Hindu daughters rights to seek partition in ancestral property

The daughters of a Hindu had only right to residence

By an amendment to Hindu succession act by Andhra Pradesh in 1985, Tamil Nadu in 1989 and Karnataka in 1994 and Maharashtra in unmarried daughters are made coparceners irrespective their father died or alive.

But the Central amendment wordings are creating different interpretation by the different courts. The 2005 amendment came into force on 9/9/2005.

Section 6 of 2005 reads as under.

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 Mithakshara 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.

(2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.- For the purposes of this Sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this Sub-section shall affect -

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation.-For the purposes of Clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. -For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

From the plain language of section 6

from 9-9-2005 when 2005 act came into force in a Joint Hindu family governed by the Mithakshara 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.

From the plain wordings after 9-9-2005 daughter can claim partition subject to condition that she cannot claim share in property which is alienated before 20/12/2004 and registered partitions taken place.

The female coparncener is held to be absolute owner under section 2.

Section 6(3) deals with share of the hindu who dies after the act comes into force.

Here we have to understand the coparcenary share and personal share. When A hindu gets share in partition between him and his brothers, he holds his share of property as coparcener with his sons and daughters who are now coparceners by birth. But when a Hindu gets share on partition between him and his sons it is his individual personal share. This personal share to be divided among his legal hiers as per section 3.

Section 6(4) abolishes pious obligation.

The Hon’ble apex court in  GANDURI KOTESHWARAMMA case Decided by R.M. Lodha, J; Jagdish Singh Khehar, J on : 12-10-2011

Held in a case where

Son had filed suit against father and brothers and sisters. The father died in 1993. The Karnataka amendment came into force in 1994. The daughters married prior to amended act. They are claiming enhanced share under 2005 act and the same is granted by the apex court.

The bench Held that

“14. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.

15. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to Sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub-section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that `partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to Sub-section (5) of Section 6, for determining the non-applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the Appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed.

Court Relied on S. Sai Reddy v. S. Narayan Reddy, (1991) 3 SCC 647 for amendment of the preliminary decree to be modified as per the new act allotting daughter equal to that of the son and Relied on phoolchand full bench court case held that more than one preliminary decree can be passed in changed circumstance.

Court also discussed the object of the act -

This view has been accepted by Apex court in SHASIDHAR Vs. ASHWINI UMA MATHAD  by bench consisting of  Abhay Manohar Sapre, J.; Fakkir Mohamed Ibrahim Kalifulla, J. Decided on : 13-01-2015

Which held

“The parties are governed by Bombay School of Hindu Law. In view of the provisions of Hindu Succession Amendment Act of 2005, the Respondent Nos. 1 and 2 are entitled to a share as co-parceners in the ancestral properties.”

But PRAKASH AND OTHERS  Vs. PHULAVATI AND OTHERS decided by A.K. Goel and Anil R. Dave, JJ. Decided on : 16-10-2015

Held daughters must be alive and father must be alive to apply the amendment. Daughters must be alive is acceptable as no other judgement is dealt with this aspect till then but father must be alive is against the Ganduri and Shashidhar cases supra.

This judgement is displacing the daughters of AP, Tamil nadu, Karnataka and Maharastra where unmarried daughters were already coparcners and after 2005 amendment they loose that character. This was not the intention of the parliament.

In the Ganduri Koteshwaramma case object of the act was observed

".......The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property.

If the interpretation prakash vs Phulavati is accepted the object is going to be failed and daughters alive as on the 2005 act are not benefitted.

Prakash Vs Phulavati case is decided by division bench and Ganduri Koteshwaramma case is also decided by division bench. The co equal bench cannot overrule the earlier bench judgement in Ganduri case, so in the Prakash Vs Phulavati case they should have referred to the larger bench to set right the law finally. Not doing so is damaging to the rights of the daughters.

In JAISRI SAHU VS. RAJDEWAN DUBEY By P.B.Gajendragadkar, K.N.Wanchoo, K.C.Das Gupta, T.L.Venkatarama Ayyar J. Decided on : 28-04-1961

It is held

"Following, therefore, the settled practice of this Court as laid down in a number of decisions, the only course left open to us in the circumstances would be either to follow the previous Division Bench Ruling in preference to the later or to refer the case to a larger Bench for settling the position.

In VENKATESWARA RICE GINNING AND GROUNDNUT OIL MILL CONTRACTORS

CO VS. STATE OF ANDHRA PRADESH by K.S.Hegde , A.N.Grover J.

It is strange that a co-ordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. If they wanted that the earlier decision should be reconsidered, they should have referred the question in issue to a larger bench and not to ignore the earlier decision.

In RAM JIVAN VS. PHOOLA AIR(SC)-1976-0-844 SUPREME COURT OF INDIA

Coram: R.S.Sarkaria , S.Murtaza Fazl Ali , P.N.Shinghal J.

Held: In case the Division Bench under appeal wanted to differ from the previous decision of the Division Bench of the same Court it ought to have referred the matter to a larger Bench but it was not open to it to ignore completely the previous decision on illogical and unintelligible grounds as given by the High Court.

VIJAY NARAYAN THATTE VS. STATE OF MAHARASHTRA AIR (SC)-2009-0-1952

SUPREME COURT OF INDIA Coram:- Markandey Katju , A.K.Ganguly J.

Decided on August 18, 2009

Held "A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it.

JITENDRA KUMAR SINGH AND ANOTHER Vs. STATE OF U.P. AND OTHERS

Before: Tarun Chatterjee, J; S. S. Nijjar, J

A case is a Precedent and Binding for what it explicitly decides and no more.

So the ratio decidendi of Ganduri Koteshwaramma case is that preliminary decree is ordered to be amended allotting daughter equal share to that of son in the ancestral property where father had died before 2005 amendment. It means that daughter who is alive when 2005 act into force and whose father died in 1993 is allotted equal share to that of son.

The Ganduri case cannot be said to be passed without referring to the provision, the bench discussed the provision and interpreted it on its plain meaning and given effect to and held that the daughter are entitled for share equal to that of son. Moreover, the object of the act is discussed. So Ganduri judgement is even now binding precedent. So it binding precedent on subsequent equal bench. Only larger bench or full bench can overrule it.

So daughters are entitled to equal share in the ancestral property irrespective of whether they are born before or after 1956 and irrespective of whether their father is alive and dead when the act came into force.