VINEETA SHARMA versus RAKESH SHARMA & ORS.

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 nature. 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.] 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 deletion, 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 context, 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 survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares which would have been allotted to his heirs 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 given 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 partition. Thus, there is a sea-change in substituted section 6. In case of death of coparcener after 9.9.2005, succession is not by survivorship 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. Section 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 liabilities are both from the commencement of the Amendment Act.

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 partition 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 person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression 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 given 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 necessary 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 Hindu 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 date 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 made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara 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 coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3). VINEETA SHARMA v. RAKESH SHARMA [ARUN MISHRA, J.] 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 enlargement 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 principle 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 has 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 made 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 are treated as coparceners. No one is made a coparcener by devolution 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 coparcener and not otherwise.

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 coparcenary, and there was no coparcener alive from whom the daughter would succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrue. 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 the 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, contained 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. It 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 coparcener, 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, which was prevalent earlier that there could be the adoption of a male child and not that of females. There is no dispute with the proposition 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 the 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.]

71. It was argued that in case Parliament intended that the incident of birth prior to 2005 would be sufficient to confer the status of a coparcener, Parliament would need not have enacted the proviso 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 place 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 the share of surviving coparceners uncertain till actual partition 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 birth; 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 conferral of rights, prospectively. There is no doubt about it that advancement brings about the enlargement of the size of the coparcenary and disabling 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 coparcener father. 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 substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective.[Shyam Kumar v. Ram Kumar, (2001) 8 SCC 24, paras 22 to 27] In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained. 18. The contention of the respondents that the amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent VINEETA SHARMA v. RAKESH SHARMA [ARUN MISHRA, J.] of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20-12- 2004. Notional partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation. 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 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 (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 view 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.” 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 to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor 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 made 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 to 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 partition 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 against married daughters. In the said case, Mangammal got married 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.] 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 coparcenary 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 coparcener.” Here, the implication of such wordings mean both the coparcener as well as daughter should be alive to reap the benefits of this 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 para 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 in 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 ancestral 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 ancestral 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 not the 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 living 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 Bench in Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, 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 coparcener 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.] 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 emanate 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 because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005. 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 family property. In view of our aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since, Savadi died leaving behind two sons, two daughters and a widow, both the appellants would be entitled to 1/5th share each in the said property. The plaintiff (Respondent 1) is son of Arun Kumar (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 manner, Respondent 1-plaintiff would be entitled to 1/25th share in the property.” 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 into force, leaving behind two daughters, son and a widow. Daughters were given equal rights by this Court. We agree with certain observations 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 partition. 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 proposition 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 partition. 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 the statute. A coparcener enjoys the right to seek severance of status. Under 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 wife 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.] 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 consent of other coparceners. The Court in the abovesaid decision made general observation but was not concerned with the aspect when the partition was completed, the effect of intervening events and effect of statutory 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 enlargement of the right by operation of law achieved thereunder. Shares of coparceners 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 coparcenary 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 in 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 would disrupt coparcenary. The answer is in the negative. In Man Singh (supra), it was observed that the wife has a right to claim an equal share 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, neither 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 Page 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 effect 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 down 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.] 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. However, 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 affect a severance; it had no validity if its terms were not executed 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 individual 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 disrupted merely by ascertainment of the shares of the coparcener. In order to constitute 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 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 passed. 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 the 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 equated 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 denied 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 placed 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.] question, however, is as to when a partition can be said to have 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 properties 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 the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares 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 are 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 cannot 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 settlements, 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. 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 Karnataka 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 the final decree proceedings. It was held that the discrimination practiced against the unmarried daughter was removed. Unmarried daughters had equal rights in the coparcenary property. The amendment’s effect was that the unmarried daughter could claim an equal share in the property 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 Royand 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 changed scenario.” “14. We may add that by virtue of the preliminary decree passed by the trial court, which was confirmed by the lower appellate 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 fully 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 decree VINEETA SHARMA v. RAKESH SHARMA [ARUN MISHRA, J.] 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 to 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 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 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 ratio 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 preliminary decree for partition before stipulated date i.e., 20th 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: “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 partition and (two) by a decree of the Court. In the present case, admittedly, 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 decree is passed, the events and supervening circumstances occur 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 one 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 as 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.] 