Indian Law Research

Vineeta Sharma v. Rakesh Sharma

Decision date:

Court
Supreme Court of India
Decision date
11 August 2020
Citation / docket
(2020) 9 SCC 1
Source length
103 PDF pages
Review status
AI-assisted draft; not reviewed by a lawyer
Read summaryRead judgmentOpen original PDF

Draft summary

Written with AI assistance from the source judgment. Not reviewed by a lawyer. Historical decision summary, independently checked by an AI reviewer; not a current-law certification.

In one sentence

A daughter has coparcenary status by birth under substituted section 6, and her father need not have been alive on 9 September 2005.

Question decided

What rights did amended section 6 give daughters in a Mitakshara coparcenary, and how are earlier partitions treated?

Key holdings

Outcome

The reference was answered; contrary views in Prakash v. Phulavati and Mangammal were overruled, and Danamma was partly overruled to the extent of inconsistency. The matters were directed to the appropriate Bench for merits decisions.

Source PDF pages: 102, 103.

Plain-English explanation

This decision concerns daughters' rights in a Hindu joint family's Mitakshara coparcenary under amended section 6 of the Hindu Succession Act. The Court held that a daughter is a coparcener by birth in the same manner as a son. Her father did not need to be alive when the amendment took effect on 9 September 2005. The ruling nevertheless preserves the statutory protection for specified earlier dispositions, alienations, partitions and testamentary dispositions before 20 December 2004. Whether a particular asset is coparcenary property and whether an earlier transaction is protected remain important factual questions. The Court also addressed pending partition proceedings: a preliminary decree does not necessarily prevent the amended rights from being recognised before final partition. Claims that an oral partition already occurred require exceptional scrutiny and strong supporting public documentation; oral assertions alone are not enough. The ruling should therefore not be summarised as giving every daughter an automatic share in every property owned by her father. The nature of the property, family history and valid earlier transactions must still be examined.

Relevant law in the judgment

Separate opinions

Arun Mishra J. delivered the judgment of the three-judge Bench.

Research notes and limits

Check later interpretation and property-specific facts. Keep the distinction between coparcenary and self-acquired property clear. The source is an SCR report; headnotes are excluded from the court-text preview.

Source and extraction notes

Unchanged source PDF · Source website

Page references use physical PDF pages. Complete source PDF saved; not certified as a flawless transcription.

Judgment — source material

The section below reproduces machine-extracted court text, with original page images where extraction is unreliable. It is not an AI rewrite. Each page links to the unchanged PDF.

Jump to a source page

16 · 17 · 18 · 19 · 20 · 21 · 22 · 23 · 24 · 25 · 26 · 27 · 28 · 29 · 30 · 31 · 32 · 33 · 34 · 35 · 36 · 37 · 38 · 39 · 40 · 41 · 42 · 43 · 44 · 45 · 46 · 47 · 48 · 49 · 50 · 51 · 52 · 53 · 54 · 55 · 56 · 57 · 58 · 59 · 60 · 61 · 62 · 63 · 64 · 65 · 66 · 67 · 68 · 69 · 70 · 71 · 72 · 73 · 74 · 75 · 76 · 77 · 78 · 79 · 80 · 81 · 82 · 83 · 84 · 85 · 86 · 87 · 88 · 89 · 90 · 91 · 92 · 93 · 94 · 95 · 96 · 97 · 98 · 99 · 100 · 101 · 102 · 103

Source PDF page 16

View this page in the original PDF
 
ARUN MISHRA, J. 
1. The question concerning the interpretation of section 6 of the 
Hindu Succession Act, 1956 (in short, ‘the Act of 1956’) as amended by
Hindu Succession (Amendment) Act, 2005 (in short, ‘the Act of 2005’)has 
been referred to a larger Bench in view of the conflicting verdicts rendered 
in two Division Bench judgments of this Court in Prakash & Ors. v. 
Phulavati & Ors.,  (2016) 2 SCC 36 and Danamma @ Suman 
Surpur&Anr. v. Amar & Ors.,  (2018) 3 SCC 343. In other connected 
matters, the question involved is similar; as such, they have  also been 
referred for hearing along. 
2. In the case of Lokmani & Ors. v. Mahadevamma & Ors. ,
[S.L.P .(C) No.6840 of 2016] the High Court held that section 6, as
amended by the Act of 2005, is deemed to be there since 17.6.1956 
when the Act of 1956 came into force, the amended provisions are given 
retrospective effect, when the daughters were denied  right in the 
coparcenary property, pending proceedings are to be decided in the light 
of the amended provisions. Inequality has been removed. The High Court 
held that the oral partition and unregistered partition deeds are excluded 
from the definition of ‘partition’ used in the Explanation to amend ed 
Section 6(5). 
3. In Balchandra v. Smt. Poonam & Ors . [SLP [C] No.35994/ 
2015], the question raised is about the retrospectivity of secti on 6 as 
substituted by Amendment Act, 2005 and in case the father who was a 
coparcener in the joint Hindu family, was not alive when the Act of 2005 
came into force, whether daughter would become a coparcener of joint 
Hindu family property. 
4. In the matter of Sistia Sarada Devi v. Uppaluri Hari 
Narayana & Ors.  [SLP [C] No.38542/2016], the question raised is 
where the final decree has not been passed in a suit for partition, whether 
the re-distribution of shares can be claimed by the daughters by amended 
section 6, as substituted. 
5. In Girijavva v. Kumar Hanmantagouda & Ors.  [SLP [C] 
No.6403/2019], the question raised is whether section 6, as substituted,

Source PDF page 17

View this page in the original PDF
A
B
C
D
E
F
G
H
151 
is prospective as the father died in the year 1994 and, thus, no  benefit 
could be drawn by the daughters. 
6. In Smt. V .L. Jayalakshmi v. V .L. Balakrishna &Ors.  [SLP 
[C] No. 14353/2019], the petitioner sought partition of hi s father’s 
ancestral properties, and suit was filed in 2001. The trial court granted 
1/7 th  share to all the parties. The same was modified. It was held petitioner, 
and daughters were entitled to only 1/35 th  share in the light of the decision 
of this Court in Prakash v. Phulavati  (supra). 
7. In Indubai v. Yadavrao  [SLP [C] No.24901/2019], a similar 
question has been raised. In B.K. Venkatesh v. B.K. Padmavathi  [SLP 
[C] Nos. 1766-67/2020], the daughters have been accorded equal shares 
in Item No. 1 of Schedule A property, that has been questioned. 
8. A Division Bench of this Court in Prakash v. Phulavati  (supra) 
held that section 6 is not retrospective in operation, and it applies when 
both coparceners and his daughter were alive on the  date of 
commencement of Amendment Act, 9.9.2005. This Court further opined 
that the provision contained in the Explanation to section 6(5) provides 
for the requirement of partition for substituted section  6 is to be a 
registered one or by a decree of a court, can have no appli cation to a 
statutory notional partition on the opening of succession as provided in 
the unamended Section 6. The notional statutory partition is deemed to 
have taken place to ascertain the share of the deceased c oparcener 
which is not covered either under the proviso to section 6(1) or section 
6(5), including its Explanation. The registration requirement is inapplicable 
to partition of property by operation of law, which has to be give n full 
effect. The provisions of section 6 have been held to be prospective. 
9. In Danamma  (supra), this Court held that the amended 
provisions of section 6 confer full rights upon the daughter coparcener. 
Any coparcener, including a daughter, can claim a partit ion in the 
coparcenary property. Gurunalingappa died in the year 2001, le aving 
behind two daughters, two sons, and a widow.  Coparcener’s father 
was not alive when the substituted provision of section 6 came into force. 
The daughters, sons and the widow were given 1/5 th  share apiece. 
Arguments: 
10. Shri Tushar Mehta, learned Solicitor General of India, appearing 
on behalf of Union of India, raised the following arguments: 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 18

View this page in the original PDF
A
B
C
D
E
F
G
H
152 SUPREME COURT REPORTS [2020] 10 S.C.R. 
(i) The daughters have been given the right of a coparcener, to 
bring equality with sons, and the exclusion of daughter from coparcenary 
was discriminatory and led to oppression and negation of fundamental 
rights. The Amendment Act, 2005, is not retrospective but retroactive in 
operation since it enables the daughters to exercise thei r coparcenary 
rights on the commencement of the Amendment Act. Even though the 
right of a coparcener accrued to the daughter by birth, coparcenary is a 
birthright. 
(ii) The conferment of coparcenary status on daughters would 
not affect any partition that may have occurred before 20.12.2004 when 
the Bill was tabled before Rajya Sabha as contained in the  proviso to 
section 6(1). Hence, the conferment of right on the daughter di d not 
disturb the rights which got crystallised by partition before 20.12.2004. 
(iii) Unamended Section 6 provided that if a male coparcener had 
left behind on death a female relative specified in Class I of the Schedule 
or male relative claiming through such female relative, the daughter was 
entitled to limited share in the coparcenary interest of her father not 
share as a coparcener in her rights. They were unable to i nherit the 
ancestral property like sons/male counterparts. The  Mitakshara 
coparcenary law not only contributed to discrimination on the ground of 
gender but was oppressive and negated the fundamental right of equality 
guaranteed by the Constitution of India. 
(iv) With effect from 9.9.2005, the date of enforce ment of 
Amendment Act, the daughters became coparceners by birth, in their 
own right with the same liability in the coparcenary pro perty as if she 
had been a son. 
(v) The Explanation contained under Section 6(1) concerning 
conferral of rights as coparcener, daughter as coparcener, shall not affect 
or invalidate any disposition or alienation including any partiti on or 
testamentary disposition of the property which had taken place b efore 
20.12.2004. 
(vi) After substitution of the provisions of section 6, the devolution 
of coparcenary by survivorship has been abrogated. Now in case  of 
death of coparcener, male/female, the coparcenary interes t would not 
devolve by survivorship but by intestate succession under the provisions 
of the Hindu Succession Act or based on testamentary successi on.

Source PDF page 19

View this page in the original PDF
A
B
C
D
E
F
G
H
153 
(vii) The decision in Prakash v. Phulavati  to the effect that there 
should be a living daughter of a living coparcener o n the date of 
commencement of the Act of 2005 fails to appreciate that coparcenary 
rights are by birth. The death of a Hindu coparcener father or any other 
coparcener is only relevant for the succession of his coparcenary interest 
under section 6(3) of the Act of 2005. The death of any copar cener 
does not bring to an end any coparcenary. An increase or decrea se in 
the coparcenary interest independently held by each coparce ner may 
occur by birth or death. On the coparcener’s death, the notional partition 
is drawn only to determine his coparcenary’s interest. It does not disturb 
the other incidents of the coparcenary, it can continue without disruption 
with other coparceners, and even new coparceners can be added o n 
account of birth till the time an actual partition takes place. Coparcenary 
interest becomes definite only when a partition is effected. 
(viii) The daughter of a coparcener in section 6 does not imply the 
daughter of a living coparcener or father, as the death of the coparcener/ 
father does not automatically lead to the end of coparcenary, which may 
continue with other coparceners alive. Thus, the coparcener, from whom 
the daughter is inheriting by her being coparcener, needs not to be alive 
as on the commencement of the Amendment Act of 2005. 
(ix) The Explanation to Section 6(5) was not provided in the original 
amendment Bill moved before the Rajya Sabha on 20.12.2004, which 
came to be added later. 
(x) Often, coparceners enter into a family arrangement or  oral 
partition, and it may not be necessary to register such a partition. 
Explanation to section 6(5) of the Amendment Act requires the partition 
to be registered, was inserted to avoid any bogus or sham transactions. 
Considering the entire scheme of the Amendment Act, the requirement 
of registered partition deed is directory and not m andatory. Any 
coparcener relying upon any family arrangement or oral partition must 
prove the same by leading proper documentary evidence. 
11. Shri R. Venkataramani, learned senior counsel/amicus curiae,
argued as under: 
(a) There is no conflict between the decisions in Prakash v. 
Phulavati  (supra) and Danamma v. Suman  (supra). In both the 
decisions, the provisions of section 6 have been held to be of prospective 
application. The amendment is a prospective one. The declarat ion by 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 20

View this page in the original PDF
A
B
C
D
E
F
G
H
154 SUPREME COURT REPORTS [2020] 10 S.C.R. 
the law that the daughter of a coparcener has certain e ntitlements and 
be subject to certain liabilities is prospective. The daughter is treated as 
a coparcener under the amendment Act and not becaus e of the 
daughter’s birth prior to the amendment. 
(b) Unlike the joint tenancy principle in English law, a joint Hindu 
family stands on a different footing. Every son by birth  became a 
coparcener, and because of birth, the son became ent itled to be a 
coparcener in the joint Hindu family property entitled to claim partition 
with or without reference to the death of the Karta of a joi nt Hindu 
family. Like a son born into the family, an adopted son is also entitled to 
succeed to the joint family property. He becomes a copa rcener with 
adoptive father, but his relationship with the natural family is severed, 
including his status as a coparcener in the family of birth as laid down in 
Nagindas Bhagwandas v. Bachoo Hurkissondas , AIR 1915 PC 41 
and Nanak Chand & Ors. v. Chander Kishore & Ors ., AIR 1982 
Del. 520. 
(c) A Hindu joint family consists of male members descended
lineally from a common male ancestor, together with their mothers, wives 
or widows, and unmarried daughters bound together by the fundamental 
principle of a Sapindaship of family relationship is the ess ence and 
distinguishing feature of the institution of the coparcenary. A joint family 
may consist of a single male member and widows of deceased male 
members. This body is purely a creature of law and cannot be c reated 
by an act of parties, as observed in G . Narasimulu & Ors. v. P . Basava 
Sankaram & Ors ., AIR 1925 Mad. 249; and State Bank of India v. 
Ghamandi Ram (dead) through Gurbax Rai , (1969) 2 SCC 33. An 
undivided family which is the normal condition of Hindu society is
ordinarily joint not only in the estate but in food and worship, and, therefore, 
not only the concerns of the joint family but whatever rela tes to their 
commensality and their religious duties are regulated by the member or 
by the manager to whom they have expressly or by implication delegated 
the task of regulation as held in Raghunadha v. Brozo Kishore , 3 IA 
154 (PC). The coparcener status being the result of birth; possession of 
the joint property is only an adjunct of the joint family and is not necessary 
for its constitution, as discussed in Haridas Narayandas Bhatia v. 
Devkuvarbai Mulji ,  AIR 1926 Bom. 408. 
(d) A Hindu coparcenary is said to have seven essen tial 
characteristics, which include that the interest of a deceas ed member

Source PDF page 21

View this page in the original PDF
A
B
C
D
E
F
G
H
155 
survives on his death and merges in the coparcenary property as observed 
in Controller of Estate Duty, Madras v. Alladi Kuppuswamy , (1977) 
3 SCC 385. As a result, if father or any other coparcener has died before 
the Amendment Act, 2005, the interest of father or another coparcener 
would have already merged in the surviving coparcenary. Consequently, 
there will be no coparcener alive, from whom the daughter will succeed. 
Thus, the daughter can succeed only in the interest of living coparcener 
as on the date of enforcement of the Amendment Act. 
(e) In Anthonyswamy v. Chhinnaswamy , (1969) 3 SCC 15, it 
was observed that as a logical corollary and counter-balance  to the 
principle before the amendment, that the son from the moment of his 
birth, acquires an interest in the coparcener, a pious obligation is imposed 
on him to pay his father’s debts incurred for the purpose wh ich is not 
illegal or immoral. 
(f) In Baijnath Prasad Singh & Ors. v. Tej Bali Singh , AIR 
1921 PC 62, it was observed that there is a differe nce between 
coparcenary in Hindu law, which is not identical with copa rcenary as 
understood under the English law. In the case of death of a member of 
a coparcenary under the Mitakshara law, his right accrete s to  other 
members by survivorship while under the English law if one of the co- 
heirs jointly inheriting property dies, his or her right goes to his or her 
relations without accreting to surviving coparceners. 
(g) By birth and adoption, a male becomes a coparcener. The 
custom of adoption is of ancient origin, as observed in Amarendra Man 
Singh Bhramarbar & Anr. v. Sanatan Singh & Ors ., AIR 1933 PC 
155, and Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma 
& Ors ., 26 IA 113. The adoption at the relevant time was only of male 
and not of a female as the custom related to succession to the property, 
as discussed in Bireswar Mookerji & Ors. v. Shib Chunder Roy , 19 
IA 101. 
(h) By the expression used in the amended section 6, the daughter 
becomes coparcener by birth. The retrospective effect i s not intended 
to be given to the provisions of section 6. Though equality ha s been 
brought in, w.e.f. 2005, the incidence of birth of a daughter before 2005 
is of no consequence and not to reopen the past transactions. 
(i) The oral partition and family settlement are not intended to be 
reopened by section 6(1) and 6(5). 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 22

View this page in the original PDF
A
B
C
D
E
F
G
H
156 SUPREME COURT REPORTS [2020] 10 S.C.R. 
(j) If the daughter is treated as coparcener at any point of time in 
the past before the amendment, the same will bring i n enormous 
uncertainty in the working of the law. It can be stated that the Parliament 
has not intended to scramble the unscrambled egg or to resurre ct the 
past. 
(k) Challenges to partition had always come when any member
of a coparcenary, including an adopted son, stood depr ived of the 
entitlement to succeed to the joint family property. 
(l) The scheme of section 6 is future and forward-looking, and it 
has to be interpreted in such a manner that its relevance is not dilut ed. 
Now the rights of a coparcener have been enlarged, and the  provision 
has disabled it from defeating the right of a daughter from being treated 
equally. 
(m) In the light of the decision in Shashikalabai (Smt) v. the 
State of Maharashtra & Anr. , (1998) 5 SCC 332, the past transactions 
cannot be reopened. Thus, the daughter, whose coparcener father, was 
alive on the date of incorporation of provisions of section 6, will be treated 
as a coparcener. Any other interpretation would cau se unjust 
consequences. 
12. Shri V.V .S. Rao learned amicus curiae/senior counsel, argued 
that: 
(a) the logic of Prakash v. Phulavati  has been upheld in 
Mangammal v. T.B. Raju , (2018) 15 SCC 662.  It was held that there 
should be a living daughter of a living coparcener to inherit the property 
on the date of enforcement of the amended provisions of the 2005 Act. 
(b) Section 6(1)(a) declares a daughter to be a coparcener  by 
birth. By the declaration, a daughter stands included in coparcenary. As 
the declaration is to the effect that the daughter is to become coparcener 
by birth, the question of prospectivity or retrospectivity will not arise — 
daughter, whether born before 2005 or after that, i s considered a 
coparcener. 
(c) Section 6(1)(b) and (c) deal with the effects of inclus ion of 
daughter as a coparcener. Having regard to the plain language and future 
perfect tense “shall have the same rights,” the only conclusion is that the 
daughters who are included in the coparcenary will have the same rights 
after coming into force of the Amendment Act. The future perfect tense

Source PDF page 23

View this page in the original PDF
A
B
C
D
E
F
G
H
157 
indicates that an action will have been completed (finished or perfected) 
at some point in the future. This tense is formed with “will” plus “have” 
plus the past participle of the verb. If the Parliament had intended to 
mean as conferring the same rights in the coparcenary, ante rior to the 
amendment, the language would have been different.  The future perfect 
tense indicates that action will have to be completed at some  point in 
time in the future. The tense is formed with “will” plus “have” plus the 
past participle of the verb. If the Parliament intended to mean conferring 
the same rights in the coparcenary, anterior to the a mendment, the 
language would have been different. If the daughter is now m ade a 
coparcener, she would now have the same rights as she is a son.
(d) The legislative history of section 6 throws light in understanding 
the provision before the Act of 1956 was enacted. Women were n ot 
having any interest in the coparcenary properties, and on the demise of 
a coparcener, the share of the deceased coparcener devolved on the 
surviving coparceners. Hindu Succession Act made inroads int o the 
system. It provided that on the demise of a coparcener, his interest in the 
coparcenary properties would not devolve on other coparcener s by 
survivorship, and the share of the deceased coparcener  was to be 
ascertained by way of notional partition as on the date of death. To that 
limited extent, the women did not become a coparcener, but they could 
inherit the property. 
(e) The 174 th  Report of Law Commission of India recommended 
the adoption of the Kerala Model, and the amendments were effected in 
Kerala, Andhra Pradesh, Karnataka, and in several St ates, giving 
coparcenary rights to the daughters. 
(f) The Parliament Standing Committee report indicates that the 
Ministry proposed giving the benefit of the provision of this Bill to married 
daughters after the commencement of the proposed amending legislation. 
(g) It was proposed in the report that nothing in the amended
section 6 shall apply to a partition that has been effect ed before the 
commencement of the Amendment Act. 
(h) Deliberations by the Committee also indicate that concerning 
the partition effected through oral means, it was opined that  it would 
depend upon the facts of a particular case. As per the prevailing law, it 
was not necessary that a partition should be registered. There can be an 
oral partition also, as the law does not prohibit it. At the same time, the 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 24

View this page in the original PDF
A
B
C
D
E
F
G
H
158 SUPREME COURT REPORTS [2020] 10 S.C.R. 
Committee observed that the term ‘partition’ should be defined 
appropriately, and for all practical purposes, should be registered or should 
have been effected by a decree of the Court. In case where oral partition 
is recognised, it should be backed by proper evidentiary support. 
(i) The Parliament intended to confer the status of a coparce ner 
from the birth of a daughter. However, it was never intended to confer 
her the rights in the coparcenary property retrospectively, for the following 
reasons: 
a. Section 6(1)(a) deals with the inclusion of a daughter in the 
coparcenary “on and from the commencement of amendment 
Act 2005, w.e.f. 9.9.2005; 
b. The operating part of section 6(1) controls not only clause (a) 
but also clauses (b) and (c); 
c. Hence the daughter who is declared as coparcener f rom 
9.9.205 would have the right in a coparcenary property only 
from 9.9.2005; 
d. Equally, a daughter who is now coparcener will be subject  to 
the same liabilities in respect of property only from 9.9.2005.
(j) Conferment of coparcenary status shall take effect o n and 
from the commencement “of the Amendment Act.” The use of the words 
“on and from” in section 6(1) indicates that the daughter be comes 
coparcener from the commencement of the Act. The dau ghter of a 
coparcener shall by birth become a coparcener, have th e same rights 
and be subject to the same liabilities. The word “shall” indicates the due 
status of the daughter as coparcener is created only for  the future and 
would not affect the existing rights of a male coparcener. The use of the 
words “become,” “have,” and “be” are all present tenses, and they 
reiterate to support the above-suggested interpretation.
(k) In the Bill recommended by the Law Commission and the Bill
introduced, the Explanation to section 6(5) was not mentioned. It  was 
introduced only on the recommendations of the Parliamentary Committee. 
Thus, the concept of partition by registered deed and decree of the Court 
were introduced. It follows that on a daughter becoming coparcene r 
from a particular date, she cannot prospectively affect the  share of a 
coparcener, which was already fixed as held in Prakash v. Phulavati .

