Case analysis of Danamma and Suman Surpur v.

Amar, 2018

Name – Abhay Shankar Yadav To – Dr. Sangita laha

Roll no. -1148 professor

Semester- 4th
Chapterzation

ABSTRACT.........................................................................................................2

Chapter 1. - Introduction.......................................................................................3

Chapter 2.- Facts of the case.................................................................................4

Chapter 3. -Issues of the case...............................................................................5

Chapter 4.- Contention for the issue 1..................................................................5

Chapter 5. -Contention supplied in issue 2...........................................................7

Chapter 6.- Proposed argument in the favour of Appellant:.................................8

Chapter 7. -Proposed argument in the favour of respondent:..............................8

Chapter 8.- Held....................................................................................................8

Chapter 9.- Judgement..........................................................................................9

Conclusion..........................................................................................................10

Plagiarism report.................................................................................................11
 ABSTRACT

The case of Danamma v. Amar deals with a hotly debated question of law i.e. what category
of daughters will be entitled to right to coparcenary under the amendment act of 2005. This
case furthers the legislative intent behind the provision, which is to eliminate the discrepancy
between the genders. However, the court in this case does not present a clear position of law
as it do not overturn the precedent set by the prior judgement. Hence, putting the lower courts
under the dilemma as to which one is the good law and which precedent is to be applied in
which case.

The first part of the article will analyse the reasoning given the Hon'ble court in the present
case and the second part shall try to address the ambiguities and problems arising out of this
judgement.

RESEARCH QUESTION

Can the daughter be denied their share on the ground that they were born prior to the
enactment of the act and therefore cannot be treated as coparcener and will the
amendment of 2005 make coparcener by birth in the like manner as sons?

ACRONYMS

Serial no. Abbreviation Full form

1 Art. Article
2 HSA Hindu succession act,
1956
3 HSAA Hindu Succession
(Amendment) Act,
2005
4 ISA Indian Succession
Act, 1925.
5 SC Supreme Court
6 Gov. Government

Chapter 1. - Introduction
Gender inequality has long been a societal worry, and prevalent issue with the effects
affecting a wide spectrum of people in modern society. A variety of legislations and
interpretations by the legislature and the judiciary have been recognized on this issue, and
persistent attempts have been undertaken to remedy the unfairness that exists around us.

The Hindu Succession Act is founded on patriarchal and patrilineal Hindu law known as
Mitakshara. This is antithetical to the Indian Constitution's essential ideals of equality, equity
and equal treatment under the law. As a result, the 2005 modification to the Hindu
Succession Act 1956 1contributes in the removal of gender imbalance and discrimination.
Female heirs in shared families were deemed coparcener by birth as a result of the alteration.
However, the legal position was not always straightforward and without ambiguity, and it
altered in different circumstances.

Legislative contradictions, misinterpreted laws, and mistakenly ignored discriminatory

legislation continue to produce a significant deal of sorrow and unhappiness among the
general people.

A similar interpretation of Section 6 of the Hindu Succession Act, 1956 2indicated another
step forward in the endeavour to help individuals in enjoying the equality entrenched in the
constitution. Using an incorrect reading of this section of the Hindu Succession Act, 1956,
which addresses whether daughters can be denied their part of property because they were
born prior to the Act's inception, the court rejected to grant the appellants in the case their
rightful portion.3

1
Hindu Succession Act, 1956 (Act no. 30 of 1956)
2
Section 6 of the Hindu Succession Act 1956
3
Legalserviceindia.com. 2022. Daughters as coparcener: Danamma v. Amar. [online] Available at:
<https://www.legalserviceindia.com/legal/article-2507-daughters-as-coparcener-danamma-v-
amar.html#:~:text=The%20case%20of%20Danamma%20v,the%20discrepancy%20between
%20the%20genders.> [Accessed 18 May 2022].
Here the issue deals with the highly sensitive and hotly disputed topic relating to law that is
the under the amendment act of 2005 what kinds of daughter would be entitled to the right of
coparcenary. To eliminate the disparity and between the gender the case furthers the
legislative aim of the provision. Adding to it the honourable court in the provided case does
not put forward the very lucid place of law as the case is unable to overturn the former verdict
and precedents set by the court. Consequently, places the lower courts in the situations of
difficulty as to which precedent is to be used in which case and which one is sound law.

Chapter 2.- Facts of the case

In the submitted case the appellant were the daughters of the Mrs. Sumitrai and Mr.
Gurulingappa Savadi and the respondents were Arun Kumar and Vijay they are also the kids
of Gurulingappa and Sumitrai. On July1, 2002 the appellant filed a suit against the
respondents for the division of the property they clamed one fifth portion in the property
argued by the respondent and the widow of Gurulingappa.

