3-judge Bench of SC to reconsider Daughter’s Coparcenary rights after 2005 Amendment to Hindu Succession Act

A three-judge Bench of the Supreme Court comprising Justices AK Sikri, Ashok Bhushan and MR Shah will reconsider the law relating to Daughter’s Coparcenary rights after the 2005 Amendment to Hindu Succession Act..In the process, the court will go into the correctness of the conflicting decisions of the Supreme Court in the cases of Prakash v. Phulavati [(2016) 2 SCC 36], Danamma @ Suman Surpur v. Amar [(2018) 3 SCC 343] and Mangammal v. T.B. Raju [(2018) SCC online SC 422]..The issue involved is whether with the passing of Hindu Succession (Amendment) Act, 2005, a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. In other words, whether a daughter could be denied her share on the ground that she were born prior to the enactment of the Act and, therefore, cannot be treated as coparcener?.In Prakash v. Phulavati, the Supreme Court had held 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.” In other words, if the coparcener (father) had passed away prior to 09.09.2005, the living daughter of the coparcener would have no right to coparcenary property..In Danamma v Amar, the Supreme Court had held that the 2005 amendment confers upon the daughter of the coparcener as well the status of coparcener in her own right in the same manner as the son and gives same rights and liabilities in the coparcener properties as she would have had, if it had been son..In that case, the father (male coparcener) had passed away in 2001 and thereafter one of the sons initiated proceedings for partition of joint family property in the year 2002. The son claimed that the daughters were not entitled to a share in the joint family as the father had passed away prior to coming into force of the Amendment Act..The Trial Court and the High Court accepted the contention and concluded that the daughters were not entitled to a share in joint family property. This conclusion was in consonance with Phulavati’s case. The decision was then challenged before the Supreme Court..The Supreme Court considered Phulavati’s case and agreed with the findings, yet applied a different principle to grant relief to the daughters. The Supreme Court applied the principle that partition is not complete with passing of a preliminary decree and attains finality only with the passing of the final decree. It held that although the suit was filed in the year 2002, the preliminary decree was passed in the year 2007 and therefore, the daughters were entitled to the benefit of the Amendment Act..In the current case, the Delhi High Court granted certificate of fitness to appeal under Articles 133(1)(a) and 134A of the Constitution of India having regard to the fact that there are conflicting decisions of the Supreme Court in Prakash v. Phulavati, Danamma @ Suman Surpur v. Amar, and Mangammal v. T.B. Raju on the issue involved in this petition..The Supreme Court Bench of Justices AK Sikri, Ashok Bhushan and MR Shah noted the same in its order passed on November 27 and said that since the issue has to be heard by a larger Bench, “and this Bench is comprising of three Judges, we can hear the matter finally”..The matter will be heard on December 5, 2018..Read the order below.