Coparcenary property – Right of daughter – No partition affected prior to enforcement of Amendment Act – Death of father (co-parcener) – Daughter will have right at par with son. Hindu Succession Act, 1956, Section 6 (as amended in 2005)

The short facts of the case are that the respondent Nos. 1 and 2 were the original plaintiffs [‘Sisters’] who had filed the suit for partition of the coparcenary property of their father’s family contending inter alia that they were daughters of the deceased Maganbhai Mohanbhai Mavani and the defendants were the brothers, in possession of the family property and they were entitled to the share in the family property.

The appellant together with respondent No. 3 – the defendants resisted the suit contending inter alia that the Will was executed by the father during his lifetime in favour of the mother, original defendant No. 1 and it was contended that the partition had taken place and further, after marriage of the original plaintiffs, they were not entitled to get any share in the property.

The court observed that the Will was not proved. Apart from the said aspect, if the property was a coparacenary property, the right would accrue to the members of the coparcenary from the very beginning.

Once the partition was not proved or there was no partition, coparcenary property would continue to have same character and it cannot be said that since the right accrued on the date when the father had expired. Such right is saved by amendment made in provision of section 6 of the Hindu Succession Act. As such on the date of death of the father, if the property remained as coparcenary property and no division or partition is made prior to the amendment, the right cannot be extinguished of Hindu female in coparcenary property. There was no satisfactory evidence, produced before the trial Court nor before the High Court to show that the property was partitioned prior to the amendment. If the property was not partitioned prior to the amendment, merely, because the father, one of the coparceners of the property had expired, such right cannot be said to have extinguished nor could be it said that the right of partition had accrued only on the death of the father. If on the date of amendment, the property has continued as coparcenary property, Hindu female will have right at par with the son.