As coparcener Savadi were in the joint possession of the property, nad there are other
properties also stated in the plaint which were obtained out of the joint family nucleus
registered in the name of Shri Gurulingappa Savadi. Appellants were not the coparceners in
the concerned joint family, it is appelled as they were boirn before the enactment of the
Hindu Succession Act ,19564, and that they ere married daughters and when they are
marrying they had received money and jewelleries(gold) consequently relinquished their
share in the property.

When the present issue got to the trial court, in the hearing the court is of the opinion, that
supports the side of the respondent, stressing the fact that the appellant cannot be coparcener
because when they are born there is no such act and the Hindu Succession Act 1956 was not
implemented at that time. The ruling of the trial court was challenged in the Honourable High
court in the year 2008 whereupon this view of the trial court was maintained by the High
court in the impugned judgment dated January 25,2012 so affirming the decree dated August
09, 2007 passed in action filed for partition. Aggrieved by the contention, the appellant filed a
special leave plea under Article 136 5of the constitution of India before the Supreme Court.

4
Hindu Succession Act, 1956 (Act no. 30 of 1956)
5
Article 136 of constitution of India.
 Chapter 3. -Issues of the case

The two issues presented before the supreme court of are as follows :

 Can the daughter be denied their share on the ground that they were born prior to the
enactment of the act and therefore cannot be treated as coparcener?
 Will the amendment of 2005 make coparcener by birth in the like manner as sons?

Chapter 4.- Contention for the issue 1

At the verdict of Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari 6in the
honourable Bombay high court, one of the questions that emerged about section 6 of the
Hindu Succession Act was whether girls born previous to the establishment of the Hindu
Succession Act 1956 will be able to profit from this proposed modification act of 2005 or
only daughters born after its beginning.

In its ruling, the Hon'ble court construed section 67 by evaluating the aim of the statute's
amendment and the legislature's intention, which was to make the act more fair and equitable,
and equal for everyone as required by the constitution of India's article. As a consequence, it
was announced that this amendment act would apply to all daughter which are the citizen of
the nation , whether born before or after the enactment of the act , as long as they are living
on the day the modified and newly constructed act 2005 is enacted. This judgement clarified
the interpretation of Section 6 of the Hindu Succession Act, protecting an entire generation of
women from losing their coparcenary privileges.

When the situation of Prakash v. Phulavati surfaced, there was significant controversy over
the issue that whether the amending legislation of 2005 was retroactive or prospective. This
lawsuit was filed in the year 1992, and while the case was pending, or there was the pendency
of the action the 2005 Amendment Act was approved, and legislated establishing the
daughters' rights as coparceners. The legal problem was whether the statute will be
implemented retrospectively or prospectively.
6
AIR (2014) BOM 151
7
Section 6 of the Hindu Succession Act 1956
The honorable Karnataka high court determined that the amending legislation would apply to
pending litigation, which was reversed and challenged by the Supreme Court. The Swedish
Supreme Court determined that every major provision amendment is prospective in nature
unless the legislation specifically or tacitly declares differently. On the literal reading of
Section 6 (1)[4] of the Hindu Succession Act, which specifies that daughters will enjoy
coparcenary rights in joint family property on and from the commencement of this act, the
Supreme Court has held.

The Hon'ble court gave a literal approach to the case, noting both position that the father and
the daughter must be alive on the day when there was the amendment act 2005 was
implemented . However, this case did shed some light on the statute's consequences and gave
us with some clarity of the legislation. However, when interpreting the statute, it did not
probe into the legislature's meaning. The goal of the amending legislation was to maintain
female heirs' coparcenary rights, and this ruling does not aid them.

Another major issue or another crucial to problem resolve to figure out the answer of the
problem is if daughters would lose their right to coparcenary simply because a preliminary or
the interim decree has been issued by the honourable court and the amendment act of 2005
will not apply to them the explanation is that the litigation was brought prior to the
amendment act's passage.

The Supreme Court explored this matter in the case of Ganduri Koteshwaramma v. Chakiri
yanadi8. The honourable Supreme Court determined that just because a preliminary order was
made by the court does not mean that daughters lose their right to coparcenary. Only the
court's final judgement determines whether the division deed is final. Preliminary decrees
should also be modified to reflect the changes to the law brought about by the 2005
Amendment Act.

The honorable supreme court, by taking into account all the precedents, and earlier
judgement provide by the court, answered the question raised in Danamma v. Amar by first
upholding ratio the Badrinarayan Shankar Bhandari v. Omprakash Shankar \sBhandari ratio,
which stated that the language and the wordings of the statute on its literal interpretation
makes it clear and clearly communicate that application and implementation of the
section6(1) will be prospective in nature , whereas other sub sections and sub clauses will be
retrospective.