Source PDF page 25

View this page in the original PDF
A
B
C
D
E
F
G
H
159 
(l) The essential condition for conferring the status of coparcener 
on the daughter is that there should be a coparcenary on th e date of 
coming into force of the Act in 2005. If the coparcenary was disrupted 
by the act of the parties or by the death of parties, in partition or sale, the 
daughter could not get the status of a coparcener in coparce nary. The 
status conferred cannot affect the past transaction s of alienation, 
disposition, partition – oral or written. 
(m) Partition could be in the form of a memorandum of partition, 
or it could also be made orally. In most of the families, there used to be 
an oral partition. Once parties settle their rights, the partition effected 
orally cannot be ignored to give shares to the daughters. Such l egal 
transactions cannot be unsettled; the Explanation safeguards all genuine 
transactions of the past, including oral partition effected by the parties. 
The Explanation should not be understood as invalidating all othe r 
documents recording partition or oral partition in respect of coparcenary 
property before 20.12.2004. 
(n) Daughters conferred with the status of coparcener under the 
Amendment Act cannot challenge past transactions that took place before 
20.12.2004, and the daughter should be alive as on the date of amendment. 
There should be ‘living coparcener’ to whom the daughter can inherit to 
become a coparcener. 
13. Shri Sridhar Potaraju, learned counsel, vociferously ar gued 
that: 
(a) The decision in Prakash v. Phulavati  adopted the correct 
interpretation of the provision. Married daughters are not considered as 
part of the father’s joint family. They were recognised as Cl ass I heirs 
that, by itself, did not make them part of their father’s joint Hindu family. 
He has relied upon Surjit Lal Chhabda v. Commissioner of Income 
Tax , (1976) 3 SCC 142. A married daughter ceases to be a membe r of 
the father’s family and becomes a member of her husband’s family. 
(b) As considered by P. Ramanatha Aiyar in Major Law Lexicon, 
the land is held in coparcenary when there is the unity of title, possession, 
and interest. A Hindu coparcenary is a narrower body than the joint 
family. A coparcener shares (equally) with others in inherita nce in the 
estate of a common ancestor. Otherwise called parceners  are such as 
have an equal portion in the inheritance of an ancestor. The share  of a 
coparcener is undefined and keeps fluctuating with the birth and death 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 26

View this page in the original PDF
A
B
C
D
E
F
G
H
160 SUPREME COURT REPORTS [2020] 10 S.C.R. 
of a coparcener. When a male is born, he becomes a coparcener, thereby 
decreasing the share of other coparceners. In the event of  the death of 
a coparcener, the rule of survivorship comes into play, and the estate 
devolves on the surviving coparceners to the exclusion of heirs of the 
deceased coparcener. Status of a coparcener is a cr eation of law 
commencing with birth and ending with death or by severance of such 
status by way of partition or statutory fiction. The status of coparcenary 
ceases on death. 
(c) “Daughter of a coparcener” means the daughter of an alive 
person and has the status of a coparcener on the date of commencement 
of the Amendment Act. In case a statutory partition has taken place, the 
same is required to be recognised. It would bring severance of jointness 
of status and settle the share. 
(d) If a preliminary decree of partition has been passed and has 
attained finality, it must be given effect. The mere f iling of a suit for 
partition is sufficient to effect a partition. On separat ion of status, the 
decree is passed by a court as held in Puttrangamma & Ors. v. M.S. 
Ranganna & Ors ., AIR 1968 SC  1018. 
(e) What rights have been conferred by way of survivorship are
not intended to be taken away except as provided by the amended proviso 
in section 6(3) of the Amendment Act. 
(f) A legal fiction created in law cannot be stretched beyond th e 
purpose for which the fiction has been created, as held in Mancheri 
Puthusseri Ahmed & Ors. v. Kuthiravattam Estate Receiver , (1996) 6 
SCC 185. 
(g) Statutory partition leads to disruption. A statutory partition, as 
provided in section 6(3), is to be given full effect. The sa me leads to 
severance of status of jointness of the deceased coparcener a nd his 
legal heirs, which shall include the right of maintenance from the joint 
family of the widow of the deceased coparcener and such other r ights. 
Such partition brings an end to the joint family. In the case of death of 
the father of petitioner in 1963, notional partition would occur and the 
consequences laid down in Anar Devi & Ors. v. Parmeshwari Devi & 
Ors ., (2006) 8 SCC 656 would follow. 
(h) The married daughters on the death of father in 1963 were 
not entitled to a share in the coparcenary property. Only s ons were 
entitled to equal shares, and sons obtained the proper ty by way of

Source PDF page 27

View this page in the original PDF
A
B
C
D
E
F
G
H
161 
survivorship. The statutory partition under unamended Section  6 was 
considered in Gurupad Khandappa Magdum v. Hirabai Khandappa 
Magdum & Ors. , (1978) 3 SCC 383.  Statutory partition has been in 
existence in section 6 since 1956 and is continued by the 2005 
Amendment. 
(i) Section 6, as amended, is not applicable in the case of a daughter 
whose father is not alive at the time of the introduction of provisions of 
section 6. Every member of a joint Hindu family is not entitled to be a 
coparcener either under the traditional Hindu law or under the  Hindu 
Succession Act, 1956 or the Amendment Act, 2005. Under Section 29A 
introduced in the State of Andhra Pradesh, unmarried daughters wer e 
given the rights of a coparcener while excluding married daughters. The 
Central Amendment has not made a distinction based on the daughter’s 
marital status expressly but has made it evident by t he use of the 
expression ‘joint Hindu family’ and ‘daughter of a coparcener.’  The 
provisions should be read to exclude married daughters. The provisions 
of section 6, as amended, are prospective. It was not intended to unsettle 
the settled affairs. 
(j) The Explanation to section 6(5) cannot be interpreted to ta ke 
away the rights crystallised upon the surviving coparceners of the joint 
family under the statutory partition. The purpose of the Explanation was 
considered in S. Sundaram Pillai & Ors. v. V . R. Pattabiraman & 
Ors. , (1985) 1 SCC 591 thus: 
“53.  Thus, from a conspectus of the authorities referred to above,
it is manifest that the object of an Explanation to a statutory provision 
is— 
“(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in th e main 
enactment, to clarify the same to make it consistent with the 
dominant object it seems to subserve, 
(c) to provide an additional support to the dominant object of the 
Act in order to make it meaningful and purposeful, 
(d) an Explanation cannot in any way interfere with or change the 
enactment or any part thereof but where some gap is left which is 
relevant for the Explanation, in order to suppress the mischief and 
advance the object of the Act it can help or assist the  Court in 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 28

View this page in the original PDF
A
B
C
D
E
F
G
H
162 SUPREME COURT REPORTS [2020] 10 S.C.R. 
interpreting the true purport and intendment of the enactment , 
and 
(e) it cannot, however, take away a statutory right with which any 
person under a statute has been clothed or set at naught  the 
working of an Act by becoming an hindrance in the interpretation 
of the same.” 
(k) A preliminary decree determines the shares. Section 2(2)  of 
the Code of Civil Procedure defines ‘decree’ to mea n the formal 
expression, which clarifies that a decree is preliminary when further 
proceedings have to be taken before the suit can be decided entirely. In 
so far as the determination of individual shares to be allotted to parties to 
the suit is concerned, the preliminary decree is final. After the dismissal 
of Special Leave Petition (C) No.38542/2016 in Sistla Sarada Devi v. 
Uppaluri Hari Narayana & Ors. , the only step required to be taken is 
to apportion the shares by metes and bounds in terms of the preliminary 
decree which was passed. The daughters born after the commencement 
of the Amendment Act become coparceners, and daughters born before 
the commencement of the Amendment Act have been covered under 
section 6(1)(b) and granted the same rights in coparcenary as given to a 
son. The daughters born before and after the amendment covered under 
section 6 are given the status of a coparcener. The status of a coparcener 
to daughters cannot be given from the date of birth, and they cannot be 
made liable for all the liabilities of coparcenary pro perty. The benefit 
cannot be conferred from the date of birth as it would relate in sever al 
cases to date of birth even in the year 1925. All liabilities are to be borne 
only from the amendment; as such, the provisions are not retrospective. 
(l) Even alternatively, if the status of coparcenary on the daughter 
is to be conferred retrospectively, the limitations governing s uch legal 
fiction will have to take into consideration the implications of (i) statutory 
partition; (ii) court’s decree; and (iii) legitimate alienation of the property 
by Karta/coparceners, prior to commencement of the Amendment Act. 
All other dispositions or alienations, including any partition or testamentary 
disposition of property made before 20.12.2004, are required to be saved 
as earlier the daughters were not coparceners. On a statutory partition, 
the property becomes the self-acquired property and is  no more a 
coparcenary property. 
(m) Even in a case of adoption, the past transactions are save d 
while applying the theory of relation back as laid down in Sripad Gajanan

Source PDF page 29

View this page in the original PDF
A
B
C
D
E
F
G
H
163 
Suthankar v. Dattaram  Kashinath Suthankar & Ors. , (1974) 2 SCC 
156. 
Thus, the provisions of section 6 are to be construed prospectively. 
14. Shri Amit Pai, learned counsel, strenuously urged that:
(a) The golden rule of interpretation is required to be adopted as 
laid down in Kanai Lal Sur v. Paramnidhi Sadhukhan , (1958) SCR 
360. The rule of literal construction is relied upon, as observ ed in Lt. 
Amrendra Col. Prithi Pal Singh Bedi v. Union of Ind ia , (1982) 3 
SCC 140. 
(b) The substitution of the provision of section 6 dates back to the 
commencement of the Principal Act of 1956. A notional partition on the 
death of a coparcener to ascertain his share is not an a ctual partition. 
The same is not saved by the proviso contained in section 6. A daughter 
cannot be deprived of the right to equality as per the Statement of Objects 
and Reasons. The provision of section 6 is required to be giv en full 
effect. 
(c) The decision in Prakash v. Phulavati  cannot be said to be 
laying down the law correctly. The concept of living daughter of a living 
coparcener is adding to the text of provisions of section 6, wher eas no 
word can be added or read into a statute by the Court. It can only repair 
errors or supply omissions. It is for the legislature to pr ovide such a 
concept of a daughter of a living coparcener. Thus, it was arg ued that 
section 6 includes all living daughters of coparceners, irresp ective of 
whether such coparceners are deceased or alive at the commen cement 
of the 2005 Amendment. 
15. Shri Sameer Shrivastava, learned counsel, urged that: 
(a) The term ‘coparcener’ is not defined in the Successio n Act. 
This Court considered it in SathyapremaManjunatha Gowda  (Smt) v. 
Controller of Estate Duty, Karnataka , (1997) 10 SCC 684. It is a 
narrower body than a joint family and consists of only thos e persons 
who have taken by birth, an interest in the property, and can enf orce a 
partition, whenever they like. The daughter is entitled to sha re in the 
property subject to the restrictions provided under sub-section (1) and 
sub-section (5) of amended section 6. 
(b) Section 6(3) provides a consequence of the deat h of a 
coparcener, devolution on the death of a coparcener  after the 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 30

View this page in the original PDF
A
B
C
D
E
F
G
H
164 SUPREME COURT REPORTS [2020] 10 S.C.R. 
commencement of the Amendment Act. The concept of survivorship 
has been done away. Testamentary or intestate successi on has been 
provided where a Hindu dies before the commencement  of the 
Amendment Act. The relevant provisions are section 6(1)(2), wh ere 
male Hindus are given the right by birth to become a copa rcener, and 
they have the right to take a partition with coparcenary property. 
(c) The decision in Prakash v. Phulavati , laying down that section 
6 as amended applies in case of living daughters of a living coparcener, 
is arbitrary and non-est  in the eye of law. Both sons and daughters of 
coparceners are conferred the right of becoming coparcener  by birth. 
Birth in coparcenary creates interest. The only other exce ption is by 
way of adoption. Coparcenary incident is the right to the sever ance of 
the status of partition. 
16. Ms. Anagha S. Desai, learned counsel, strenuously urged that
section 6 provides parity of rights in coparcenary property among male 
and female members of a joint Hindu family on and from 9.9.2005. The 
declaration in section 6 that the daughter of a coparcener shall have the 
same rights and liabilities as she would have been a son is unambiguous 
and unequivocal. The daughter is entitled to a share in the ancestral 
property. She has relied upon Ganduri Koteshwaramma & Anr. v. 
Chakiri Yanadi & Anr.,  (2011) 9 SCC 788. 
17. When a daughter, who is claiming and demanding a share in 
the coparcenary, is alive, there is no difficulty of interpretation, irrespective 
of the fact whether a coparcener has died before the commencement of 
the Amendment Act. The coparcener and the daughter do not nee d to 
be alive as on the date of the amendment. If it is to be i nterpreted that 
coparcener and daughter both should be alive, it will defeat  the very 
purpose and objective of the amended provisions. Earlier, the provisions 
of Hindu law treated a son as a coparcener by birth; now, daughters are 
given the same rights since birth. In case partition has been effected by 
metes and bounds and is adequately proved, then the daughter of 
coparcenary cannot seek partition of already divided property. 
In Ref. Historical Background 
18. The Hindu branch of dharma is influenced by the theological 
tenets of the Vedic Aryans. What is not modified or abrogate d by the 
legislation or constitutional provisions still prevails, the basic Hindu law 
emanates from Vedas and past shrutis/smritis. Various dharma shastras

Source PDF page 31

View this page in the original PDF
A
B
C
D
E
F
G
H
165 
regard custom as the basis of Hindu law as administered from  time to 
time. Law has advanced and made progress as per the requirements of 
the society and the prevailing ethos. The justice used to be administered 
by the emperors resolving the conflicts. The building of law has ta ken 
place over time. There are two main schools of Hindu law, i.e., Mitakshara 
and Dayabhaga. Mitakshara has further been sub-divided in to four 
schools, i.e., Benares, Mithila, Maharashtra or Bombay, and Dravida or 
Madras school. Benares, Mithila, Dravida, and Maharashtra denote old 
names of the territories. 
19. The application of schools of Mitakshara is region-wise. There 
has been re-organization of States in 1956, and after that, some confusion 
has arisen concerning the administration of Bombay school and Benares 
School. Benares school practically governs the whole of Northern India. 
The Bombay school covers Western India and various other territories. 
The certain States were re-organized by the State Reo rganisation Act 
of 1956. In some regions of reorganised States, given the common name, 
different schools apply. Take, for example, Madhya Pradesh. It consists 
of territories to which both Bombay and Benares schools are applicable. 
However, various authors of Hindu law have failed to note th e fact in 
which parts of the State of M.P. after reorganisation whic h school is 
applicable. A reference is found to tenets of Bombay school of Hindu 
law in the entire State of M.P., whereas Benares school is applicable in 
various parts of Madhya Pradesh.  It was clarified by a Ful l Bench of 
Madhya Pradesh High Court in  Diwan Singh v. Bhaiya Lal, (1997) 2 
MP LJ-202, and a Division Bench decision was relied on in FA No.31/ 
1968 decided on 14.12.1976. In integrating State of Madhya Bharat and 
some other parts of Madhya Pradesh, Benares school is applicable, not 
Bombay. 
20. Mitakshara law applies to most parts of India except Bengal. 
Maharashtra school prevailed in North India, Bombay school, in Western 
India. However, certain areas in Southern India are  governed by 
Marumakkatayam, Aliyasantana, and Nambudiri systems of law. 
21. Besides the various sources, custom, equity, justi ce, and 
conscience have also played a pivotal role in the development of Hindu 
law, which prevailed. When the law was silent on certain aspects, Judicial 
decisions also acted as a source of law. Hindu law was not static but 
always progressive. Slowly necessity was felt for the codif ication of 
Hindu law. In particular, women’s rights were taken care of, and attempts 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 32

View this page in the original PDF
A
B
C
D
E
F
G
H
166 SUPREME COURT REPORTS [2020] 10 S.C.R. 
were made to remove the anomalies and unscrupulous practices. 
Necessity was also felt after the independence, given the constitutional 
imperatives to bring about equality of status, the codified law has been 
amended from time to time.The latest attempt has been made by way of 
amending the Hindu Succession Act concerning rights of daughter to be 
a coparcener in Mitakshara coparcenary and has been given the rights 
equal to that of a son. 
In Ref.Coparcenary and Joint Hindu Family 
22. A joint Hindu family is a larger body than a Hindu coparcenary. 
A joint Hindu family consists of all persons lineally descen ded from a 
common ancestor and include their wives and unmarried daughters. A
joint Hindu family is one in worship and holds joint assets. After separation 
of assets, the family ceases to be joint. Mere severance  in food and 
worship is not treated as a separation, as observed in Sri Raghunadha 
v. Sri Brozo Kishore , 1876 (1) Mad. 69 = 3 IA 154. 
23. Hindu coparcenary is a much narrower body. It consists of 
propositus and three lineal descendants. Before 2005, it included onl y 
those persons like sons, grandsons, and great-grandsons who are t he 
holders of joint property. For example, in case A is holding the property, 
B is his son, C is his grandson, D is great-grandson, and E is a great- 
great-grandson. The coparcenary will be formed up to D, i .e., great- 
grandsons, and only on the death of A, holder of the property, the right of 
E would ripen in coparcenary as coparcenary is confined to three lineal 
descendants. Since grandsons and great-grandsons become coparceners 
by birth, they acquired an interest in the property. 
24. Coparcenary property is the one which is inherited by a Hindu 
from his father, grandfather, or great grandfather. Property inh erited 
from others is held in his rights and cannot be treated as forming part of 
the coparcenary. The property in coparcenary is held as joint owners. 
25. Coparcener heirs get right by birth.  Another method to be a 
coparcener is by way of adoption. As earlier, a woman coul d not be a 
coparcener, but she could still be a joint family member. By substituted 
section 6 with effect from 09.09.2005 daughters are re cognised as 
coparceners in their rights, by birth in the family like a son. Coparcenary 
is the creation of law. Only a coparcener has a right to demand partition. 
Test is if a person can demand a partition, he is a c oparcener not 
otherwise. Great great-grandson cannot demand a partition as he is not

Source PDF page 33

View this page in the original PDF
A
B
C
D
E
F
G
H
167 
a coparcener. In a case out of three maledescendants, one or other has 
died, the last holder, even a fifth descendant, can claim partition. In case 
they are alive, he is excluded. 
In Ref. Formation of Coparcenary 
26. For interpreting the provision of section 6, it is necessar y to 
ponder how coparcenary is formed. The basic concept of coparc enary 
is based upon common ownership by coparceners. When it rema ins 
undivided, the share of the coparcener is not certain. Nobody can claim 
with precision the extent of his right in the undivided property. Coparcener 
cannot claim any precise share as the interest in c oparcenary is 
fluctuating. It increases and diminishes by death and birth in the family. 
27. In Sunil Kumar & Anr. v. Ram Parkash & Ors. , (1988) 2 
SCC 77, the Court discussed essential features of coparcenary of b irth 
and sapindaship thus: 
“17.  Those who are of individualistic attitude and separa te 
ownership may find it hard to understand the significance of a 
Hindu joint family and joint property. But it is there from the ancient 
time perhaps, as a social necessity. A Hindu joint family consists 
of male members descended lineally from a common mal e 
ancestor, together with their mothers, wives or widows  and 
unmarried daughters. They are bound together by the fundamental 
principle of sapindaship or family relationship, which is the essential 
feature of the institution . The cord that knits the members of the 
family is not property but the relationship of one another.
18. The coparcenary consists of only those persons who have taken 
by birth an interest in the property of the holder  and who can 
enforce a partition whenever they like. It is a narrower body than 
a joint family. It commences with a common ancestor and includes 
a holder of joint property and only those males in his male line 
who are not removed from him by more than three degrees. The 
reason why coparcenership is so limited is to be found in the tenet 
of the Hindu religion that only male descendants up to three degrees 
can offer spiritual ministration to an ancestor. Only males can be 
coparceners. [See: Hindu Law by N.R. Raghavachariar, 8th Edn., 
p. 202]” 
                         (emphasis supplied) 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 34

View this page in the original PDF
A
B
C
D
E
F
G
H
168 SUPREME COURT REPORTS [2020] 10 S.C.R. 
28. In case coparcenary property comes to the hands of a ‘single 
person’ temporarily, it would be treated as his property, but once a son is 
born, coparcenary would revive in terms of the Mitakshara law. In Sheela 
Devi v. Lal Chand , (2006) 8 SCC 581, it was observed: 
“12. The principle of law applicable in this case is that so long a 
property remains in the hands of a single person, the same was to 
be treated as separate property, and thus such a person would be 
entitled to dispose of the coparcenary property as the same were 
his separate property, but, if a son is subsequently born to him or 
adopted by him, the alienation whether it is by way of sa le, 
mortgage or gift, will nevertheless stand, for a son cannot object 
to alienations so made by his father before he was born or begotten 
(See C. Krishna Prasad v. CIT , (1975) 1 SCC 160). But once a 
son is born, it becomes a coparcenary property, and he w ould 
acquire an interest therein.” 
In M. Yogendra & Ors. v. Leelamma N. & Ors.,  (2009) 15 SCC 
184, similar opinion was expressed thus: 
“29.  It is now well settled in view of several decisions of thi s 
Court that the property in the hands of a sole coparcener allotted 
to him in partition shall be his separate property for the same shall 
revive only when a son is born to him . It is one thing to say that 
the property remains a coparcenary property but it is another thing 
to say that it revives. The distinction between the two is absolutely 
clear and unambiguous. In the case of former any sale or alienation 
which has been done by the sole survivor coparcener shall be
valid whereas in the case of a coparcener any alienation made by 
the karta would be valid.” 
 (emphasis supplied) 
In Smt. Sitabai & Anr. v. Ramchandra , AIR 1970 SC 343, it was 
held: 
“3. x x x  under the Hindu system of law a joint family may consist 
of a single male member and widows of deceased male members 
and that the property of a joint family did not cease to belong to a 
joint family merely because the family is represented by a single 
coparcener who possesses rights which an absolute owner of
property may possess…..”

