Request for judgements
K PALANIVEL
(Querist) 21 November 2015
This query is : Resolved
Sir,
Recently, Supreme court has given a judgment regarding Daughters cannot inherit ancestral property if father died before 2005. I shall be grateful if you could kindly arrange to provide this judgement as i could not find out this from website including indiankanoon. please arrange to privde the same.
R.K Nanda
(Expert) 21 November 2015
search prakash vs. phulavati on google and u will get whole judgement of SC.
Anirudh
(Expert) 21 November 2015
You can get a very good .pdf version at the link http://judis.nic.in/supremecourt/imgs1.aspx?filename=43087
In any case the following is the decision.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7217 OF 2013
PRAKASH & ORS. …APPELLANTS
VERSUS
PHULAVATI & ORS. ...RESPONDENTS
WITH
SLP (C) NOS.21814 OF 2008, 18744 OF 2010, 28702-28703 OF 2010, 28471 OF
2011, 4217-4218 OF 2012, 1299-1300 OF 2013, 17577-17578 OF 2013, 19816 OF
2014, 5619 OF 2015, 3805 OF 2008, 9390 OF 2015, 5680 OF 2015, 35209 OF 2011
AND 15557-15558 OF 2015 AND SLP. (C) ….15560 OF 2015
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. The only issue which has been raised in this batch of matters is
whether Hindu Succession (Amendment) Act, 2005 (‘the Amendment Act’) will
have retrospective effect. In the impugned judgment (reported in AIR 2011
Kar. 78 Phulavati vs. Prakash), plea of restrospectivity has been upheld in
favour of the respondents by which the appellants are aggrieved.
2. Connected matters have been entertained in this Court mainly on
account of the said legal issue particularly when there are said to be
differing views of High Courts which makes it necessary that the issue is
decided by this Court. It is not necessary to go into the facts of the
individual case or the correctness of the findings recorded by the courts
below on various other issues. It was made clear during the hearing that
after deciding the legal issue, all other aspects may be decided separately
in the light of the judgment of this Court.
3. Only for the purpose of deciding the above legal question, we refer
to the brief facts in Civil Appeal No.7217 of 2013. The respondent-
plaintiff, Phulavati filed suit being O.S. No.12/1992 before Additional
Civil Judge (Senior Division), Belgaum for partition and separate
possession to the extent of 1/7th share in the suit properties in Schedule
‘A’ to ‘G’ except property bearing CTS No.3241 mentioned in Schedule ‘A’ in
which the share sought was 1/28th.
4. According to the case of the plaintiff, the suit properties were
acquired by her late father Yeshwanth Chandrakant Upadhye by inheritance
from his adoptive mother Smt. Sunanda Bai. After the death of her father
on 18th February, 1988, she acquired the share in the property as claimed.
5. The suit was contested mainly with the plea that the plaintiff could
claim share only in the self acquired property of her deceased father and
not in the entire property. During pendency of the suit, the plaintiff
amended the plaint so as to claim share as per the Amended Act 39 of 2005.
The trial court partly decreed the suit to the extent of 1/28th share in
certain properties on the basis of notional partition on the death of her
father and in some of the items of property, no share was given, while
1/7th share was given in some other properties as mentioned in detail in
the judgment of the trial court.
6. The respondent-plaintiff preferred first appeal before the High Court
with the grievance that the plaintiff became coparcener under the Amendment
Act 39 of 2005 and was entitled to inherit the coparcenary property equal
to her brothers, apart from contentions based on individual claims in
certain items of property.
7. The stand of the defendants-appellants was that the plaintiff could
not claim any share in self acquired property of the members of the joint
family and that the claim of the plaintiff had to be dealt with only under
Section 6 of the Hindu Succession Act, 1956 as it stood prior to the
amendment by Act 39 of 2005. The defendants relied upon a division bench
judgment of the High Court in M. Prithviraj vs. Neelamma N.[1] laying down
that if father of a plaintiff had died prior to commencement of Act 39 of
2005, the amended provision could not apply. It was only the law
applicable on the date of opening of succession which was to apply.
8. The High Court framed following question for consideration on this
aspect :
“(ii) Whether the plaintiff is entitled to a share in terms of Section 6 of
the Hindu Succession Act as amended by Act No.39 of 2005?”
9. It was held that the amendment was applicable to pending proceedings
even if it is taken to be prospective. The High Court held that :
“61. The law in this regard is too well settled in terms of the judgment
of the Supreme Court in the case of G. Sekar Vs. Geetha and others reported
in (2009) 6 SCC 99. Any development of law inevitably applies to a pending
proceeding and in fact it is not even to be taken as a retrospective
applicability of the law but only the law as it stands on the day being
made applicable.
