Daughter’s Right In Coparcenary – V

The Hindu Succession Act, 1956 (“the Act”)
was amended by the Hindu Succession (Amendment) Act, 2005 (“the Amending Act”)
with effect from 9^th September 2005, whereby the law recognised the
right of a daughter in coparcenary. Unfortunately, the amended provisions of
section 6 of the Act has caused a lot of confusion and resulted in litigation
all over the country. My articles in BCAJ published in January 2009, May 2010,
November 2011 and February 2016 have made some attempt to analyse and explain
the legal position as per the decided case law.

When my last article was published in BCAJ
in February 2016, it was safe to assume that in view of the then latest Supreme
Court decision in the case of Prakash and others vs. Phulavati and others (now
reported in (2016) 2 SCC 36) the law was finally settled and there would be no
need for any further discussion on the subject. However, Supreme Court is
supreme. Its latest decision in case of Danamma vs. Amar (not yet
reported) has not only prompted me to write this fifth article on the subject,
but may also open floodgates of new controversy for further litigation on the
issue all over the country.

Sub-section (1) of section 6 of the Amendment
Act inter alia provides that on and from the commencement of the
Amendment Act, the daughter of a coparcener shall, by birth become a coparcener
in her own right in the same manner as the son; have the same rights in the
coparcenary property as she would have had if she had been a son; and be
subject to the same liabilities in respect of the said coparcenary property as
that of a son.

The aforesaid recent decision seems to be
contrary to the earlier decisions of the Supreme Court. With a view to understand
the issue, it may be necessary to consider the earlier case law although some
of it was already a part of my earlier articles.

The Supreme Court in the case of Sheela
Devi vs. Lal Chand [(2006), 8 SCC 581] has clearly observed that the
Amendment Act would have no application in a case where succession was opened
in 1989, when the father had passed away. In the case of Eramma vs.
Veerupana (AIR 1966 SC 1880), the Supreme Court has held that the
succession is considered to have opened on death of a person. Following that
principle in the case of Sheela Devi cited above, the father passed away in
1989 and it was held that the Amendment Act which came into force in September
2005 would have no application.

The same issue was considered by the Madras
High Court in the case of Bhagirathi vs. S. Manvanan. (AIR 2008 Madras 250)
and held that ‘a careful reading of section 6(1) read with section 6(3) of the
Hindu Succession Amendment Act clearly indicates that a daughter can be
considered as a coparcener only if, her father was a coparcener at the time of
coming into force of the amended provision.’

Para 14 of the said judgement reads as
under:-

“In the present case, admittedly the father
of the present petitioners had expired in 1975. Section 6(1) of the Act is
prospective in the sense that a daughter is being treated as coparcener on and
from the commencement of the Hindu Succession (Amendment) Act, 2005. If such
provision is read along with S. 6(3), it becomes clear that if a Hindu dies
after commencement of the Hindu Succession (Amendment) Act, 2005, his interest
in the property shall devolve not by survivorship but by intestate succession
as contemplated in the Act.”

In the said case, the Hon’ble Court relied
upon its earlier decision in the case of Sundarambal vs. Deivanaayagam
(1991(2) MLJ 199). While interpreting almost a similar provision, as
contained in section 29-A of the Hindu Succession Act, as introduced by the
Tamil Nadu Amendment Act 1 of 1990 where the Learned Single Judge had observed
as under:-

“Under sub-clause (1), the daughter of a
coparcener shall become a coparcener in her own right by birth, thus enabling
all daughters of the coparcener who were born even prior to 25^th
March, 1989 to become coparceners. In other words, if a male Hindu has a
daughter born on any date prior to 25^th March, 1989, she would also
be a coparcener with him in the joint family when the amendment came into
force. But the necessary requisite is, the male Hindu should have been alive on
the date of the coming into force of the Amended Act. The Section only makes a
daughter a coparcener and not a sister. If a male Hindu had died before 25^th
March, 1989 leaving coparcenary property, then his daughter cannot claim to be
a coparcener in the same manner as a son, as, on the date on which the Act came
into force, her father was not alive. She had the status only as a sister vis-a-vis
her brother and not a daughter on the date of the coming into force of the
Amendment Act …”.