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, particularly in a partition suit due to deaths of some of the parties. … a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed 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 was 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 assessed 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 one 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 that once a preliminary decree has been passed, it is not capable 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 any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be 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, cannot 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 partition was considered, and it was held that a preliminary decree merely 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-owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several co-owners/ 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.] 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 stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until 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 division 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 application for passing a final decree is only an application in a pending suit, 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 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 thereafter 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 up VINEETA SHARMA v. RAKESH SHARMA [ARUN MISHRA, J.] for consideration with respect to the determination of widow’s interest in the coparcenary property. Court held that a widow’s share 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 allotted to the deceased. What is therefore required to be assumed is that a partition had, in fact, taken place between the deceased and his coparceners 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 things, 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 “shall be deemed to be” the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, 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 heirs 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 share 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 heirs must be ascertained on the basis that they had separated from 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 which 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 otherwise, 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.] 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 specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided 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 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. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed 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 share 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 proviso 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 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 been 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) of 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 partition 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.] 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 that 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 that exists in Hindu law between a severance in status so far as the separating member is concerned and a de facto division into 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 separately from the others without being subject to the obligations which 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. Once 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 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 estate 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 severance 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 placed 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 with 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 been 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 coparcener 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.] 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 interest 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 Cashew 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 created, was held in MancheriPuthusseri Ahmed (supra) thus: “8. xxx In the first place the section creates a legal fiction. Therefore, the express words of the section have to be given their full meaning and play in order to find out whether the legal fiction contemplated by this express provision of the statute has arisen or not in the facts of the case. Rule of construction 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 deprived 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 coparcenary property by a testament. 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 necessary 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 the 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 and 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 apparent 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, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject 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 becomes 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.] Explanation did not find place in the original Amendment Bill 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 Department, 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 term “partition” should be properly defined, leaving any arbitrary interpretation. Partition for all practical purposes should be registered have been effected by a decree of the Court. In case where oral partition is recognised, be backed by proper 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 directory and not mandatory in nature considering its purposes. However, 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 Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu and the Kerala Joint Hindu Family System (Abolition) Act, 1975 will be superseded by any subsequent Central enactment containing 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 Constitution. Innumerable settled transactions and partitions which have taken 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 20th 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 also 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 partition, 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 simple 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 new 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 Section 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.] 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 replied 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 in 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 arbitrary interpretation. Partition, for all practical purposes should 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 coparcener 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. Such 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 not be understood as invalidating all the documents or oral partition in respect of the coparcenary property. In case genuineness of such document is questioned, it has to be proved to the satisfaction of the Court. The saving of transactions would safeguard the genuine past 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 that 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 recorded 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 equitable 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.] (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into 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 properties 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 interest 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 family 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 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, where 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 entered 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 alienation 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 then circumstances his exclusive property be ignored in working out the one-third share? Two principles compete in this jurisdiction 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 become an instrumentality of instability. Law and order are jurisprudential twins and this perspective has inarticulately informed judicial 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 clear. 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 alive 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.] 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 required 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 Revgowda 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 the 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, and separate residence at different places due to service or otherwise does not show separation. Several acts, though not conclusive proof of partition, may 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 to 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 enjoy 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 their family business was carried on after their previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree 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.] 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 fraud or mistake, etc. or on certain other permissible grounds. In appropriate cases, it can be reopened at the instance of minor also. 126. The protection of rights of daughters as coparcener 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 jeopardise 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 separate 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 only 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, impeccable, 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, 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 based 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 rarely 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 effect 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 effected 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 legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases 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.] (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 earlier with effect from 09.09.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th 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 daughters 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 Section 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 of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional 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 conflicting 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 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.]