SC: Only Unmarried Daughter of Coparcener can Claim Partition in Ancestral Property


April 25, 2018

Case name: Mangammal @ Thulasi and Anr. v. T.B. Raju & Ors.

Date of Judgment: April 19, 2018

In the case, the appellants were daughters of Late Shri T.G. Basuvan who died in 1979 and Respondent No. 1 was the brother of the appellants herein. Late T.G. Basuvan had left three properties consisting of agriculture land and dwelling house.

On account of some dispute, the appellants in the case instituted a partition suit and for separate possession of the suit properties. However, the Lower Courts in the case rejected the plea of the appellants and aggrieved by the same, the appellants approached the Supreme Court.

Also read Daughter’s Right in Property-SC says Daughters have Same Right as Sons

What is ancestral property?

To decide the issue at hand, the Two-Judge Bench of the Supreme Court delved into the concept of ancestral property. The Court stated that any property inherited upto four generations of male lineage from the father, father’s father or father’s father’s father i.e. father, grandfather etc., is termed as ancestral property. In other words, property inherited from mother, grandmother, uncle and even brother is not ancestral property. In ancestral property, the right of property accrues to the coparcener on birth.

Whether the appellants were entitled to claim partition in ancestral property in view of the amendment?

In this context, the Supreme Court remarked that prior to the amendment of 2005, it was only the male who would have been coparcener and entitled to claim the partition and share from the joint family property. On the other hand, daughter did not have any right to partition and to claim share in the ancestral property since she was not a coparcener. At the most, at the time of partition, she could only ask for reasonable maintenance and marriage expenses.

In view of the facts of the instant case, the Supreme Court opined that the father of the appellants, had only ancestral properties and he did not left behind any self-acquired properties.

  • The Supreme Court in the case made reference to Section 29A introduced by the Hindu Succession (Tamil Nadu) Amendment Act of 1990. Thus, the effect of the said provision has been taken away in respect of daughters married before the commencement of Hindu Succession (Tamil Nadu) Amendment Act 1989 which came into force from 25.3.1989.
  • The Court noted that on a plain reading of Section 29-A of the Act, it is evident that, inter-alia, daughter of a coparcener ought not to have been married at the time of commencement of the amendment of 1989. In other words, only un-married daughter of a coparcener is entitled to claim partition in the Hindu Joint Family Property.
  • With reference to facts of the present case, the Court stated that both the appellants got married in or about 1984 i.e., prior to the commencement of the 1989 amendment. Therefore, in view of clause (iv) of the Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, appellants could not institute the suit for partition and separate possession at first instance as they were not the coparceners.
  • That Section 29A of the Hindu Succession Act, 1956 provides for the equal rights to daughter in coparcenary property. That the appellants were not the coparceners in the Hindu Joint Family Property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance.

In view of the aforesaid, the Supreme Court held partially allowed the appeal by holding that the appellants were not entitled to any share in coparcenary property since they were not the coparceners in view of 1989 amendment. However, on the death of their father and mother, appellants would get their property through succession.

Also read Important Judgments on Property Rights of Women/Daughters in India

The entire case can be accessed here.

About the Author

Shilpi Sharan

- Shilpi Sharan is the Editor at Vakilno1.com - an Advocate with extensive knowledge in myriad fields of Law. She has a flair of writing and has legal publications in national and international law magazines to her credit. She focuses on legal research and aims at raising public awareness of laws in India.