Source PDF page 35

View this page in the original PDF
A
B
C
D
E
F
G
H
169 
In Dharma ShamraoAgalawe v. Pandurang Miragu Agalwe 
& Ors. , (1988) 2 SCC 126, it was held that joint family property retains 
its character even after its passing on to the hands of a sole surviving 
coparcener. If a son is subsequently born or adopted, the cop arcenary 
will survive, subject to saving the alienations made in the interregnum. 
29. In Ghamandi Ram  (supra), the formation, concept and 
incidents of the coparcenary were discussed thus: 
“5.  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 co-parcenership 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 
of such person; 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 coparcene rs, 
and sixthly, that the interest of a deceased member lapses on his
death to the survivors. A coparcenary under the Mitakshara School 
is a creature of law and cannot arise by Act of parties e xcept in 
so far that on adoption the adopted son becomes a coparcen er 
with his adoptive father as regards the ancestral properties of the 
latter. In Sundaranam Maistri  v. Harasimbhulu Maistri and 
Another, ILR 25 Mad 149 at 154. 
Mr Justice Bhashyam Ayyangar stated the legal position thus: 
“The Mitakshara doctrine of joint family property is founded 
upon the existence of an undivided family, as a corporate bo dy 
(Gan Savant Bal Savant  v. Narayan Bhond Savant ) [ILR 7 
Bom 467] and Mayne’s ‘Hindu Law and Usage’ , (6th 
edition,Paragraph 270) and the possession of property by such
corporate body. The first requisite therefore is the family un it; 
and the possession by it of property is the second requisite. F or 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 36

View this page in the original PDF
A
B
C
D
E
F
G
H
170 SUPREME COURT REPORTS [2020] 10 S.C.R. 
the present purpose, female members of the family may b e left 
out of consideration and the conception of a Hindu family is a 
common male ancestor with his lineal descendants in the mal e 
line, and so long as that family is in its normal condition viz. the 
undivided state — it forms a corporate body. Such corporate body, 
with its heritage, is purely a creature of law and cannot be created 
by Act of parties, save in so far that, by adoption, a stranger may 
be affiliated as a member of that corporate family.” 
6.  Adverting to the nature of the property owned by such a family 
the learned Judge proceeded to state: 
“As regards the property of such family, the ‘unobstructed
heritage’ devolving on such family , with its accretions, is owned 
by the family, as a corporate body, and one or more branches of 
that family, each forming a corporate body within a  larger 
corporate body, may possess separate ‘unobstructed herit age’ 
which, with its accretions, may be exclusively owned by such
branch as a corporate body.” 
(emphasis supplied) 
30. Essential characteristics of coparcenary, as discus sed in the 
above-mentioned decision in Ghamandi Ram  (supra), were analysed in 
Controller of Estate Duty v. Alladi Kuppuswamy , (supra), thus: 
“8. …. 
“Thus analysing the ratio of the aforesaid case regarding the
incidents of a Hindu coparcenary it would appear that a Hindu 
coparcenary has six essential characteristics, namely, (1) that 
the lineal male descendants up to the third generation acquire
an independent right of ownership by birth and not as 
representing their ancestors; (2) that the members of the 
coparcenary have the right to work out their rights by demanding 
partition; (3) that until partition, each member has got ownership 
extending over the entire property conjointly with the rest and 
so long as no partition takes place, it is difficult  for any 
coparcener to predicate the share which he might receive; (4) 
that as a result of such co-ownership the possessio n and 
enjoyment of the property is common; (5) that there can be no 
alienation of the property without the concurrence of the other 
coparceners unless it be for legal necessity; and (6) tha t the

Source PDF page 37

View this page in the original PDF
A
B
C
D
E
F
G
H
171 
interest of a deceased member lapses on his death and merges 
in the coparcenary property. Applying these tests to the interest 
of a Hindu widow who has been introduced into a coparcenary 
by virtue of the Act of 1937, we find that, excepting Condition 
(1), all other conditions are fully satisfied in case of a Hindu 
widow succeeding to the interest of her husband in a Hindu 
coparcenary. In other words, after her husband’s death the 
Hindu widow under the Act of 1937 has got the right to demand 
partition, she cannot predicate the exact share which she might
receive until partition is made, her dominion extends to the 
entire property conjointly with the other members of  the 
coparcenary, her possession and enjoyment is common, the 
property cannot be alienated without concurrence of all the 
members of the family, except for legal necessity, and like other 
coparceners she has a fluctuating interest in the property which 
may be increased or decreased by deaths or additions in the 
family. It is manifest that she cannot fulfil the first condition, 
because she enters the coparcenary long after she is born and 
after she is married to her husband and acquires his interest on 
his death. Thus, short of the first condition, she possesses all 
the necessary indicia of a coparcenary interest. The fact tha t 
before the Act of 1956, she had the characteristic of a widow-
estate in her interest in the property does not detract any  the 
less from this position. It must follow as a logical corollary that 
though a Hindu widow cannot be a coparcener, she ha s 
coparcenary interest and she is also a member of th e 
coparcenary by virtue of the rights conferred on her under the
Act of 1937.” 
31. In Controller of Estate Duty  (supra), it has also been laid 
down that if a widow does not exercise her right of partition, there is no 
severance of the Hindu coparcenary and on her death, the inter est of 
the widow merges in the coparcenary property or lapse s to the other 
coparceners. It was observed that the male issue of coparcener acquires 
an interest in the coparcenary by birth, not as representing his father. 
32. This Court in Controller of Estate Duty  (supra), placed reliance 
on Satrughan Isser v. Sabujpari, & Ors. , AIR 1967 SC 272. In case 
the right to partition by a widow has not been exercised, t here is no 
severance of Hindu coparcenary, and on death of coparcener, there  is 
no dissolution of coparcenary. In Satrughan  (supra), it was held: 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 38

View this page in the original PDF
A
B
C
D
E
F
G
H
172 SUPREME COURT REPORTS [2020] 10 S.C.R. 
“7. By the Act certain antithetical concepts are sought  to be 
reconciled. A widow of a coparcener is invested by the Act with 
the same interest which her husband had at the time of his death 
in the property of the coparcenary. She is thereby introduced into 
the coparcenary, and between the surviving coparceners of her 
husband and the widow so introduced, there arises community of 
interest and unity of possession. But the widow does not on that 
account become a coparcener: though invested with the same 
interest which her husband had in the property she does not acquire 
the right which her husband could have exercised over the interest 
of the other coparceners . Because of statutory substitution of her 
interest in the coparcenary property in place of her husband, the 
right which the other coparceners had under the Hindu law of the 
Mitakshara school of taking that interest by the rule of survivorship 
remains suspended so long as that estate enures. But on the death 
of a coparcener there is no dissolution of the coparcenary so as to 
carve out a defined interest in favour of the widow  in the 
coparcenary property : Lakshmi Perumallu v. Krishnavanamma. 
The interest acquired by her under Section 3(2) is subject to the 
restrictions on alienation which are inherent in her estate. She has 
still power to make her interest definite by making a demand for 
partition, is a male owner may. If the widow after being introduced 
into family to which her husband belonged does not seek partition, 
on the termination of her estate her interest will mer ge into the 
coparcenary property. But if she claims partition, she is sev ered 
from the other members and her interest becomes a de fined 
interest in the coparcenary property, and the right of the other 
coparceners to take that interest by survivorship w ill stand 
extinguished. If she dies after partition or her estate is otherwise 
determined, the interest in coparcenary property which has vested 
in her will devolve upon the heirs of her husband. It is true that a 
widow obtaining an interest in coparcenary property by Section 
3(2) does not inherit that interest but once her interest has ceased 
to have the character of undivided interest in the property, it will 
upon termination of her estate devolve upon her husband’s heirs. 
To assume as has been done in some decided cases that the right 
of the coparceners to take her interest on determination of the 
widow’s interest survives even after the interest has become 
definite, because of a claim for partition, is to denude the right to 
claim partition of all reality.”

Source PDF page 39

View this page in the original PDF
A
B
C
D
E
F
G
H
173 
33. In Bhagwan Dayal (since deceased) & Anr. v. Mst. Reoti 
Devi , AIR 1962 SC 287, it was held that coparcenary is a creature  of 
law and branch of the family was a subordinate corporate body and 
discussed the proposition thus: 
“47. x xxCoparcenary is a creature of Hindu law and cannot be 
created by agreement of parties except in the case of reunion. I t 
is a corporate body or a family unit. The law also recogniz es a 
branch of the family as a subordinate corporate body.  The said 
family unit, whether the larger one or the subordinate one, can 
acquire, hold and dispose of family property subject to the limitations 
laid down by law. Ordinarily, the manager, or by consent, express 
or implied, of the members of the family, any other member or
members can carry on business or acquire property, subjec t to 
the limitations laid down by the said law, for or on behalf of the 
family. Such business or property would be the business or property 
of the family. The identity of the members of the family is not 
completely lost in the family. One or more members of that family 
can start a business or acquire property without the aid of the 
joint family property, but such business or acquisition would be his 
or their acquisition. The business so started or property so acquired 
can be thrown into the common stock or blended with the joint 
family property in which case the said property becomes the estate 
of the joint family. But he or they need not do so, in which case 
the said property would be his or their self-acquisiti on, and 
succession to such property would be governed not by the law of
joint family but only by the law of inheritance. In such a case, if a 
property was jointly acquired by them, it would not be governed 
by the law of joint family; for Hindu law does not recognize some 
of the members of a joint family belonging to different branches, 
or even to a single branch, as a corporate unit. Therefore, the
rights inter se between the members who have acquired the said 
property would be subject to the terms of the agree ment 
whereunder it was acquired. The concept of joint tenancy known 
to English law with the right of survivorship is unknown to Hindu 
law except in regard to cases specially recognized by it. I n the 
present case, the uncle and the two nephews did not belong to the 
same branch. The acquisitions made by them jointly could not be 
impressed with the incidents of joint family property. Th ey can 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 40

View this page in the original PDF
A
B
C
D
E
F
G
H
174 SUPREME COURT REPORTS [2020] 10 S.C.R. 
only be co-sharers or co-tenants, with the result that their properties 
passed by inheritance and not by survivorship.” 
(emphasis supplied) 
34. In Kalyanji Vithaldas & Ors. v. Commissioner of Income 
Tax, Bengal,  AIR 1937 PC 36, the concept of Hindu Undivided Family 
was considered thus: 
“ …….. The phrase “Hindu undivided family” 
 is used in the statute 
with reference, not to one school only of Hindu law, but to all 
schools; and their Lordships think it a mistake in method to begin 
by pasting over the wider phrase of the Act the words “Hindu 
coparcenary”-all the more that it is not possible to say on the face 
of the Act that no female can be a member .  …..” 
(emphasis supplied) 
In Gowli Buddanna v. Commissioner of Income Tax, Mysore ,
AIR 1966 SC 1523, it was held that coparcenary is narrower body than 
joint family thus: 
“6.  x x x A Hindu joint family consists of all persons lineall y 
descended from a common ancestor and includes their wives and
unmarried daughters. A Hindu coparcenary is a much narrowe r 
body than the joint family: it includes only those persons who 
acquire by birth an interest in the joint or coparcenary pr operty, 
these being the sons, grandsons, and great-grandsons of the holder 
of the joint property for the time being. Therefore there may be a 
joint Hindu family consisting of a single male member and widows 
of deceased coparceners. x xx” 
(emphasis supplied) 
The difference between joint Hindu family and coparcenary was 
considered in Surjit Lal Chhabda v. The Commissioner of Income 
Tax, Bombay , (supra) thus: 
“13.  Outside the limits of coparcenary, there is a fringe of persons, 
males and females, who constitute an undivided or joint family. 
There is no limit to the number of persons who can compose i t 
nor to their remoteness from the common ancestor and to t heir 
relationship with one another. A joint Hindu family consists  of 
persons lineally descended from a common ancestor and includes

Source PDF page 41

View this page in the original PDF
A
B
C
D
E
F
G
H
175 
their wives and unmarried daughters. 
 The daughter, on marriage, 
ceases to be a member of her father’s family and becomes a 
member of her husband’s family. The joint Hindu family is thus a 
larger body consisting of a group of persons who are united by 
the tie of sapindaship arising by birth, marriage or adoption :
“The fundamental principle of the Hindu joint family is 
the sapindaship . Without that it is impossible to form a joint 
Hindu family. With it as long as a family is living together, it is 
almost impossible not to form a joint Hindu family. It is the 
family relation, the sapinda relation, which distinguishes the 
joint family, and is of its very essence, (1908) 32 Bom. 479.”” 
(emphasis supplied) 
35. In State of Maharashtra v. Narayan Rao Sham Rao 
Deshmukh & Ors. , (1985) 2 SCC 321, characteristics of joint family 
and coparcenary were culled out. It was also held that i nterest of a 
female member of a joint Hindu family getting fixed, on her inheriting 
interest of a deceased male member of the family. She would not cease 
to be a member of family unless she chooses to become separ ate by 
partition, thus: 
“8.  A Hindu coparcenary is, however, a narrower body than the 
joint family. Only males who acquire by birth an intere st in the 
joint or coparcenary property can be members of the coparcenary 
or coparceners. A male member of a joint family and his s ons, 
grandsons and great grandsons constitute a coparcena ry, A 
coparcener acquires right in the coparcenary property b y birth 
but his right can be definitely ascertained only when a par tition 
takes place. When the family is joint, the extent of the share of a 
coparcener cannot be definitely predicated since it is always 
capable of fluctuating. It increases by the death of a co parcener 
and decreases on the birth of a coparcener . A joint family, however, 
may consist of female members. It may consist of a male member, 
his wife, his mother and his unmarried daughters. The property of 
a joint family does not cease to belong to the family merely because 
there is only a single male member in the family. ( See 
GowliBuddanna  v. CIT , AIR 1966 SC 1523 and Sitabai  v. Ram 
Chandra,  (1969) 2 SCC 544). A joint family may consist of a 
single male member and his wife and daughters. It is not necessary 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 42

View this page in the original PDF
A
B
C
D
E
F
G
H
176 SUPREME COURT REPORTS [2020] 10 S.C.R. 
that there should be two male members to constitute a joint family. 
(See N.V . Narendranath  v. C.W.T.,  (1969) 1 SCC 748). While 
under the Mitakshara Hindu law there is community of ownership 
and unity of possession of joint family property with all the members 
of the coparcenary, in a coparcenary governed by the Dayabhaga
law, there is no unity of ownership of coparcenary property with 
the members thereof. Every coparcener takes a defined sh are in 
the property and he is the owner of that share. But ther e is, 
however, unity of possession. The share does not fluctuate by
births and deaths. Thus it is seen that the recognition of the right 
to a definite share does not militate against the owners of  the 
property being treated as belonging to a family in the Dayabhaga 
law. 
10.  We have carefully considered the above decision and we feel
that this case has to be treated as an authority for the position that 
when a female member who inherits an interest in the joint family 
property under Section 6 of the Act files a suit for p artition 
expressing her willingness to go out of the family she would b e 
entitled to get both the interest she has inherited and the sha re 
which would have been notionally allotted to her, as stated i n 
Explanation I to Section 6 of the Act.  But it cannot be an authority 
for the proposition that she ceases to be a member of the fam ily 
on the death of a male member of the family whose interest in the 
family property devolves on her without her volition to separate 
herself from the family. A legal fiction should no doubt ordinarily
be carried to its logical end to carry out the purposes for which it 
is enacted but it cannot be carried beyond that.  It is no doubt true 
that the right of a female heir to the interest inherited by her in the 
family property gets fixed on the death of a male member under 
Section 6 of the Act but she cannot be treated as having ceas ed 
to be a member of the family without her volition as otherwise it 
will lead to strange results which could not have been in t he 
contemplation of Parliament when it enacted that provision and 
which might also not be in the interest of such female heirs . To 
illustrate, if what is being asserted is accepted as corr ect it may 
result in the wife automatically being separated from her husband 
when one of her sons dies leaving her behind as his heir. Such a 
result does not follow from the language of the statute.  In such an 
event she should have the option to separate herself or to continue

Source PDF page 43

View this page in the original PDF
A
B
C
D
E
F
G
H
177 
in the family as long as she wishes as its member though she has 
acquired an indefeasible interest in a specific share of the family 
property which would remain undiminished whatever may be the 
subsequent changes in the composition of the membership of the
family. As already observed the ownership of a definite share in
the family property by a person need not be treated as a factor 
which would militate against his being a member of a family. We 
have already noticed that in the case of a Dayabhaga family, which 
recognises unity of possession but not community of interest in
the family properties amongst its members, the members thereof 
do constitute a family. That might also be the case of families of 
persons who are not Hindus. In the instant case the theory th at 
there was a family settlement is not pressed before us.  There 
was no action taken by either of the two females concern ed in 
the case to become divided from the remaining members of t he 
family. It should, therefore, be held that notwithstanding the death 
of Sham Rao the remaining members of the family continued to 
hold the family properties together though the individual interest 
of the female members thereof in the family properties had become 
fixed. ”
(emphasis supplied) 
36. The essential feature is aggregate ownership, i.e. , ‘Samudavika 
Swatwa’  in coparcenary and the share keeps on fluctua ting, was 
observed in Commissioner of Income Tax, Poona v. H.H. Raja of 
Bhor , (1967) (65) ITR 634 thus: 
“…… no individual member of a Hindu coparcenary, while it 
remains undivided, can predicate of the joint and un divided 
property, that he, or any particular member, has a definite share, 
one-third or one-fourth – (Lord Westbury in Approvier v. Rama 
Subha Aiyan , (1866 11 MIA 75).  His interest in the coparcenary 
property is a fluctuating interest which is capable of being enlarged 
by death in the family .  It is only on partition that the coparcener is 
entitled to a definite share.  But the important thing to notice is
that the theory of ownership being acquired by birth has gi ven 
rise to the doctrine of Samudavika swatwa 
or aggregate 
ownership in the Mitakshara school.  Till partition therefore all the 
coparceners have got rights extending over the entirety of t he 
coparcenary property ……” 
 (emphasis supplied) 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 44

View this page in the original PDF
A
B
C
D
E
F
G
H
178 SUPREME COURT REPORTS [2020] 10 S.C.R. 
37. In Vellikannu v. R. Singaperumal & Anr. , (2005) 6 SCC 
622, this Court restated that the share of a member of a c oparcenary 
fluctuates from time to time is a settled proposition of law. It was held: 
“11.  So far as the property in question is concerned, there is a
finding of the courts below that the property is a coparc enary 
property and if that being so, if Defendant 1 had not murdered his
father then perhaps things would have taken a different shape.
But what is the effect on the succession of the propert y of the 
deceased father when the son has murdered him? If he had not 
murdered his father he would have along with his wife succeeded 
in the matter. So far as the rights of coparceners in the Mitakshara 
law are concerned, the son acquires by birth or adoption a vested 
interest in all coparcenary property whether ancestral or not and 
whether acquired before or after his birth or adoption, as the case 
may be, as a member of a joint family. This is the view which has 
been accepted by all the authors of the Hindu law. In the famous 
principles of Mulla , 15th Edn. (1982) at pp. 284 and 285, the 
learned author has stated thus: 
“The essence of a coparcenary under the Mitakshara 
law is unity of ownership. The ownership of the coparcenary 
property is in the whole body of coparceners. According to the 
true notion of an undivided family governed by the Mitakshara 
law, no individual member of that family, whilst it remai ns 
undivided, can predicate, of the joint and undivided property, 
that he, that particular member, has a definite share, one-third 
or one-fourth. His interest is a fluctuating interest, capable of 
being enlarged by deaths in the family, and liable to be diminished 
by births in the family. It is only on a partition that he becomes 
entitled to a definite share. The most appropriate term to describe 
the interest of a coparcener in coparcenary propert y is 
‘undivided coparcenary interest’ . The nature and extent of that 
interest is defined in Section 235. The rights of each coparcener 
until a partition takes place consist in a common possession 
and common enjoyment of the coparcenary property. As
observed by the Privy Council in Katama Natchiar  v. Rajah 
of Shivagunga , (1863) 9 MIA 543, ‘there is community of 
interest and unity of possession between all the members of
the family, and upon the death of any one of them the others

Source PDF page 45

View this page in the original PDF
A
B
C
D
E
F
G
H
179 
may well take by survivorship that in which they had during 
the deceased’s lifetime a common interest and a common
possession’.” 
13.  In N.R. Raghavachariar’s Hindu Law — Principles and 
Precedents , 8th Edn. (1987) at p. 230 under the heading “Rights of 
Coparceners” it is said thus: 
“The following are the rights of a coparcener 
.—( 1) Right 
by birth, ( 2) Right of survivorship, ( 3) Right to partition, ( 4) Right 
to joint possession and enjoyment, ( 5) Right to restrain unauthorised 
acts, ( 6) Right of alienation, ( 7) Right to accounts, and ( 8) Right 
to make self-acquisition .” 
While dealing with “Right by Birth” learned author says thus: 
“Every coparcener gets an interest by birth in the 
coparcenary property. This right by birth relates back to the date 
of conception. This, however, must not be held to negative the 
position that coparcenary property may itself come into existence 
after the birth of the coparcener concerned.” 
While dealing with right of survivorship, it is said thus:
“The system of a joint family with its incident of succession 
by survivorship is a peculiarity of the Hindu law. In such a family 
no member has any definite share and his death or somehow 
ceasing to be a member of the family causes no change in t he 
joint status of the family . Where a coparcener dies without male 
issue his interest in the joint family property passes t o the other 
coparceners by survivorship and not by succession to his own 
heir. Even where a coparcener becomes afflicted with lunac y 
subsequent to his birth, he does not lose his status as a coparcener 
which he has acquired by his birth, and although his lunacy may 
under the Hindu law disqualify him from demanding a share in a 
partition in his family, yet where all the other coparceners die and 
he becomes the sole surviving member of the coparcenar y, he 
takes the whole joint family property by survivorship, and becomes 
a fresh stock of descent to the exclusion of the daughter of the
last predeceased coparcener, a case of leprosy of the last surviving 
coparcener. The beneficial interest of each coparcener is liable to 
fluctuation, increasing by the death of another coparcener a nd 
decreasing by the birth of a new coparcener.” 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 46

