Section 6 of the Hindu Succession Act, 1956 was amended in the year 2005 by the
Hindu Succession (Amendment) Act, 2005. Through this amendment, daughters were
given the coparcenary rights and liabilities as of that of a son from birth.
In Prakash & Ors. v. Phulavati & Ors.
, it was held that Section 6 amended by the
Hindu Succession (Amendment) Act, 2005 is not retrospective and is only
applicable when both the father and his daughter were alive when the act came
into force. As per the provision contained in the explanation to section 6(5)
that the partition requirement is to be a registered one or by a decree of a
court will affect a statutory notional partition on the opening of the
succession. The application of section 6 was held to be prospective.
In Danamma @ Suman Surpur and Anr. v. Amar and Ors., the division bench held
that section 6 gives full right to daughter coparcener and can claim partition
in the property like any other coparcener. The court gave her this right even
though her father died in 2001, and the act was amended in 2005. (Having
These two judgments were contrary to each other. This led the Supreme Court to
decide the given case. Whether the 2005 Amendment Act has a prospective or
Citation: (2020) 9 SCC 1
Court: The Supreme Court of India
Diary number as per SC record: 32601 of 2018
Decided on: 11th August 2020
Name of the Petitioner: Vineeta Sharma
Name of the Defendant: Rakesh Sharma and Ors.
Amicus Curiae: Shri R. Venkataramani and Shri V.V.S Rao
Bench: Justice Arun Mishra, Justice S. Abdul Nazeer, Justice M.R. Shah
Section 6 Of The Hindu Succession (Amendment) Act, 2005
6. Devolution of interest in coparcenary property.
Arguments Of Amicus Curiae
Shri R. Venkataramani
- 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:
- by birth become a coparcener in her own right in the same manner as the
- have the same rights in the coparcenary property as she would have had if
she had been a son;
- be subject to the same liabilities in respect of the said coparcenary
property as that of a son, and any reference to a Hindu Mitakshara coparcener
shall be deemed to include a reference to a daughter of a coparcener: Provided
that nothing contained in this sub- section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition of
property which had taken place before the 20th day of December, 2004.
- 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.
- Where a Hindu dies after the commencement of the Hindu Succession
(Amendment) Act, 2005 , his interest in the property of a Joint Hindu family
governed by the Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship, and the
coparcenary property shall be deemed to have been divided as if a partition had
taken place and:
- the daughter is allotted the same share as is allotted to a son;
- 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
- 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 predeceased daughter, as the
case may be.
- 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:
- the right of any creditor to proceed against the son, grandson or great-
grandson, as the case may be; or
- 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
- Nothing contained in this section shall apply to a partition, which has
been effected before the 20th day of December, 2004.
In his opinion, there was no conflict between the two judgments. As both the
judgments declare the provisions of section 6 as prospective. The daughter is
been treated as a coparcener due to the new amendment act and not because of her
being born before the amendment.
If the father or any other coparcener is dead before the amendment act of 2005,
then their interest would have merged with the surviving coparcenary. If there
is no coparcenary alive from whom the daughter can succeed. She can only succeed
only in the interest of the living coparcenary on the date of the enforcement of
the act. Past transactions canít be re-opened after the amendment. Therefore,
only those daughters would be considered as coparceners whose father is alive on
the date of the amendment.
The scheme of section 6 is prospective, and no retrospective effect was intended
to be given. It should be interpreted in the manner given as not to dissolve its
Shri V.V.S. Rao
As per the amendment, the declaration is that the daughter by birth becomes a
coparcener. Therefore, the questions of prospectivity or retrospectivity do not
arise. The essential thing being that there should be a living daughter of a
living coparcener to inherit the property under the amended act.
Analyzing sections 6(1)(b) and (c), there is the usage of "shall have the same
rights" which is in the future perfect tense and indicates an action that has to
be completed in the future. If the parliament wanted it to have a retrospective
effect, then the construction of the sentence would
have been different. The parliament wanted the daughters to have the same
coparcenary rights as the son but didnít want to give the amendment a
retrospective effect. This is given in section 6(1)(a) as it deals with the
inclusion of daughter," on and from the commencement of amendment Act 2005,
w.e.f. 9.9.2005". Section 6(1) controlling clause (a), clause (b), and clause
(c). Therefore, the daughter is declared as a coparcener from 9.9.2005 and would
have the rights in the property as a coparcener from 9.9.2005.