62. The suit, no doubt, might have been instituted in the year 1992
and even assuming that it was four years after the demise of Yeshwanth
Chandrakant Upadhye, the position so far as the parties are concerned who
are all members of the joint family, in terms of Section 6 as amended by
Act No.39 of 2005 is that a female member is, by a fiction of law created
in terms of the amended provision also becomes a coparcener and has a right
in joint family property by birth. They are also sharer members of the
coparcenary property at par with all male members. When a partition takes
place, coparceners succeed to the property in equal measure. Such is the
legal position in terms of Section 6 of the Hindu Succession Act as amended
by Act No.39 of 2005 and as declared by the Supreme Court in the case of
G.S. Sekar (supra). The only exception carved out to the applicability and
operation of Section 6 of the Hindu Succession Act as amended by Act No.39
of 2005 being a situation or a factual position where there was a partition
which had been effected by a registered partition deed or by a decree of
the court which has attained finality prior to 20.12.2004 in terms of sub-
section (5) to Section 6.
63. In the present case such being not the factual position, the
exception available under sub-section (5) to Section 6 cannot be called in
aid by the defendants and therefore, the liability in terms of the amended
provisions operates. It is not necessary for us to multiply the judgment
by going into details or discussing other judgments referred to and relied
upon by the learned counsel for the parties at the Bar as one judgment of
the Supreme Court if clinches the issue on the point, it is good enough for
us, as a binding authority to apply that law and dispose of the case as
declared in that judgment.”
10. The respondent-plaintiff was accordingly held entitled to 1/7th share
in all items in Schedules ‘A’ to ‘D’. In respect of Schedule ‘F’, first
item was given up by the plaintiff. Out of the other two items, she was
held entitled to 1/7th share in Item No.2 and 1/7th share in 40% ownership
in Item No.3.
11. The defendants-appellants have questioned the judgment and order of
the High Court with the contention that the amended provision of Section 6
has no application in the present case. Father of the plaintiff died on
18th February, 1988and was thus, not a coparcener on the date of
commencement of the Amendment Act. The plaintiff could not claim to be
“the daughter of a coparcener” at the time of commencement of the Act which
was the necessary condition for claiming the benefit. On the death of
plaintiff’s father on 18th February, 1988, notional partition took place
and shares of the heirs were crystallized which created vested right in the
parties. Such vested right could not have been taken away by a subsequent
amendment in absence of express provision or necessary intendment to that
effect. Moreover,
the amending provision itself was expressly applicable “on and from” the
commencement of the Amendment Act, i.e., 9th September, 2005. The High
Court held that even if the provision was prospective, it could certainly
apply to pending proceedings as has been held in some decisions of this
Court. It is pointed out that the amendment could apply to pending
proceedings, only if the amendment was applicable at all.
12. Learned counsel for the respondents would support the view taken by
the High Court.
13. We have heard learned counsel for the parties in the present appeal
as well as in connected matters for the rival view points which will be
noticed hereinafter.
14. The contention raised on behalf of the appellants and other learned
counsel supporting the said view is that the 2005 Amendment was not
applicable to the claim of a daughter when her father who was a coparcener
in the joint hindu family died prior to 9th September, 2005. This
submission is based on the plain language of the statute and the
established principle that in absence of express provision or implied
intention to the contrary, an amendment dealing with a substantive right is
prospective and does not affect the vested rights[2]. If such a coparcener
had died prior to the commencement of the Amendment Act, succession opens
out on the date of the death as per the prevailing provision of the
succession law and the rights of the heirs get crystalised even if
partition by metes and bounds does not take place. It was pointed out that
apparently conflicting provision in Explanation to Section 6(5) and the
said Section was required to be given harmonious construction with the main
provision. The explanation could not be read in conflict with the main
provision. Main provision of Section 6(1) confers right of coparcener on a
daughter only from commencement of the Act and not for any period prior to
that. The proviso to Section 6(1) also applies only where the main
provision of Section 6(5) applies. Since Section 6(5) applies to partition
effected after 20th December, 2004, the said proviso and the Explanation
also applies only when Section 6(1) applies. It is also submitted that the
Explanation was merely a rule of evidence and not a substantive provision
determining the rights of the parties. Date of a daughter becoming
coparcener is on and from the commencement of the Act. Partitions effected
before 20th December, 2004 remain unaffected as expressly provided. The
Explanation defines partition, as partition made by a registered deed or
effected by decree of a court. Its effect is not to wipe out a legal and
valid partition prior to the said date, but to place burden of proof of
genuineness of such partition on the party alleging it. In any case,
statutory notional partition remains valid and effective.
15. On the contrary, stand on behalf of the respondents is that the
amendment being piece of social legislation to remove discrimination
against women in the light of 174th Report of the Law Commission, the
amendment should be read as being retrospective as interpreted by the High
Court in the impugned judgment. A daughter acquired right by birth and even
if her father, who was a coparcener, had died prior to coming into force of
the amendment, the shares of the parties were required to be redefined. It
was submitted that any partition which may have taken place even prior to
20th December, 2004 was liable to be ignored unless it was by a registered
deed of partition or by a decree of the Court. If no registered partition
had taken place, share of the daughter will stand enhanced by virtue of the
amendment.