View this page in the original PDF
A
B
C
D
E
F
G
H
180 SUPREME COURT REPORTS [2020] 10 S.C.R. 
Therefore, it is now settled that a member of a copa rcenary 
acquires a right in the property by birth . His share may fluctuate 
from time to time but his right by way of survivors hip in 
coparcenary property in Mitakshara law is a settled proposition. 
(emphasis supplied)” 
38. In Rohit Chauhan v. Surinder Singh & Ors. , (2013) 9 SCC 
419, the concept of coparcenary of sharing equally with others and no 
definite share, was discussed thus: 
“11.  We have bestowed our consideration to the rival submissions 
and we find substance in the submission of Mr Rao. In our opinion 
coparcenary property means the property which consist s of 
ancestral property and a coparcener would mean a person who 
shares equally with others in inheritance in the estate of common 
ancestor . Coparcenary is a narrower body than the joint Hindu 
family and before the commencement of the Hindu Succession
(Amendment) Act, 2005, only male members of the family used 
to acquire by birth an interest in the coparcenary propert y. A 
coparcener has no definite share in the coparcenary property but 
he has an undivided interest in it and one has to bear in mind that 
it enlarges by deaths and diminishes by births in the family. It is 
not static.  We are further of the opinion that so long, on partition 
an ancestral property remains in the hand of a single pe rson, it 
has to be treated as a separate property and such a pe rson shall 
be entitled to dispose of the coparcenary property treating it to be 
his separate property but if a son is subsequently born, the alienation 
made before the birth cannot be questioned. But, the moment a 
son is born, the property becomes a coparcenary property a nd 
the son would acquire interest in that and become a coparcener.” 
(emphasis supplied)” 
39. A similar view was taken in Thamma Venkata Subramma 
(dead) by LR v. Thamnma Ratamma & Ors ., (1987) 3 SCC 294, that 
the share is not defined in coparcenary. It keeps on fluctuating on death 
and birth in the family. 
40. It is only on actual partition a coparcener becomes entitled to 
a definite share. The interest of a coparcener is ca lled “undivided 
coparcenary interest,” which remains undivided as held by the Privy 
Council in Katama Natchiar v. Srimat Rajah Moottoo Vijaya

Source PDF page 47

View this page in the original PDF
A
B
C
D
E
F
G
H
181 
Raganadha Bodha Gooroo Swamy Periya Odaya Taver , (1863) 9 
MIA 543. 
In Shankara Cooperative Housing Society Ltd. v. M. 
Prabhakar &Ors ., (2011) 5 SCC 607, it was observed that coparcenary 
be collective ownership. If a suit for recovery of propert y is filed, it is 
for the benefit of all co-owners. The position of ow nership of co- 
ownership property indicates a change when actual division takes place, 
and co-owner’s share becomes identifiable. In Shankara Cooperative ,
it was observed: 
“85.  Shri Ranjit Kumar, learned Senior Counsel, contends that 
the writ petition was filed by one of the co-owners of late Mandal 
Buchaiah and judgment and order passed would not bind the other 
parties. We cannot agree. It is a settled law that no co-owner has 
a definite right, title and interest in any particular item or portion 
thereof. On the other hand, he has right, title and interest in every 
part and parcel of the joint property or coparcenary under Hindu 
law by all the coparceners. Our conclusion is fortified by the view 
expressed by this Court in A. Viswanatha Pillai  v. Tahsildar 
(LA) , (1991) 4 SCC 17 in which this Court observed: (SCC p. 21, 
para 2) 
“2. … It is settled law that one of the co-owners can file a 
suit and recover the property against strangers and the de cree 
would enure to all the co-owners. It is equally settled law that no 
co-owner has a definite right, title and interest in any p articular 
item or a portion thereof. On the other hand he has right, title and 
interest in every part and parcel of the joint property or coparcenary 
under Hindu law by all the coparceners. In KantaGoel  v. B.P . 
Pathak , (1977) 2 SCC 814, this Court upheld an application by 
one of the co-owners for eviction of a tenant for personal occupation 
of the co-owners as being maintainable. The same view w as 
reiterated in Sri Ram Pasricha  v. Jagannath , (1976) 4 SCC 184, 
and Pal Singh  v. Sunder Singh , (1989) 1 SCC 444. A co-owner 
is as much an owner of the entire property as a sole owner of the 
property. It is not correct to say that a co-owner’s proper ty was 
not its own. He owns several parts of the composite pro perty 
along with others and it cannot be said that he is only a part owner 
or a fractional owner in the property. That position will undergo a 
change only when partition takes place and division was effected 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 48

View this page in the original PDF
A
B
C
D
E
F
G
H
182 SUPREME COURT REPORTS [2020] 10 S.C.R. 
by metes and bounds. Therefore, a co-owner of the property i s 
an owner of the property acquired but entitled to r eceive 
compensation pro rata.”” 
(emphasis supplied) 
41. In Bhagwant P . Sulakhe v. Digambar Gopal Sulakhe , (1986) 
1 SCC 366, a 3-Judge Bench of this Court held that character of a joint 
family property does not change with the severance in the status of the 
joint family before an actual partition takes place. It was observed thus: 
“14.  …The character of any joint family property does not change 
with the severance of the status of the joint family and a join t 
family property continues to retain its joint family charac ter so 
long as the joint family property is in existence and is not partitioned 
amongst the co-sharers. By a unilateral act it is not open to any 
member of the joint family to convert any joint family pro perty 
into his personal property.” 
42. In Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari 
Kuer & Anr. , AIR 1952 SC 72, it was held that once a coparcener 
separates himself from other members of the joint famil y, there is no 
presumption that rest of the coparceners continued to be joint, it would 
be a question of fact in each case. Following discussion was made: 
“7.  x xx The general principle undoubtedly is that a Hindu family 
is presumed to be joint unless the contrary is proved, but ……where 
it is admitted that one of the coparceners did separate h imself 
from the other members of the joint family and had his share  in 
the joint property partitioned off for him, there is no presumption 
that the rest of the coparceners continued to be joint. There is no 
presumption on the plaintiff’s side too that because one member 
of the family separated himself, there has been separa tion with 
regard to all. It would be a question of fact to be determine d in 
each case upon the evidence relating to the intention of the parties 
whether there was a separation amongst the other coparcener s 
or that they remained united. The burden would undoubtedly lie 
on the party who asserts the existence of a particular sta te of 
things on the basis of which he claims relief….” 
In Ref. Unobstructed and obstructed heritage

Source PDF page 49

View this page in the original PDF
A
B
C
D
E
F
G
H
183 
43. In Mitakshara coparcenary, there is unobstructed heritage , 
i.e., apratibandhadaya and obstructed heritage i.e., sapratibandhada ya. 
When right is created by birth is called unobstructed herit age. At the 
same time, the birthright is acquired in the propert y of the father, 
grandfather, or great grandfather. In case a coparcener di es without 
leaving a male issue, right is acquired not by birth, but by virtue of there 
being no male issue is called obstructed heritage. It is obstructed because 
the accrual of right to it is obstructed by the owner’s existence. It is only 
on his death that obstructed heritage takes place. Mulla on Hindu Law 
has discussed the concept thus: 
“216. Obstructed and unobstructed heritage.  – Mitakshara 
divides property into two classes, namely, apratibandha daya  or 
unobstructed heritage, and sapratibandha daya or obstructed 
heritage. 
(1) Property in which a person acquires an interest by birth 
is called unobstructed heritage, because the accrual of the right to 
it is not obstructed by the existence of the owner. 
Thus, property inherited by a Hindu from his father, father’s 
father, or father’s father’s father, but not from h is maternal 
grandfather, 1 is unobstructed heritage as regards his own male 
issue, i.e., his son, grandson, and great-grandson. 2 His male issues 
acquire an interest in it from the moment of their birth.  Their right 
to it arises from the mere fact of their birth in the family, and they 
become coparceners with their paternal ancestor in such property 
immediately on their birth, and in such cases ancestral property is 
unobstructed heritage. 
Property, the right to which accrues not by birth but on the 
death of the last owner without leaving a male issue, is cal led 
obstructed heritage.  It is called obstructed, because t he accrual 
of  right to it is obstructed by the existence of the owner. 
Thus, property which devolves on parents, brothers,
nephews, uncles, etc. upon the death of the last owner, is obstructed 
1Muhamad Hussain v. Babu Kishava Nandan Sahai , (1937) 64 IA 250 : (1937) All 655: 
39 Bom LR 979: 169 IC 1: AIR 1937 PC 223; Om Prakash v. Sarvjit Singh, AIR 1995 
MP 92 (property inherited from person other than fa ther, father’s father, or father’s 
father’s father is obstructed heritage). 
2Sirtaji v. Algu Upadhiya, (1937) 12 Luck 237: 163 IC 935: AIR 1936 Ori 331. 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 50

View this page in the original PDF
A
B
C
D
E
F
G
H
184 SUPREME COURT REPORTS [2020] 10 S.C.R. 
heritage. These relations do not take a vested interest in the 
property by birth. Their right to it arises for the first t ime on the 
death of the owner. Until then, they have a mere spes successionis ,
or a bare chance of succession to the property, contingent u pon 
their surviving the owner. 3
(2)  Unobstructed heritage devolves by survivorship ; 
obstructed heritage, by succession. There are, however, some
cases in which obstructed heritage is also passed by survivorship.” 
44. It is apparent that unobstructed heritage takes place by birth, 
and the obstructed heritage takes place after the death o f the owner. It 
is significant to note that under section 6 by birth, right is given that is 
called unobstructed heritage. It is not the obstructed heritage depending 
upon the owner’s death. Thus, coparcener father need not be alive  on 
9.9.2005, date of substitution of provisions of Section 6. 
In Ref. Section 6 of the Act of 1956 
45. Section 6 of the Act of 1956 before the substit ution by 
Amendment Act, 2005 is reproduced hereunder : 
“6.  Devolution of interest in coparcenary property .—When a 
male Hindu dies after the commencement of this Act, having 
at the time of his death an interest in a Mitakshar a 
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 had left him surviving a fema le 
relativespecified in Class I of the Schedule or a male relat ive 
specified in that Class who claims through such fem ale 
relative, the interest of the deceased in the Mitak shara 
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 i nterest 
of a HinduMitakshara coparcener shall be deemed to be t he 
share in the property that would have been allotted to him if a
partition of the property had taken place immediately bef ore 
3Mitakshara, Ch.I, S 1, v 3.

Source PDF page 51

View this page in the original PDF
A
B
C
D
E
F
G
H
185 
his death, irrespective of whether he was entitled to claim 
partition or not.” 
46. The substituted provision of section 6 by the Amendment Act, 
2005 is extracted hereunder: 
“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 s ame 
manner as the son; 
(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 o f the said 
coparcenary property as that of a son, and any reference to  a 
Hindu Mitakshara coparcener shall be deemed to incl ude 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 Hin du 
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 coparcenar y 
property shall be deemed to have been divided as if a pa rtition 
had taken place and,- 
(a) the daughter is allotted the same share as is allotted to a son; 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 52

View this page in the original PDF
A
B
C
D
E
F
G
H
186 SUPREME COURT REPORTS [2020] 10 S.C.R. 
(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 coparcener shall be deemed to be the sha re 
in the property that would have been allotted to him if a partition 
of the property had taken place immediately before his deat h, 
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 f or the 
recovery of any debt due from his father, grandfather or gre at- 
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 contrac ted 
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 satisfact ion of, any 
such debt, and any such right or alienation shall be enfor ceable 
under the rule of pious obligation in the same manner and to the 
same extent as it would have been enforceable as if the H indu 
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 t he 
son, grandson or great- grandson, as the case may be, who was 
born or adopted prior to the commencement of the Hi ndu 
Succession (Amendment) Act, 2005.

Source PDF page 53

View this page in the original PDF
A
B
C
D
E
F
G
H
187 
(5) Nothing contained in this section shall apply to a partit ion, 
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.’.” 
47. Statement of Objects and Reasons behind the introduction of 
Bill is reproduced as under: 
          “STATEMENT OF OBJECTS AND REASONS 
The Hindu Succession Act, 1956 has amended and codified 
the law relating to intestate succession among Hindus. The Act 
brought about changes in the law of succession among Hindus 
and gave rights which were till then unknown in relation to women’s 
property. However, it does not interfere with the special rights of 
those who are members of Hindu Mitakshara coparcenary except 
to provide rules for devolution of the interest of a deceased male 
in certain cases. The Act lays down a uniform and comprehensive
system of inheritance and applies, inter alia, to persons governed 
by the Mitakshara and Dayabhaga schools and also to those
governed previously by the Murumakkattayam, Aliyasantana and 
Nambudri laws. The Act applies to every person who is a Hindu 
by religion in any of its forms or developments includi ng a 
Virashaiva, a Lingayat or a follower of the Brahmo, Parar thana 
or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by
religion; or to any other person who is not a Muslim, Christian, 
Parsi or Jew by religion. In the case of a testamentary disposition, 
this Act does not apply and the interest of the deceased is governed 
by the Indian Succession Act, 1925. 
2. Section 6 of the Act deals with devolution of interest of a male 
hindu in coparcenary property and recognises the rule of devolution 
by survivorship among the members of the coparcenary. T he 
retention of the Mitakashara coparcenary property w ithout 
including the females in it means that the females cannot inherit in 
ancestral property as their male counterparts do. The l aw by 
excluding the daughter from participating in the coparcenar y 
ownership not only contributes to her discrimination on the ground 
of gender but also has led to oppression and negation of her 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 54

View this page in the original PDF
A
B
C
D
E
F
G
H
188 SUPREME COURT REPORTS [2020] 10 S.C.R. 
fundamental right of equality guaranteed by the Constitution. having 
regard to the need to render social justice to women, the States of 
Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have 
made necessary changes in the law giving equal right to daughters 
in Hindu Mitakshara coparcenary property. The Kerala Legislature 
has enacted the Kerala Joint Hindu Family System (Abolition ) 
Act, 1975. 
3. It is proposed to remove the discrimination as conta ined in 
section 6 of the Hindu Succession Act, 1956 by giving equal rights 
to daughters in the Hindu Mitakshara coparcenary property  as 
the sons have. Section 23 of the Act disentitles a female  heir to 
ask for partition in respect of a dwelling house wholly occupied 
by a joint family until the male heirs choose to divide their respective 
shares therein. It is also proposed to omit the said section so as to 
remove the disability on female heirs contained in that section. 
4. The above proposals are based on the recommendations of the 
Law Commission of India as contained in its 174th Report on 
“Property Rights of Women: Proposed Reform under the Hindu 
Law”. 
5. The Bill seeks to achieve the above objects. 
NEW DELHI; 
The 16th December, 2004.” 
48. Section 6 deals with devolution of interest in coparcenary
property of a joint Hindu family governed by the Mitakshara law . The 
originally enacted provision of section 6 excluded the rule of succession 
concerning Mitakshara coparcenary property. It provided the interest of 
a coparcener male Hindu who died after the commencement of Act of 
1956, shall be governed by survivorship upon the surviving members of 
the coparcenary. The exception was provided that if the dec eased had 
left surviving a female relative specified in Class I of the Schedule or a 
male relative specified in that Class who claims throu gh such female 
relative, the interest of such coparcener shall devolve by testamentary 
or intestate succession, as the case may be, in order to asce rtain the 
share of deceased coparcener, the partition has to be deemed before his 
death. Explanation 2 disentitled the separated person to make any claim 
in case of intestate succession.

Source PDF page 55

View this page in the original PDF
A
B
C
D
E
F
G
H
189 
49. Though the widow or daughter could claim a share, being a 
Class I heir in the property left by the deceased coparcener, and a widow 
was entitled, having a right to claim a share in the event of partition 
daughter was not treated as a coparcener. The goal of gender justice as 
constitutionally envisaged is achieved though belat edly, and the 
discrimination made is taken care of by substituting t he provisions of 
section 6 by Amendment Act, 2005. 
50. Concerning gender discrimination to a daughter who always 
remains a loving daughter, we quote Savita Samvedi (Ms) & Anr. v. 
Union of India & Ors. , 1996 (2) SCC 380, thus: 
“6.  A common saying is worth pressing into service…. 
“A son is a son until he gets a wife. A daughter is a daughter
throughout her life.” 
7.  …The eligibility of a married daughter must be placed on a par 
with an unmarried daughter (for she must have been once in that 
state), …..to claim the benefit….. 
…(Otherwise, it would be) unfair, gender-biased and unreasonable, 
liable to be struck down under Article 14 of the Constitution. … It 
suffers from twin vices of gender discrimination inter se among 
women on account of marriage.” 
51. The daughter is treated as a coparcener in the sam e manner 
as a son by birth with the same rights in coparcenary  property and 
liabilities. However, the proviso of sub-section (1) contains a non-obstante 
clause providing that nothing contained in the sub-section shall affect or 
invalidate any disposition or alienation including an y partition or 
testamentary disposition of the property which had taken place b efore 
20.12.2004. 
52. It is apparent from the provisions of section 6  that the 
discrimination with the daughter has been done away with, an d they 
have been provided equal treatment in the matter of inherit ance with 
Mitakshara coparcenary. In several States viz., Andhra Pradesh, Tamil 
Nadu, Karnataka, and Maharashtra, the State Amendments in the Act 
of 1956 were made to extend equal rights to daughter s in Hindu 
Mitakshara coparcenary property. An amendment was m ade on 
30.7.1994 by the insertion of Section 6A by Karnataka Act 23 of 1994 in
the Act of 1956. In-State of Andhra Pradesh, the amendment was made, 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 56

View this page in the original PDF
A
B
C
D
E
F
G
H
190 SUPREME COURT REPORTS [2020] 10 S.C.R. 
w.e.f. 5.9.1985, Tamil Nadu w.e.f 25.3.1989 and Maharashtra w.e.f. 
26.9.1994 by the addition of Section 29A in the Act of 1956.  In Kerala, 
the Act was enacted in 1975. 
53. Before the amendment, section 6 provided that on the death 
of a male Hindu, a coparcener’s interest in Mitakshara cop arcenary 
shall devolve by survivorship upon the surviving member s of the 
coparcenary under the uncodified Hindu law and not in accordance with
the mode of succession provided under the Act of 1956. It was provided 
by the proviso to section 6, in case a male Hindu o f Mitakshara 
coparcenary has left surviving a female relative of Class I heir or a male 
relative who claims through such female relative of Class I. The Schedule 
containing categories of Class I heirs is extracted hereunder: 
“THE SCHEDULE 
(See section 8) 
HEIRS IN CLASS I AND CLASS II 
Class I 
Son, daughter, widow; mother; son of a pre-deceased son; daughter 
of a pre-deceased son, son of a pre-deceased daughter, daughter 
of a pre-deceased daughter; widow of a pre-deceased son, son 
of a pre-deceased son of a pre-deceased son; daughter of a pre- 
deceased son of a pre-deceased son; widow of a pre-deceased 
son of a pre-deceased son; [son of a pre-deceased daughter of a 
pre-deceased daughter, daughter of a pre-deceased daughter of 
a pre-deceased daughter, daughter of a pre-deceased son of a
pre-deceased daughter, daughter of a pre-deceased daughter of 
a pre-deceased so.” 
54. In view of the provisions contained in section 6 whe n a 
coparcener is survived by a female heir of Class I or mal e relative of 
such female, it was necessary to ascertain the share of the deceased, as 
such, a legal fiction was created. The Explanation I provided legal fiction 
of partition as if it had taken place immediately bef ore his death, 
notwithstanding whether he had the right to claim it or not. However, a 
separated Hindu could not claim an interest in the coparcenary based on 
intestacy in the interest left by the deceased. 
55. The amended provisions of section 6(1) provide that on and 
from the commencement of the Amendment Act, the daughter is conferred

Source PDF page 57

View this page in the original PDF
A
B
C
D
E
F
G
H
191 
the right. Section 6(1)(a) makes daughter by birth a coparcener “in her 
own right” and “in the same manner as the son.” Section 6(1)(a) contains 
the concept of the unobstructed heritage of Mitakshara copa rcenary, 
which is by virtue of birth. Section 6(1)(b) confers the same rights in the 
coparcenary property “as she would have had if she had  been a son”. 
The conferral of right is by birth, and the rights are gi ven in the same 
manner with incidents of coparcenary as that of a son and she is treated 
as a coparcener in the same manner with the same rights as i f she had 
been a son at the time of birth. Though the rights can be claimed, w.e.f. 
9.9.2005, the provisions are of retroactive application; they confer benefits 
based on the antecedent event, and the Mitakshara coparcenary law 
shall be deemed to include a reference to a daughter as a coparcener. 
At the same time, the legislature has provided savings by adding a proviso 
that any disposition or alienation, if there be any testamentary disposition 
of the property or partition which has taken place before 20.12.2004, the 
date on which the Bill was presented in the Rajya Sabha, shall not be 
invalidated. 
56. The prospective statute operates from the date of its enactment 
conferring new rights. The retrospective statute operates backward and 
takes away or impairs vested rights acquired under existing  laws. A 
retroactive statute is the one that does not operate retrospe ctively. It 
operates in futuro . However, its operation is based upon the character 
or status that arose earlier. Characteristic or event wh ich happened in 
the past or requisites which had been drawn from antecedent ev ents. 
Under the amended section 6, since the right is given by birth, that is an 
antecedent event, and the provisions operate concerning claiming rights 
on and from the date of Amendment Act. 
57. The concept of retrospective and retroactive statute was stated 
by this Court in Darshan Singh etc. v. Ram Pal Singh &Anr. , (1992 
Supp. (1) SCC 191, thus: 
“35.  Mr Sachar relies on Thakur Gokulchand  v. Parvin Kumari ,
AIR 1952 SC 231, Garikapatti Veeraya  v. N. Subbiah 
Choudhury , AIR 1957 SC 540, Jose Da Costa  v. Bascora 
Sadasiva Sinai Narcornim , (1976) 2 SCC 917, Govind Das  v. 
ITO , (1976) 1 SCC 906, Henshall  v. Porter , (1923) 2 KBD 193, 
United Provinces  v. Mst. Atiga Begum , AIR 1941 FC 16, in 
support of his submission that the Amendment Act was not made
retrospective by the legislature either expressly or by ne cessary 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 58

View this page in the original PDF
A
B
C
D
E
F
G
H
192 SUPREME COURT REPORTS [2020] 10 S.C.R. 
implication as the Act itself expressly provided that it shall be 
deemed to have come into force on January 23, 1973; and therefore 
there would be no justification to giving it retrospective operation. 
The vested right to contest which was created on the alien ation 
having taken place and which had been litigated in the court, argues 
Mr Sachar, could not be taken away. In other words, the vested 
right to contest in appeal was not affected by the Amendment
Act. However, to appreciate this argument we have to analyse 
and distinguish between the two rights involved, namely, the right 
to contest and the right to appeal against lower court’s decision. 
Of these two rights, while the right to contest is a customary right, 
the right to appeal is always a creature of statute. The change of 
the forum for appeal by enactment may not affect the right of 
appeal itself. In the instant case we are concerned with the right 
to contest and not with the right to appeal as such. There is also 
no dispute as to the propositions of law regarding vested r ights 
being not taken away by an enactment which is ex facie or by 
implication not retrospective. But merely because an Act envisages 
a past act or event in the sweep of its operation, it  may not 
necessarily be said to be retrospective. Retrospective, according 
to Black’s Law Dictionary , means looking backward; 
contemplating what is past; having reference to a statute or things 
existing before the Act in question. Retrospective law, according 
to the same dictionary, means a law which looks backward or 
contemplates the past; one which is made to affect acts or facts 
occurring, or rights occurring, before it came into force. E very 
statute which takes away or impairs vested rights acquired under 
existing laws, or creates a new obligation, imposes a new duty, or 
attaches a new disability in respect to transactions or considerations 
already past. Retroactive statute means a statute which creates a 
new obligation on transactions or considerations already pa st or 
destroys or impairs vested rights. 
36.  In Halsbury’ s Laws of England  (4th edn., V ol. 44, at paragraph 
921) we find: 
“921. Meaning of ‘retrospective ’.— It has been said that 
‘retrospective’ is somewhat ambiguous and that a good dea l of 
confusion has been caused by the fact that it is used in more
senses than one. In general, however, the courts re gard as

