the High Court is set aside.
The matter is
remanded to the High Court for a fresh
decision in
accordance with law. All other matters may be
listed for
hearing separately for consideration on 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 decisions
cited by the respondents are: Prema
vs.
Nanje Gowda9,
Ganduri Koteshwaramma vs. Chakiri
Yanadi10,
V.K. Surendra vs. V.K. Thimmaiah11,
Ram
Sarup vs. Munshi12,
Dayawati vs. Inderjit13, Amarjit
Kaur vs. Pritam Singh14,
Lakshmi Narayan Guin vs.
Niranjan Modak15, S. Sai Reddy vs. S. Narayana
9 (2011) 6 SCC 462
10 (2011) 9 SCC 788
11 (2013) 10 SCC 211, para 18
12 (1963) 3 SCR 858
13 (1966) 3 SCR 275
14 (1974) 2 SCC 363
15 (1985) 1 SCC 270
18
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19
Reddy16 and
State of Maharashtra vs. Narayan
Rao17.
Many of these
decisions deal with situations where change
in law is held
to be applicable to pending proceedings
having regard to
intention of legislature in a particular law.
There is no
dispute with the propositions laid down in the
said decisions.
Question is of application of the said
principle in the
light of a particular amending law. The
decisions relied
upon do not apply to the present case to
support the
stand of the respondents.
25.1. In Ram Sarup case (supra), the
question for
consideration
was of amendment to the Punjab
Pre-emption Act,
1930 by Punjab Act 10 of 1960 restricting
the pre-emption
right. Section 31 inserted by way of
amendment
prohibited passing of a decree which was
inconsistent
with the amended provisions. It was held that
the amendment
was retrospective and had retrospective
operation in
view of language employed in the said
provision.
25.2. In Dayawati case (supra), Section
6 of the Punjab
Relief of
Indebtedness Act, 1956 expressly gave
16 (1991) 3 SCC 647
17 (1985) 2 SCC 321, paras 8 to 10
Page
20
retrospective effect
and made the statute applicable to all
pending suits on
the commencement of the Act. The Act
sought to reduce
the rate of interest in certain
transactions to
give relief against indebtedness to certain
specified
persons.
25.3. In Lakshmi Narayan Guin case (supra), the
question was of
applicability of Section 13 of the West
Bengal Premises
Tenancy Act, 1956 which expressly
provided that no
order could be passed by the Court
contrary to the
scheme of the new law.
25.4. In Amarjit Kaur case (supra), Section
3 of the
Punjab
Pre-emption
(Repeal) Act, 1973 was considered which
expressly
prohibited the Court from passing any
pre-emption
decree after the commencement of the Act.
25.5. There is
also no conflict with the principle laid down
in V.K. Surendra case (supra) which
deals with a
presumption
about the nature of a joint family property
and burden of
proof being on the person claiming such
Page
21
property to be
separate. The said decision only lays down
a rule of
evidence.
25.6. In S. Sai Reddy case (supra),
the question for
consideration
was whether even after a preliminary decree
is passed
determining the shares in partition, such shares
could be varied
on account of intervening events at the
time of passing
of the final decree. In the said case,
partition suit
was filed by a son against his father in which
a preliminary
decree was passed determining share of the
parties. Before
final decree could be passed, there was an
amendment in the
Hindu Succession Act (vide A.P.
Amendment Act,
1986) allowing share to the unmarried
daughters.
Accordingly, the unmarried daughters applied
to the court for
their shares which plea was upheld. The
said judgment
does not deal with the issue involved in the
present matter.
It was not a case where the coparcener
whose daughter
claimed right was not alive on the date of
the commencement
of the Act nor a case where shares of
the parties
stood already crystalised by operation of law to
which the
amending law had no application. Same is the
position in Prema and Ganduri cases (supra).
Page
22
25.7. In Narayan Rao case (supra),
it was observed that
even after
notional partition, the joint family continues.
The proposition
laid down in this judgment is also not
helpful in
deciding the question involved herein. The text
of the Amendment
itself shows that the right conferred by
the Amendment is
on a ‘daughter of a coparcener’ who is
member of a
coparcenary and alive on commencement of
the Act.
25.8.We also do
not find any relevance of decisions in
State of Rajasthan vs. Mangilal Pindwal18 and West
U.P. Sugar Mills Asson. vs. State of U.P.19 or other
similar
decisions for deciding the issue involved herein.