16. We have given due consideration to the rival submissions. We may
refer to the provision of Section 6 of the Hindu Succession Act as it stood
prior to the 2005 Amendment and as amended :
|Section 6 of the Hindu |Section 6 on and from the |
|Succession Act |commencement of the Hindu |
| |Succession (Amendment) Act, 2005|
|6. Devolution of interest |6. Devolution of interest in |
|of coparcenary property. |coparcenary property.-(1) On and|
|When a male Hindu dies |from the commencement of the |
|after the commencement of |Hindu Succession (Amendment) |
|this Act, having at the |Act, 2005, in a Joint Hindu |
|time of his death an |family governed by the |
|interest in a Mitakshara |Mitakshara law, the daughter of |
|coparcenary property, his |a coparcener shall,- |
|interest in the property |(a) by birth become a coparcener|
|shall devolve by |in her own right in the same |
|survivorship upon the |manner as the son; |
|surviving members of the |(b) have the same rights in the |
|coparcenary and not in |coparcenary property as she |
|accordance with this Act: |would have had if she had been a|
|PROVIDED that, if the |son; |
|deceased had left him |(c) be subject to the same |
|surviving a female relative|liabilities in respect of the |
|specified in class I of the|said coparcenary property as |
|Schedule or a male relative|that of a son, |
|specified in that class who|and any reference to a Hindu |
|claims through such female |Mitakshara coparcener shall be |
|relative, the interest of |deemed to include a reference to|
|the deceased in the |a daughter of a coparcener: |
|Mitakshara coparcenary |Provided that nothing contained |
|property shall devolve by |in this sub-section shall affect|
|testamentary or intestate |or invalidate any disposition or|
|succession, as the case may|alienation including any |
|be, under this Act and not |partition or testamentary |
|by survivorship. |disposition of property which |
|Explanation I: For the |had taken place before the 20th |
|purposes of this section, |day of December, 2004. |
|the interest of a Hindu |(2) Any property to which a |
|Mitakshara coparcener shall|female Hindu becomes entitled by|
|be deemed to be the share |virtue of sub-section -(1) shall|
|in the property that would |be held by her with the |
|have been allotted to him |incidents of coparcenary |
|if a partition of the |ownership and shall be regarded,|
|property had taken place |notwithstanding anything |
|immediately before his |contained in this Act, or any |
|death, irrespective of |other law for the time being in |
|whether he was entitled to |force, as property capable of |
|claim partition or not. |being disposed of by her by |
|Explanation 2: Nothing |testamentary disposition. |
|contained in the proviso to|(3) Where a Hindu dies after the|
|this section shall be |commencement of the Hindu |
|construed as enabling a |Succession (Amendment) Act, |
|person who has separated |2005, his interest in the |
|himself from the |property of a Joint Hindu family|
|coparcenary before the |governed by the Mitakshara law, |
|death of the deceased or |shall devolve by testamentary or|
|any of his heirs to claim |intestate succession, as the |
|on intestacy a share in the|case may be, under this Act and |
|interest referred to |not by survivorship, and the |
|therein. 7. Devolution of |coparcenary property shall be |
|interest in the property of|deemed to have been divided as |
|a tarwad, |if a partition had taken place |
| |and,- |
| |(a) the daughter is allotted the|
| |same share as is allotted to a |
| |son; |
| |(b) the share of the |
| |pre-deceased son or a |
| |pre-deceased daughter, as they |
| |would have got had they been |
| |alive at the time of partition, |
| |shall be allotted to the |
| |surviving child of such |
| |predeceased son or of such |
| |pre-deceased daughter; and |
| |(c) the share of the |
| |pre-deceased child of a |
| |pre-deceased son or of a |
| |pre-deceased daughter, as such |
| |child would have got had he or |
| |she been alive at the time of |
| |the partition, shall be allotted|
| |to the child of such |
| |pre-deceased child of the |
| |pre-deceased son or a |
| |pre-deceased daughter, as the |
| |case may be. |
| |Explanation.- For the purposes |
| |of this sub-section, the |
| |interest of a Hindu Mitakshara |
| |coparcener shall be deemed to be|
| |the share in the property that |
| |would have been allotted to him |
| |if a partition of the property |
| |had taken place immediately |
| |before his death, irrespective |
| |of whether he was entitled to |
| |claim partition or not. |
| |(4) After the commencement of |
| |the Hindu Succession (Amendment)|
| |Act, 2005, no court shall |
| |recognise any right to proceed |
| |against a son, grandson or |
| |great-grandson for the recovery |
| |of any debt due from his father,|
| |grandfather or great-grandfather|
| |solely on the ground of the |
| |pious obligation under the Hindu|
| |law, of such son, grandson or |
| |great-grandson to discharge any |
| |such debt: |
| |Provided that in the case of any|
| |debt contracted before the |
| |commencement of the Hindu |
| |Succession (Amendment) Act, |
| |2005, nothing contained in this |
| |sub-section shall affect- |
| |(a) the right of any creditor to|
| |proceed against the son, |
| |grandson or great-grandson, as |
| |the case may be; or |
| |(b) any alienation made in |
| |respect of or in satisfaction |