Source PDF page 59

View this page in the original PDF
A
B
C
D
E
F
G
H
193 
retrospective any statute which operates on cases or facts coming 
into existence before its commencement in the sense that it affects, 
even if for the future only, the character or consequ ences of 
transactions previously entered into or of other past conduct. Thus 
a statute is not retrospective merely because it affects existing 
rights; or is it retrospective merely because a part of the requisites 
for its action is drawn from a time antecedent to its passing.”
37.  We are inclined to take the view that in the instant 
case legislature looked back to January 23, 1973 and not beyond 
to put an end to the custom and merely because on that cut off
date some contests were brought to abrupt end would not make 
the Amendment Act retrospective. In other words, it would 
not be retrospective merely because a part of the requis ites 
for its action was drawn from a time antecedent to the 
Amendment Act coming into force. We are also of the view 
that while providing that “no person shall contest any alienation 
of immovable property whether ancestral or non-ancestral or 
any appointment of an heir to such property”, without preserving 
any right to contest such alienations or appointments as were 
made after the coming into force of the Principal Act and before 
the coming into force of the Amendment Act, the intention of 
the legislature was to cut off even the vested right; and that it 
was so by implication as well. There is no dispute as to t he 
proposition that retrospective effect is not to be given to an 
Act unless, the legislature made it so by express words or 
necessary implication. But in the instant case it appears t hat 
this was the intention of the legislature. Similarly courts wi ll 
construe a provision as conferring power to act retroactively 
when clear words are used. We find both the intention and 
language of the Amendment Act clear in these respects.” 
58. In G . Sekar v. Geetha &Ors. , (2009) 6 SCC 99 with respect 
to the operation of Amendment Act, 2005, it was observed that the same 
is prospective in nature and not retrospective thus: 
“30.  Neither the 1956 Act nor the 2005 Act seeks to reopen vesting 
of a right where succession had already been taken place. The 
operation of the said statute is no doubt prospective in na ture. 
The High Court might have committed a mistake in opining that 
the operation of Section 3 of the 2005 Act is retrospective  in 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 60

View this page in the original PDF
A
B
C
D
E
F
G
H
194 SUPREME COURT REPORTS [2020] 10 S.C.R. 
character, but, for the reasons aforementioned, it does not make 
any difference. What should have been held was that although it
is not retrospective in nature, its application is prospective.” 
59. The decision in G . Sekar  (supra) concerned with the provisions 
of section 23 of the Hindu Succession Act prior to its deleti on, w.e.f. 
9.9.2005. The question involved therein was the effect of the deletion by 
Amendment Act of 2005. The suit for partition of the residential dwelling 
house was not maintainable under section 23. In that con text, the 
observations were made by this Court. In Sheela Devi  (supra), the 
question was whether Section 8 of the Act of 1956 would apply or the 
law applicable prior to the Act of 1956. 
60. Section 6(2) provides when the female Hindu shall hold the
property  to which she becomes entitled under section 6(1), she will be 
bound to follow rigors of coparcenary ownership, and can dispose of the 
property by testamentary mode. 
61. With respect to a Hindu who dies after the commencement of 
the Amendment Act, 2005, as provided in section 6(3) his interest shall 
pass by testamentary or intestate succession and not by surviv orship, 
and there is a deemed partition of the coparcenary property in order to 
ascertain the shares which would have been allotted to his h eirs had 
there been a partition. The daughter is to be allotted the same share as a 
son; even surviving child of pre-deceased daughter or son are give n a 
share in case child has also died then surviving child of such pre-deceased 
child of a pre-deceased son or pre-deceased daughter would be allotted 
the same share, had they been alive at the time of deemed pa rtition. 
Thus, there is a sea-change in substituted section 6. In case of death of 
coparcener after 9.9.2005, succession is not by survivorshi p but in 
accordance with section 6(3)(1). The Explanation to section 6(3) is the 
same as  Explanation I to section 6 as originally enacted. Sec tion 6(4) 
makes a daughter liable in the same manner as that of a son. The daughter, 
grand-daughter, or great-grand-daughter, as the case may be, is equally 
bound to follow the pious obligation under the Hindu Law to discharge 
any such debt. The proviso saves the right of the creditor with respect to 
the debt contracted before the commencement of Amendment Act, 2005. 
The provisions contained in section 6(4) also make it clear that provisions 
of section 6 are not retrospective as the rights and liabil ities are both 
from the commencement of the Amendment Act.

Source PDF page 61

View this page in the original PDF
A
B
C
D
E
F
G
H
195 
62. The proviso to section 6(1) and section 6(5) saves any partition 
effected before 20.12.2004. However, Explanation to section 6(5) 
recognises partition effected by execution of a deed of par tition duly 
registered under the Registration Act, 1908 or by a decree of  a court. 
Other forms of partition have not been recognised under the definition 
of ‘partition’ in the Explanation. 
63. Considering the principle of coparcenary that a pe rson is 
conferred the rights in the Mitakshara coparcenary by birt h, similarly, 
the daughter has been recognised and treated as a coparcener, with 
equal rights and liabilities as of that of a son. The expre ssion used in 
section 6 is that she becomes coparcener in the same manner  as a son. 
By adoption also, the status of coparcener can be conferred. The concept 
of uncodified Hindu law of unobstructed heritage has been give n a 
concrete shape under the provisions of section 6(1)(a) and 6(1)( b). 
Coparcener right is by birth. Thus, it is not at all nec essary that the 
father of the daughter should be living as on the date of the amendment, 
as she has not been conferred the rights of a coparcenerby  obstructed 
heritage. According to the Mitakshara coparcenary Hin du law, as 
administered which is recognised in section 6(1), it is not necessary that 
there should be a living, coparcener or father as on the da te of the 
amendment to whom the daughter would succeed. The daughter would 
step into the coparcenary as that of a son by taking birth before or after 
the Act. However, daughter born before can claim these rights only with 
effect from the date of the amendment, i.e., 9.9.2005 with saving of past 
transactions as provided in the proviso to section 6(1) read with section 
6(5). 
64. The effect of the amendment is that a daughter is m ade 
coparcener, with effect from the date of amendment and she can claim 
partition also, which is a necessary concomitant of the c oparcenary. 
Section 6(1) recognises a joint Hindu family governed by Mita kshara 
law. The coparcenary must exist on 9.9.2005 to enable the daughter of
a coparcener to enjoy rights conferred on her. As the right is by birth and 
not by dint of inheritance, it is irrelevant that a coparcener whose daughter 
is conferred with the rights is alive or not. Conferral is not based on the 
death of a father or other coparcener. In case living co parcener dies 
after 9.9.2005, inheritance is not by survivorship but by intestat e or 
testamentary succession as provided in substituted section 6(3). 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 62

View this page in the original PDF
A
B
C
D
E
F
G
H
196 SUPREME COURT REPORTS [2020] 10 S.C.R. 
In ref: Effect of enlargement of daughter’s rights 
65. Under the proviso to section 6 before the amendment made in 
the year 2005 in case a coparcener died leaving behind female relative 
of Class I heir or a male descendant claiming through such Class I female 
heir, the daughter was one of them. Section 6, as substituted, presupposes 
the existence of coparcenary. It is only the case of the enl argement of 
the rights of the daughters. The rights of other relatives remain unaffected 
as prevailed in the proviso to section 6 as it stood before amendment. 
66. As per the Mitakshara law, no coparcener has any fixed share. 
It keeps on fluctuating by birth or by death. It is the said pr inciple of 
administration of Mitakshara coparcenary carried forward in  statutory 
provisions of section 6. Even if a coparcener had left behind female heir 
of Class I or a male claiming through such female Class I heir, there is 
no disruption of coparcenary by statutory fiction of partition. Fiction is 
only for ascertaining the share of a deceased coparcener, which would 
be allotted to him as and when actual partition takes place. The deemed 
fiction of partition is for that limited purpose. The classic Shastric Hindu 
law excluded the daughter from being coparcener, which injustice ha s 
now been done away with by amending the provisions in consonance
with the spirit of the Constitution. 
67. There can be a sole surviving coparcener in a given case the 
property held by him is treated individual property till a son is born. In 
case there is a widow or daughter also, it would be treated as  joint 
family property. If the son is adopted, he will become a coparcener. An 
adoption by a widow of a deceased coparcener related to the  date of 
her husband’s death, subject to saving the alienations ma de in the 
intermittent period. 
In Ref.Acquisition of Rights in Coparcenary Property 
68. It is by birth that interest in the property is acquired. Devolution 
on the death of a coparcener before 1956 used to be only by survivorship. 
After 1956, women could also inherit in exigencies, mentioned in the 
proviso to unamended section 6. Now by legal fiction, daughters a re 
treated as coparceners. No one is made a coparcener by devolut ion of 
interest. It is by virtue of birth or by way of adoption obviously within the 
permissible degrees; a person is to be treated as copa rcener and not 
otherwise.

Source PDF page 63

View this page in the original PDF
A
B
C
D
E
F
G
H
197 
69. The argument raised that if the father or any other coparcener 
died before the Amendment Act, 2005, the interest of the father or other 
coparcener would have already merged in the surviving copa rcenary, 
and there was no coparcener alive from whom the daughter w ould 
succeed. We are unable to accept the submission because i t is not by 
the death of the father or other coparcener that rights acc rue. It is by 
the factum of birth. It is only when a female of Class I heir is left, or in 
case of her death, male relative is left, the share  of the deceased 
coparcener is fixed to be distributed by a deemed partition, in the event 
of an actual partition, as and when it takes place as per t he proviso to 
unamended section 6. The share of the surviving coparcener may undergo 
change till the actual partition is made. The proviso to section 6 does not 
come in the way offormation of a coparcenary, and who  can be a 
coparcener. The proviso to section 6 as originally stood, containe d an 
exception to the survivorship right. The right conferred under substituted 
section 6(1) is not by survivorship but by birth. The death  of every 
coparcener is inevitable. How the property passes on death is not relevant 
for interpreting the provisions of section 6(1). Significant is how right of 
a coparcener is acquired under Mitakshara coparcenary. I t cannot be 
inferred that the daughter is conferred with the right only on the death of 
a living coparcener, by declaration contained in section 6, she has been 
made a coparcener. The precise declaration made in section 6 (1) has to 
be taken to its logical end; otherwise, it would amount to a denial of the 
very right to a daughter expressly conferred by the legislature.Survivorship 
as a mode of succession of property of a Mitakshara coparc ener, has 
been abrogated with effect from 9.9.2005 by section 6(3). 
70. The decision in Bireswar Mookerji & Ors. v. Shib Chunder 
Roy (supra), was relied upon to contend that adoption is only of a male 
and not a female as held in Amarendra Man Singh Bhramarbar & 
Anr. v. Sanatan Singh & Ors., (supra), a male becomes a coparcener 
by birth or adoption. There is no dispute with the custom, whic h was 
prevalent earlier that there could be the adoption of a male child and not 
that of females. There is no dispute with the propo sition that a 
coparcenary right accrued to males under the prevalent law by birth or 
adoption. In the same manner, right is accrued by birth to the daughter 
under the provisions of section 6. The legislature in section 6 used t he 
term that a daughter becomes coparcener by birth. The claim based on 
birth is distinguishable and is different from modes of succession. 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 64

View this page in the original PDF
A
B
C
D
E
F
G
H
198 SUPREME COURT REPORTS [2020] 10 S.C.R. 
71. It was argued that in case Parliament intended that the incident 
of birth prior to 2005 would be sufficient to confer the st atus of a 
coparcener, Parliament would need not have enacted the provi so to 
section 6(1). When we read the provisions conjointly, when right is given 
to the daughter of a coparcener in the same manner as a son by birth, it 
became necessary to save the dispositions or alienations, including any 
partition or testamentary succession, which had taken pl ace before 
20.12.2004. A daughter can assert the right on and from 9.9.2005,  and 
the proviso saves from invalidation above transactions. 
72. It was argued that in the eventuality of the death of a father or 
other coparcener, the parties would have not only partitioned their assets 
but also acted in pursuance of such partition. However, partitions have 
been taken care of by the proviso to section 6(1) and 6(5). Parliament 
has not intended to upset all such transactions as specified in the proviso 
to section 6(1). 
73. It was vehemently argued that if the daughter is given the
right to be a coparcener by birth and deemed to become a coparcener at 
any point in the past, in the normal working of the law, uncertainty would 
be caused. In our opinion, no uncertainty is brought about by the provisions 
of section 6 as the law of Mitakshara coparcenary makes th e share of 
surviving coparceners uncertain till actual partiti on takes place. 
Uncertainty in the right of share in a Mitakshara coparcenary is inhered 
in its underlying principles, and there is no question of upturning it when 
the daughter is treated like a son and is given the right by b irth; to be 
exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the 
past but recognising an antecedent event for conferr al of rights, 
prospectively. There is no doubt about it that advancement brings about 
the enlargement of the size of the coparcenary and disabl ing it from 
treating the daughter unequally. Even otherwise, its size could be enlarged 
by the birth of a son also. By applying section 8, the joint possession was 
not repudiated by the fact that a female, whether a wife or daughter, 
inherited the share of coparcener under the proviso to original section 6. 
She was an equal member of the joint Hindu family and deemed statutory 
partition did not bring disruption of the coparcenary. 
74. In Prakash v. Phulavati , father died in the year 1988, 
daughters filed a suit for partition in 1992, same was dismissed in 2007, 
entitlement was given to the daughters to a share on a notional partition 
under the proviso to section 6 in the share of the coparce ner father.

Source PDF page 65

View this page in the original PDF
A
B
C
D
E
F
G
H
199 
However, the High Court applied the amended provisions of section 6 to 
the pending proceedings and treated daughters equally with sons. As 
such, the matter travelled to this Court. It was held that the proviso is not 
retrospective. The requirement of partition being registered can have no 
application to statutory notional partition, on the opening of succession 
as per the unamended proviso to section 6, having regard to the nature 
of such partition, which is by operation of law. It was opined: 
“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 substan tive 
provision is always prospective unless either expressly or by 
necessary intendment it is retrospective.[Shyam Kumar v. Ra m 
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 pe r 
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 
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 ex press 
language of the statute. The proviso keeping dispositi ons 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 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 66

View this page in the original PDF
A
B
C
D
E
F
G
H
200 SUPREME COURT REPORTS [2020] 10 S.C.R. 
of coparcenary property which may be available when the mai n 
provision is applicable. Similarly, Explanation has to b e 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. 
    x x x 
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 effected 
thereafter will be governed by the Explanation. 
        x xx 
27.2. In Gurupad Khandappa Magdum  v. Hirabai 
Khandappa Magdum(1978) 3 SCC 383 , Shyama Devi  v. 
Manju Shukla (1994) 6 SCC 342 and Anar Devi  v. Parmeshwari 
Devi (2006) 8 SCC 656 cases this Court interpreted Explanation 
1 to Section 6 (prior to the 2005 Amendment) of the Hin du 
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 (supra) and Anar Devi (supra) cases, 
same view was followed. 
27.3.  In Vaishali Satish Ganorkar  v. Satish Keshaorao 
Ganorkar , AIR 2012 Bom. 101, the Bombay High Court held 
that the amendment will not apply unless the daughter is born
after the 2005 Amendment, but on this aspect a different vie w 
has been taken in the later larger Bench judgment [AIR 214 Bom 
151]. 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.”

Source PDF page 67

View this page in the original PDF
A
B
C
D
E
F
G
H
201 
75. A finding has been recorded in Prakash v. Phulavati that the 
rights under the substituted section 6 accrue to living daughters of living 
coparceners as on 9.9.2005 irrespective of when such daughters  are 
born. We find that the attention of this Court was not drawn t o the 
aspect as to how a coparcenary is created. It is not necessary to form a 
coparcenary or to become a coparcener that a predeces sor coparcener 
should be alive; relevant is birth within degrees of coparcenary to which 
it extends. Survivorship is the mode of succession, not  that of the 
formation of a coparcenary. Hence, we respectfully find ourselves unable 
to agree with the concept of “living coparcener”, as laid down in Prakash 
v. Phulavati . In our opinion, the daughters should be living on 9.9.2005. 
In substituted section 6, the expression ‘daughter of a living coparcener’ 
has not been used. Right is given under section 6(1)(a) to the daughter 
by birth. Declaration of right based on the past event was ma de on 
9.9.2005 and as provided in section 6(1(b), daughters by their birth, have 
the same rights in the coparcenary, and they are subject t o the same 
liabilities as provided in section 6(1)(c). Any reference to the coparcener 
shall include a reference to the daughter of a coparcener. The provisions 
of section 6(1) leave no room to entertain the proposition that coparcener 
should be living on 9.9.2005 through whom the daughter is claiming. We 
are unable to be in unison with the effect of deemed partit ion for the 
reasons mentioned in the latter part. 
76. In Mangammal v. T.B. Raju & Ors.  (supra), the Court 
considered the provisions made in the State of Tamil Nadu, the  State 
Government enacted the Hindu Succession (Tamil Nadu Amendment) 
Act, 1989, made effective from 25.3.1989, adding section 29-A in the 
Hindu Succession Act, 1956. Section 29A was held to be valid regarding 
succession by survivorship. Section 29A provided equal rights to daughters 
in coparcenary property.  The provisions were more or less similar, except 
section 29A(iv) treated a married daughter differently. The provisions 
were not applicable to the daughters married before  the date of 
commencement of Amendment Act, 1989. Thus, married daughters were 
not entitled to equal rights. That too, has been taken care of in section 6, 
as substituted by Act of 2005, and no discrimination is made a gainst 
married daughters. In the said case, Mangammal got marrie d in 1981, 
and Indira got married in or about 1984, i.e., before the 1989 Amendment. 
Therefore, it was held that because of section 29-A(iv) of the Amendment 
Act, the appellant could not institute a suit for partition  and separate 
possession as they were not coparceners. The decisions in Prakash v. 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 68

View this page in the original PDF
A
B
C
D
E
F
G
H
202 SUPREME COURT REPORTS [2020] 10 S.C.R. 
Phulavati   and Danamma  were referred, and it was opined that Prakash 
v. Phulavati   would still hold the value of precedent for right of a daughter 
in ancestral property and only “living daughters of living coparceners” 
as on 9.9.2005 would be entitled to claim a share in the coparcenar y 
property. In Mangammal , the Court opined thus: 
“15.  Moreover, under Section 29-A of the Act, the 
legislature has used the word “the daughter of a coparcene r.” 
Here, the implication of such wordings mean both the coparcener 
as well as daughter should be alive to reap the benefits of t his 
provision at the time of commencement of the amendment of 
1989. The similar issue came up for the consideration before this 
Court in Prakash  v. Phulavati , (2016) 2 SCC 36, wherein this 
Court while dealing with the identical matter held at par a 23 as 
under (SCC p. 49) 
“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.” 
(emphasis supplied) 
16.  It is pertinent to note here that recently, this Court i n 
Danamma  v. Amar , (2018) 3 SCC 343, dealt, inter alia, with the 
dispute of daughter’s right in the ancestral property. In the above 
case, father of the daughter died in 2001, yet court permitted the 
daughter to claim the right in ancestral property in view of the 
amendment in 2005. On a perusal of the judgment and after having 
regard to the peculiar facts of the Danamma (supra), it is evident 
that the Division Bench of this Court primarily did not deal with 
the issue of death of the father rather it was mainly related to the 
question of law whether daughter who was born prior to 2005 
amendment would be entitled to claim a share in ance stral 
property or not?  In such circumstances, in our view, Prakash ,
(2016) 2 SCC 36, would still hold precedent on the issue of death
of coparcener for the purpose of right of daughter in ancestr al 
property. Shortly put, only living daughters of living coparceners
would be entitled to claim a share in the ancestral property. 
17.  Hence, without touching any other aspect in the present 
case, we are of the view that the appellants were n ot the

Source PDF page 69

View this page in the original PDF
A
B
C
D
E
F
G
H
203 
coparceners in the Hindu joint family property in view of the 1989 
amendment, hence, they had not been entitled to claim partition 
and separate possession at the very first instance. At the  most, 
they could claim maintenance and marriage expenses if situation 
warranted.” 
It is apparent that the question of living daughter of a l iving 
coparcener was not involved in the matter, once this Court held that the 
married daughters were not entitled to claim partition and  separate 
possession as marriage had taken place prior to the enforcement of the 
1989 amendment, as observed in para 17 quoted above. However, this 
Court opined that the decision in Prakash v. Phulavati,   laying down 
that only living daughters of living coparceners would be entitled to claim 
a share in the ancestral property under section 6 of the Act of 1956. The 
opinion expressed cannot be accepted for the reasons mentioned above. 
Moreover, it was not necessary to go into the aforesaid question. 
77. In Danamma , a Division Bench of this Court dealt with the 
interpretation of amended provisions of section 6. The decision in Anar 
Devi v. Parmeshwari Devi  (supra) was relied upon. It was observed 
that the controversy concerning the interpretation of section 6 now stands 
settled with authoritative pronouncement in Prakash v. Phulavati  which 
affirmed the view taken by the High Court as well as a Full Be nch in 
Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhanda ri ,
AIR 2014 Bom. 151. In Danamma , the Court further opined: 
“23.  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 recognises 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 coparcene r 
become coparceners by virtue of birth . Devolution of 
coparcenary property is the later stage of and a consequence  of 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 70

View this page in the original PDF
A
B
C
D
E
F
G
H
204 SUPREME COURT REPORTS [2020] 10 S.C.R. 
death of a coparcener. The first stage of a coparcenary is obviously 
its creation as explained above, and is well recognised. One of 
the incidents of coparcenary is the right of a coparcener to seek a 
severance of status. Hence, the rights of coparceners ema nate 
and flow from birth (now including daughters) as is evident from 
sub-sections (1)( a) and ( b). 
25.  Hence, it is clear that the right to partition has not been 
abrogated. The right is inherent and can be availed of by any 
coparcener, now even a daughter who is a coparcener .
26.  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  v. Chakiri Yanadi (2011) 9 
SCC 788, held that the rights of daughters in coparcenary property 
as per the amended Section 6 are not lost merely beca use 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 arise s, the 
preliminary decree would have to be amended taking into account 
the change in the law by the amendment of 2005. 
27.  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 fami ly 
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 share each in the said 
property. The plaintiff (Respondent 1) is son of Arun K umar 
(Defendant 1). Since, Arun Kumar will have 1/5th share, it would
be divided into five shares on partition i.e. between Defendant 1
Arun Kumar, his wife Defendant 2, his two daughters Defendants 
3 and 4 and son/plaintiff (Respondent 1). In this m anner, 
Respondent 1-plaintiff would be entitled to 1/25th share in the
property.”

