Danamma @ Suman Surpur & Anr. vs Amar and Ors.

HELD : 1.1 Amendment to Section 6, Hindu Succession Act, 1956 vide Amendment Act, 2005 clinches the issue, beyond any pale of doubt, in favour of the appellants. This amendment now confers upon the daughter of the coparcener as well the status of coparcener in her own right in the same manner as the son and gives same rights and liabilities in the coparcenery properties as she would have had if it had been son. [Para 20][564-B]

1.2 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, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treatise, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.” [Para 23][569-DG] Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36 – relied on.

Sadashiv Sakharam Patil v. Chandrakant Gopal Desale 2011 (5) Bom CR 726; Badrinarayan Shankar

Bhandari v. Omprakash Shankar Bhandari AIR 2014 Bom 151; Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik AIR 2008 Ori 133; Sugalabai v. Gundappa A. Maradi ILR 2007 Kar 4790; Rakhi Gupta v. Zahoor Ahmad 197 (2013) DLT 154 – approved.

Vaishali Satish Gonarkar v. Satish Keshorao Gonarkar AIR 2012 Bom 110 – not approved.

“The Ideal Element in Law” by Roscoe Pound –

referred to.

1.3 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 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 obviously its creation, 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-s (1)(a) and (b). 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. [Paras 24, 26][569-H; 570-A-C; 571-A]

State Bank of India v. Ghamandi Ram AIR 1969 SC 1330 : [1969] 3 SCR 51 – referred to.

1.4 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. The rights of daughters in coparcenary property as per the amended S.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. On facts, there is no dispute that the property which was the subject matter of partition suit belongs to joint family and ‘GS’ was propositus of the said joint family property. In view of the aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since, ‘GS’ died leaving behind two sons, two daughters and a widow, both the daughters, i.e. the appellants would be entitled to 1/5th share each in the said property. Plaintiff (respondent No.1) is son of ‘AK’ (defendant No.1). Since, ‘AK’ will have 1/5th share, it would be divided into five shares on partition i.e. between defendant No.1 ‘AK’, his wife defendant No.2, his two daughters defendant Nos.3 and 4 and son/plaintiff (respondent No.1). In this manner, the plaintiff/respondent No.1 would be entitled to 1/25th share in the property. [Paras 27, 28][571-B-F]

Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr. (2011) 9 SCC 788 : [2011] 12 SCR 968 – relied on.

Anar Devi & Ors. v. Parmeshwari Devi & Ors.

(2006) 8 SCC 656 : [2006] 6 Suppl. SCR 370 – referred to.

Mulla, Principles of Hindu Law 17 th Edn., Vol. II, p. 250 – referred to.