| |of, any such debt, and any such |
| |right or alienation shall be |
| |enforceable under the rule of |
| |pious obligation in the same |
| |manner and to the same extent as|
| |it would have been enforceable |
| |as if the Hindu Succession |
| |(Amendment) Act, 2005 had not |
| |been enacted. |
| |Explanation.-For the purposes of|
| |clause (a), the expression |
| |"son", "grandson" or |
| |"great-grandson" shall be deemed|
| |to refer to the son, grandson or|
| |great-grandson, as the case may |
| |be, who was born or adopted |
| |prior to the commencement of the|
| |Hindu Succession (Amendment) |
| |Act, 2005. |
| |(5) Nothing contained in this |
| |section shall apply to a |
| |partition, which has been |
| |effected before the 20th day of |
| |December, 2004. |
| |Explanation.- For the purposes |
| |of this section "partition" |
| |means any partition made by |
| |execution of a deed of partition|
| |duly registered under the |
| |Registration Act, 1908 (16 of |
| |1908) or partition effected by a|
| |decree of a court.' |
17. The text of the amendment itself clearly provides that the right
conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement
of Hindu Succession (Amendment) Act, 2005’. Section 6(3) talks of death
after the amendment for its applicability. In view of plain language of
the statute, there is no scope for a different interpretation than the one
suggested by the text of the amendment. An amendment of a substantive
provision is always prospective unless either expressly or by necessary
intendment it is retrospective[3]. In the present case, there is neither
any express provision for giving retrospective effect to the amended
provision nor necessary intendment to that effect. Requirement of
partition being registered can have no application to statutory notional
partition on opening of succession as per unamended provision, having
regard to nature of such partition which is by operation of law. The
intent and effect of the Amendment will be considered a little later. On
this finding, the view of the High Court cannot be sustained.
18. Contention of the respondents that the Amendment should be read as
retrospective being a piece of social legislation cannot be accepted. Even
a social legislation cannot be given retrospective effect unless so
provided for or so intended by the legislature. In the present case, the
legislature has expressly made the Amendment applicable on and from its
commencement and only if death of the coparcener in question is after the
Amendment. Thus, no other interpretation is possible in view of express
language of the statute. The proviso keeping dispositions or alienations
or partitions prior to 20th December, 2004 unaffected can also not lead to
the inference that the daughter could be a coparcener prior to the
commencement of the Act. The proviso only means that the transactions not
covered thereby will not affect the extent of coparcenary property which
may be available when the main provision is applicable. Similarly,
Explanation has to be read harmoniously with the substantive provision of
Section 6(5) by being limited to a transaction of partition effected after
20th December, 2004. Notional partition, by its very nature, is not
covered either under proviso or under sub-section 5 or under the
Explanation.
19. Interpretation of a provision depends on the text and the context[4].
Normal rule is to read the words of a statute in ordinary sense. In case
of ambiguity, rational meaning has to be given[5]. In case of apparent
conflict, harmonious meaning to advance the object and intention of
legislature has to be given[6].
20. There have been number of occasions when a proviso or an explanation
came up for interpretation. Depending on the text, context and the
purpose, different rules of interpretation have been applied[7].
21. Normal rule is that a proviso excepts something out of the enactment
which would otherwise be within the purview of the enactment but if the
text, context or purpose so require a different rule may apply. Similarly,
an explanation is to explain the meaning of words of the section but if the
language or purpose so require, the explanation can be so interpreted.
Rules of interpretation of statutes are useful servants but difficult
masters[8]. Object of interpretation is to discover the intention of
legislature.
22. In this background, we find that the proviso to Section 6(1) and sub-
section (5) of Section 6 clearly intend to exclude the transactions
referred to therein which may have taken place prior to 20th December, 2004
on which date the Bill was introduced. Explanation cannot permit reopening
of partitions which were valid when effected. Object of giving finality to
transactions prior to 20th December, 2004 is not to make the main provision
retrospective in any manner. The object is that by fake transactions
available property at the introduction of the Bill is not taken away and
remains available as and when right conferred by the statute becomes
available and is to be enforced. Main provision of the Amendment in
Section 6(1) and (3) is not in any manner intended to be affected but
strengthened in this way. Settled principles governing such transactions
relied upon by the appellants are not intended to be done away with for
period prior to 20th December, 2004. In no case statutory notional
partition even after 20th December, 2004 could be covered by the
Explanation or the proviso in question.