Source PDF page 71

View this page in the original PDF
A
B
C
D
E
F
G
H
205 
78. In Danamma , it is pertinent to mention that Gurulingappa, 
propositus of a Hindu joint family and the father of living daughter 
coparcener died in 2001, before the Amendment Act, 2005 came in to 
force, leaving behind two daughters, son and a widow. Daughters were 
given equal rights by this Court. We agree with certain obser vations 
made in paras 23 and 25 to 27 (supra) but find ourselves unable to agree 
with the earlier part approving the decision in Prakash v. Phulavati  and 
the discussion with respect to the effect of the statutory par tition. As a 
matter of fact, in substance, there is a divergence of opinion in Prakash 
v. Phulavati  and Danamma  with respect to the aspect of living daughter 
of a living coparcener. In the latter case, the propos ition of the living 
daughter of a living coparcener was not dealt with specifically. However, 
the effect of reasons given in para 23 had been carried out to logical end 
by giving an equal share to the daughter. 
In Ref. Partition and Effect of Statutory Fiction 
79. The right to claim partition is a significant basic feature of the 
coparcenary, and a coparcener is one who can claim pa rtition. The 
daughter has now become entitled to claim partition of coparcenary w.e.f. 
9.9.2005, which is a vital change brought about by th e statute. A 
coparcener enjoys the right to seek severance of status. Un der section 
6(1) and 6(2), the rights of a daughter are paripassu  with a son. In the 
eventuality of a partition, apart from sons and daughters, the wife of the 
coparcener is also entitled to an equal share. The right of the w ife of a 
coparcener to claim her right in property is in no way taken away. 
80. We deem it appropriate to refer to the decision in Hardeo Rai 
v. Sakuntala Devi & Ors. , (2008) 7 SCC 46 laying down that when an 
intention is expressed to partition the coparcenary property, the share of 
each of the coparceners becomes clear and ascertainable. Once the 
share of a coparcener is determined, it ceases to be  a coparcenary 
property. After taking a definite share in the property, a coparcener 
becomes the owner of that share, and, as such, he can alienate the same 
by sale or mortgage in the same manner as he can dispose of his separate 
property. It was observed: 
“22.  For the purpose of assigning one’s interest in the property, it 
was not necessary that partition by metes and bounds amongst 
the coparceners must take place. When an intention is expressed 
to partition the coparcenary property, the share of each of the 
coparceners becomes clear and ascertainable. Once the share of 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 72

View this page in the original PDF
A
B
C
D
E
F
G
H
206 SUPREME COURT REPORTS [2020] 10 S.C.R. 
a coparcener is determined, it ceases to be a coparcenary property. 
The parties in such an event would not possess the property as 
“joint tenants” but as “tenants-in-common”. The decision of this 
Court in SBI , (1969) 2 SCC 33, therefore, is not applicable to the 
present case. 
23.  Where a coparcener takes definite share in the property, he is 
owner of that share and as such he can alienate the same by sale 
or mortgage in the same manner as he can dispose of his separate 
property.” 
81. It is settled proposition of law that without partition, only 
undivided share can be sold but not specific property, nor joint possession 
can be disrupted by such alienation. Whether the consent  of other 
coparcener is required for sale or not, depends upon by which School of 
Mitakshara law, parties are governed, to say, in Benares School, there is 
a prohibition on the sale of property without the con sent of other 
coparceners. The Court in the abovesaid decision ma de general 
observation but was not concerned with the aspect when the p artition 
was completed, the effect of intervening events and effect of statut ory 
provisions as to partition, as such, it cannot be said to be an authority as 
to provisions of section 6 as substituted and as to enlargeme nt of the 
right by operation of law  achieved thereunder. Shares of c oparceners 
can undergo a change in coparcenary by birth and death unless and until 
the final division is made. The body of coparcenary is increased by the 
operation of law as daughters have been declared as a coparcener,  full 
effect is required to be given to the same. The above decision cannot be 
said to be an authority for the question involved in the present matters. 
82. In Man Singh (D) by LRs. v. Ram Kala (D) by LRs. , AIR 
2011 SC 1542, the question of devolution of interest in coparcena ry 
property arose on the death of male Hindu leaving behind wife, son and 
three daughters, and determination of their shares. It was observed that 
until the disruption of joint family status occurs, the definite share cannot 
be claimed with certainty, and share cannot be predicated i n joint and 
undivided property. The question of disruption of joint family status by a 
definite and unequivocal declaration of intention to separate himself from 
the family was also considered. The question in the present case is when 
the partition has not taken place whether the statutory fiction contained 
in the proviso to section 6 with respect to the determination of shares of 
a deceased coparcener and its devolution thereunder woul d disrupt

Source PDF page 73

View this page in the original PDF
A
B
C
D
E
F
G
H
207 
coparcenary. The answer is in the negative. In Man Singh  (supra), it 
was observed that the wife has a right to claim an equal s hare in the 
husband’s property as that of a son, and she can enjoy the share separately 
even from her husband thus: 
“12. …Till disruption of joint family status takes place, neithe r 
coparcener nor the other heirs entitled to share in the joint family 
property can claim with certainty the exact share in that property. 
In the case of Appovier Alias Seetaramier  v. Rama Subba Aiyan 
& Ors.,  (1866) 11 MIA 75, Lord Westbury speaking for the Judicial 
Committee (Privy Council) observed, ‘According to the true notion 
of an undivided family in Hindoo law, no individual member of 
that family, whilst it remains undivided, can predicate of the joint 
and undivided property, that he, that particular member, has a certain 
definite share.’ 
15.  In Principles of Hindu Law by Mulla, Vol. I (17th Edition) as 
regards the right of wife, it is stated that a wife cannot  herself 
demand a partition, but if a partition does take place between her 
husband and his sons, she is entitled (except in Southern India) to 
receive a share equal to that of a son and to hold and enjoy that
share separately even from her husband (Article 315 at Pa ge 
506).” 
83. In Girja Bai v. Sadashiv, AIR 1916 PC 104, Kawal Nain v. 
Prabhulal,  AIR 1917 PC 39 and Ramalinga v. Narayana, AIR 1922 
PC 201, it was laid that the institution of a suit for partition by a member 
of a joint family is a clear intimation of his intention to separate and the 
decisions indicate that there was consequential severance of joint status 
from the date when the suit was filed though there was an assertion of 
his right to separate by filing of the suit whether the consequential judgment 
is passed or not.  However, we add a rider that if subsequently, the law 
confers a right, or such other event takes place, its effec t has to be 
worked out even after passing of the preliminary decree. 
84. In Kedar Nath v. Ratan Singh, (1910) 37 IA 161 and Palani 
Ammal v. Muthuvenkatachala, AIR 1925 PC 49, it was observed that 
if the suit is withdrawn before trial and passing of the decree, the plaintiff 
ultimately has not chosen to go for separation. It was laid dow n that 
there was no severance of the joint status of the family by filing  of the 
suit. 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 74

View this page in the original PDF
A
B
C
D
E
F
G
H
208 SUPREME COURT REPORTS [2020] 10 S.C.R. 
85. In Joala Prasad Singh v. Chanderjet Kuer, AIR 1938 Pat 
278, it was held that the filing of a suit is a shred of strong evidence, but 
not conclusive evidence of an intention to separate.  Howeve r, in our 
opinion, the intention to separate need not be confused with the change 
of rights during the pendency of the suit, which has to be given full 
effect, to do complete justice. 
86. In Chokalingam v. Muthukaruppan, AIR 1938 Mad 849, it 
was laid down that even a decree passed by consent does not affe ct a 
severance; it had no validity if its terms were not execute d and the 
members continue to live together having abandoned their decision to 
separate. 
87. In Mukund Dharman Bhoir & Ors. v. Balkrishna Padmanji 
& Ors. , AIR 1927 PC 224, a distinction was made between severance
of the joint status, which is a matter of individual decision and the division 
of the property where the allotment of shares may be effected by private 
arrangements, by arbitrators or as a last resort, by the Court.  It was 
observed: 
“In the first place, there is separation, which means the 
severance of the status of jointness. That is matter of individua l 
volition; and it must be shown that an intention to become divided 
has been clearly and unequivocally expressed, it may be by explicit 
declaration or by conduct. 
Secondly, there is the partition or division of the joint estate, 
comprising the allotment of shares, which may be effected by 
different methods.” 
88. In Palani Ammal  (supra), Ramabadra v. Gopalaswami , AIR 
1931 Mad 404 and Gangabai v. Punau Rajwa,  AIR 1956 Nag 261, it 
was laid down that joint family does not get disrupte d merely by 
ascertainment of the shares of the coparcener. In order to co nstitute a 
partition, the shares should be defined with the intention of an immediate 
separation. 
89. In Poornandachi v. Gopalasami,  AIR 1936 PC 281, only 
one of the members was given the share by way of instrument of partition. 
It was also provided that the rest of the property was to remain joint.  It 
was held that there was no partition between the other members.In I.T. 
Officer, Calicut v. N.K. Sarada Thampatty, AIR 1991 SC 2035, it was 
held that if a preliminary decree for partition is passed, it will not amount

Source PDF page 75

View this page in the original PDF
A
B
C
D
E
F
G
H
209 
to a partition unless an actual physical partition is carried out pursuant to 
a final decree. 
90. In S. Sai Reddy v. S. Narayana Reddy &Ors.  (1991) 3 SCC 
647, a suit for partition, was filed. A preliminary decree determining the 
shares was passed. The final decree was yet to be pa ssed. It was 
observed that unless and until the final decree is passed and the allottees 
of the shares are put in possession of the respective property, the partition 
is not complete. A preliminary decree does not bring about t he final 
partition. For, pending the final decree, the shares themselves are liable 
to be varied on account of the intervening events, and the preliminary 
decree does not bring about any irreversible situation. The concept of 
partition that the legislature had in mind could not be equat ed with a 
mere severance of the status of the joint family, which could be effected 
by an expression of a mere desire by a family member to do  so. The 
benefit of the provision of section 29A could not have been deni ed to 
women whose daughters were entitled to seek shares equally with sons 
in the family. In S. Sai Reddy  (supra), it was held: 
“7.  The question that falls for our consideration is whether the 
preliminary decree has the effect of depriving respondents 2 to 5 
of the benefits of the amendment. The learned counsel place d 
reliance on clause ( iv ) of Section 29-A to support his contention 
that it does. Clause ( ii ) of the section provides that a daughter 
shall be allotted share like a son in the same manner treating her 
to be a son at the partition of the joint family property. However, 
the legislature was conscious that prior to the enforcement of the 
amending Act, partitions will already have taken place in some 
families and arrangements with regard to the disposition of the 
properties would have been made and marriage expenses would 
have been incurred etc. The legislature, therefore, did not want to 
unsettle the settled positions. Hence, it enacted clause ( iv ) providing 
that clause ( ii ) would not apply to a daughter married prior to the 
partition or to a partition which had already been effected before 
the commencement of the amending Act. Thus if prior to the
partition of family property a daughter had been married, she was 
disentitled to any share in the property. Similarly, if the partition 
had been effected before September 5, 1985 the date on which 
the amending Act came into force, the daughter even though 
unmarried was not given a share in the family property. The crucial 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 76

View this page in the original PDF
A
B
C
D
E
F
G
H
210 SUPREME COURT REPORTS [2020] 10 S.C.R. 
question, however, is as to when a partition can be said to ha ve 
been effected for the purposes of the amended provision. A partition 
of the joint Hindu family can be effected by various modes, viz., 
by a family settlement, by a registered instrument of partition, by 
oral arrangement by the parties, or by a decree of the Court . 
When a suit for partition is filed in a court, a preliminary decree is 
passed determining shares of the members of the family. The 
final decree follows, thereafter, allotting specific propert ies and 
directing the partition of the immovable properties by metes and 
bounds. Unless and until the final decree is passed and the allottees 
of the shares are put in possession of the respective property, the 
partition is not complete. The preliminary decree which determines 
shares does not bring about the final partition. For, pending the
final decree the shares themselves are liable to be varied on account 
of the intervening events. In the instant case, there is no dispute 
that only a preliminary decree had been passed and before th e 
final decree could be passed the amending Act came into for ce 
as a result of which clause ( ii ) of Section 29-A of the Act became 
applicable. This intervening event which gave share s to 
respondents 2 to 5 had the effect of varying shares of the parties 
like any supervening development.  Since the legislation is beneficial 
and placed on the statute book with the avowed object of benefitting 
women which is a vulnerable section of the society in all its stratas, 
it is necessary to give a liberal effect to it. For this reason also, we 
cannot equate the concept of partition that the legislature has in 
mind in the present case with a mere severance of the status  of 
the joint family which can be effected by an expression of a mere 
desire by a family member to do so. The partition that the legislature 
has in mind in the present case is undoubtedly a partition completed 
in all respects and which has brought about an irreversible situation. 
A preliminary decree which merely declares shares which ar e 
themselves liable to change does not bring about any irreversible 
situation. Hence, we are of the view that unless a partition of the 
property is effected by metes and bounds, the daughters c annot 
be deprived of the benefits conferred by the Act. Any other view 
is likely to deprive a vast section of the fair sex of the  benefits 
conferred by the amendment. Spurious family settlem ents, 
instruments of partitions not to speak of oral partitions will spring 
up and nullify the beneficial effect of the legislation depriving a 
vast section of women of its benefits.

Source PDF page 77

View this page in the original PDF
A
B
C
D
E
F
G
H
211 
8.  Hence, in our opinion, the High Court has rightly held that since 
the final decree had not been passed and the property had not 
been divided by metes and bounds, clause ( iv ) to Section 29-A 
was not attracted in the present case and the respondent-daughters 
were entitled to their share in the family property.” 
(emphasis supplied) 
91. In Prema v. Nanje Gowda , AIR 2011 SC 2077, insertion of 
section 6A by the amendment made by the State of Karnata ka in the 
Hindu Succession Act, 1956, was considered. Equal rights were given 
to the daughter in coparcenary property in a suit for partition. A preliminary 
decree was passed. Amendment in the Act was made during t he final 
decree proceedings. It was held that the discrimination practiced against 
the unmarried daughter was removed. Unmarried daughters ha d equal 
rights in the coparcenary property. The amendment’s effect was that 
the unmarried daughter could claim an equal share in the prop erty in 
terms of section 6A inserted in Karnataka. In Prema  (supra), the Court 
opined: 
“11.  … in R. Gurubasaviah  v. Rumale Karibasappa and others ,
AIR 1955 Mysore 6, Parshuram Rajaram Tiwari  v. Hirabai 
Rajaram Tiwari , AIR 1957 Bombay 59 and Jadunath Roy and 
others v. Parameswar Mullick and others,  AIR 1940 PC 11, 
and held that if after passing of preliminary decree in a partition 
suit but before passing of final decree, there has been enlargement 
or diminution of the shares of the parties or their rights have been 
altered by statutory amendment, the Court is duty-bound to decide 
the matter and pass final decree keeping in view of the change d 
scenario .” 
“14.   We may add that by virtue of the preliminary decree passed 
by the trial court, which was confirmed by the lower appel late 
Court and the High Court, the issues decided therein will be deemed 
to have become final but as the partition suit is required to be 
decided in stages, the same can be regarded as full y and 
completely decided only when the final decree is passed. If in the 
interregnum any party to the partition suit dies, then his/her share 
is required to be allotted to the surviving parties and this can be 
done in the final decree proceedings. Likewise, if law governing 
the parties is amended before the conclusion of the final decr ee 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 78

View this page in the original PDF
A
B
C
D
E
F
G
H
212 SUPREME COURT REPORTS [2020] 10 S.C.R. 
proceedings, the party benefited by such amendment can make a 
request to the Court to take cognizance of the amendment and 
give effect to the same. If the rights of the parties t o the suit 
change due to other reasons, the Court seized with the final decree 
proceedings is not only entitled but is duty-bound to take notice of 
such change and pass appropriate order …” 
(emphasis supplied) 
It was held that if after passing of a preliminary decree in a partition 
suit but before passing of the final decree, there has been enlar gement 
or diminution of the shares of the parties or their rights have been altered 
by statutory amendment; the Court is duty-bound to decide the matter 
and pass final decree keeping in view the changed scenario. In Prema 
(supra), the Court further opined: 
“20.  In our view, neither of the aforesaid three judgments can be 
read as laying down a proposition of law that in a partition suit, 
preliminary decree cannot be varied in the final decree proceedings 
despite amendment of the law governing the parties by which the 
discrimination practiced against unmarried daughter was removed 
and the statute was brought in conformity with Articles 14 and 15 
of the Constitution. We are further of the view that the rati o of 
Phoolchand v. Gopal Lal, (AIR 1967 SC 1470) (supra) and S. Sai 
Reddy v. S. Narayana Reddy, (1991 AIR SCW 488) (supra) has 
direct bearing on this case and the trial court and the High Court 
committed serious error by dismissing the application filed by the 
appellant for grant of equal share in the suit property in terms of 
Section 6A of the Karnataka Act No.23 of 1994.” 
It was laid down that by the change of law, the share of daughter 
can be enlarged even after passing a preliminary decree, the effect can 
be given to in final decree proceedings. 
92. In Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & 
Anr ., (supra), this Court considered the amendment made in section 6 of 
the Hindu Succession Act in 2005 and held that the right of a daughter in 
coparcenary property is not lost bypassing of a preliminar y decree for 
partition before stipulated date i.e., 20 th  December, 2004. A partition suit 
does not stand disposed of bypassing a preliminary decree. Relying inter 
alia, on S. Sai Reddy  (supra), it was held that the preliminary decree 
can be amended in order to fully recognise the rights of a daughter:

Source PDF page 79

View this page in the original PDF
A
B
C
D
E
F
G
H
213 
“16. The legal position is settled that partition of a joint Hindu
family can be effected by various modes, inter alia, two of these 
modes are (one) by a registered instrument of a partiti on and 
(two) by a decree of the Court. In the present case, admitted ly, 
the partition has not been effected before 20-12-2004 either by a 
registered instrument of partition or by a decree of the Court. The 
only stage that has reached in the suit for partition filed by 
Respondent 1 is the determination of shares vide preliminary decree 
dated 19-3-1999, which came to be amended on 27-9-2003 and 
the receipt of the report of the Commissioner. 
17. A preliminary decree determines the rights and interests of 
the parties. The suit for partition is not disposed of by passing of 
the preliminary decree. It is by a final decree that the immovable 
property of joint Hindu family is partitioned by metes and bounds .
After the passing of the preliminary decree, the suit continues 
until the final decree is passed. If in the interregnum i.e . after 
passing of the preliminary decree and before the final dec ree is 
passed, the events and supervening circumstances oc cur 
necessitating change in shares, there is no impediment for  the 
Court to amend the preliminary decree or pass another preliminary 
decree redetermining the rights and interests of the parties having 
regard to the changed situation .  We are fortified in our view by a 
three-Judge Bench decision of this Court in Phoolchand & Anr. v. 
Gopal Lal, AIR 1967 SC 1470, wherein this Court stated as follows: 
“We are of opinion that there is nothing in the Code of Civil 
Procedure which prohibits the passing of more than o ne 
preliminary decree if circumstances justify the same and that 
it may be necessary to do so particularly in partition suits when 
after the preliminary decree some parties die and shares of 
other parties are thereby augmented. … So far therefore a s 
partition suits are concerned we have no doubt that if an event 
transpires after the preliminary decree which necessitates  a 
change in shares, the Court can and should do so; … there is 
no prohibition in the Code of Civil Procedure against passing a 
second preliminary decree in such circumstances and we do 
not see why we should rule out a second preliminary decree in 
such circumstances only on the ground that the Code of Civil 
Procedure does not contemplate such a possibility. … for it 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 80

View this page in the original PDF
A
B
C
D
E
F
G
H
214 SUPREME COURT REPORTS [2020] 10 S.C.R. 
must not be forgotten that the suit is not over till the final decree 
is passed and the Court has jurisdiction to decide all disputes 
that may arise after the preliminary decree, particula rly in a 
partition suit due to deaths of some of the parties. … a second 
preliminary decree can be passed in partition suits by w hich 
the shares allotted in the preliminary decree already pas sed 
can be amended and if there is dispute between surviving parties 
in that behalf and that dispute is decided the decision amounts 
to a decree…..” 
19.  The above legal position is wholly and squarely applicable to 
the present case. It surprises us that the High Court w as not 
apprised of the decisions of this Court in Phoolchand, (AIR 1967 
SC 1470) and S. Sai Reddy, (1991 AIR SCW 488). High Court 
considered the matter as follows: 
   “ xxx.” 
20.  The High Court was clearly in error in not properly appreciating 
the scope of Order XX Rule 18 of CPC. In a suit for partition of 
immovable property, if such property is not assesse d to the 
payment of revenue to the Government, ordinarily passing of  a 
preliminary decree declaring the share of the parties may be 
required. The Court would thereafter proceed for preparation of 
final decree. In Phoolchand, this Court has stated the legal position 
that CPC creates no impediment for even more than o ne 
preliminary decree if after passing of the preliminary decree events 
have taken place necessitating the readjustment of shares  as 
declared in the preliminary decree. The Court has always power 
to revise the preliminary decree or pass another preliminary decree 
if the situation in the changed circumstances so demand. A suit 
for partition continues after the passing of the preliminary decree 
and the proceedings in the suit get extinguished only on passing of 
the final decree. It is not correct statement of law tha t once a 
preliminary decree has been passed, it is not capab le of 
modification.  It needs no emphasis that the rights of the parties in 
a partition suit should be settled once for all in that suit alone and 
no other proceedings. 
21. Section 97 of C.P.C. that provides that where an y party 
aggrieved by a preliminary decree passed after the commencement 
of the Code does not appeal from such decree, he sha ll be