The said
decisions deal with the effect of repeal of a
provision and
not the issue of restrospectivity with which
the Court is
concerned in the present case.
26. We now come
to the decisions relied upon by the
appellants. In M. Prithviraj case (supra), the
view
taken appears to
be consistent with what has been said
above. It
appears that this was a binding precedent before
the Bench of the
High Court which passed the impugned
18 (1996) 5 SCC 60
19 (2002) 2 SCC 645
Page
23
order but does
not appear to have been referred to in the
impugned
judgment. Judgments of this Court in Sheela
Devi vs. Lal Chand20 and G. Sekar vs. Geetha21 and
the judgment of
Madras High Court in Bagirathi
vs. S.
Manivanan22
have been relied upon therein. In Sheela
Devi case (supra), this
Court observed:
21. The Act indisputably would prevail over the
old Hindu Law. We may notice that the
Parliament, with a view to confer right upon the
female heirs, even in relation to the joint family
property, enacted Hindu Succession Act, 2005.
Such a provision was enacted as far back in
1987 by the State of Andhra Pradesh. The
succession having opened in 1989, evidently,
the provisions of Amendment Act, 2005 would
have no application. Sub-section (1) of Section
6 of the Act governs the law relating to
succession on the death of a coparcener in the
event the heirs are only male descendants. But,
the proviso appended to Sub-section (1)
of Section 6 of the Act creates an exception.
First son of Babu Lal, viz., Lal Chand, was, thus,
a coparcener. Section 6 is exception to the
general rules. It was, therefore, obligatory on
the part of the respondents-plaintiffs to show
that apart from Lal Chand, Sohan Lal will also
derive the benefit thereof. So far as the Second
son, Sohan Lal is concerned, no evidence has
been brought on records to show that he was
born prior to coming into force of Hindu
Succession Act, 1956.”
20 (2006) 8 SCC 581
21 (2009) 6 SCC 99, para 30
22 AIR 2005 Mad 250 (DB)
Page
24
Full Bench
judgment of Bombay High Court in
Badrinarayan Shankar Bhandari Vs. Ompraskash
Shankar Bhandari23 also appears to be
consistent with
the view taken
hereinabove.
26.1. In Gurupad Khandappa Magdum vs. Hirabai
Khandappa Magdum24,
Shyama Devi vs. Manju
Shukla25
and Anar Devi vs. Parmeshwari Devi26
cases this Court interpreted
the Explanation 1 to Section 6
(prior to 2005
Amendment) of the Hindu Succession Act. It
was held that
the deeming provision referring to partition
of the property
immediately before the death of the
coparcener was
to be given due and full effect in view of
settled
principle of interpretation of a provision
incorporating a
deeming fiction. In Shyama Devi
and
Anar Devi cases, same view was
followed.
26.2. In Vaishali Satish Ganorkar vs. Satish
Keshaorao Ganorkar27,
the Bombay High Court held that
the amendment
will not apply unless the daughter is born
23 AIR 2014, BOM 151. paras 40-57
24 (1978) 3 SCC 383, paras 6,11 and 13
25 (1994) 6 SCC 342, para 7
26 (2006) 8 SCC 656, paras 10,11
27 AIR 2012, BOM 101, paras 13 to 37
Page
25
after the 2005
Amendment, but on this aspect a different
view has been
taken in the later larger Bench judgment.
We are unable to
find any reason to hold that birth of the
daughter after
the amendment was a necessary condition
for its
applicability. All that is required is that daughter
should be alive
and her father should also be alive on the
date of the
amendment.
26.3. Kale vs. Dy. Director of Consolidation28 and
Digambar Adhar Patil vs. Devram Girdhar Patil29
have been cited
to submit that the family settlement was
not required to
be registered. Santosh Hazari vs.
Purushottam Tiwari30 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 Excise31,
C.I.T. Gujarat vs. Keshavlal
Lallubhai Patel32,
Umayal Achi vs. Lakshmi Achi33
and
Shivappa Laxman vs. Yellawa Shivappa
28 (1976) 3 SCC 119, para 9
29 (1995) Supp. 2 SCC 428 at page 430
30 (2001) 3 SCC 179, para 15.
