DAUGHTER’S RIGHT IN COPARCENARY – IV

In the article published in May 2010, we had examined the decision of the Madras High Court in the case of Valliammal vs. Muniyappan (2008 (4) CTC 773) which had relied upon a decision of the Supreme Court in the case of Sheela Devi & Ors. vs. Lal Chand & Anr. reported in (2006) 8 SCC 581; 2007(1) MLJ 797 (SC) and other decided case law and come to the following conclusion:- “Therefore, it is clear that a daughter would get benefit of the Amendment Act only if her father is alive at the time of coming into force of the Amendment Act.”

Amongst varying controversial issues arising out of the Amendment Act, one of the major issues was as to whether the Amendment Act had retrospective effect and in which type of cases a daughter of a coparcener would get right in coparcenary property by birth.

With a view to make this article self-explanatory, it is necessary to reproduce here Section 6(1) of the Act as amended by the Amendment Act:-

“6. Devolution of interest in coparcenary property.
– (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, –

(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.”

While several High Courts have considered the question of retrospectivity, there was no consistency in the approach. The different views taken by High Courts on the question are reflected in the following case law:-

In the case of Pravat Chandra Pattnaik & Ors. vs. Sarat Chandra Pattnaik & Anr., AIR 2008 Orissa 133, the Orissa High Court held that looking into the substance of the provisions (of section 6), it is clear that the Act is prospective. It creates substantive right in favour of a daughter from the date when the amended Act came into force i.e. 9.9.2005, whenever she may have been born.

In the case of Sugalabai vs. Gundappa A. Maradi & Ors. (2007) 6 AIR Kart. R 501, the Karnataka High Court held that as soon as the Amendment Act was brought into force, the daughter of a coparcener becomes by birth a coparcener in her own right in the same manner as the son and that there is nothing in the Amendment Act to indicate that the same will be applicable only in respect of a daughter born on or after the commencement of the Amendment Act.

The Madras High Court in the case of Valliammal vs. Muniyappan (2008 (4) CTC 773) held that the father of the daughter claiming interest in the coparcenary property having died prior to the Amendment Act and the succession having opened to the properties in question before such amendment the daughter was not entitled to any share in the coparcenary property.

In the case of Sadashiv Sakharam Patil vs. Chandrakant Gopal Desale – ( (2012)1 Mah LJ 197; (2011) 5 Bom C.R. 726), the Bombay High Court held that for the purpose of getting benefit of the amended provision it is not necessary that the birth of the daughter should also be after commencement of the amending act and that by virtue of the Amendment Act, the daughter of a coparcener becomes by birth a coparcener even if she was born before the Amendment Act coming into force.

In Vaishali Ganorkar vs. Satish Ganorkar (AIR 2012 Bom 101), the division bench of the Bombay High Court (headed by Chief Justice Mr. Mohit Shah) disagreeing with some other High Courts’ decisions to the contrary, held that only daughters born after 9th September 2005 (being the date of commencement of the Amendment Act) would get benefit under the Amendment Act. It also held that the new rights granted to a daughter which would affect vested rights would be on a wholly different footing and cannot be applied retrospectively. Although appeal to Supreme Court against the said decision was dismissed (2012 (5) Bom CR 210) the question of law was kept open.

In another case of Badrinarayan Shankar Bhandari vs. Omprakash Shankar Bhandari reported in AIR 2014 Bom 151, the division bench of the Bombay High Court (also headed by Chief Justice Mr. Mohit Shah) has reconsidered its own earlier decision cited above and held that a bare perusal of sub-section (1) of section 6 would clearly show that the legislative intent in enacting clause (a) is prospective i.e. daughter born on and after 9th September 2005 will become a coparcener by birth but the legislative intent in enacting clauses (b) and (c) are retroactive and give rights to the daughter who was already born before the amendment and who is alive on the date of amendment coming into force. The court has further held that however if the daughter of a coparcener had died before 9th September 2005, her heirs would have no right in the coparcenary property.

It appears that in view of lack of clarity in the language of the provisions of amended section 6(1) of the Act, different High Courts had put emphasis on some particular wording in the Section in support of their decisions. Thus, while there were different decisions from High Courts, there was no finality and the confusion (and resultant litigation) continued.

Now, the controversy as to whether the Amendment Act is retrospective or not has been settled by a very recent decision of the Supreme Court dated 16th October 2015 in the case of Prakash and Ors vs. Phulavati and Ors. (2015 (6) Kar LJ 177) which has not yet been reported in any official reporter.

In that case the plaintiff Phulavati filed a suit before Additional Civil Judge (Senior Division) Belgaum for partition and separate possession to the extent of oneseventh of her share in the coparcenary property held by her late father Yeshwant, who had died on 18th February 1988. During the pendency of the suit the Amendment Act was passed and the plaintiff amended the plaint to claim a share as per the Amendment Act. The suit was contested and the Trial Court partly decreed the same in favour of the plaintiff. The plaintiff thereupon preferred first appeal before the Karnataka High Court claiming that she had become coparcener under the Amendment Act and was entitled to inherit the coparcenary property equal to her brothers. The High Court followed the decision of the Supreme Court in the case of G. Sekar vs. Geetha and others (AIR 2009 SC 2649) and held that any development of law inevitably applies to a pending proceeding and in fact it is not even to be taken as a retrospective applicability of the law but only the law as it stands on the day being made applicable. Therefore, the High Court considered the case in light of the provisions of the Amendment Act. The High Court (AIR 2011 Kar 78) held that the plaintiff was entitled to a share in the coparcenary property. In appeal by the defendant Prakash to the Supreme Court it was held that the rights of a daughter under the Amendment Act are applicable to living daughters of living coparceners as on 9th September 2005 irrespective of when such daughters are born.

The effect of the Amendment Act is now clear. Therefore the law now stands that a daughter of a coparcener, who is living as on 9th September 2005, shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she would have been a son. It is irrespective when such daughter is born.

Let us hope that this final legal position now prevails without any further complications.