Danamma Vs. Respondent: Amar and Ors. - (Supreme Court) (01 Feb 2018)

Rights of daughters in coparcenary property are not lost merely because a preliminary decree has been passed in a partition suit

MANU/SC/0064/2018

Family

The Appellants herein contested the suit by claiming that, they were also entitled to share in the joint family properties, being daughters of Gurulingappa Savadi and for the reason that, he had died after coming into force the Act of 1950. The trial Court, while decreeing the suit held that, the Appellants were not entitled to any share as they were born prior to the enactment of the Act and, therefore, could not be considered as coparceners. The trial Court also rejected the alternate contention that, the Appellants had acquired share in the said properties, in any case, after the amendment in the Act vide Hindu Succession (Amendment) Act, 2005 (amendment Act of 2005). This view of the trial Court has been upheld by the High Court in the impugned judgment thereby confirming the decree passed in the suit filed for partition.

The question of law which arises for consideration in present appeal is as to 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. Alternate question is as to whether, with the passing of 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.

The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The Section stipulates that, a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005.

Section 6 of Act, 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 recognizes 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 death of a coparcener. The first stage of a coparcenary is its creation, and as is well recognized. 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-section (1)(a) and (b).

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 and 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. The Present Court in Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr. 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.

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 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. Plaintiff (Respondent No. 1) is son of Arun Kumar (Defendant No. 1). Since, Arun Kumar will have 1/5th share, it would be divided into five shares on partition i.e. between Defendant No. 1 Arun Kumar, his wife Defendant No. 2, his two daughters Defendant Nos. 3 and 4 and son/Plaintiff (Respondent No. 1). The Plaintiff/Respondent No. 1 would be entitled to 1/25th share in the property. The appeals are allowed.

Relevant : Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr. MANU/SC/1216/2011: (2011) 9 SCC 788

Tags : PARTITION SHARE COPARCENERS