31 1969 (2) MLJ 277,
32 (1965) 2 SCR 100
33 AIR 1945 FC 25 at 31(d)
Page
26
Shivagannavar34 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
operative part
being in para 24 which disposes of Civil
Appeal No.7217
of 2013 and directs listing of other
matters for
being dealt with separately. However, one
more aspect
relating to gender discrimination against
muslim women
which came up for consideration needs to
be gone into as
Part II of this order.
Part II
27. An important
issue of gender discrimination which
though not
directly involved in this appeal, has been
raised by some
of the learned counsel for the parties
which concerns
rights to muslim women. Discussions on
gender
discrimination led to this issue also. It was pointed
out that inspite
of guarantee of the Constitution, muslim
women are
subjected to discrimination. There is no
safeguard
against arbitrary divorce and second marriage
by her husband
during currency of the first marriage,
34 AIR 1954 BOM 47, para 4
Page
27
resulting in
denial of dignity and security to her. Although
the issue was
raised before this Court in Ahmedabad
Women Action Group(AWAG) vs. Union of India35,
this Court did
not go into the merits of the discrimination
with the observation
that the issue involved state policy
to be dealt with
by the legislature36. It was observed that
challenge to the
Muslim Women (Protection of Rights on
Divorce) Act,
1986 was pending before the Constitution
Bench and there
was no reason to multiply proceedings on
such an issue.
28. It is
pointed out that the matter needs consideration
by this Court as
the issue relates not merely to a policy
matter but to
fundamental rights of women under Articles
14, 15 and 21
and international conventions and
covenants. One
of the reasons for the court having not
gone into the
matter was pendency of an issue before the
Constitution
Bench which has since been decided by this
Court in Danial Latifi vs. Union of India37.
The
35 (1997) 3 SCC 573
36 This Court referred to the observations of Sahai, J. in Sarla Mudgal vs. Union of India (1995) 3
SCC 635 that
a climate was required to be built for a uniform civil code. Reference was also
made to
observations
in Madhu Kishwar vs. State of
Bihar (1996 (5) SCC 125 to the
effect that the court could
at
best advise and focus attention to the problem instead of playing an activist
role.
37 (2001) 7 SCC 740
Page
28
Constitution
Bench did not address the said issue but the
Court held that
Article 21 included right to live with
dignity38
which supports the plea that a muslim woman
could invoke
fundamental rights in such matters. In Javed
vs. State of Haryana39,
a Bench of three judges
observed that
practice of polygamy is injurious to public
morals and can
be superseded by the State just as
practice of ‘sati’ 40.
It was further observed that conduct
rules providing
for monogamy irrespective of religion are
valid and could
not be struck down on the ground of
violation of
personal law of muslims41. In John
38 “ Para 33……. This Court in Olga
Tellis v. Bombay
Municipal Corpn. [1985(3) SCC 545] and
Maneka Gandhi v. Union of India [1978 (1) SCC 248] held that the concept of “right to life and
personal
liberty” guaranteed under Article 21 of the Constitution would include the “right
to live with
dignity”.
Before the Act, a Muslim woman who was divorced by her husband was granted a
right to
maintenance
from her husband under the provisions of Section 125 CrPC until she may remarry
and
such
a right, if deprived, would not be reasonable, just and fair. Thus the
provisions of the Act
depriving
the divorced Muslim women of such a right to maintenance from her husband and
providing
for
her maintenance to be paid by the former husband only for the period of iddat
and thereafter to
make
her run from pillar to post in search of her relatives one after the other and
ultimately to knock at
the
doors of the Wakf Board does not appear to be reasonable and fair substitute of
the provisions of
Section
125 CrPC. Such deprivation of the divorced Muslim women of their right to
maintenance from
their
former husbands under the beneficial provisions of the Code of Criminal
Procedure which are
otherwise
available to all other women in India cannot be stated to have been effected by
a reasonable,
right,
just and fair law and, if these provisions are less beneficial than the
provisions of Chapter IX of
the
Code of Criminal Procedure, a divorced Muslim woman has obviously been
unreasonably
discriminated
and got out of the protection of the provisions of the general law as indicated
under the
Code
which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women
belonging to
any
other community. The provisions prima facie,
therefore, appear to be violative of Article 14 of
the Constitution mandating equality and equal
protection of law to all persons otherwise
similarly circumstanced and also violative of Article
15 of the Constitution which prohibits any
discrimination on the ground of religion as the Act
would obviously apply to Muslim divorced
women only and solely on the ground of their belonging
to the Muslim religion.”
