In the Supreme Court of India Decided on February 1, 2018 Bench: Dr. A.K. Sikri and Ashok Bhushan Citation:(2018) 3 SCC 343 Appellant: Danamma Alias Suman Surpur and Another Respondent: Amar and Others
The Hindu Succession Act, 1956 that codified intestate succession among Hindus, Buddhists, Jains and Sikhs suffered from the problem of being patriarchal in nature because of being derived from the Mitakshara Hindu Law. The Hindu Succession (Amendment) Act, 2005 aimed at overcoming this problem of prejudice against women. The Amendment made female heirs in the joint families coparceners by birth having same rights and liabilities as the sons. The case of Danamma v. Amar answers the question i.e what category of daughters will be entitled to the right of coparcenery under the amendment act of 2005, the answer to which has been discussed in the following case summary.[i]
Facts of the case
In the present case, One G, propositus of a joint Hindu family, died in the year 2001 leaving behind his wife, two daughters and two sons R and V. After the death of G, the son of R filed a civil suit for partition and separate possession with respect to the suit schedule properties stating the same to be the joint family properties. In that suit, though the plaintiff admitted that the two sons and the widow of G were in joint possession of the said properties as coparceners, he denied that the two daughters of G were coparceners in the said joint family on the ground that they were born prior to the enactment of the Hindu Succession Act, 1956 (hereinafter referred to as “the HS Act”). It was also pleaded that the daughters were married and at the time of their marriage they had received gold and money and had, hence, relinquished their share in the joint family properties. However, the daughters contested the suit by claiming that they were also entitled to share in the joint family properties. The trial court decreed the suit holding that the daughters were not entitled to any share as they were born prior to the enactment of the HS Act and, therefore, could not be considered as coparceners. The trial court also rejected the alternate contention that the daughters had acquired share in the said properties after the amendment in the HS Act vide Amendment Act, 2005. The said view of the trial court was upheld suit. Hence, by the High Court confirming the decree dated 9-8-2007 passed in the suit, the present appeals by the daughters. Allowing the appeals, the case lies before the Supreme Court.
1. Whether, the appellants, daughters of Gurulingappa Savadi, could be denied their share on the ground that they were born prior to the enactment of the Act and therefore, cannot be treated as coparceners?
2. Whether, with the passing of the Hindu Succession (Amendment) Act, 2005, the appellants would become coparcener “by birth” in their “own right in the same manner as the son” and are, therefore, entitled to equal share as that of a son?
1. Section 6 Hindu Succession (Amendment) Act, 2005 Devolution of interest in a coparcenary property– This amendment now confers upon the daughter of the coparcener the status of coparecener in her own right in the same manner as the son and gives the same rights and liabilities in the coparcener properties as she would have had if she had been a son.
The Supreme Court held that:
1. The Full Bench of the Bombay High Court in in Badrinarayan Shankar Bhandari, 2014 SCC OnLine Bom 908, held that clause (a) of sub-section (1) of Section 6 of the HS Act, 1956 would be prospective in operation whereas clauses (b) and (c) and other parts of sub-section (1) as well as sub-section (2) would be retroactive in operation. It held that amended Section 6 applied to daughters born prior to 17-6-1956 (the date on which the Hindu Succession Act came into force) or thereafter (between 17-6-1956 and 8-9-2005) provided they are alive on 9-9-2005 i.e. on the date when Amendment Act, 2005 came into force.
2. The said controversy now stands settled with the authoritative pronouncement by the Supreme Court in Phulavati case, (2016) 2 SCC 36, which has approved the view taken by the aforesaid High Courts.
3. 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.
4. In the present case, no doubt, the suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the HS Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellant daughters 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.
5. There is no dispute that the property which was the subject-matter of the partition suit belongs to joint family and G was propositus of the said joint family property. In the said partition suit, share will devolve upon the appellant daughters as well. Since G died leaving behind two sons R and V, two daughters and a widow, both the appellant-daughters would be entitled to 1/5th share each in the said property. The plaintiff (Respondent 1) is son of R. Since R will have 1/5th share, the same would be divided into five shares on partition i.e. between R, his wife, his two daughters and son/plaintiff. In this manner, the plaintiff would be entitled to 1/25th share in the property.
The rule of equality long was at a pause in case of providing the daughters of coparceners the status of coparceners in family property which this landmark judgement has removed.
In light of the amended act, the daughter of a coparcener should by birth become a coparcener as is in the case of the son in her own right.
This judgement by the learned bench of Justices A.K. Sikri and Ashok Bhushan was another step towards breaking away from the shackles of this patrilineal society.
[i] Yashaswini Gautam, Daughter as coparcener: Danmma v. Amar
Siya Jindal, BBA LLB, VIPS Delhi