Section 6(5), as given in the Bill, proposes that nothing contained in section 6
should apply to a partition, which was affected or has taken place before the
commencement of the Act.
Articles And Sections Referred
- Article 14 of the Indian Constitution - Equality before law
- Article 15 of the Indian Constitution - Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth
- Article 254 of the Indian Constitution - Inconsistency between laws made
by Parliament and laws made by the Legislatures of States
- Article 136 of the Limitation Act, 1963 - For the execution of any
decree (other than a decree granting a mandatory injunction) or order of any
- Article 137 of the Limitation Act, 1963 - Any other application for
which no period of limitation is provided elsewhere in this Division.
- Section 6 of the Hindu Succession (Amendment) Act, 2005 - Devolution of
interest in coparcenary property
- Section 3(2) of the Hindu Succession Act, 1956 - Words importing the
masculine gender shall not be taken to include females.
- Section 235 of the Hindu Succession Act, 1956 - Citation before grant of
administration to legatee other than universal or residuary.
- Section 2(2) of the Code of Civil Procedure, 1908 - Decree
The fiction of notional partition is meant to ascertain the undivided interest
of a deceased coparcener. Therefore, it has to be done immediately before the
death of the person and it would devolve upon his heirs.
Its purpose was not to bring about the actual partition. It had no effect on the
severance of interest of other surviving coparceners or family members who are
entitled to a portion following actual partition. Thus, legal fiction exists
only to fulfill a certain purpose.
Sections 6(1) and 6(5) of the Act include a proviso that saves any partition
established prior to December 20, 2004. The explanatory language to section
6(5), on the other hand, recognizes only divisions made by the execution of a
partition instrument duly registered under the Registration Act or through a
Question: when is a partition complete or affected?
The 'partitioní as mentioned in section 6 is a complete partition. When a
partition suit is filed in court, first a preliminary decree or decrees are
passed and then the final decree is passed specifying the shares of the members.
The partition suit is determined in parts as the procedure progresses, so a full
and complete partition occurs when the court issues a final decree. If a party
to the partition suit dies during the proceeding, his or her share is allocated
to the surviving parties in the final decree. Even if the matter is still
pending in court and a new law is passed, any party who benefits from the change
can petition the court to take notice of it.
The court held that section 6 of The Hindu Succession (Amendment) Act, 2005
confers the status of a coparcener on a daughter in the same manner as the son
with all the same liabilities and rights. Irrelevant of her being born before or
after the amendment. The daughter can claim her right at any time and since she
has the right by birth, as her father being alive on 9.9.2005 is not important.
The date of the father's death was irrelevant because survivorship was just a
means of succession, not a method of establishing coparcenary rights. As a
result, the bench concluded that the Court made an error in its ruling in
Phulavati because it did not analyse how a coparcenary is formed in that case.
A "statutory fiction" (partition) created by Section 6 does not mean actual
partition. Such partition was made in the present case just to ascertain the
shares after the death of the father. In cases where a preliminary decree has
been passed and the case is still pending for a final decree or through appeal,
the daughters are to be given share in coparcenary equal to that of a son.
Under Section 6(5) of the Act, A plea of oral partition cannot be accepted as a
recognized mode of partition effected by a partition deed duly registered under
the provisions of the Registration Act, 1908 or by a court decree. Exception:
when public papers support an oral partition petition.
- Prakash v. Phulavati
- Mangammal v. T.B. Raju
The opinion of Danamma @ Suman Surpur and Anr. v. Amar and Ors.
, being partly
overruled. (To the extent it was contrary to this judgment).
In my opinion, it was a correct decision to give a retrospective effect to the
Act and to give the daughter the right to claim the share in the partition. As
the Act declares that daughters are also co-parceners from birth and share the
same powers and liabilities as a son. Therefore, when claiming a share in the
property, it should not matter whether the father was alive or not when the Act
came into force.
As we are progressing toward a better and equal future for all, daughters should
be on an equal footing with the son.