February 03, 2018
Case name: Danamma @ Suman Surpur & Anr. v. Amar & ors
Date of Judgment: February 01, 2018
In the instant case, Two-Judge Bench of Supreme Court settled two legal propositions governing rights of daughters on coparcenary property. Firstly, the Court held that the Amendment Act of 2005 is applicable to living daughters of living coparceners on the date on which the Act came into force. Secondly, in the case the Court has stated that daughter become coparcener by birth in the same manner as son.
The two intrinsic issues raised in the case were:
- Whether, the appellants (daughters) of a coparcener 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?
- 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 are, therefore, entitled to equal share as that of a son?
Brief facts of case– The brief facts of the case are that the 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 crystallized in the year 2005.
Amendment Act of 2005– The Hindu Succession Act, 1956 underwent a major amendment in 2005 which 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 10 liabilities in the coparcener properties as she would have had if it had been son.
The effect of this amendment has been the subject matter of pronouncements by various High Courts, in particular, the issue as to whether the right would be conferred only upon the daughters who are born after September 9, 2005 when Act came into force or even to those daughters who were born earlier.
Whether the right would be conferred only upon the daughters who were born after September 9, 2005 i.e. when Amendment Act came into force– The said issue was settled by the Supreme Court in the case of Prakash & Ors. v. Phulavati & Ors., wherein it was 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. 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.
Other noteworthy observations made by Two-Judge Bench of the Supreme Court are as under:
- That 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.
- That the Amendment act 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.
- That 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.
- That 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 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.”
- That 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.
- 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.
- That the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.
The entire case can be accessed here.
 (2016) 2 SCC 36