The Right to Coparcenary property of Daughters- Settled yet Unsettled?

The Right to Property of a woman witnessed unprecedented changes from the days of uncodified Hindu Law till date.  A woman was entitled to only a Limited Estate before 1956 but was entitled to an absolute right to hold enjoy and alienate property by virtue of the Hindu Succession Act 1956. But still there was a great divide between the rights of a son and daughter in terms of the Mitakshara coparcenary right, as daughter was not still considered an equal to a son. Hence daughters were not entitled to be a coparcener in the all men coparcenary. Sons became coparcenars by virtue of being born into the HUF, which privilege the daughters were not entitled to. Hence the distinction between the two terms HUF (Hindu Undivided Family) and coparcenary. The coparcenars are always members of a HUF but the vice versa was not true.

Some States like Andhra Pradesh, Karnataka, Tamilnadu and Maharashtra made changes so as to extend equal rights to daughters in a Mitakshara Coparcenary.A growing need was felt to merit equal treatment of the nearest female relatives, namely daughters of a coparcener, which would also make the principles of succession uniform throughout the country.

By virtue of the Hindu Succession (Amendment)Act 2005, with effect from 9 Sep 2005 the daughter of a coparcener;

by birth becomes 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;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and subsection (5) says 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.]

As a result of the amending Act, a daughter becomes a coparcener by birth and stands on par with a son interms of all the rights including the right to seek partition of the coparcenary property. Much water has flown in terms interpreting the provisions of this Section. Questions have risen as to the retrospective application of the section, its date of commencement and its applicability to properties already devolved.

On and From the Commencement of the …..

The amended section clearly provides that these provisions are applicable to daughters of coparceners from the date of coming into force of this section irrespective of when they are born.

However in Vaishali Ganorkar Vs. Satish Ganorkar, [1] it was held that the section cannot be retrospective and made applicable to all the daughters born even prior to the commencement of the Amended Section. This proved to be bad law as the Supreme Court in State Bank of India vs. Ghamandi Ram[2] has analysed the coparcenary and its incidents and says“the lineal male descendants of a person up to third generation, acquire on birth ownership in the ancestral properties of such person”.What is said in the said case will now has to be extended to daughters as stipulated in the amended section. This interpretation is reinforced by the decision of the Karnataka High Court in Sugalabai vs. Gundappa A. Maradi[3] by saying all daughters born to coparceners in a joint family living at the time the Act came into force would become coparceners.” There is nothing in the Act which showed that only those born on and after the commencement of the Act would be coparceners” Hence it was held that even a daughter born prior to the amending Act became a coparcener immediately on and after the amendment Act.

In Prakash vs. Phulawati[4] the Honorable Supreme Court has held that “rights under the amendment are applicable to living daughters of living coparceners as on 9th September 22005 irrespective of when such daughters are born”.

Proviso to subsection 1 provides that any dispositions prior to 20 Dec 2004 are not affected as opened a floodgate of ligation. The objective of the legislature was to not relitigate partitions or dispositions, which were already settled. However, the proviso was challenged as ultravires on the ground that it denies daughters an equal right to challenge any such alienation.

Preliminary Decree- whether a settled disposition

A question arose as to whether a preliminary decree would amount to a settled disposition. This issue was addressed in Ganduri Koteswaramma vs. Chakiri Yanadi[5] where the Honorable Supreme Court said, partition becomes final only on passing a final decree. Where such a situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

But in Prakash vs. Phulawatis case, the Supreme Court said section 6 is applicable to living daughters of living coparceners as on 9 Sep 2005. This seems to have settled the matters though the ratio of the decision is contestable.

However, in Danamma vs. Amar, the Supreme Court while seemingly accepting the decision given in Phulawati’s case has introduced a confusion by allowing daughters to claim shares in partition suits already initiated prior to 2005, irrespective of whether the father is alive or not. This seems to relitigate already settled position of law in Phulawati’s case and brings the decision in Ganduri Koteswaramma’s case to the fore.

The right to coparcenary property of daughters is seemingly new even after 12 years of being in force and one may expect the dichotomy and confusion to settle down in few more years with few more cases on the point.

• [1] AIR 2012 Bom 110
• [2] AIR 1969 SC 1330
• [3] ILR 2007 Kar 4790
• [4] 2015(11) SCALE 643,
• [5] AIR 2012 SC 169