India: SC Clears That Women Born Before Hindu Succession Act (2005) Also Have Ancestral Rights

Last Updated: 26 March 2018
Article by S.S. Rana & Co. Advocates

Recently, the Hon'ble Supreme Court of India in the case of Danamma @ Suman Surpur & Anr. V. Amar & Ors. clarified the position of law related to Hindu Succession Act, 2005 and held that 'The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.'

Brief Facts

  • The Appellant in the present case are two daughters of Shri Gurulingappa Savadi. He also had two sons, Arun kumar and Vijay and a wife, Sumitra.
  • Amar, S/o Arun Kumar (hereinafter referred to as 'Respondent No. 1') filed the suit for partition of property on July 01, 2002 claiming 1/15th share in the properties.
  • It was stated in the plaint that the two sons and widows were in joint possession of the properties as coparceners and some other properties mentioned in the plaint was acquired out of the joint family nucleus in the name of Shri Gurulingappa Savadi.
  • It was alleged that the Appellants in the case were not the coparceners as they were born prior to the enactment of Hindu Succession Act, 1956 (hereinafter referred to as the 'Act').
  • The case of the Appellants was that they were also coparceners for the reason that Gurulingappa Savadi had died after coming into force the Act of 1950.
  • The Trial Court in its decision refused to hold the Appellants as coparceners as they were born prior to the enactment of the Act.
  • The Trial Court's decision was challenged in the High Court in 2008. The High Court agreeing with the Trial Court upheld its view vide order dated January 25, 2012. A review petition was filed on March 04, 2012, the result of which remained the same, and once again the order of the Trial Court was upheld. (hereinafter referred as 'the impugned judgement')
  • Aggrieved by this decree, the Appellants filed a Special Leave Petition before the Supreme Court of India under Article 136 of the Constitution.

Issue

Whether, with the passing of the 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?

Appellants Contentions

  • It was contended that they were also coparceners for the reason that Shri Gurulingappa Savadi had died after coming into force the Act of 1950.

Respondents Contentions

  • It claimed 1/15th share in the properties.
  • It was alleged that the Appellants in the case were not the coparceners as they were born prior to the enactment of the 'Act'.
  • It averred that Shri Gurulingappa Savadi was neglecting the Plaintiff and his siblings, thus, sought partition of the suit.

Court's Decision

  • The Court took note of Section 6 of the Act, as it stood prior to its amendment by the Amendment Act, 2005.
  • It disagreed with the findings of the High Court and held that 'amendment to Section 6 vide Amendment Act, 2005, clinches the issue, beyond any pale of doubt, in favor of the Appellant. 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.'
  • It further threw light on the case of Prakash & Ors. v. Phulavati & Ors1, and State Bank of India v. Ghamandi Ram,2 and held that the law is well settled now. It was held that 'the right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.'

Thus, the Court passed the judgment to divide the property in equal share. i.e. 1/5th, between the parties involved in the case. The Respondent no. 1 would get 1/25th share in the property. Since, Arun Kumar, father of Respondent no.1, will have 1/5th share, it would be divided into five shares on partition i.e. Arun Kumar, his wife, his two daughters and his son (Respondent No.1)

Footnotes

1.  (2016) 2 SCC 36

2.  AIR 1969 SC 1330

For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in

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