CASE LAW: DANAMMA SUMAN SURPUR AND ANOTHER v.

AMAR
AND OTHERS

FACTS OF THE CASE:

 The Appellant in the present case are two daughters of Shri Gurulingappa Savadi. He also
had two sons Arun Kumar and Vijay and a wife, Sumitra.
 Amar, S/o Arun Kumar ( hereinafter referred to as ‘Respondent No 1’)filed the suit for
partition of property on July 1, 2002 claiming 1/15th share in the properties.
 It was stated in the plaint that the two sons and widows were in joint possession of the
properties as coparceners and some other properties mentioned in the plaint was acquired
out of the joint family nucleus in the name of Shri Gurulingappa Savadi.
 It was alleged that the Appellants in the case were not the coparceners as they were born
prior to the enactment of Hindu Succession Act,1956(hereinafter referred to as the ‘Act’)
 The case of the Appellant was that they were also coparceners for the reason that
Gurulingappa Savadi had died after coming into force the Act of 1950.
 The trial Court’s decision was challenged in the High Court in 2008. The High Court
agreeing with the Trial Court upheld its view wide order dared January 25, 2012. A
review petition was filed on March 4, 2012 the result of which remained the same, and
once again the order of the Trial Court was upheld(hereinafter referred as ;the impugned
judgment’)
 Aggrieved by this decree, the Appellants filed a Special Leave Petition before the
Supreme Court of India under Article 136 of the Constitution.

ISSUE

Whether, with the passing of the Hindu Succession (Amendment) Act,2005 the Appellants
would become coparceners “by birth” in their “own right in the same manner as the son” and
are, therefore, entitled to equal share as that of a son?

APPELLANTS CONTENTIONS

 It was contended that they were also coparceners for the reason that Shri Gurulingappa
Savadi had died after coming into force the Act of 1950.

RESPONDENTS CONTENTIONS

 It claimed 1/15th share in the properties.

PROVISION OF LAW IN RELATION TO THE CASE

HINDU SUCCESION ACT, 1956-

The provisions of the Section 6 of the Act, as it stood prior to its amendment by the Amendment
Act, 2005 reads as under:

“6. Devolution of interest in copacenery property- when a male Hindu dies after the
commencement of this Act, having at the time of his death an interest in a Mitakshara
copacenery property, his interest in the property shall devolve by survivorship upon the
surviving members of the copacenery and not in 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 copacenary property shall devolve by testamentary or
intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1- For the purpose 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 had separated himself from the copacenary before the death of the deceased or any
of his heirs to claim on intestacy a share in the interest referred to therein.

HINDU SUCCESSION(AMENDMENT) ACT, 2005 –

“6. Devolution of interest in coparcenary property- (1)on and from the commencement of the
Hindu Succession (Amendment) Act, 2005 (39 of 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 the same manner as the son;
(b) have the same rights in the copacenary property as she would have had if she had been a
son;
(c) be subject to the same liabilities in respect of the said copacenary 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 (39 of 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 coparcenery 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 pre-
deceased 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

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no
court shall recognize 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 (39 of 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 (39 of 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 (39 of 2005).

(5) Nothing contained in this section shall apply to a partition, which has been effected before
the 20th day of December, 2004.

The effect of this amendment has been the subject matter of pronouncements by various High
Courts, in particular, the issue as to whether the right would be conferred only upon the
daughters who are born after September 9, 2005 when Act came into force or even to those
daughters who were born earlier. Bombay High Court in Vaishali Satish Gonarkar v. Satish
Keshorao Gonarkar2 had taken the view that the provision cannot be made applicable to all
daughters born even prior to the amendment, when the Legislature itself specified the posterior
date from which the Act would come into force. This view was contrary to the view taken by the
same High Court in Sadashiv Sakharam Patil v. Chandrakant Gopal Desale3. Matter was referred
to the Full Bench and the judgment of the Full Bench is reported as Badrinarayan Shankar
Bhandari v. Omprakash Shankar Bhandari4. The Full Bench held that clause (a) of sub-section
(1) of Section 6 would be prospective in operation whereas clause (b) and (c) and other parts of
sub-section (1) as well as sub-section (2) would be retroactive in operation. It held that
amended Section 6 applied to daughters born 2 AIR 2012 Bom 110 3 2011 (5) Bom CR 726 4
AIR 2014 Bom 151 prior to June 17, 1956 (the date on which Hindu Succession Act came into
force) or thereafter (between June 17, 1956 and September 8, 2005) provided they are alive on
September 9, 2005 i.e. on the date when Amended Act, 2005 came into force. Orissa, Karnataka
and Delhi High Court have also held to the same effect 5.