Source PDF page 81

View this page in the original PDF
A
B
C
D
E
F
G
H
215 
precluded from disputing its correctness in any appeal which may 
be preferred from the final decree does not create any hindrance
or obstruction in the power of the Court to modify, amend or alter 
the preliminary decree or pass another preliminary decree  if the 
changed circumstances so require. 
22. It is true that final decree is always required to be in conformity 
with the preliminary decree but that does not mean that a 
preliminary decree, before the final decree is passed, c annot be 
altered or amended or modified by the trial court in the event of 
changed or supervening circumstances even if no appeal has been 
preferred from such preliminary decree.” 
(emphasis supplied) 
The effect of the legislative provision concerning partiti on was 
considered, and it was held that a preliminary decree me rely declares 
the shares and on which law confers equal rights upon the daughter that 
is required to be recognised. 
93. The concept of partition and its effect was considered by this 
Court in Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita 
Saran Bubna and Ors. , (2009) 9 SCC 689 thus: 
“The issue 
5.  “Partition” is a redistribution or adjustment of pre-existing rights, 
among co-owners/coparceners, resulting in a division of lands or 
other properties jointly held by them into different lots or portions 
and delivery thereof to the respective allottees. The effect of such 
division is that the joint ownership is terminated and the respective 
shares vest in them in severalty. 
6.  A partition of a property can be only among those having a 
share or interest in it. A person who does not have a share in such 
property cannot obviously be a party to a partition. “Separation of 
share” is a species of “partition”. When all co-own ers get 
separated, it is a partition. Separation of share(s) refers to a division 
where only one or only a few among several co-owner s/ 
coparceners get separated, and others continue to be joint or 
continue to hold the remaining property jointly without division by 
metes and bounds . For example, where four brothers owning a 
property divide it among themselves by metes and bounds, it is a 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 82

View this page in the original PDF
A
B
C
D
E
F
G
H
216 SUPREME COURT REPORTS [2020] 10 S.C.R. 
partition. But if only one brother wants to get his share separated 
and other three brothers continue to remain joint, there is only a 
separation of the share of one brother. 
*** 
18.  The following principles emerge from the above discussion 
regarding partition suits: 
18.3. As the declaration of rights or shares is only the first stag e 
in a suit for partition, a preliminary decree does not have the effect 
of disposing of the suit. The suit continues to be pending unti l 
partition , that is, division by metes and bounds takes place by 
passing a final decree.  An application requesting the Court to take 
necessary steps to draw up a final decree effecting a divis ion in 
terms of the preliminary decree, is neither an application  for 
execution (falling under Article 136 of the Limitation Act) nor an 
application seeking a fresh relief (falling under Article 137 of the 
Limitation Act). It is only a reminder to the Court to do its duty to 
appoint a Commissioner, get a report, and draw a final decree in 
the pending suit so that the suit is taken to its logical conclusion. 
20. On the other hand, in a partition suit the preliminary decrees 
only decide a part of the suit and therefore an applicati on for 
passing a final decree is only an application in a pending sui t, 
seeking further progress. In partition suits, there  can be a 
preliminary decree followed by a final decree, or there can be a 
decree which is a combination of preliminary decree and final 
decree or there can be merely a single decree with certain further 
steps to be taken by the Court . In fact, several applications for 
final decree are permissible in a partition suit. A decree in a partition 
suit enures to the benefit of all the co-owners and therefore, it is 
sometimes said that there is really no judgment-debtor in a partition 
decree.” 
(emphasis supplied) 
94. In Laxmi Narayan Guin&Ors. v. Niranjan Modak , (1985) 
1 SCC 270, it was laid down that change in law during the pendency of 
the appeal has to be taken into consideration thus: 
“9. That a change in the law during the pendency of an appeal 
has to be taken into account and will govern the rights of the

Source PDF page 83

View this page in the original PDF
A
B
C
D
E
F
G
H
217 
parties was laid down by this Court in Ram Sarup  v. Munshi, 
AIR 1963 SC 553 which was followed by this Court in Mula  v. 
Godhu, (1969) 2 SCC 653 . We may point out that in Dayawati 
v. Inderjit, AIR  1966 SC 1423 this Court observed: 
“If the new law speaks in language, which, expressly or by 
clear intendment, takes in even pending matters, the Court of trial 
as well as the court of appeal must have regard to an intention so 
expressed, and the court of appeal may give effect to such a law 
even after the judgment of the court of first instance.” 
Reference may also be made to the decision of this Court in Amarjit 
Kaur  v. Pritam Singh,  (1974) 2 SCC 363 where  effect was 
given to a change in the law during the pendency of an appeal, 
relying on the proposition formulated as long ago as Kristnama 
Chariar  v. Mangammal , ILR (1902) 26 Mad 91 (FB) by 
BhashyamAyyangar, J., that the hearing of an appeal was, under 
the processual law of this country, in the nature of a re-hearing of 
the suit. In Amarjit Kaur , (1974) 2 SCC 363 this Court referred 
also to Lachmeshwar Prasad Shukul  v. Keshwar Lal 
Chaudhuri,  AIR 1941 FC 5 in which the Federal Court had laid 
down that once a decree passed by a court had been appealed 
against the matter became sub judice again and thereafte r the 
appellate court acquired seisin of the whole case, except that for 
certain purposes, for example, execution, the decree was regarded 
as final and the Court below retained jurisdiction.” 
95. In United Bank of India, Calcutta v. Abhijit Tea Co. Pvt.
Ltd. & Ors. , AIR 2000 SC 2957, with respect to change in law during 
the pendency of proceedings, it was observed: 
“20.  Now, it is well settled that it is the duty of a court, whether it 
is trying original proceedings or hearing an appeal, to take notice 
of the change in law affecting pending actions and to give effect 
to the same. (See G .P. Singh: Interpretation of Statutes , 7th Edn., 
p. 406). If, while a suit is pending, a law like the 1993 Act that the 
Civil Court shall not decide the suit, is passed, the Civil Court is 
bound to take judicial notice of the statute and hold that the suit — 
even after its remand — cannot be disposed of by it.” 
96. In Gurupad Khandappa Magdum  (supra), the question of 
Explanation I to section 6 of the Hindu Succession Act, 1956 came u p 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 84

View this page in the original PDF
A
B
C
D
E
F
G
H
218 SUPREME COURT REPORTS [2020] 10 S.C.R. 
for consideration with respect to the determination of widow’s interest 
in the coparcenary property. Court held that a widow’s s hare in the 
coparcenary property must be ascertained by adding the share to which 
she is entitled at a notional partition during her husband’s lifetime and the 
share she would have obtained in her husband’s interest upon his death. 
The first step is to ascertain the share of the deceased in the coparcenary 
property that would be worked out ultimately, and that shall be deemed 
to be the share in the property that should have been allott ed to the 
deceased. What is therefore required to be assumed is th at a partition 
had, in fact, taken place between the deceased and his copar ceners 
immediately before his death. The assumption must permeate the entire 
process of ascertainment of the ultimate share of the heirs. All the 
consequences must be taken to a logical end. It was opined: 
“13. In order to ascertain the share of heirs in the property of  a 
deceased coparcener it is necessary in the very nature of t hings, 
and as the very first step, to ascertain the share of the deceased 
in the coparcenary property. For, by doing that alone can one 
determine the extent of the claimant’s share. Explanation 1 to
Section 6 resorts to the simple expedient, undoubtedly fictional, 
that the interest of a Hindu Mitakshara coparcener “s hall be 
deemed to be” the share in the property that would have been
allotted to him if a partition of that property had tak en place 
immediately before his death. What is therefore required to b e 
assumed is that a partition had in fact taken place betw een the 
deceased and his coparceners immediately before his death. That 
assumption, once made, is irrevocable. In other wor ds, the 
assumption having been made once for the purpose of ascertaining 
the share of the deceased in the coparcenary property, one cannot 
go back on that assumption and ascertain the share of the heir s 
without reference to it. The assumption which the statute requires 
to be made that a partition had in fact taken place must permeate 
the entire process of ascertainment of the ultimate shar e of the 
heirs, through all its stages. To make the assumption at the initial 
stage for the limited purpose of ascertaining the share  of the 
deceased and then to ignore it for calculating the quantum of the 
share of the heirs is truly to permit one’s imagination to boggle. 
All the consequences which flow from a real partition have to be 
logically worked out, which means that the share of the hei rs 
must be ascertained on the basis that they had separated fro m

Source PDF page 85

View this page in the original PDF
A
B
C
D
E
F
G
H
219 
one another and had received a share in the partition which had 
taken place during the lifetime of the deceased. The allotment of 
this share is not a processual step devised merely for the purpose 
of working out some other conclusion. It has to be treated and
accepted as a concrete reality, something that cannot be recalled 
just as a share allotted to a coparcener in an actual partition cannot 
generally be recalled. The inevitable corollary of this position is 
that the heir will get his or her share in the interest w hich the 
deceased had in the coparcenary property at the time of his death, 
in addition to the share which he or she received or must be deemed 
to have received in the notional partition.” 
The only question involved in the aforesaid matter was with respect 
to the Explanation of section 6 and the determination of the widow’ s 
share. In that case, the question was not of fluctuation in the coparcenary 
body by a legal provision or otherwise. Everything remained static. No 
doubt about it, the share of the deceased has to be worked out as per the 
statutory fiction of partition created. However, in case of change of 
body of the coparceners by a legal provision or otherwis e, unless and 
until the actual partition is finally worked out, rights have to be recognised 
as they exist at the time of the final decree. It is only the share of the 
deceased coparcener, and his heirs are ascertained under the Explanation 
to section 6 and not that of other coparceners, which keep on changing 
with birth and death. 
97. In Anar Devi & Ors. v. Parmeshwari Devi & Ors  (supra), 
the decision in Gurupad  (supra) was considered, and it was held that 
when a coparcener dies leaving behind any female relative specified in 
Class I of the Schedule to the Act or male relative claiming through such 
female relative, his undivided interest is not devolved by survivorship but 
upon his heir by intestate succession thus: 
“8.  According to the learned author, at page 253, the undivided 
interest”of the deceased coparcener for the purpose of giving 
effect to the rule laid down in the proviso, as already pointed 
out, is to be ascertained on the footing of a notional partition as 
of the date of his death. The determination of that share must 
depend on the number of persons who would have been entitled 
to a share in the coparcenary property if a partition had in fact 
taken place immediately before his death and such person would 
have to be ascertained according to the law of joint family and 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 86

View this page in the original PDF
A
B
C
D
E
F
G
H
220 SUPREME COURT REPORTS [2020] 10 S.C.R. 
partition. The rules of Hindu law on the subject in force at the 
time of the death of the coparcener must, therefore, govern
the question of ascertainment of the persons who would have 
been entitled to a share on the notional partition”. 
11.  Thus we hold that according to Section 6 of the Act when a 
coparcener dies leaving behind any female relative specif ied in 
Class I of the Schedule to the Act or male relative speci fied in 
that class claiming through such female relative, his undivi ded 
interest in the Mitakshara coparcenary property would not devolve 
upon the surviving coparcener, by survivorship but upon his heirs 
by intestate succession. Explanation 1 to Section 6 of the Act 
provides a mechanism under which undivided interest  of a 
deceased coparcener can be ascertained and i.e. that the int erest 
of a Hindu Mitakshara coparcener shall be deemed to be t he 
share in the property that would have been allotted to him i f a 
partition of the property had taken place immediately before his 
death, irrespective of whether he was entitled to claim partition or 
not. It means for the purposes of finding out undivided interest of 
a deceased coparcener, a notional partition has to be assu med 
immediately before his death and the same shall devolve upon his 
heirs by succession which would obviously include the surviving
coparcener who, apart from the devolution of the undivided interest 
of the deceased upon him by succession, would also be entitled to 
claim his undivided interest in the coparcenary property which he 
could have got in notional partition.” 
In Anar Devi  (supra), the question of enlargement of right by a 
legal provision or otherwise change in the coparcener’s s hare was not 
involved. The decision cannot help the cause set up of partition created 
by statutory fiction. Statutory fiction is with respect to the extent of the 
share of deceased coparcener  in exigency provided in the pr oviso to 
section 6. Co-parcenary or HUF, as the case may be, does not come to 
an end by statutory fiction. Disruption of coparcenary by statutory fiction 
takes place, is not the proposition laid down in the aforesaid decision. 
98. In Puttrangamma & Ors. v. M.S. Rangamma & Ors. , AIR 
1968 SC 1018, this Court considered the doctrine of Hindu law, separation 
in status by a definite, unequivocal and unilateral declaration thus: 
“(4) It is now a settled doctrine of Hindu Law that a member of a 
joint Hindu family can bring about his separation in status by a

Source PDF page 87

View this page in the original PDF
A
B
C
D
E
F
G
H
221 
definite, unequivocal and unilateral declaration of his intention to 
separate himself from the family and enjoy his share in severalty. 
There does not need to be an agreement between all the 
coparceners for the disruption of the joint status. It is immaterial 
in such a case whether the other coparceners give their assent to 
the separation or not. The jural basis of this doctrine has b een 
expounded by the early writers of Hindu Law. The relevant portion 
of the commentary of Vijnaneswara states as follows: 
“x x x xx “ 
[And thus though the mother is having her menstrual courses (has
not lost the capacity to bear children) and the father has attachment 
and does not desire a partition, yet by the will (or desire) o f the 
son a partition of the grandfather’s wealth does take place] ” 
Saraswathi Vilasa , placitum 28 states: 
[From this it is known that without any speech (or 
Explanation) even by means of a determination (or resolution)
only, partition is effected, just an appointed daughter is constituted 
by mere intention without speech.] 
Viramitrodaya of Mitra Misra (Ch. 11. pl. 23) is to the 
following effect: 
[Here too there is no distinction between a partition during
the lifetime of the father or after his death and partit ion at the 
desire of the sons may take place or even by the desire (or at the 
will) of a single (coparcener)]. 
VyavaharaMayukha of Nilakantabhatta  also states: 
[Even in the absence of any common (joint family) property,
severance does indeed result by the mere declaration  ‘I am 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 88

View this page in the original PDF
A
B
C
D
E
F
G
H
222 SUPREME COURT REPORTS [2020] 10 S.C.R. 
separate from thee’ because severance is a particular  state (or 
condition) of the mind and the declaration is merely a manifestation 
of this mental state (or condition).]” (Ch. IV , S. III-I). 
Emphasis is laid on the “budhivisesha” (particular state or condition 
of the mind) as the decisive factor in producing a severance in 
status and the declaration is stated to be merely “abhivyanjika” or 
manifestation which might vary according to circumstances. In
Suraj Narain  v. Iqbal Narain , (1913) ILR 35 All 80 the Judicial 
Committee made the following categorical statement of the legal 
position: 
“A definite and unambiguous indication by one member of intention 
to separate himself and to enjoy his share in severalty may amount 
to separation. But to have that effect the intention  must be 
unequivocal and clearly expressed … Suraj Narain alleged tha t 
he separated a few months later; there is, however, no writing in 
support of his allegation, nothing to show that at that time he gave 
expression to an unambiguous intention on his part to cut himself
off from the joint undivided family.” 
In a later case — Girja Bai  v. Sadashiv Dhundiraj , ILR 
42 Cal 1031, the Judicial Committee examined the relevant texts 
of Hindu Law and referred to the well-marked distinction tha t 
exists in Hindu law between a severance in status so far a s the 
separating member is concerned and a de facto division in to 
specific shares of the property held until then jointly, and laid down 
the law as follows: 
“One is a matter of individual decision, the desire on the 
part of any one member to sever himself from the joint family and 
to enjoy his hitherto undefined or unspecified share separa tely 
from the others without being subject to the obligations wh ich 
arise from the joint status; whilst the other is the natural resultant 
from his decision, the division and separation of his share which 
may be arrived at either by private agreement among the parties, 
or on failure of that, by the intervention of the Court. Onc e the 
decision has been unequivocally expressed and clearly intimated
to his co-sharers, his right to obtain and possess the share to which 
he admittedly has a title is unimpeachable; neither the co-sharers 
can question it nor can the Court examine his conscience to find
out whether his reasons for separation were well-founded  or

Source PDF page 89

View this page in the original PDF
A
B
C
D
E
F
G
H
223 
sufficient; the Court has simply to give effect to his right to have 
his share allocated separately from the others .” 
In Syed Kasam  v. Jorawar Singh, ILR 50 Cal 84, Viscount Cave, 
in delivering the judgment of the Judicial Committee, observed: 
“It is settled law that in the case of a joint Hindu family 
subject to the law of the Mitakshara, a severance of est ate is 
effected by an unequivocal declaration on the part of one of the 
joint holders of his intention to hold his share separately,  even 
though no actual division takes place; and the commencement of
a suit for partition has been held to be sufficient to effect a 
severance in interest even before decree .” 
(emphasis supplied) 
99. Once the constitution of coparcenary changes by birth or death, 
shares have to be worked out at the time of actual partition. The shares 
will have to be determined in changed scenario. The severance of status 
cannot come in the way to give effect to statutory provision and change 
by subsequent event. The statutory fiction of partition is far  short of 
actual partition, it does not bring about the disruption of the joint family 
or that of coparcenary is a settled proposition of law. For the reasons 
mentioned above, we are also of the opinion that mere seve rance of 
status by way of filing a suit does not bring about the partition and till the 
date of the final decree, change in law, and changes due to the subsequent 
event can be taken into consideration. 
100. As to the effect of legal fiction, reliance was pla ced on 
Commissioner of Income Tax, Delhi v. S Teja Singh , AIR 1959 SC 
352, in which it was laid down that in construing the scope of  legal 
fiction, it would be proper and even necessary to assume all those facts 
on which alone the fiction can operate. There is no dispute wi th the 
aforesaid proposition, but the purpose of fiction is limited so as to work 
out the extent of the share of the deceased at the time of his death, and 
not to affect the actual partition in case it has not b een done by metes 
and bounds. 
101. When the proviso to unamended section 6 of the Act of 1956 
came into operation and the share of the deceased copa rcener was 
required to be ascertained, a deemed partition was assumed in the lifetime 
of the deceased immediately before his death. Such a concept of notional 
partition was employed so as to give effect to Explanation to section 6. 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 90

View this page in the original PDF
A
B
C
D
E
F
G
H
224 SUPREME COURT REPORTS [2020] 10 S.C.R. 
The fiction of notional partition was meant for an aforesaid  specific 
purpose. It was not to bring about the real partition. Neither did it affect 
the severance of interest nor demarcated the interes t of surviving 
coparceners or of the other family members, if any,  entitled to a share in 
the event of partition but could not have claimed it. The entire partition 
of the coparcenary is not provided by deemed fiction;  otherwise, 
coparcenary could not have continued which is by birth, and the death of 
one coparcener would have brought an end to it. Legal fiction is only for 
a purpose it serves, and it cannot be extended beyond was held in State 
of Travancore-Cochin &Ors. v. Shanmugha Vilas Cashe w Nut 
Factory &Ors ., (1954) SCR 53; Bengal Immunity Co. Ltd. v. State of 
Bihar&Ors. , AIR 1955 SC661; and Controller of Estate Duty v. Smt. 
S. Harish Chandra , (1987) 167 ITR 230. A legal fiction created in law 
cannot be stretched beyond the purpose for which it has been crea ted, 
was held in MancheriPuthusseri Ahmed (supra) thus: 
“8. xxx In the first place the section creates a le gal fiction. 
Therefore, the express words of the section have to be give n 
their full meaning and play in order to find out whether the legal
fiction contemplated by this express provision of the statu te has 
arisen or not in the facts of the case. Rule of construct ion of 
provisions creating legal fictions is well settled. In interpreting a 
provision creating a legal fiction the Court is to ascertain for what 
purpose the fiction is created, and after ascertaining this, the Court 
is to assume all those facts and consequences which are incidental 
or inevitable corollaries to the giving effect to the fiction. But in so 
construing the fiction it is not to be extended beyond the purpose 
for which it is created, or beyond the language of the section by 
which it is created. It cannot also be extended by importing another 
fiction. x xx” 
102. It is apparent that the right of a widow to obtain an  equal 
share in the event of partition with the son was not deprive d under old 
section 6. Unamended Section 6 provided that the interest of a coparcener 
could be disposed of by testamentary or intestate succession on happening 
of exigency under the proviso. Under the old law before 1956 devise by 
a coparcener of Hindu Mitakshara family property was wholly invalid. 
Section 30 of the Act of 1956 provided competence for a male Hindu in 
Mitakshara coparcenary to dispose of his interest in the copa rcenary 
property by a testament.

