COPARCENARY RIGHTS: TOUCHSTONE OF EQUALITY

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According to the Mitakshara School of Hindu Law, entire property of a Hindu joint family is held in collective ownership, by all the coparceners, in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held, in trust, for the joint family members, then living and thereafter to be born. [1]

Section 6 Hindu Succession Act, 2005, 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 the daughters as coparceners, since birth.

The Apex court, subsequent to the said amendment, has observed 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. 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, mentioning 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.”[2]

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 a 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, the Supreme Court of India observed, as follows:

                 “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 Post Amendment Glitch-

Ever since the incorporation of the said amendment in the Hindu Mitakshara Law, there has been certain instances where the courts, while decreeing the such partition suits, have decided that the daughters are not entitled to any share, either on the ground that they were born prior to the enactment of the Act or on the ground that they were married daughters and at the time of their marriage, they had received gold and money and had, hence, relinquished their share; and hence, they cannot be considered as coparceners.

The general argument that the share acquired by the coparceners’ daughter is after the amendment in the Act was also rejected by the court of Law in yet another case.

This view of the trial court is time and again supported by the upheld by the High Court leading to filing of several appeals in Supreme Court.

Recent Precedent-

One such appeal has been decided by the Hon’ble Supreme Court, few days back, wherein a Division Bench comprising of Justice AK Sikri and Justice Ashok Bhushan analyzed and explained the Amendment to the Hindu Succession Act, 1956, as incorporated in the year 2005, in the Mitakshara law; vide a recent judgement of Danamma @ Suman Surpur and Anr. v. Amar and Ors.; wherein an appeal in was filed, before the Hon’ble Supreme Court, by two daughters of one, Gurulingappa Savadi, propositus of a Hindu Joint Family. Apart from these two daughters, Savadi had two sons, Arun kumar 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 Arun kumar filed a suit for partition of property. The case set up by him was that the two daughters 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 question of law which was considered by the Supreme Court was whether, the 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 turned down contention 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 two daughters got crystallised in 2005.

The Apex Court interpreted the amendment in Section-6 of the Act and stated that,

“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.”

The Apex Court rightly highlighted that the rights of daughters in coparcenaries 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.

Drafted By-

Vaibhavi Sharma, Advocate, Prosoll law Inc.

[1] (Mitakshara, Ch. I. 1-27)

[2] The Ideal Element in Law, Treaties by Roscoe Pound.

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