SUPREME COURT'S DECISION

The controversy now stands settled with the authoritative pronouncement in the case of Prakash
& Ors. v. Phulavati & Ors.6 which has approved the view taken by the aforesaid High Courts as
as well as Full Bench of the Bombay High Court. Following discussion from the said judgment is relevant:

“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 the 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 always prospective unless either expressly or
by necessary intendment it is retrospective. [Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24, paras 22 to
27] 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. The contention of the respondents that the amendment 5 AIR 2008 Ori 133: Pravat Chandra Pattnaik
v. Sarat Chandra Pattnaik; ILR 2007 Kar 4790: Sugalabai v. Gundappa A. Maradi and 197 (2013) DLT 154:
Rakhi Gupta v. Zahoor Ahmad 6 (2016) 2 SCC 36 14 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 the express
language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-2004
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 20-12-2004. Notional partition, by its very
nature, is not covered either under the proviso or under sub-section (5) or under the Explanation. 19.
Interpretation of a provision depends on the text and the context. [RBI v. Peerless General Finance &
Investment Co. Ltd., (1987) 1 SCC 424, p. 450, para 33] Normal rule is to read the words of a statute in
ordinary sense. In case of ambiguity, rational meaning has to be given. [Kehar Singh v. State (Delhi
Admn.), (1988) 3 SCC 609 : 1988 SCC (Cri) 711] In case of apparent conflict, harmonious meaning to
advance the object and intention of legislature has to be given. [District Mining Officerv. TISCO, (2001) 7
SCC 358] 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 applied. [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591] 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
masters. [Keshavji Ravji & Co. v. CIT, (1990) 2 SCC 231 : 1990 SCC (Tax) 268] Object of interpretation is to
discover the intention of legislature. 15 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 20-12-2004 on which date the Bill was introduced. Explanation cannot permit
reopening of partitions which were valid when effected. Object of giving finality to transactions prior to
20-12-2004 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 Sections 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 20-12-2004. In no case statutory notional partition even after
20-12-2004 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 9-9-
2005 irrespective of when such daughters are born. Disposition or alienation including partitions which
may have taken place before 20-12-2004 as per law applicable prior to the said date will remain
unaffected. Any transaction of partition affected thereafter will be governed by the Explanation.

” 23) The law relating to a joint Hindu family governed by the Mitakshara law has undergone
unprecedented changes. The said changes have been brought forward to address the growing need to
merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section
stipulates that a daughter would be a coparcener from her birth, and would have the same rights and
liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary
property, which would be construed as property being capable of being disposed of by her either by a
will or any 16 other testamentary disposition. These changes have been sought to be made on the
touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a
daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act,
1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as
appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it
cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the
need of stability and the need of change.”

24) Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005,
the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as
the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law
was to treat them as coparceners since birth. The amended provision now statutorily recognizes the
rights of coparceners of daughters as well since birth. The section uses the words in the same manner as
the son. It should therefore be apparent that both the sons and the daughters of a coparcener have
been conferred the right of becoming coparceners by birth. It is the very factum of birth in a
coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become 17
coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a
consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as
explained above, and as is well recognized. One of the incidents of coparcenary is the right of a
coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth
(now including daughters) as is evident from sub-s (1) (a) and (b).