The Madras High Court had occasion to
consider the similar issue in the case of Valliammal vs. Muniyappan (2008
(4) CTC 773) where the Court has observed as under:-

“6. In the plaint, it is stated that the
father of the plaintiffs died about thirty years prior to the filing of the
suit. The second plaintiff as P.W.1 has deposed that their father died in the
year 1968. The Amendment Act 39 of 2005 amending S. 6 of the Hindu Succession
Act, 1956 came into force on 9-9-2005 and it conferred right upon female heirs
in relation to the joint family property. The contention put forth by the
learned Counsel for the appellant is that the said Amendment came into force
pending disposal of the suit and hence the plaintiffs are entitled to the
benefits conferred by the Amending Act.

The Amending Act declared that the daughter
of the coparcener shall have the same rights in the coparcenary property as she
would have had if she had been a son. In other words, the daughter of a
coparcener in her own right has become a coparcener in the same manner as the
son insofar as the rights in the coparcenary property are concerned. The
question is as to when the succession opened insofar as the present suit
properties are concerned. As already seen, the father of the Plaintiffs died in
the year 1968 and on the date of his death, the succession had opened to the
properties in question.  In fact, the
Supreme Court itself in the case of Sheela Devi vs. Lal Chand has
considered the above question and has laid down the law as follows:-

In view of the above statement of law by the
Apex Court, the contention of the appellant is devoid of merit. The succession
having opened in the year 1968, the Amendment Act 39 of 2005 would have no
application to the facts of the present case.”

Even in the case of Prakash vs. Phulavati
cited above which was decided in 2016, the Supreme Court has held that
“the rights under the Amendment Act are applicable to living daughters of
living coparceners as on 9.9.2005 irrespective of when such daughters are
born”.

Thus, there is a plethora of cases deciding
that the father of the claiming daughter should be alive if the daughter makes
a claim in the coparcenary property. Moreover, it is necessary that the male
Hindu should have been alive on the date of coming into force of the Amended
Act.

With a view to understand the problem, it is
necessary to consider the facts leading to Danamma judgement. Danamma and her
sister, who were the appellants before the Supreme Court, were daughters of
Gurulingappa. Apart from these two daughters, Gurulingappa had two sons Arun
and Vijay. Gurulingappa died in 2001 leaving behind two daughters, two sons and
his widow. After his death Amar, son of Arun, filed a suit for partition. The
trial court denied the shares of the daughters. Aggrieved by the said
judgement, the daughters appealed to the High Court but the High Court
dismissed the appeal. The Supreme Court held in favour of the daughters giving
each of them shares equal to the sons. Paras 24 and 28 (part) read as follows:-

“24. 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 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 a 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 explained above, and as 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-s (1)(a) and (b).”

“28. 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. …”

It is apparent that Gurulingappa had died in
the year 2001 i.e. before the Amendment Act came into force and the succession
opened before coming into force of the Amendment Act. That being so, if we
apply the principles laid down by the Supreme Court in Sheela Devi’s case, the
daughter would not have any claim or share. The earlier case law (including
Supreme Court) contemplates that the male Hindu (in whose estate the daughter
is making a claim) should have been alive on the date of coming into force of
the Amendment Act. While in the present case, Gurulingappa had died before the
Amendment Act came into force. However, in that case the Supreme Court had no
occasion to consider its own earlier decision in case of Sheela Devi cited
above.

It is submitted
that Sheela Devi’s case was well considered and had settled the issue.
Therefore, the recent decision of the Supreme Court in Danamma’s case can
result in further litigation and court cases. I can only end with a fervent
hope that the Apex Court will review its decision in Danamma’s case so that the
apparent conflict is resolved without resulting in further litigation.