8
(2011) 9 SCC 788
This assertion was also done by observing and indicating that the provision must be construed
in light of the wording, language and context of the law. And to give the provision a
reasonable and, in this case, harmonic interpretation in order to establish a coherence between
the legislature's objective, which in this circumstance is to achieve gender equality as stated
by Article 14 9of the Indian Constitution.

The amending law of 2005 was passed during the pendency of the current litigation. here for
the clarification the Ganduri Koteshwaramma v. Chakiri Yanadi 10ratio was applied in the
current case, and the right of daughters did not lapse merely because the court issued a
preliminary order has supplied the ground. As a result, as the finality of the partition deed is
decided by the court's final order or the final decree of the court, the amendment law of 2005
applies. In 2007, it was awarded.

Ultimately, respecting the respected Supreme Court's authoritative precedent set in the
Prakash v. Phulavati case, the court held that daughters should be awarded their half of
property as long as they were living after the amending law of 2005 was implemented.

Chapter 5. -Contention supplied in issue 2.

The question second created by this judgment was handled by applying literal interpretation
to the plain sense of the sentence and by reading the provision simply. Which states that, like
sons, the daughter of a coparcener becomes a coparcener in her own right at birth. In the
Hindu mitakshara law, this updated regulation intended to grant female heirs the same rights
as males.

As can be seen, Hindu mitakshara law is patriarchal and patrilineal. As a result, India's 174th
law commission reviewed the topic addressed the issue and issued suggestions. The Hindu
succession statute contains various problematic features, according to the law commission's
report.

The report's principal purpose was to abolish females' present unequal position under Hindu
Mitakshara law and promote the right to equality granted by Article 14 of the constitution. As
a result, it was urged that the daughter be awarded coparcenary status upon birth. By
mentioning cases of coparcener ship from SBI v. Ghamandi Ram11, the Hon'ble court made it
9
Article 14 of constitution of India
10
(2011) 9 SCC 788
11
(1969) 2 SCC 33
plain evident that coparcenary is by birth. As a result, because the girls have gained the status
of coparcener, they are coparcener by birth, just like boys.

Chapter 6.- Proposed argument in the favour of Appellant:

Appellants were successful in contending that they were equally entitled to their half of the
property. The trial court, in its judgement and decree of August 09, 2007, ruled that the suit
schedule properties, with the exception of CTS No. 774, were joint family properties after
framing the problems and recording the evidence (one of the home properties in plaint C
schedule) (one of the house properties in plaint C schedule).

Chapter 7. -Proposed argument in the favour of respondent:

The respondent asserted that the joint family's dwelling properties were included in the
plaint schedule C. The joint family's retail properties were listed in the plaint schedule D.
The joint family's machineries and movables were listed in the plaint schedule E. The
plaintiff claimed that the suit schedule properties belonged to the joint family and that
defendant no. 1, the plaintiff's father, was ignoring the plaintiff and his siblings, thus he
sought partition of the suit schedule properties. All of the suit schedule properties, according
to the plaintiff, were shared family properties.
In paragraph 5 of the plaint, the plaintiff claimed that the propositus, Guralingappa, died one
year before the suit was filed. The plaintiff claimed in paragraph 7 of the plaint that
defendant no. 1 owned 1/3 of the suit schedule properties, while defendants 5 and 8 each
owned 1/3. The plaintiff further claimed that defendants 6 and 7 had no interest in the
properties listed in the suit schedule.

Chapter 8.- Held

The plaintiff, defendants 2–4, were entitled to an eighth part of the joint family properties,
according to the trial court. The trial court also noted that defendant no. 8 (Gurulingappa
Savadi's wife) died intestate during the course of the claim, and her part devolved exclusively
to defendants 1 and 5, hence defendants 1 and 2 were entitled to 12 shares in the stated share.
 Chapter 9.- Judgement

The honourable Supreme court after providing the appreciation to the matter of law and the
fact involved in the case put forward their views that the we are following has undergone
tremendous number of changes and amendment (Mitakshara) which have been brought
forward before the court of law to address the problem of unequal treatment of the women
and the nearest female relatives, and women family members namely daughter of the
coparcener, further the bench opined in section 6 of the Hindu Succession Act 2005 12due to
the amendment of 2005 there is no doubt that the decision of the issue secures in the favour
of the Appellant, the act now endows the status of the coparcener both in daughter of the
coparcener and the same on the daughter of the propositus as well. This suffices with the
same obligations and rights in the coparcener properties as she would have had if the
daughter had been boy, that is the status is of the same way as the son.

