The Supreme Court has re-affirmed that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son..A Bench of Justices AK Sikri and Ashok Bhushan explained the changes in law relating to a joint Hindu family governed by the Mitakshara law, post the 2005 amendment to Hindu Succession Act, 1956..The ruling came in a case filed against a judgment of the Karnataka High court..By way of background, the appeal in Supreme Court was filed by two daughters (appellants) of one, Gurulingappa Savadi, propositus of a Hindu Joint Family. Apart from these two daughters, Savadi had two sons, Arunkumar and Vijay. Gurulingappa Savadi died in the year 2001 leaving behind the two daughters, two sons and his widow, Sumitra. After his death, Amar, who is the son of Arunkumar filed a suit for partition of property. The case set up by him was that the appellants were not the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act, 1956 (Act). It was also pleaded that they were married daughters and at the time of their marriage they had received gold and money and had, hence, relinquished their share..The trial court, while decreeing the suit held that the appellants were not entitled to any share as they were born prior to the enactment of the Act and, therefore, could not be considered as coparceners. The trial court also rejected the alternate contention that the appellants had acquired share in the said properties, in any case, after the amendment in the Act vide amendment Act of 2005. This view of the trial court was upheld by the High Court leading to the appeal in Supreme Court..The question of law which was considered by the Supreme Court was whether, the appellants, daughters of Gurulingappa Savadi, could be denied their share on the ground that they were born prior to the enactment of the Act and, therefore, cannot be treated as coparceners? Alternate question was whether, with the passing of Hindu Succession (Amendment) Act, 2005, the appellants would become coparcener “by birth” in their “own right in the same manner as the son” and would, therefore, be entitled to equal share as that of a son?.The Court first proceeded to consider the relevant provision, i.e. Section 6 of Act as it stood prior to the amendment of 2005. Placing reliance on Anar Devi & Ors. v. Parmeshwari Devi & Ors., the Court held that the view taken by the High Court is clearly negated in the aforesaid case..It then went on to consider the position after the 2005 amendment. Terming the amendment as having introduced unprecedented changes to law relating to a joint Hindu family governed by the Mitakshara law, the Court observed,.“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……..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.”.It held that the amendment clearly clinches the cases in favour of the appellants as, after the amendment, a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son..“..we are of the view that amendment to the aforesaid Section vide Amendment Act, 2005 clinches the issue, beyond any pale of doubt, in favour of the appellants. This amendment now 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..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.”.Explaining the amended provision further, the court observed.“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.….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).”.The Court also turned down the contention of the respondent that the suit for partition was filed in 2002, i.e. before the 2005 amendment. It held that the suit was decreed only in 2007 and the right of the appellant got crystallised in 2005..“..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. This Court in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr held that the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.”.It, therefore, allowed the appeals and set aside the judgment of the High Court..Read the judgment below.
The Supreme Court has re-affirmed that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son..A Bench of Justices AK Sikri and Ashok Bhushan explained the changes in law relating to a joint Hindu family governed by the Mitakshara law, post the 2005 amendment to Hindu Succession Act, 1956..The ruling came in a case filed against a judgment of the Karnataka High court..By way of background, the appeal in Supreme Court was filed by two daughters (appellants) of one, Gurulingappa Savadi, propositus of a Hindu Joint Family. Apart from these two daughters, Savadi had two sons, Arunkumar and Vijay. Gurulingappa Savadi died in the year 2001 leaving behind the two daughters, two sons and his widow, Sumitra. After his death, Amar, who is the son of Arunkumar filed a suit for partition of property. The case set up by him was that the appellants were not the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act, 1956 (Act). It was also pleaded that they were married daughters and at the time of their marriage they had received gold and money and had, hence, relinquished their share..The trial court, while decreeing the suit held that the appellants were not entitled to any share as they were born prior to the enactment of the Act and, therefore, could not be considered as coparceners. The trial court also rejected the alternate contention that the appellants had acquired share in the said properties, in any case, after the amendment in the Act vide amendment Act of 2005. This view of the trial court was upheld by the High Court leading to the appeal in Supreme Court..The question of law which was considered by the Supreme Court was whether, the appellants, daughters of Gurulingappa Savadi, could be denied their share on the ground that they were born prior to the enactment of the Act and, therefore, cannot be treated as coparceners? Alternate question was whether, with the passing of Hindu Succession (Amendment) Act, 2005, the appellants would become coparcener “by birth” in their “own right in the same manner as the son” and would, therefore, be entitled to equal share as that of a son?.The Court first proceeded to consider the relevant provision, i.e. Section 6 of Act as it stood prior to the amendment of 2005. Placing reliance on Anar Devi & Ors. v. Parmeshwari Devi & Ors., the Court held that the view taken by the High Court is clearly negated in the aforesaid case..It then went on to consider the position after the 2005 amendment. Terming the amendment as having introduced unprecedented changes to law relating to a joint Hindu family governed by the Mitakshara law, the Court observed,.“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……..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.”.It held that the amendment clearly clinches the cases in favour of the appellants as, after the amendment, a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son..“..we are of the view that amendment to the aforesaid Section vide Amendment Act, 2005 clinches the issue, beyond any pale of doubt, in favour of the appellants. This amendment now 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..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.”.Explaining the amended provision further, the court observed.“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.….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).”.The Court also turned down the contention of the respondent that the suit for partition was filed in 2002, i.e. before the 2005 amendment. It held that the suit was decreed only in 2007 and the right of the appellant got crystallised in 2005..“..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. This Court in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr held that the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.”.It, therefore, allowed the appeals and set aside the judgment of the High Court..Read the judgment below.