25) Reference to the decision of this Court, in the case of State Bank of India v. Ghamandi Ram7 in
essential to understand the incidents of coparceneryship as was always inherited in a Hindu Mitakshara
coparcenary: “According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is
held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority
of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint
family members then living and thereafter to be born (See Mitakshara, Ch. I. 1-27). The incidents of
coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the
third generation, acquire on birth ownership in the ancestral properties is common; secondly, that such
descendants can at any time work out their rights by asking for partition; thirdly, that till partition each
member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as
a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that
no alienation of the property is possible unless it be for necessity, without the concurrence of the
coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors.”

26) Hence, it is clear that the right to partition has not been abrogated. 7 AIR 1969 SC 1330. 18 The right
is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.

27) In the present case, no doubt, suit for partition was filed in the year 2002. However, during the
pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only
in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should
have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri
Koteshwaramma & Anr. v. Chakiri Yanadi & Anr.8 held that the rights of daughters in coparcenary
property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a
partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a
final decree. Where such situation arises, the preliminary decree would have to be amended taking into
account the change in the law by the amendment of 2005.

28) On facts, there is no dispute that the property which was the subject matter of partition suit belongs
to joint family and Gurulingappa Savadi was propositus of the said joint family property. In view of our
aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since,
Savadi died leaving behind two sons, two daughters and a widow, both the appellants would be entitled
to 1/5th 8 (2011) 9 SCC 788 19 share each in the said property. Plaintiff (respondent No.1) is son of Arun
Kumar (defendant No.1). Since, Arun Kumar will have 1/5th share, it would be divided into five shares on
partition i.e. between defendant No.1 Arun Kumar, his wife defendant No.2, his two daughters
defendant Nos.3 and 4 and son/plaintiff (respondent No.1). In this manner, the plaintiff/respondent
No.1 would be entitled to 1/25th share in the property.

29) The appeals are allowed in the aforesaid terms and decree of partition shall be drawn by the trial
court accordingly.

CRITICAL ANALYSIS

The first era of conclusion about the proper interpretation of Section 6 of Hindu
Succession(Amendment) Act, 2005 which had been set to rest by the Supreme Court in Prakash
v. Phulvati ( Phulvati’s case) has been reignited by the Supreme Court, albeit unintentionally, in
Danamma v. Amar( Danamma’s case).

Section 6 of the Amendment Act treated a female coparcener. The Karnataka High Court
interpreted the Amendment Act to have retrospective effect from the date of the coming into the
force of The Hindu Succession Act 1956 wildest the full bench of the Bombay High Court
interpreted the Amendment Act to have effect from the date of coming into force of the
Amendment Act.

The Supreme Court in Phulvati’s case laid to rest this uncertainty, by holding as follow:

“23.Accordingly we hold that the rights under the amendment are applicable to living daughters
of living coparceners as on 9-9-2005 irrespective of when such daughters are born”

In other words if the coparcener had passed away prior to 9-9-2005 the living daughter of the
coparcener would have no right to coparcenery property. If a daughter made a claim for partition
of joint family property, her father ought to be alive as of 9-9-2005, if not; she was not entitled to
any share in the coparcenary property.

Danamma’s case was rather peculiar. The father (male coparcener) in this case passed away in
2001 and thereafter one of the sons initiated proceedings for partition of Joint family property in
2002. The son claimed that the daughters were not entitled to a share in the Joint family as the
father had passed away prior to coming into force of amendment Act.
The Supreme Court considered Phulvati’s case and agreed with the findings, yet applied a
different principal to grant relief to the daughters.

The Supreme Court in Danamma’s case having acknowledged paragraph of the report that
Phulvati’s case is an “authoritative precedent”, failed to apply the law laid down there in and
resorted to apply a completely different principal in granting relief to the daughters. Danamma’s
case has created multifarious problems and contradiction in applying of Section 6 of the
amendment Act which are summarized as follows.

1. (2016) 2 SCC 36

2. AIR 1969 SC 1330