Whether daughter is entitled to inherit ancestral property e

Accordingly, we hold that the rights under the amendment
are applicable to living daughters of living coparceners as on
9-9-2005 irrespective of when such daughters are born.
Disposition or alienation including partitions which may have
taken place before 20-12-2004 as per law applicable prior to
the said date will remain unaffected. Any transaction of
partition effected thereafter will be governed by the
Explanation.”
23) The law relating to a joint Hindu family governed by the Mitakshara
law has undergone unprecedented changes. The said changes have
been brought forward to address the growing need to merit equal
treatment to the nearest female relatives, namely daughters of a
coparcener. The section stipulates that a daughter would be a
coparcener from her birth, and would have the same rights and liabilities
as that of a son. The daughter would hold property to which she is
entitled as a coparcenary property, which would be construed as
property being capable of being disposed of by her either by a will or any
other testamentary disposition. These changes have been sought to be
made on the touchstone of equality, thus seeking to remove the
perceived disability and prejudice to which a daughter was subjected.
The fundamental changes brought forward about in the Hindu
Succession Act, 1956 by amending it in 2005, are perhaps a realization
of the immortal words of Roscoe Pound as appearing in his celebrated
treaties, The Ideal Element in Law, that “the law must be stable and yet
it cannot stand still. Hence all thinking about law has struggled to
reconcile the conflicting demands of the need of stability and the need of
change.”
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 the 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 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 recognized. 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).
25) Reference to the decision of this Court, in the case of State Bank
of India v. Ghamandi Ram7
 in essential to understand the incidents of
coparceneryship as was always inherited in a Hindu Mitakshara
coparcenary:
“According to the Mitakshara School of Hindu Law all the
property of a Hindu joint family is held in collective ownership
by all the coparceners in a quasi-corporate capacity. The
textual authority of the Mitakshara lays down in express terms
that the joint family property is held in trust for the joint family
members then living and thereafter to be born (See
Mitakshara, Ch. I. 1-27). The incidents of coparcenership
under the Mitakshara law are: first, the lineal male
descendants of a person up to the third generation, acquire on
birth ownership in the ancestral properties is common;
secondly, that such descendants can at any time work out
their rights by asking for partition; thirdly, that till partition
each member has got ownership extending over the entire
property, conjointly with the rest; fourthly, that as a result of
such co-ownership the possession and enjoyment of the
properties is common; fifthly, that no alienation of the property
is possible unless it be for necessity, without the concurrence
of the coparceners, and sixthly, that the interest of a deceased
member lapses on his death to the survivors.”
26) Hence, it is clear that the right to partition has not been abrogated.
7 AIR 1969 SC 1330.18
The right is inherent and can be availed of by any coparcener, now
even a daughter who is a coparcener.
27) In the present case, no doubt, suit for partition was filed in the year
2002. However, during the pendency of this suit, Section 6 of the Act
was amended as the decree was passed by the trial court only in the
year 2007. Thus, the rights of the appellants got crystallised in the year
2005 and this event should have been kept in mind by the trial court as
well as by the High Court. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 188-189 OF 2018
[@SLP(C) Nos. 10638-10639 of 2013]

DANAMMA @ SUMAN SURPUR & ANR. .V AMAR & ORS.

A.K. SIKRI, J.
Dated:FEBRUARY 1, 2018.

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