DANAMMA V.

AMAR (2018)
CASE SUMMARY

G S
Father Widow
Died 2001

D1 D2 S1 S2

SS1
Defendant-Appellants
Plaintiff-Respondent

Facts:

The propositus died in 2001 leaving behind his wife, two daughters and two sons. After the
death of the father, Amar (SS1) filed suit for partition and separate ownership of the suit
property in 2002.

Arguments of the respondent, Amar:

- Claimed for 1/15th share in the property.

- The two sons and the widow were in joint possession of the properties as coparceners.
- The Appellant daughters were not coparceners as they were born before the enactment
of the HSA, 1956.
- The daughters were married, and on receiving gold and money at the time of marriage,
they relinquished their share in the joint family properties.

Arguments of the Appellants, the daughters:

- They are entitled to share in the joint family properties by virtue of being daughters of
the deceased father.
- The father died after the enactment of the HSA, 1956. Thus, the Act would be applicable
on them.
- Alternate contention – They acquired share after the 2005 amendment.
Trial Court (decree passed in 2007):

- The appellant daughters were not entitled to share since they were born before the
enactment of the HSA, thus, could not be considered coparceners.
- Rejected the alternate contention.
- Widow mother died intestate during the pendency of the suit, her share devolved to her
two sons.
- Plaintiff entitled to 1/8th share of property.

High Court (decree passed in 2012)

- The appeal of the daughters for equal shares as the sons was rejected, as was their
review petition.
- Upheld the trial court’s decision, confirming decree passed in suit filed for partition.

Supreme Court

Issues:

1. Can the daughters be denied share on ground of being born before the enactment of
HSA, 1956, and thus, not be made coparceners?
2. Would the 2005 amendment be applicable on the appellant daughters and hence, confer
on them the right to be coparceners “by birth” in the same manner as son, and
entitlement to equal share as son?

Decision:

- Ruled in favour of the appellant daughters.

- 2005 Amendment brought the issue in favour of the appellant daughters by making
them coparceners with equal rights and liabilities as the sons.
- The share of partition will devolve on the appellant daughters as well, who would
acquire 1/5th share each along with the widow and two sons. The plaintiff, Amar, would
be entitled to 1/25th share (given that his branch consists of his widow mother, a brother
and two sisters).

Rationale:

- Regarding application of the 1956 Enactment

Anar Devi v. Parmeshwari Devi referred to Mulla that said Explanation 1 to Section 6
of the HSA as it stood before the amendment created a statutory fiction by incorporating
 notional partition for the purpose of enabling succession, where otherwise survivorship
was to be followed. Thus, it held that according to S.6 of the HSA when a coparcener
died leaving behind a Class I female relative or male relative claiming through them,
the coparcener’s interest would devolve by intestate succession.

- Is its application restricted to those daughters born after the date of amendment?
Badrinath Shankar Bhandar v. Omprakash Shankar Bhandari (AIR 2014 Bom 151)
ruled that only S.6 (1) (a) is prospective in application, all others including clause b and
c and other parts of subsection 1 and 2 are retroactive in operation. Thus, S.6 would
apply to daughters born before enactment of HSA in 1956 and between that to 2005,
provided they are alive on the date of amendment.
Thus, rights under amendment applicable to living daughters of living coparceners as
on 9.9.2005 irrespective of when such daughters were born, where any disposition,
alienation or partition effected before would remain unaffected.

- In this case, the suit was filed in 2002, and during the pendency of the suit, S.6 was
amended. The decree of the trial court and HC were passed only in 2007 and 2012
respectively, and the crystallised rights of the appellants owing to the 2005 amendment
must have been taken in account. According to Ganduri Koteshwaramma v. Chakiro
Yanadi, right of daughters in coparcenary property is not lost due to the passing of
preliminary decree, and partition can only be finalised on passing final decree. Thus,
preliminary decree needed to be amended according to changes in law.

- The court also depended on the objective of the Act on touchstone of equality and
Roscoe Pound’s The Ideal Element in Law i.e., balancing stability of law with meeting
contemporary need of society.