By TIOL News Service

NEW DELHI, MAR 15, 2018: THE issue is - Whether a daughter, who is a part of the HUF, is entitled to a share in the family property, even after her marriage. YES is the verdict.

Facts of the case

THE appellants herein are the daughters of a man who was the propositus of a Hindu Joint Family (HUF). The appellants also have two brothers. When he passed away, one of his grandsons (the respondent herein) filed a suit for partition and separate possession of the suit property. This grandson also stated that his father & uncle, and his grandmother jointly held possession of the properties as coparceners. He also stated that these properties were acquired out of the joint family nucleus in the name of his now-deceased grandfather. Thereupon, he claimed that the petitioners herein (his aunts, by relation) were not coparceners in the joint family, since they were born before enactment of the Hindu Succession Act, 1956. The grandson also pled that the appellants were married daughters, and that at the time of their marriage had received some gold, and since then had relinquished their share in the family property. The appellants in defence, claimed that they were also entitled to a share in the family property, since they were the daughters of the propositus of the joint family and that he has passed awat after enactment of the Act of 1950.

Subsequently, the Trial Court held the appellants herein to be ineligible to share in the joint family property, on grounds that they were born prior to the enactment of the Hindu Succession Act, 1956. The Trial Court also rejected their submission that they acquired a share in such properties vide the Hindu Succession (Amendment) Act, 2005. Such view taken was upheld by the High Court.

On appeal, the Apex Court held that,

++ the question of law which arises for consideration in this appeal is as to 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 is as to 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? In this regard, considered the provisions of Section 6 of the Act, as it stood prior to its amendment by the Amendment Act, 2005.

++ no doubt, Explanation 1 to this Section states that the interest of the deceased Mitakshara coparcenary property shall be deemed to be the share in the property that would have been allotted to him if the partition of the property had taken place immediately before his death, irrespective whether he was entitled to claim partition or not. This Explanation came up for interpretation before this Court in Anar Devi & Ors. v. Parmeshwari Devi & Ors., wherein this Court referred to the interpretation to Section 6 provided in the authoritative treatise of Mulla, Principles of Hindu Law, 17th Edn., Vol. II, p. 250. Considered relevant findings of the Court in this regard. Thereafter the Court spelled out the manner in which the statutory fiction is to be construed. Considering relevant findings in this regard, this case clearly negates the view taken by the High Court in the judgment being challenged by the appellants herein.

++ that apart, the amendment to the Section 6 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. Considered the provisions of Section 6 after amendment.

++ the controversy now stands settled with the authoritative pronouncement in the case of Prakash & Ors. v. Phulavati & Ors. which has approved the view taken by the High Courts as well as Full Bench of the Bombay High Court. Considered relevant findings of the Court. 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). Considered the findings of this Court in State Bank of India v. Ghamandi Ram. Hence, it is clear that the right to partition has not been abrogated. Hence, it is clear that the right to partition has not been abrogated.

++ 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. 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.

++ since property in question belongs to joint family, in the said partition suit, share would devolve upon the appellants as well. Since, the propositus passed away leaving behind two sons, two daughters and a widow, both the appellants would be entitled to 1/5th share each in the said property. Consequently, the respondent herein would be entitled to 1/25th share in the property.

(See 2018-TIOL-83-SC-MISC)