Prakash v Phulavati (2015)

The 2005 Amendment made a daughter a coparcener by birth in her own right, with the same rights and liabilities as a son. The question that followed at once was: which daughters? A daughter whose father died in 1988 — could she reopen the family property and claim an equal share with her brothers?

Differing High Court views brought the issue to the Supreme Court in a batch of matters. This case answered that the amendment is prospective: it benefits only living daughters of living coparceners as on 9 September 2005. It must be read with Vineeta Sharma v Rakesh Sharma (2020), to which the conflict over this holding was later referred.

Phulavati sued in 1992 in the court of the Additional Civil Judge (Senior Division), Belgaum, for partition and separate possession of a 1/7th share in the suit properties. They had come to her father, Yeshwanth Chandrakant Upadhye, by inheritance from his adoptive mother. Her father died on 18 February 1988.

While the suit was pending she amended the plaint to claim a share as a coparcener under the Amendment Act 39 of 2005. The trial court decreed the suit only in part — a 1/28th share in certain properties on the basis of the notional partition on her father's death, no share in some items, and 1/7th in others.

On her appeal the Karnataka High Court held that the amendment applied to pending proceedings even if prospective, and gave her a 1/7th share in the properties in Schedules A to D and in some other items. The defendants, her relatives, appealed to the Supreme Court. Several connected matters raising the same legal question were heard with it.

The Court put it in one line: "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."

Within that:

1. Can a daughter claim as a coparcener under the substituted s. 6 when her father, the coparcener, died before 9 September 2005?
2. Does the Explanation to s. 6(5) — defining "partition" as one by registered deed or by decree of a court — reopen the statutory notional partition that took place on a coparcener's death under the old s. 6?

For the appellants (the defendants): the father was not a coparcener on the date the Amendment came into force, so the plaintiff was not the "daughter of a coparcener". On his death in 1988 a notional partition took place and the heirs' shares crystallised into vested rights, which a later amendment could not take away without express words or necessary intendment. The Explanation was a rule of evidence, not a substantive provision.

For the respondents (the plaintiff): the amendment is social legislation, following the Law Commission's 174th Report, to remove discrimination against women, and should be read as retrospective. A daughter acquires rights by birth; any partition before 20 December 2004 not made by registered deed or decree must be ignored.

Civil Appeal No. 7217 of 2013 was allowed, the High Court's order set aside, and the matter remanded to the High Court for a fresh decision in accordance with law. The connected matters were to be listed separately.

The amendment is prospective

The Court began with the text: "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) speaks of death after the amendment. And "An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective". There was neither.

Social legislation is no exception

"Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature." The legislature had expressly made the Amendment applicable on and from its commencement and only if the death of the coparcener was after the Amendment.

Notional partition is not reopened

"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 proviso to s. 6(1) and s. 6(5) exclude transactions before 20 December 2004, the date the Bill was introduced; their object is to prevent fake transactions stripping the property, not to make the main provision retrospective. "Explanation cannot permit reopening of partitions which were valid when effected." And: "Notional partition, by its very nature, is not covered either under proviso or under sub-section 5 or under the Explanation."

The holding

"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." Partitions and alienations before 20 December 2004 under the law then applicable remain unaffected; any partition effected after that date is governed by the Explanation.

On the date of birth, the Court disagreed with the Bombay High Court's view in Vaishali Satish Ganorkar that the daughter must be born after the amendment: "All that is required is that daughter should be alive and her father should also be alive on the date of the amendment."

Earlier decisions

The decisions relied on by the respondents — that a change in law may apply to pending proceedings — were accepted as correct but held not to apply: the question was whether this particular amendment applied at all. The Karnataka High Court's own Division Bench decision in M. Prithviraj v Neelamma, which took the prospective view and was binding on the Bench below, had not been referred to in the impugned judgment. Sheela Devi v Lal Chand and G. Sekar v Geetha were noticed as consistent.

Part II — a separate direction

Counsel had also raised gender discrimination against Muslim women — arbitrary divorce and a second marriage during the first. Though not directly involved in the appeal, the Court directed that a PIL be separately registered and placed before the appropriate Bench, with notice to the Attorney General and the National Legal Services Authority.

The substituted s. 6 of the Hindu Succession Act, as enacted by the 2005 Amendment, is prospective. Its rights are available to living daughters of living coparceners as on 9 September 2005, whenever the daughters were born. Where the coparcener died before that date, succession opened under the unamended s. 6 and the statutory notional partition on his death is not affected by the requirement in the Explanation to s. 6(5) that a partition be registered or by decree.

• Direct question: Is s. 6 of the Hindu Succession Act, as amended in 2005, retrospective? Discuss with case law. Set out the text ("on and from the commencement"), Prakash v Phulavati's "living daughters of living coparceners" holding, and then the later reference in Vineeta Sharma.
• Problem question: a daughter whose father died in 1995 claims an equal coparcenary share in 2010. Apply Prakash: on its reasoning she cannot, and the notional partition on her father's death stands; then show how the answer must be tested against Vineeta Sharma.
• Sub-point: distinguish the proviso to s. 6(1) and s. 6(5) (protecting transactions before 20 December 2004) from the question of who becomes a coparcener — the Court held the proviso does not make the daughter a coparcener before 2005.
• Statutory interpretation angle: the case is a clear authority that even social legislation is not retrospective without express words or necessary intendment.