23. Accordingly, we hold that the rights under the amendment are
applicable to living daughters of living coparceners as on 9th September,
2005 irrespective of when such daughters are born. Disposition or
alienation including partitions which may have taken place before 20th
December, 2004 as per law applicable prior to the said date will remain
unaffected. Any transaction of partition effected thereafter will be
governed by the Explanation.
24. On above interpretation, Civil Appeal No.7217 of 2013 is allowed.
The order of the High Court is set aside. The matter is remanded to the
High Court for a fresh decision in accordance with law. All other matters
may be listed for hearing separately for consideration on 24th November,
2015.
25. The view which we have taken above is consistent with and not in
conflict with any of the earlier decisions. We may now refer to the
decisions cited by the parties. Main decisions cited by the respondents
are: Prema vs. Nanje Gowda[9], Ganduri Koteshwaramma vs. Chakiri
Yanadi[10], V.K. Surendra vs. V.K. Thimmaiah[11], Ram Sarup vs. Munshi[12],
Dayawati vs. Inderjit[13], Amarjit Kaur vs. Pritam Singh[14], Lakshmi
Narayan Guin vs. Niranjan Modak[15], S. Sai Reddy vs. S. Narayana Reddy[16]
and State of Maharashtra vs. Narayan Rao[17]. Many of these decisions deal
with situations where change in law is held to be applicable to pending
proceedings having regard to intention of legislature in a particular law.
There is no dispute with the propositions laid down in the said decisions.
Question is of application of the said principle in the light of a
particular amending law. The decisions relied upon do not apply to the
present case to support the stand of the respondents.
25.1. In Ram Sarup case (supra), the question for consideration was of
amendment to the Punjab Pre-emption Act, 1930 by Punjab Act 10 of 1960
restricting the pre-emption right. Section 31 inserted by way of
amendment prohibited passing of a decree which was inconsistent with the
amended provisions. It was held that the amendment was retrospective and
had retrospective operation in view of language employed in the said
provision.
25.2. In Dayawati case (supra), Section 6 of the Punjab Relief of
Indebtedness Act, 1956 expressly gave retrospective effect and made the
statute applicable to all pending suits on the commencement of the Act.
The Act sought to reduce the rate of interest in certain transactions to
give relief against indebtedness to certain specified persons.
25.3. In Lakshmi Narayan Guin case (supra), the question was of
applicability of Section 13 of the West Bengal Premises Tenancy Act, 1956
which expressly provided that no order could be passed by the Court
contrary to the scheme of the new law.
25.4. In Amarjit Kaur case (supra), Section 3 of the Punjab
Pre-emption (Repeal) Act, 1973 was considered which expressly prohibited
the Court from passing any pre-emption decree after the commencement of the
Act.
25.5. There is also no conflict with the principle laid down in V.K.
Surendra case (supra) which deals with a presumption about the nature of a
joint family property and burden of proof being on the person claiming such
property to be separate. The said decision only lays down a rule of
evidence.
25.6. In S. Sai Reddy case (supra), the question for consideration was
whether even after a preliminary decree is passed determining the shares in
partition, such shares could be varied on account of intervening events at
the time of passing of the final decree. In the said case, partition suit
was filed by a son against his father in which a preliminary decree was
passed determining share of the parties. Before final decree could be
passed, there was an amendment in the Hindu Succession Act (vide A.P.
Amendment Act, 1986) allowing share to the unmarried daughters.
Accordingly, the unmarried daughters applied to the court for their shares
which plea was upheld. The said judgment does not deal with the issue
involved in the present matter. It was not a case where the coparcener
whose daughter claimed right was not alive on the date of the commencement
of the Act nor a case where shares of the parties stood already crystalised
by operation of law to which the amending law had no application. Same is
the position in Prema and Ganduri cases (supra).
25.7. In Narayan Rao case (supra), it was observed that even after notional
partition, the joint family continues. The proposition laid down in this
judgment is also not helpful in deciding the question involved herein. The
text of the Amendment itself shows that the right conferred by the
Amendment is on a ‘daughter of a coparcener’ who is member of a coparcenary
and alive on commencement of the Act.
25.8. We also do not find any relevance of decisions in State of Rajasthan
vs. Mangilal Pindwal[18] and West U.P. Sugar Mills Asson. vs. State of
U.P.[19] or other similar decisions for deciding the issue involved herein.
The said decisions deal with the effect of repeal of a provision and not
the issue of restrospectivity with which the Court is concerned in the
present case.
