2018 (3) TMI 867 - SC - Indian Laws

Partition of Hindu Joint Family (HUF) - Right of Daughters as Coparceners in the Joint Family - case against the appellants were that appellants herein were not the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act 1956. 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 - appellants herein contested the suit by claiming that they were also entitled to share in the joint family properties being daughters of Gurulingappa Savadi and for the reason that he had died after coming into force the Act of 1950. 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? Held that - No doubt Explanation 1 to Section 6 of Hindu Succession Act 1956 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. Amendment to the 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 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. 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. 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 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. 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 - 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. In the said partition suit share will devolve upon the appellants as well. Since Savadi died leaving behind two sons two daughters and a widow both the appellants would be entitled to 1/5th share each in the said property - appeal allowed.

Summary

Issues Involved:
1. Entitlement of daughters to a share in the joint family property under the Hindu Succession Act, 1956.
2. Impact of the Hindu Succession (Amendment) Act, 2005 on the rights of daughters.
3. Interpretation of Section 6 of the Hindu Succession Act, 1956, before and after the 2005 amendment.
4. Applicability of the amendment to daughters born before the enactment of the 2005 amendment.
5. The effect of a preliminary decree in a partition suit on the rights of daughters after the amendment.

Detailed Analysis:

1. Entitlement of Daughters to a Share in the Joint Family Property:

The appellants, daughters of Gurulingappa Savadi, contested the denial of their share in the joint family properties. The trial court held that they were not entitled to any share as they were born prior to the enactment of the Hindu Succession Act, 1956, and thus could not be considered coparceners. This decision was upheld by the High Court.

2. Impact of the Hindu Succession (Amendment) Act, 2005:

The Supreme Court examined whether the appellants would become coparceners "by birth" in their "own right in the same manner as the son" with the passing of the Hindu Succession (Amendment) Act, 2005. The amendment confers upon the daughter of a coparcener the status of coparcener in her own right in the same manner as the son, giving her the same rights and liabilities in the coparcenary properties.

3. Interpretation of Section 6 of the Hindu Succession Act, 1956:

Before the amendment, Section 6 provided that the interest of a deceased Mitakshara coparcener would devolve by survivorship upon the surviving members of the coparcenary. However, if the deceased left behind a female relative specified in Class I of the Schedule, the interest would devolve by testamentary or intestate succession. The Supreme Court cited the case of Anar Devi & Ors. v. Parmeshwari Devi & Ors., which interpreted this provision to mean that the undivided interest of a deceased coparcener would devolve upon his heirs by succession, including the surviving coparceners.

4. Applicability of the Amendment to Daughters Born Before the Enactment:

The Supreme Court referred to the case of Prakash & Ors. v. Phulavati & Ors., which held that the rights under the amendment are applicable to living daughters of living coparceners as of September 9, 2005, irrespective of when such daughters were born. The amendment is prospective in operation, and the rights conferred by it apply only if the coparcener's death occurred after the amendment.

5. Effect of a Preliminary Decree in a Partition Suit:

The Supreme Court noted that the rights of daughters in coparcenary property as per the amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. The partition becomes final only on the passing of a final decree. In Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., the Court held that the preliminary decree would have to be amended to take into account the change in the law by the amendment of 2005.

Conclusion:

The Supreme Court concluded that the appellants, being daughters of Gurulingappa Savadi, are entitled to a share in the joint family property. The amendment to Section 6 of the Hindu Succession Act, 1956, confers upon daughters the status of coparceners by birth, giving them the same rights and liabilities as sons. The trial court and the High Court erred in denying the appellants their rightful share. The appeals were allowed, and the decree of partition was to be drawn accordingly, granting the appellants a 1/5th share each in the joint family property. The plaintiff (respondent No.1) would be entitled to a 1/25th share in the property. No order as to costs was made.