Furthermore, the court decided that, in the pursuance of the view of the jury and considering
the section 6 and keeping in considering the case Gurulingappa Savadi, who was propositus
of the concerned joint family property in the matter passed away, leaving behind two
daughters, two sons and a widow, both the Appellants would be entitled to a 1/5th share each
in the said property, in accordance with the judges' opinion regarding section 6 of the Hindu
Succession Act. Plaintiff (Respondent No. 1), who was Arun Kumar's (Defendant No. 1) son,
was given proportion 1/5th share, in the property which was to be divided into five shares on
partition, that is between Arun Kumar, his two daughters, his wife and son/Plaintiff who \sis
Respondent No. 1, giving the Respondent No. 1 a 1/25th share in the property in this case.
Analysis of the case

As stated in Miss C.B. Muthamma v. U.O.I. and ors 13, "save when the divergence is
demonstrable, the standard of equality must dominate," as stated by Krishna Iyer, J. for the
Court.

The rule of equality has been on hold for a long time in the instance of providing daughters of
coparceners the status of coparceners in family property, which has finally been lifted by this
crucial ruling.

12
Sec. 6 of the Hindu Succession Act 2005
13
1980 SCR (1) 668
The Supreme Court's judgment in the case was long overdue, and it signals another step
forward in the country's drive for real equality and equitable treatment. The Trial Court and
the High Court decided on the basis of precedent set in the recent landmark case of Prakash v.
Phulavati, where it was held that there was "neither any express provision for giving
retrospective effect to the amended provision nor necessary intendment to that effect," and
thus the appellants were denied a share in the coparcenary property.

The Bombay High Court, in Vaishali Satish Gonarkar v. Satish Keshorao Gonarkar 14, decided
that the clause could not be applied to all daughters born even before the modification, and
they are of the same opinion because the Legislature had indicated the later date from which
the Act would enter into operation.

In view of the updated legislation, the daughter of a coparcener should immediately become a
coparcener at birth, just as the son does.

The goal of making the son the coparcener from birth was evident in the ancient Hindu law,
as it was in the new updated laws of the Hindu Succession Act 1956 in 2005. It respected the
rights of daughters' coparceners since birth.

The portion in question utilizes the same wording as the son. Both prior courts should have
noted that a coparcener's sons and daughters have been given the right to become coparceners
by birth.

The present Court stated that the petition for division was lodged in 2002. However, while
the lawsuit was ongoing, Section 6 of the Act was modified, and the Trial Court's decision
was issued in 2007.

Thus, in 2005, the Appellants' rights crystallised, and this fact should have been recalled by
both the Trial Court and the High Court. There was little question that the Appellants would
share in the suit property, which belonged to the joint family.

Conclusion

14
APPEAL LODGING NO. 734 OF 2011 IN NOTICE OF MOTION NO.3223 OF 2011 IN SUIT NO.2679 OF
2011
We need more just and equal legislation in every topic because of the uneven environment in
which we live in India. Various damaging and patriarchal standards were made legislation as
a component of customary practises, according to the 174th law commission study15. It also
proposed adjustments to the existing Hindu succession legislation to make it more egalitarian
and just. One such change, the insertion of section 6 to the act, was a watershed event in the
preservation of women's equal rights under succession law. In Hindu joint households,
making women coparceners is a step toward economic independence.16

It provides them social influence since they will now own a share of the property and so have
a bigger voice in family property matters. It also helps to minimize female foeticide to some
extent by eliminating the stigma that a son is necessary to prolong the inheritance.

Despite the legislation, due to a lack of knowledge, few female heirs petition for their part.
As a result, in addition to good regulation, more legal knowledge is essential.

Furthermore, uncertainty in legal positions, such as in this case where two competing
precedents exist, heighten the susceptibility of the vulnerable groups. The courts will differ in
their reasoning from case to case, contradicting the aim of the Act, which is to promote social
equality.

While Phulavati's ruling is clearer in terms of legal attitude, Danamma's decision will assist a
greater variety of women provided no constraints are applied. Phulavati's ruling eliminates
the right of coparcenary for a generation of women whose parents died before the amendment
was passed, while Danamma's decision is vague and only pertains to cases that are now
before the courts. As a result, a more precise and authoritative legal stance is necessary.

Plagiarism report

15
174Th Law Commission Report: Property Rights of Women: Proposed Reforms Under the Hindu Law, 2000

16
Uzair Ahmad Khan, ‘ipleaders' devolution of interest in coparcenary property: scope and interpretation post
amendment 23 october 2019 accessed on 13 April 2020