26. We now come to the decisions relied upon by the appellants. In M.
Prithviraj case (supra), the view taken appears to be consistent with what
has been said above. It appears that this was a binding precedent before
the Bench of the High Court which passed the impugned order but does not
appear to have been referred to in the impugned judgment. Judgments of
this Court in Sheela Devi vs. Lal Chand[20] and G. Sekar vs. Geetha[21]
and the judgment of Madras High Court in Bagirathi vs. S. Manivanan[22]
have been relied upon therein. In Sheela Devi case (supra), this Court
observed:
21. The Act indisputably would prevail over the old Hindu Law. We may
notice that the Parliament, with a view to confer right upon the female
heirs, even in relation to the joint family property, enacted Hindu
Succession Act, 2005. Such a provision was enacted as far back in 1987 by
the State of Andhra Pradesh. The succession having opened in 1989,
evidently, the provisions of Amendment Act, 2005 would have no application.
Sub-section (1) of Section 6 of the Act governs the law relating to
succession on the death of a coparcener in the event the heirs are only
male descendants. But, the proviso appended to Sub-section (1) of Section
6 of the Act creates an exception. First son of Babu Lal, viz., Lal Chand,
was, thus, a coparcener. Section 6 is exception to the general rules. It
was, therefore, obligatory on the part of the respondents-plaintiffs to
show that apart from Lal Chand, Sohan Lal will also derive the benefit
thereof. So far as the Second son, Sohan Lal is concerned, no evidence has
been brought on records to show that he was born prior to coming into force
of Hindu Succession Act, 1956.”
Full Bench judgment of Bombay High Court in Badrinarayan Shankar Bhandari
Vs. Ompraskash Shankar Bhandari[23] also appears to be consistent with the
view taken hereinabove.
26.1. In Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum[24], Shyama
Devi vs. Manju Shukla[25] and Anar Devi vs. Parmeshwari Devi[26] cases
this Court interpreted the Explanation 1 to Section 6 (prior to 2005
Amendment) of the Hindu Succession Act. It was held that the deeming
provision referring to partition of the property immediately before the
death of the coparcener was to be given due and full effect in view of
settled principle of interpretation of a provision incorporating a deeming
fiction. In Shyama Devi and Anar Devi cases, same view was followed.
26.2. In Vaishali Satish Ganorkar vs. Satish Keshaorao Ganorkar[27], 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
view has been taken in the later larger Bench judgment. We are unable to
find any reason to hold that birth of the daughter after the amendment was
a necessary condition for its applicability. All that is required is that
daughter should be alive and her father should also be alive on the date of
the amendment.
26.3. Kale vs. Dy. Director of Consolidation[28] and Digambar Adhar Patil
vs. Devram Girdhar Patil[29] have been cited to submit that the family
settlement was not required to be registered. Santosh Hazari vs.
Purushottam Tiwari[30] lays down that the Appellate Court must deal with
reasons of the trial court while reversing its findings.
26.4 Kannaiyan vs. The Assistant Collector of Central Excise[31], C.I.T.
Gujarat vs. Keshavlal Lallubhai Patel[32], Umayal Achi vs. Lakshmi Achi[33]
and Shivappa Laxman vs. Yellawa Shivappa Shivagannavar[34] have been
cited to canvass that partition was recognition of pre-existing rights and
did not create new rights.
26.5 This would normally have ended our order with the operative part
being in para 24 which disposes of Civil Appeal No.7217 of 2013 and directs
listing of other matters for being dealt with separately. However, one
more aspect relating to gender discrimination against muslim women which
came up for consideration needs to be gone into as Part II of this order.
Part II
27. An important issue of gender discrimination which though not directly
involved in this appeal, has been raised by some of the learned counsel for
the parties which concerns rights to muslim women. Discussions on gender
discrimination led to this issue also. It was pointed out that inspite of
guarantee of the Constitution, muslim women are subjected to
discrimination. There is no safeguard against arbitrary divorce and second
marriage by her husband during currency of the first marriage, resulting in
denial of dignity and security to her. Although the issue was raised
before this Court in Ahmedabad Women Action Group(AWAG) vs. Union of
India[35], this Court did not go into the merits of the discrimination
with the observation that the issue involved state policy to be dealt with
by the legislature[36]. It was observed that challenge to the Muslim Women
(Protection of Rights on Divorce) Act, 1986 was pending before the
Constitution Bench and there was no reason to multiply proceedings on such
an issue.
28. It is pointed out that the matter needs consideration by this Court
as the issue relates not merely to a policy matter but to fundamental
rights of women under Articles 14, 15 and 21 and international conventions
and covenants. One of the reasons for the court having not gone into the
matter was pendency of an issue before the Constitution Bench which has
since been decided by this Court in Danial Latifi vs. Union of India[37].
The Constitution Bench did not address the said issue but the Court held
that Article 21 included right to live with dignity[38] which supports the
plea that a muslim woman could invoke fundamental rights in such matters.