Source PDF page 91

View this page in the original PDF
A
B
C
D
E
F
G
H
225 
103. In Gyarsi Bai v. Dhansukh Lal , AIR 1965 SC 1055, it was 
held that the shares of all coparceners should be ascertained in order to 
work out the share of the deceased coparcener, partition to be assumed 
and given effect to when the question of allotment comes,  but this Court 
did not lay down in the said decision that the deeming fiction and notional 
partition brought an end to the joint family or coparcenary. 
104. In case coparcenary is continued, and later on between the 
surviving coparceners partition takes place, it would be nec essary to 
find out the extent of the share of the deceased coparcener. That has to 
be worked out with reference to the property which was available at the 
time of death of deceased coparcener whose share devolved as per t he 
proviso and Explanation I to section 6 as in case of intestate succession. 
105. In Hari Chand Roach v. Hem Chand & Ors. , (2010) 14 
SCC 294, a widow inherited the estate of her husband a nd had an 
undivided interest in the property. The subsequent family arrangement 
was entered into whereby she exchanged her share for another property. 
This Court held that though her share was definite, the interest continued 
undivided, and there was a further family arrangement that will have the 
effect of giving her disposition over the property in question, which was 
given to her in the subsequent family arrangement. It is ap parent that 
under an undivided interest, as provided under section 6, the shares are 
definite, but the interest in the property can continue undivided. 
106. In the instant case, the question is different. What has been 
recognised as partition by the legislation under section 6, according ly, 
rights are to be worked out. This Court consistently held in va rious 
decisions mentioned above that when the rights are su bsequently 
conferred, the preliminary decree can be amended, and the benef it of 
law has to be conferred. Hence, we have no hesitation to reje ct the 
effect of statutory fiction of proviso to section 6 as discussed in Prakash 
v. Phulavati  (supra) and Danamma  (supra). If a daughter is alive on 
the date of enforcement of the Amendment Act, she b ecomes a 
coparcener with effect from the date of the Amendment Act, irrespective 
of the date of birth earlier in point of time. 
In Ref. Section 6(5) 
107. The Explanation to Section 6(5) provides that for the purposes 
of Section 6, ‘partition’ means effected by any registered partition deed 
or effected by a decree of a court. It is pertinent  to mention that 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 92

View this page in the original PDF
A
B
C
D
E
F
G
H
226 SUPREME COURT REPORTS [2020] 10 S.C.R. 
Explanation did not find place in the original Amendment Bi ll moved 
before the Rajya Sabha on 20.12.2004. The same was added 
subsequently.  In the initial Note, it was mentioned that partition should 
be properly defined, leaving any arbitrary interpretation , and for all 
practical purposes, the partition should be evinced by a registered public 
document or have been affected by a decree of a court.  In a case 
partition is oral, it should be supported by documentary evidence.  Initially, 
it was proposed to recognise the oral partition also, in case the same is 
supported by contemporaneous documentary evidence.  The intention
was to avoid any sham or bogus transactions in order to defeat the rights 
of coparcener conferred upon daughters by the Amendment Act, 2005. 
In this regard, Note for Cabinet issued by the Legislative Depa rtment, 
Ministry of Law & Justice, Government of India, suggested as under: 
“As regards subsection 5 of the proposed new section 6 , the 
committee vide paragraph has recommended that the t erm 
“partition” should be properly defined, leaving any arb itrary 
interpretation. Partition for all practical purpose s should be 
registered have been effected by a decree of the Court. In case 
where oral partition is recognised, be backed by pr oper 
documentary evidence. It is proposed to accept this
recommendation and make suitable changes in the Bill.” 
108. Learned Solicitor General argued that the requirement of a 
registered partition deed may be interpreted as the only dire ctory and 
not mandatory in nature considering its purposes. H owever, any 
coparcener relying upon any such family arrangements or oral partition 
so arrived must prove the same by leading proper documentary evidence. 
109. The Cabinet note made on 29.7.2005 with respect to ‘partition’ 
is quoted hereunder: 
“5.2 In this connection it may be noted that the amendments made 
in the Hindu Succession Act, 1956 by the States of A ndhra 
Pradesh, Karnataka, Maharashtra and Tamil Nadu and the Kerala 
Joint Hindu Family System (Abolition) Act, 1975 wil l be 
superseded by any subsequent Central enactment contai ning 
provisions to the contrary as the Central legislation will  prevail 
over the State enactments by virtue of operation of doctrine  of 
repugnancy enunciated in article 254 of the Constit ution. 
Innumerable settled transactions and partitions which have taken

Source PDF page 93

View this page in the original PDF
A
B
C
D
E
F
G
H
227 
place hitherto will also become disturbed by the proposed course 
of action.  Further, there could be heartburning from the majority 
of the Hindu population.  In the circumstances, it is proposed that 
we may remove the distinction between married and unmarried 
daughters and at the same time clearly lay down that alienation or 
disposition of property made at any time before the 20 th  day of 
December, 2004, that is, the date on which the Hindu Succession 
(Amendment) Bill, 2004 was introduced in the Rajya Sabha will
not be affected or invalidated. Consequential changes are al so 
suggested in sub-section (5) of proposed section 6.” 
110. Section 6(5) as proposed in the original Bill of 2004 read 
thus: 
“(5) Nothing contained in this section shall apply to a parti tion, 
which has been effected before the commencement of the Hindu
Succession (Amendment) Act, 2004.” 
111. Shri R. Venkataramani, Amicus Curiae , argued that proviso 
to Section 6 is plain and clear.  All dispositions, alienations, testamentary 
depositions, including partition effected prior to 20.12.2004, shall not be 
reopened. There may be a partition of coparcenary property , and they 
would have also acted in pursuance of such partition. There could be 
any number of instances where parties would have entered into family 
settlements or division of properties on the basis of respective shares or 
entitlement to succeed on a partition. In many of those cases, a sim ple 
mutation in revenue entries would have been considered as  sufficient 
for severance of status. The Parliament did not intend to upset all such 
cases, complete transactions, and open them for a n ew order of 
succession. The partition effected merely to avoid any obligation under 
any law, for example, the law relating to taxation or land ceiling legislation, 
are not examples relevant for understanding the objects and scheme of 
Section 6. Therefore, the proviso to sub-Section (1) of Sec tion 6 and 
sub-Section 5 of Section 6 is required to be given such meaning  and 
extent to not dilute the relevance in the forward and future-looking scheme 
of Section 6. The past cases shall not be reopened for this purpose.  He 
has relied upon Shashika Bai (supra). 
112. Shri V .V .S. Rao, learned senior counsel appearing as Amicus 
Curiae , pointed out that under Section 6(5), as proposed in the Bill
mentioned that nothing contained in the amended Section 6 should apply 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 94

View this page in the original PDF
A
B
C
D
E
F
G
H
228 SUPREME COURT REPORTS [2020] 10 S.C.R. 
to a partition, which has been effected before the commencement of the 
Amendment Act. Following deliberation was made by the Committee: 
“Deliberation by the Committee 
35. During its deliberation on the Bill, the Committee pondered on 
the concept of ‘partition’ as referred to in the aforesaid sub section. 
When the Secretary (Legislative Department) was asked as to 
the validity of partition effected through oral means, he re plied 
that it depends upon the facts of the particular case.The Secretary 
stated as below: 
“Sub clause (5) (of the Bill) says that nothing contained i n this 
section shall apply to a partition, which has been effected before 
the commencement of the Act.  So, people may not have a chance 
of effecting registered partition or going to the court and getting it 
registered.” 
36. Further, the Legal Secretary stated as below: 
“…. under the present legal position, it is not necessary that a
partition should be registered.  There is no legal requirement.  There 
can be oral partition also.” 
General observation by the Committee 
37. The Committee recommends that the term ‘partition’ should 
be properly defined leaving no scope for any arbitr ary 
interpretation.  Partition, for all practical purposes sh ould be 
registered or should have been effected by a decree of the court. 
In cases, where oral partition is recognised, it should be  backed 
by proper evidentiary support. 
Subject to above, clause 2 of the Bill is adopted.” 
113. Shri V.V.S. Rao argued that the status of copa rcener 
conferred on daughters cannot affect the partition made orally, and the 
explanation at the end of Section 6 was added after receiving report of 
the Parliamentary Committee. The partition may be effected orally and 
later on memorandum can be created for memory purposes. Suc h a 
document containing memorandum of partition is not required to be 
registered. The parties may settle their rights and enter into subsequent 
transactions based upon such a partition.It is not to unsettle the completed 
property transactions that had already taken place. The explanation should

Source PDF page 95

View this page in the original PDF
A
B
C
D
E
F
G
H
229 
not be understood as invalidating all the documents or oral partition in 
respect of the coparcenary property. In case genuin eness of such 
document is questioned, it has to be proved to the satisfa ction of the 
Court. The saving of transactions would safeguard the genuine p ast 
transaction and prevent unrest in the family system. Similar  proposal 
was made by the Law Commission of India. 
114. The learned counsel, Shri Sridhar Potaraju, argued that ignoring 
statutory fiction of partition under proviso to section 6, which provision 
had been incorporated in 1956 and continued till 2005, is not warranted. 
115. Ms. Anagha S. Desai, learned counsel,argued that in the 
absence of partition deed also, partition could be effected by metes and 
bounds, and if it is proved properly, the daughters will not  open these 
concluded transactions of coparcenary property. 
116. The intendment of amended Section 6 is to ensure t hat 
daughters are not deprived of their rights of obtaining share on becoming 
coparcener and claiming a partition of the coparcenary property by setting 
up the frivolous defence of oral partition and/or r ecorded in the 
unregistered memorandum of partition. The Court has to keep in mind 
the possibility that a plea of oral partition maybe set up, fraudulently or in 
collusion, or based on unregistered memorandum of partition which may 
also be created at any point of time.  Such a partition is not recognized 
under Section 6(5). 
117. How family settlement is effected was considered in Kale v. 
Deputy Director of Consolidation , (1976) 3 SCC 119, thus: 
“10.  In other words to put the binding effect and the essentials of
a family settlement in a concretised form, the matter may be 
reduced into the form of the following propositions: 
“( 1) The family settlement must be a bona fide one so as to 
resolve family disputes and rival claims by a fair and equit able 
division or allotment of properties between the various members 
of the family; 
(2) The said settlement must be voluntary and should not 
be induced by fraud, coercion or undue influence; 
(3) The family arrangement may be even oral in which 
case no registration is necessary; 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 96

View this page in the original PDF
A
B
C
D
E
F
G
H
230 SUPREME COURT REPORTS [2020] 10 S.C.R. 
(4) It is well settled that registration would be necessary 
only if the terms of the family arrangement are reduced i nto 
writing. Here also, a distinction should be made between a document 
containing the terms and recitals of a family arrangement  made 
under the document  and a mere memorandum prepared after 
the family arrangement had already been made either for the 
purpose of the record or for information of the Court for making 
necessary mutation. In such a case the memorandum itself does
not create or extinguish any rights in immovable properti es and 
therefore does not fall within the mischief of Section 17(2) of the 
Registration Act and is, therefore, not compulsorily registrable ;
(5) The members who may be parties to the family 
arrangement must have some antecedent title, claim or interes t 
even a possible claim in the property which is acknowledged by 
the parties to the settlement. Even if one of the parties to the 
settlement has no title but under the arrangement the other party 
relinquishes all its claims or titles in favour of such a person and 
acknowledges him to be the sole owner, then the antecedent title 
must be assumed and the family arrangement will be upheld and 
the courts will find no difficulty in giving assent to the same; 
(6) Even if bona fide disputes, present or possible, which 
may not involve legal claims are settled by a bona fide f amily 
arrangement which is fair and equitable the family arrangement 
is final and binding on the parties to the settlement .” 
15.  In Tek Bahadur Bhujil  v. Debi Singh Bhujil , AIR 
1966 SC 292, 295, it was pointed out by this Court that a family 
arrangement could be arrived at even orally and registration would 
be required only if it was reduced into writing. It was also held 
that a document which was no more than a memorandum of what 
had been agreed to did not require registration . This Court had 
observed thus: 
“Family arrangement as such can be arrived at orally. Its
terms may be recorded in writing as a memorandum of what had 
been agreed upon between the parties. The memorandum need 
not be prepared for the purpose of being used as a document on 
which future title of the parties be founded. It is usually prepared 
as a record of what had been agreed upon so that there be no

Source PDF page 97

View this page in the original PDF
A
B
C
D
E
F
G
H
231 
hazy notions about it in future. It is only when the parties reduce 
the family arrangement in writing with the purpose of using that 
writing as proof of what they had arranged and, whe re the 
arrangement is brought about by the document as such, that the 
document would require registration as it is then that it would be a 
document of title declaring for future what rights in what properties 
the parties possess.”” 
(emphasis supplied) 
It is settled law that family arrangements can be entere d into to 
keep harmony in the family. 
118. Reliance has been placed on Shripad Gajanan Suthankar 
v. Dattaram Kashinath Suthankar, (1974) 2 SCC 156, in which effect 
of adoption by a widow and its effect on partition and other aliena tion 
made before adoption was considered. , the following observations were 
made: 
“11.  Two crucial questions then arise. One-third share out of what? 
Should the gift by Mahadev of what was under the th en 
circumstances his exclusive property be ignored in working out 
the one-third share? Two principles compete in this jurisdi ction 
and judges have struck a fair balance between the two, animated 
by a sense of realism, impelled by desire to do equity and to avoid 
unsettling vested rights and concluded transactions, lest a legal 
fiction should by invading actual facts of life bec ome an 
instrumentality of instability . Law and order are jurisprudential 
twins and this perspective has inarticulately informed judic ial 
pronouncements in this branch of Hindu law. 
18.  We reach the end of the journey of precedents, ignoring as 
inessential other citations. The balance sheet is c lear. The 
propositions that emerge are that: ( i) A widow’s adoption cannot 
be stultified by an anterior partition of the joint family and the 
adopted son can claim a share as if he were begotten and ali ve 
when the adoptive father breathed his last; ( ii ) Nevertheless, the 
factum of partition is not wiped out by the later adoption; ( iii ) Any 
disposition testamentary or inter vivos lawfully made antecedent 
to the adoption is immune to challenge by the adopted son; ( iv )
Lawful  alienation in this context means not necessarily for a family 
necessity but alienation made competently in accordance with
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 98

View this page in the original PDF
A
B
C
D
E
F
G
H
232 SUPREME COURT REPORTS [2020] 10 S.C.R. 
law; ( 
v) A widow’s power of alienation is limited and if — and 
only if — the conditions set by the Hindu Law are fulfilled will the 
alienation bind a subsequently adopted son. So also alienation by 
the Karta of an undivided Hindu family or transfer by a coparcener 
governed by the Benares school ; ( vi ) Once partitioned validly, the 
share of a member of a Mitakshara Hindu family in which his
own issue have no right by birth can be transferred by him at his 
will and such transfers, be they by will, gift or sale, bind the adopted 
son who comes later on the scene. Of course, the position of a
void or voidable transfer by such a sharer may stand on a separate 
footing but we need not investigate it here.” 
 (emphasis supplied) 
119. In ChinthamaniAmmal v. NandgopalGounder,  (2007) 4 
SCC 163, it was observed that a plea of partition was requir ed to be 
substantiated as under law, there is a presumption as to jointness.  Even 
separate possession by co-sharers may not, by itself, lead to a presumption 
of partition. 
120. In Rukhmabai v. Laxminarayan, AIR 1960 SC 335 and 
Mudigowda Gowdappa Sankh & Ors. v. Ramchandra Revgo wda 
Sankh (dead) by his LRs. &Anr. , AIR 1969 SC 1076, it was observed 
that prima facie  a document expressing the intention to divide brings 
about a division in status, however, it is open to prove that the document 
was a sham or a nominal one and was not intended to be acted upon and 
executed for some ulterior purpose. The relations with the estate is the 
determining factor in the statement made in the document. The statutory 
requirement of substituted Section 6(5) is stricter to rule out unjust 
deprivation to the daughter of the coparcener’s right. 
121. In Kalwa Devdattam v. Union of India,  AIR 1964 SC 880, 
it was laid down that when a purported petition is proved to be a sham, 
the effect would be that the family is considered joint. 
122. Earlier, an oral partition was permissible, and at th e same 
time, the burden of proof remained on the person who asserted that
there was a partition. It is also settled law that Cesser of Commonality is 
not conclusive proof of partition, merely by the reason that the members 
are separated in food and residence for the convenience, a nd separate 
residence at different places due to service or otherwise does not show 
separation. Several acts, though not conclusive proof of partition, may

Source PDF page 99

View this page in the original PDF
A
B
C
D
E
F
G
H
233 
lead to that conclusion in conjunction with various other facts. Such as 
separate occupation of portions, division of the income of the joint property, 
definement of shares in the joint property in the revenue of land registration 
records, mutual transactions, as observed in Bhagwani v. Mohan Singh, 
AIR 1925 PC 132, and Digambar Patil v. Devram,  AIR 1995 SC 1728. 
123. There is a general presumption that every Hindu family  is 
presumed to be joint unless the contrary is proved. It is open even if one 
coparcener has separated, to the non-separating members t o remain 
joint and to enjoy as members of a joint family. No express agreement is 
required to remain joint. It may be inferred from how their family business 
was carried on after one coparcener was separated from them. Whether 
there was a separation of one coparcener fromall other members of a 
joint family by a decree of partition, the decree alone should be looked at 
to determine the question was laid down in Palani Ammal (supra) and 
Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 
SC 1124. In Palani Ammal  (supra), it was held: 
“…… It is also now beyond doubt that a member of such a joint
family can separate himself from the other members of the joint
family and is on separation entitled to have his share in the property 
of the joint family ascertained and partitioned off for him, and that 
the remaining coparceners, without any special agreement amongst 
themselves, may continue to be coparceners and to enjo y as 
members of a joint family what remained after such a partition of 
the family property. That the remaining members continued to be 
joint may, if disputed, be inferred from the way in which thei r 
family business was carried on after their previous copar cener 
had separated from them. It is also quite clear that if a joint Hindu 
family separates, the family or any members of it may a gree to 
reunite as a joint Hindu family, but such a reuniting is for obvious 
reasons, which would apply in many cases under the law of the 
Mitakshara, of very rare occurrence, and when it happens it must 
be strictly proved as any other disputed fact is proved….” 
124. In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laid 
down that in case there are two coparcener brothers, it is not necessary 
that there would be a separation inter se  family of the two brothers. 
The family of both the brothers may continue to be joint. 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 100

View this page in the original PDF
A
B
C
D
E
F
G
H
234 SUPREME COURT REPORTS [2020] 10 S.C.R. 
125. The severance of status may take place from the date of
filing of a suit; however, a decree is necessary for working out the results 
of the same, and there may be a change of rights during the pendency of 
the suit for allotting definite shares till final decree is passed. There are 
cases in which partition can be reopened on the ground of fr aud or 
mistake, etc. or on certain other permissible grounds. In ap propriate 
cases, it can be reopened at the instance of minor also. 
126. The protection of rights of daughters as coparc ener is 
envisaged in the substituted Section 6 of the Act of 1956 recognises the 
partition brought about by a decree of a court or effected by a registered 
instrument. The partition so effected before 20.12.2004 is saved. 
127. A special definition of partition has been carved out in the 
explanation. The intendment of the provisions is not to jeopardi se the 
interest of the daughterand to take care of sham or frivolous transaction 
set up in defence unjustly to deprive the daughter of her right as 
coparcener and prevent nullifying the benefit flowing from the provisions 
as substituted. Thestatutory provisions made in section 6(5) change the 
entire complexion as to partition. However, under the law that prevailed 
earlier, an oral partition was recognised. In view of change of provisions 
of section 6, the intendment of legislature is clear and such a plea of oral 
partition is not to be readily accepted. The provisions of section 6(5) are 
required to be interpreted to cast a heavy burden of proof upon proponent 
of oral partition before it is accepted such as separat e occupation of 
portions, appropriation of the income, and consequent entry in the revenue 
records and invariably to be supported by other contemporaneous public 
documents admissible in evidence,may be accepted most reluctantly while 
exercising all safeguards. The intendment of Section 6 of the Act is only 
to accept the genuine partitions that might have taken place under the 
prevailing law, and are not set up as a false defenceand onl y oral ipse 
dixit  is to be rejected outrightly. The object of preventing, setting up of 
false or frivolous defence to set at naught the benefit emanating from 
amended provisions, has to be given full effect. Otherwise, it  would 
become very easy to deprive the daughter of her rightsas a coparcener. 
When such a defence is taken, the Court has to be very extremely careful 
in accepting the same, and only if very cogent, impec cable, and 
contemporaneous documentary evidence in shape of public documents
in support are available, such a plea may be entertained, not otherwise. 
We reiterate that the plea of an oral partition or memorandum of partition,

Source PDF page 101

View this page in the original PDF
A
B
C
D
E
F
G
H
235 
unregisteredone can be manufactured at any point in time, without any 
contemporaneous public document  needs rejection at all costs.  We say 
so for exceptionally good cases where partition is proved conclusively 
and we caution the courts that the finding is not to be base d on the 
preponderanceof probabilities in view of provisions of gender justice 
and the rigor of very heavy burden of proof which meet intendment of 
Explanation to Section 6(5). It has to be remembered that courts cannot 
defeat the object of the beneficial provisions made by the Amendment
Act. The exceptioniscarved out by us as earlier execution of a registered 
document for partition was not necessary, and the Court was ra rely 
approached for the sake of family prestige. It was approached as a last 
resort when parties were not able to settle their family dispute amicably. 
We take note of the fact that even before 1956, partition in other modes 
than envisaged under Section 6(5) had taken place. 
128. The expression used in Explanation to Section 6(5) ‘partition 
effected by a decree of a court’ would mean giving of final e ffect to 
actual partition by passing the final decree, only then it can be said that 
a decree of a court effects partition. A preliminary decree declares share 
but does not effect the actual partition, that is effecte d by passing of a 
final decree; thus, statutory provisions are to be given full effect, whether 
partition is actually carried out as per the intendment of the Act is to be 
found out by Court. Even if partition is supported by a registered document 
it is necessary to prove it had been given effect to and acted upon and is 
not otherwise sham or invalid or carried out by a final decree of a court.In 
case partition, in fact, had been worked out finally in toto as if it would 
have been carried out in the same manner as if affected by a decree of 
a court, it can be recognized, not otherwise.  A partition made by execution 
of deed duly registered under the Registration Act, 1908 , also refers to 
completed event of partition not merely intendment to separate, is to be 
borne in mind while dealing with the special provisions of Section 6(5) 
conferring rights on a daughter.  There is a clear legisla tive departure 
with respect to proof of partition which prevailed earlier; thus, the Court 
may recognise the other mode of partition in exceptional ca ses based 
upon continuous evidence for a long time in the shape of public document 
not mere stray entries then only it would not be in consonancewith the 
spirit of the provisions of Section 6(5) and its Explanation. 
129. Resultantly, we answer the reference as under: 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]

Source PDF page 102

View this page in the original PDF
A
B
C
D
E
F
G
H
236 SUPREME COURT REPORTS [2020] 10 S.C.R. 
(i) The provisions contained in substituted Section 6 of the Hindu 
Succession Act, 1956 confer status of coparcener on the daughter born 
before or after amendment in the same manner as son with same rights 
and liabilities. 
(ii) The rights can be claimed by the daughter born earl ier with 
effect from 09.09.2005 with savings as provided in Section 6(1) as t o 
the disposition or alienation, partition or testamentary disposition which 
had taken place before 20 th  day of December, 2004. 
(iii) Since the right in coparcenary is by birth, it is not necessary 
that father coparcener should be living as on 09.09.2005. 
(iv) The statutory fiction of partition created by proviso to Section 
6 of the Hindu Succession Act, 1956 as originally enacted did not bring 
about the actual partition or disruption of coparcenary. The fiction was 
only for the purpose of ascertaining share of deceased coparcener when 
he was survived by a female heir, of Class-I as specified in the Schedule 
to the Act of 1956 or male relative of such female. The provisions of the 
substituted Section 6 are required to be given full effect. Notwithstanding 
that a preliminary decree has been passed the daughter s are to be 
givenshare in coparcenary equal to that of a sonin pending proceedings 
forfinal decree or in an appeal. 
(v) In view of the rigor of provisions of Explanation to Sec tion 
6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the 
statutory recognised mode of partition effected by a deed o f partition 
duly registered under the provisions of the Registration A ct, 1908 or 
effected by a decree of a court. However, in exceptiona l cases where 
plea of oral partition is supported by public documents and partition is 
finally evinced in the same manner as if it had been affected by a decree 
of a court, it may be accepted. A plea of partition based on oral evidence 
alone cannot be accepted and to be rejected outrightly. 
130. We understand that on this question, suits/appeals are pending 
before different High Courts and subordinate courts. The matters have 
already been delayed due to legal imbroglio caused by conf licting 
decisions.The daughters cannot be deprived of their right of equality 
conferred upon them by Section 6. Hence, we request that the pending 
matters be decided, as far as possible, within six months. 
In view of the aforesaid discussion and answer, we overrule the 
views to the contrary expressed in Prakash v. Phulavati  and

Source PDF page 103

View this page in the original PDF
A
B
C
D
E
F
G
H
237 
Mangammal v. T.B. Raju & Ors.   The opinion expressed in Danamma 
@ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is 
contrary to this decision.Let the matters be placed before appropriate 
Bench for decision on merits. 
Ankit Gyan Reference answered. 
VINEETA SHARMA v. RAKESH SHARMA 
[ARUN MISHRA, J.]