39 (2003) 8 SCC 369
40 Para 46
41 Paras 54 to 59
Page
29
Vallamattom vs. UOI42,
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 1443. Laws dealing with
marriage and
succession are
not part of religion44. Law has to change
with time45.
International covenants and treaties could be
referred to
examine validity and reasonableness of a
provision46.
29. In Charu Khurana vs. UOI47,
this Court considered
the issue of
gender discrimination in the matter of denial
of membership of
“Cine Costume Make-up Artists and Hair
Dressers
Association” in film industry. It was held that
such
discrimination violates basic constitutional rights.
30. It was thus
submitted that this aspect of the matter
may be gone into
by separately registering the matter as
Public Interest
Litigation (PIL). We are of the view that the
suggestion needs
consideration in view of earlier decisions
42 (2003) 6 SCC 611
43 Paras 28 and 29
44 Para 44
45 Paras 33 to 36
46 Paras 30 to 32
47 (2015) 1 SCC 192
Page
30
of this Court.
The issue has also been highlighted in recent
Articles
appearing in the press on this subject48.
31. For this
purpose, a PIL be separately registered and
put up before
the appropriate Bench as per orders of
Hon’ble the
Chief Justice of India.
32. Notice be
issued to learned Attorney General and
National Legal
Services Authority, New Delhi returnable on
23rd
November, 2015. We give liberty to learned counsel
already
appearing in this matter to assist the Court on this
aspect of the
matter, if they wish to volunteer, for either
view point.
………………………………………………..J.
[ ANIL R. DAVE ]
………………………………………………..J.
[ ADARSH KUMAR
GOEL ]
NEW DELHI
OCTOBER 16, 2015
48 “The Tribune” dated 24.09.2015 “Muslim Women’s quest for
equality” by Vandana Shukla and
“Sunday
Express Magazine” dated 04.10.2015 “In Her Court” by Dipti Nagpaul D’Souza.
Page
31
ITEM NO.1A COURT NO.3 SECTION IVA
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).7217/2013
PRAKASH & ORS.
Appellant(s)
VERSUS
PHULAVATI & ORS.
Respondent(s)
WITH
SLP(C)No.21814/2008
SLP(C)No.18744/2010
SLP(C)Nos.28702-28703/2010
SLP(C)No.28471/2011
SLP(C)Nos.4217-4218/2012
SLP(C)Nos.1299-1300/2013
SLP(C)Nos.17577-17578/2013
SLP(C)No.19816/2014
SLP(C)No.5619/2015
SLP(C)No.3805/2008
SLP(C)No.9390/2015
SLP(C)No.5680/2015
SLP(C)No.35209/2011
SLP(C)Nos.15557-15558/2015
S.L.P.(C)No......../2015 (CC No.15560/2015)
Date : 16/10/2015 These appeals were called on for
pronouncement
of judgment today.
For Appellant(s) Mr. Anil C. Nishant,Adv.
Mr. S.N. Bhat,Adv.
Mr. A.K. Joseph,Adv.
Mrs. Sudha Gupta,Adv.
Mrs. S. Usha Reddy,Adv.
Mr. Nanda Kishore,Adv.
Mr. P.R.Kovilan,Adv.
Ms. Geetha Kovilan,Adv.
Page
32
Civil Appeal
No.7217 of 2013 etc.
Mr. Shanth Kumar V. Mahale,Adv.
Mr. Amith J.,Adv.
Mr. Rajesh Mahale,Adv.
Mr. Raghavendra S. Srivatsa,Adv.
Mr. Charudatta Mohindrakar,Adv.
Mr. A. Selvin Raja,Adv.
Mr. Aniruddha P. Mayee,Adv.
Mr. P.R. Ramasesh,Adv.
Mr. Ankolekar Gurudatta,Adv.
Mr. K.N. Rai,Adv.
Mrs. Vaijayanthi Girish,Adv.
Mr. G. Balaji,Adv.
For Respondent(s)
for M/s. S.M. Jadhav & Company,Advs.
Mr. Rauf Rahim,Adv.
Mr. Sumeet Lall,Adv.
Mr. Balaji Srinivasan,Adv.
Mr. Mayank Kshirsagar,Adv.