In Javed vs. State of Haryana[39], a Bench of three judges observed that
practice of polygamy is injurious to public morals and can be superseded
by the State just as practice of ‘sati’ [40]. It was further observed that
conduct rules providing for monogamy irrespective of religion are valid and
could not be struck down on the ground of violation of personal law of
muslims[41]. In John Vallamattom vs. UOI[42], it was observed that Section
118 of Indian Succession Act, 1925 restricting right of christians to make
Will for charitable purpose was without any rational basis, was
discriminatory against christians and violated Article 14[43]. Laws dealing
with marriage and succession are not part of religion[44]. Law has to
change with time[45]. International covenants and treaties could be
referred to examine validity and reasonableness of a provision[46].
29. In Charu Khurana vs. UOI[47], this Court considered the issue of
gender discrimination in the matter of denial of membership of “Cine
Costume Make-up Artists and Hair Dressers Association” in film industry.
It was held that such discrimination violates basic constitutional rights.
30. It was thus submitted that this aspect of the matter may be gone into
by separately registering the matter as Public Interest Litigation (PIL).
We are of the view that the suggestion needs consideration in view of
earlier decisions of this Court. The issue has also been highlighted in
recent Articles appearing in the press on this subject[48].
31. For this purpose, a PIL be separately registered and put up before
the appropriate Bench as per orders of Hon’ble the Chief Justice of India.
32. Notice be issued to learned Attorney General and National Legal
Services Authority, New Delhi returnable on 23rd November, 2015. We give
liberty to learned counsel already appearing in this matter to assist the
Court on this aspect of the matter, if they wish to volunteer, for either
view point.
………………………………………………..J.
[ ANIL R. DAVE ]
………………………………………………..J.
[ ADARSH KUMAR GOEL ]
NEW DELHI
OCTOBER 16, 2015
ITEM NO.1A COURT NO.3 SECTION IVA
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).7217/2013
PRAKASH & ORS. Appellant(s)
VERSUS
PHULAVATI & ORS. Respondent(s)
WITH
SLP(C)No.21814/2008
SLP(C)No.18744/2010
SLP(C)Nos.28702-28703/2010
SLP(C)No.28471/2011
SLP(C)Nos.4217-4218/2012
SLP(C)Nos.1299-1300/2013
SLP(C)Nos.17577-17578/2013
SLP(C)No.19816/2014
SLP(C)No.5619/2015
SLP(C)No.3805/2008
SLP(C)No.9390/2015
SLP(C)No.5680/2015
SLP(C)No.35209/2011
SLP(C)Nos.15557-15558/2015
S.L.P.(C)No......../2015 (CC No.15560/2015)
Date : 16/10/2015 These appeals were called on for pronouncement
of judgment today.
For Appellant(s) Mr. Anil C. Nishant,Adv.
Mr. S.N. Bhat,Adv.
Mr. A.K. Joseph,Adv.
Mrs. Sudha Gupta,Adv.
Mrs. S. Usha Reddy,Adv.
Mr. Nanda Kishore,Adv.
Mr. P.R.Kovilan,Adv.
Ms. Geetha Kovilan,Adv.
Mr. Shanth Kumar V. Mahale,Adv.
Mr. Amith J.,Adv.
Mr. Rajesh Mahale,Adv.
Mr. Raghavendra S. Srivatsa,Adv.
Mr. Charudatta Mohindrakar,Adv.
Mr. A. Selvin Raja,Adv.
Mr. Aniruddha P. Mayee,Adv.
Mr. P.R. Ramasesh,Adv.
Mr. Ankolekar Gurudatta,Adv.
Mr. K.N. Rai,Adv.
Mrs. Vaijayanthi Girish,Adv.
Mr. G. Balaji,Adv.
For Respondent(s)
for M/s. S.M. Jadhav & Company,Advs.
Mr. Rauf Rahim,Adv.
Mr. Sumeet Lall,Adv.
Mr. Balaji Srinivasan,Adv.
Mr. Mayank Kshirsagar,Adv.
Ms. Srishti Govil,Adv.
Ms. Vaishnavi Subrahmanyam,Adv.
Mr. Tushar Singh,Adv.
Mr. Virendra Sharma,Adv.
Mr. Manjunath Meled,Adv.
Mr. Vijaylaxmi,Adv.
Mr. Anil Kumar,Adv.
Mr. Somiran Sharma,Adv.
Mr. B. Subrahmanya Prasad,Adv.
Mr. Anirudh Sanganeria,Adv.
Mr. Chinmay Deshpande,Adv.
Mr. Amjid MaQBOOL,aDV.
Mr. Shashibhushan P. Adgaonkar,Adv.
Mr. T. Mahipal,Adv.
Mr. G.N. Reddy,Adv.
Mr. Rajinder Mathur,Adv.
Mr. Shankar Divate,Adv.
Mrs. K. Sarada Devi,Adv.
Ms. Garima Prashad,Adv.
Hon'ble Mr. Justice Adarsh Kumar Goel pronounced the reportable judgment
of the Bench comprising Hon'ble Mr. Justice Anil R. Dave and His Lordship.
Civil appeal No.7217/2013 is allowed, all the pending applications stand
disposed of and the connected Special Leave Petitions may be listed for
hearing separately for consideration on 24th November, 2015, in terms of
signed Reportable Judgment.
All the pending applications stand disposed of.
(Anita Malhotra) (Sneh Bala Mehra)
Court Master Assistant Registrar
(Signed Reportable judgment is placed on the file)
-----------------------
[1] ILR 2009 Kar. 3612
[2] Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27
[3] Shyam Sunder vs. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27
[4] RBI vs. Peerless (1987) 1 SCC 424, para 33
[5] Kehar Singh vs. State (1988) 3 SCC 609
[6] District Mining Officer vs. Tata Iron and Steel Co. (2001) 7 SCC 358
[7] S. Sundaram Pillai vs. R. Pattabiraman (1985) 1 SCC 591
[8] Keshavji Ravji & Co. vs. CIT (1990) 2 SCC 231
[9] (2011) 6 SCC 462
[10] (2011) 9 SCC 788
[11] (2013) 10 SCC 211, para 18
[12] (1963) 3 SCR 858
[13] (1966) 3 SCR 275
[14] (1974) 2 SCC 363
[15] (1985) 1 SCC 270
[16] (1991) 3 SCC 647
[17] (1985) 2 SCC 321, paras 8 to 10
[18] (1996) 5 SCC 60
[19] (2002) 2 SCC 645
[20] (2006) 8 SCC 581
[21] (2009) 6 SCC 99, para 30
[22] AIR 2005 Mad 250 (DB)
[23] AIR 2014, BOM 151. paras 40-57
[24] (1978) 3 SCC 383, paras 6,11 and 13
[25] (1994) 6 SCC 342, para 7
[26] (2006) 8 SCC 656, paras 10,11
[27] AIR 2012, BOM 101, paras 13 to 37
[28] (1976) 3 SCC 119, para 9
[29] (1995) Supp. 2 SCC 428 at page 430
[30] (2001) 3 SCC 179, para 15.
[31] 1969 (2) MLJ 277,
[32] (1965) 2 SCR 100
[33] AIR 1945 FC 25 at 31(d)
[34] AIR 1954 BOM 47, para 4
[35] (1997) 3 SCC 573
[36] This Court referred to the observations of Sahai, J. in Sarla Mudgal
vs. Union of India (1995) 3 SCC 635 that a climate was required to be built
for a uniform civil code. Reference was also made to observations in Madhu
Kishwar vs. State of Bihar (1996 (5) SCC 125 to the effect that the court
could at best advise and focus attention to the problem instead of playing
an activist role.
[37] (2001) 7 SCC 740
[38] “ Para 33……. This Court in Olga Tellis v. Bombay Municipal Corpn.
[1985(3) SCC 545] and Maneka Gandhi v. Union of India [1978 (1) SCC 248]
held that the concept of “right to life and personal liberty” guaranteed
under Article 21 of the Constitution would include the “right to live with
dignity”. Before the Act, a Muslim woman who was divorced by her husband
was granted a right to maintenance from her husband under the provisions of
Section 125 CrPC until she may remarry and such a right, if deprived, would
not be reasonable, just and fair. Thus the provisions of the Act depriving
the divorced Muslim women of such a right to maintenance from her husband
and providing for her maintenance to be paid by the former husband only for
the period of iddat and thereafter to make her run from pillar to post in
search of her relatives one after the other and ultimately to knock at the
doors of the Wakf Board does not appear to be reasonable and fair
substitute of the provisions of Section 125 CrPC. Such deprivation of the
divorced Muslim women of their right to maintenance from their former
husbands under the beneficial provisions of the Code of Criminal Procedure
which are otherwise available to all other women in India cannot be stated
to have been effected by a reasonable, right, just and fair law and, if
these provisions are less beneficial than the provisions of Chapter IX of
the Code of Criminal Procedure, a divorced Muslim woman has obviously been
unreasonably discriminated and got out of the protection of the provisions
of the general law as indicated under the Code which are available to
Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any
other community. The provisions prima facie, therefore, appear to be
violative of Article 14 of the Constitution mandating equality and equal
protection of law to all persons otherwise similarly circumstanced and also
violative of Article 15 of the Constitution which prohibits any
discrimination on the ground of religion as the Act would obviously apply
to Muslim divorced women only and solely on the ground of their belonging
to the Muslim religion.”
[39] (2003) 8 SCC 369
[40] Para 46
[41] Paras 54 to 59
[42] (2003) 6 SCC 611
[43] Paras 28 and 29
[44] Para 44
[45] Paras 33 to 36
[46] Paras 30 to 32
[47] (2015) 1 SCC 192
[48] “The Tribune” dated 24.09.2015 “Muslim Women’s quest for equality”
by Vandana Shukla and “Sunday Express Magazine” dated 04.10.2015 “In Her
Court” by Dipti Nagpaul D’Souza.
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