Ms. Srishti Govil,Adv.
Ms. Vaishnavi Subrahmanyam,Adv.
Mr. Tushar Singh,Adv.
Mr. Virendra Sharma,Adv.
Mr. Manjunath Meled,Adv.
Mr. Vijaylaxmi,Adv.
Mr. Anil Kumar,Adv.
Mr. Somiran Sharma,Adv.
Mr. B. Subrahmanya Prasad,Adv.
Mr. Anirudh Sanganeria,Adv.
Mr. Chinmay Deshpande,Adv.
Mr. Amjid MaQBOOL,aDV.
Mr. Shashibhushan P. Adgaonkar,Adv.
Mr. T. Mahipal,Adv.
Mr. G.N. Reddy,Adv.
Mr. Rajinder Mathur,Adv.
Mr. Shankar Divate,Adv.
32
Page
33
Civil Appeal
No.7217 of 2013 etc.
Mrs. K. Sarada Devi,Adv.
Ms. Garima Prashad,Adv.
Hon'ble
Mr. Justice Adarsh Kumar Goel
pronounced
the reportable judgment of the Bench
comprising
Hon'ble Mr. Justice Anil R. Dave and
His
Lordship.
Civil
appeal No.7217/2013 is allowed, all
the
pending applications stand disposed of and
the
connected Special Leave Petitions may be
listed
for hearing separately for consideration
on 24th November,
2015, in terms of signed
Reportable
Judgment.
All the pending applications stand disposed
of.
(Anita Malhotra) (Sneh Bala Mehra)
Court Master Assistant Registrar
(Signed Reportable judgment is placed on the file)
33
Page
33
Civil Appeal
No.7217 of 2013 etc.
Mrs. K. Sarada Devi,Adv.
Ms. Garima Prashad,Adv.
Hon'ble
Mr. Justice Adarsh Kumar Goel
pronounced
the reportable judgment of the Bench
comprising
Hon'ble Mr. Justice Anil R. Dave and
His
Lordship.
Civil
appeal No.7217/2013 is allowed, all
the
pending applications stand disposed of and
the
connected Special Leave Petitions may be
listed
for hearing separately for consideration
on 24th November,
2015, in terms of signed
Reportable
Judgment.
All the pending applications stand disposed
of.
(Anita Malhotra) (Sneh Bala Mehra)
Court Master Assistant Registrar
(Signed Reportable judgment is placed on the file)
33ent(s)
for M/s. S.M. Jadhav & Company,Advs.
Mr. Rauf Rahim,Adv.
Mr. Sumeet Lall,Adv.
Mr. Balaji Srinivasan,Adv.
Mr. Mayank Kshirsagar,Adv.
Ms. Srishti Govil,Adv.
Ms. Vaishnavi Subrahmanyam,Adv.
Mr. Tushar Singh,Adv.
Mr. Virendra Sharma,Adv.
Mr. Manjunath Meled,Adv.
Mr. Vijaylaxmi,Adv.
Mr. Anil Kumar,Adv.
Mr. Somiran Sharma,Adv.
Mr. B. Subrahmanya Prasad,Adv.
Mr. Anirudh Sanganeria,Adv.
Mr. Chinmay Deshpande,Adv.
Mr. Amjid MaQBOOL,aDV.
Mr. Shashibhushan P. Adgaonkar,Adv.
Mr. T. Mahipal,Adv.
Mr. G.N. Reddy,Adv.
Mr. Rajinder Mathur,Adv.
Mr. Shankar Divate,Adv.
32
Page
33
Civil Appeal
No.7217 of 2013 etc.
Mrs. K. Sarada Devi,Adv.
Ms. Garima Prashad,Adv.
Hon'ble
Mr. Justice Adarsh Kumar Goel
pronounced
the reportable judgment of the Bench
comprising
Hon'ble Mr. Justice Anil R. Dave and
His
Lordship.
Civil
appeal No.7217/2013 is allowed, all
the
pending applications stand disposed of and
the
connected Special Leave Petitions may be
listed
for hearing separately for consideration
on 24th November,
2015, in terms of signed
Reportable
Judgment.
All the pending applications stand disposed
of.
(Anita Malhotra) (Sneh Bala Mehra)
Court Master Assistant Registrar
(Signed Reportable judgment is placed on the file)
33
