DAUGHTERS AS COPARCENERS

UNDER THE HINDU SUCCESSION

(AMENDMENT) ACT, 2005: THE
TRAJECTORY, LEGISLATIVE
INTERVENTION AND CONTRIBUTION
OF THE JUDICIARY
 AN OVERVIEW OF THE DISCUSSION
• DAUGHTERS AS COPARCERNERS: SOME BABY STEPS
• INTRODUCTION OF DAUGHTERS IN THE COPARCENARY
AMENDMENTS IN SEVERAL STATES
• AMENDMENT TO SECTION 6 OF THE HINDU SUCCESSION ACT IN 2005
• SOME BASIC QUESTIONS BEFORE THE COURTS
• JUDICIAL CONFUSION
• JUDICIAL CLARITY
• VINEETA SHARMA CASE
• SOME CONCLUDING REMARKS
 Sons had a
right by
Upon birth
marriage
daughter Up to 4
would generation
cease to be s
a member
of JF Under the
Classical
Hindu Law
Daughter
Son had a was
right of entitled to
ownership Her maintenan
marriage ce
expenses
and
residence in
JF home
 The first change….
A daughter’s complete exclusion from participating in
the ownership of coparcenary property worked to her
disadvantage…

The first change was brought in through the HSA,

1956 through the mechanism of notional partition,
where under the daughter could inherit the share of
the father in the Mitakshara along with other Class-
I Heirs.

This at least permitted her entry into the ownership

of coparcenary property even though her share was
comparatively very small.
SOME BABY STEPS
 The Andhra Pradesh Amendment to the Hindu Succession Act,
1985-86
Introduced daughters as coparceners in the same manner as a son.

However….
The nascent step enabling the entry of daughters as coparceners was linked to
their marital status…

That meant
If they were unmarried on the date of promulgation of the Act, they became coparceners, but if they
were married as on this date, they could not. Unmarried daughters retained their status as coparceners
even after marriage
This was soon followed in the states of
Tamil Nadu, Karnataka and
Maharashtra….
 THE HISTORIC ENTRY OF DAUGHTERS BY A
CENTRAL LEGISLATION- 09-09-2005

The Hindu Succession (Amendment) Act, 2005 was passed by the centre,
making all daughters as coparceners
in the
same
in their
manner as
own right
irrespectiv a son
e of their
marital
status
 Section 6 reads as under:
In a joint family governed by the Mitakshara Law, the daughter of a coparcener shall-

a. by birth become a coparcener in her own right in the same manner as the son

b. have the same rights in the coparcenary property as she would have had if she had
been a son

c. be subject to the same liabilities in respect of the said coparcenary property as that
of a son,

And any reference to a Hindu Mitakshara Coparceners shall be deemed to include a

reference to a daughter of a coparcener.
 This could mean….
Her rights
and liabilities
are same as
son

She is
empowered to She can acquire
form a an interest in
coparcenary the coparcenary
and even be a property
Karta

Dispose of her
share by She can ask
testamentary for partition
succession
 Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721
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 relative, 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….

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 it in the HSA, 1956 by amending it in 2005, are perhaps a
realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal
Element in Law 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 need of change.”
The legislative clarity was soon followed by judicial
interpretation but at the same time led to confusion and
uncertainty in some cases, baring the fact that still
getting the tag of a coparcener was not an easy one for
Hindu daughters.
 The main questions raised before the Courts

i. From which date would she be regarded as a coparcener?

ii. What are the conditions under which she becomes a

coparcener?

iii. What are her rights and limitations?

iv. Relevant date of her inclusion as a coparcener?

v. Whether her date of birth should be post September 9, 2005?

 The first confusion….

Section 6

1) “On and from the commencement of the Hindu Succession

Act, 2005….

a) By birth becomes a coparcener in her own right in the same

manner as the son….
Vaishali S Ganorkar v. Satish Keshavrao Ganorkar, AIR
2012 Bom 101

A single bench had held that as per Section 6 it is only a daughter

who was born on or after the date of promulgation of Act, could
become a coparcener as per the Act and a daughter of a coparcener
born earlier to 9 September 2005, would neither be a coparcener,
nor would be entitled to a share in the Coparcenary property.
 Facts of the case

Mortgaged a JF
A Sole Surviving To the bank for
Property
Coparcener raising a loan
(Residential Flat)

His two daughters u/the Securitization The loan

sought to protect and Reconstruction remained unpaid
their shares of 2/3 in of Financial Assets
the flat on the and Enforcement of and the bank
ground that they are Security Interest Act, initiated recovery
now coparceners 2002 proceedings
 The Court stated
• Ipso facto upon the passing of the Act of 2005, all the daughters of a
coparcener in a coparcenary or a HUF do not become coparceners.

• For a daughter who was born prior to 9-9-2005, she would be a coparcener
only upon a devolution of interest in coparcenary property taking place and
till a coparcener dies, no devolution of property would take place.

• The court harped upon the phrase “on and from” the commencement of the
Amending Act, 2005 in arriving at conclusion.
This erroneous decision was corrected by the Division Bench of the
Bombay High Court in the case of*

Language
of the Act
The 174th Report
Statement of the Law
of Object Commission on
and Status of
Women under
Reasons Hindu Law
Primary
intention of
the legislature
was
*Badrinarayan Shankar
ameliorating
Bhandari v. Omprakash
the status of
Shankar Bhandari, AIR 2014
women
Bom 151
 The Court in this case proceeded to examine the main
question:

Whether section 6 of the Hindu Succession

Act, 1956 as amended by the 2005 Act is
prospective or retrospective in
operation…??
 Construing “on and from the commencement of this Act”

The Principle of Interpretation

Plain meaning Or else Objective oriented approach

‘on and from the commencement of this Act a daughter of a coparcener shall by birth
The term “on or after” does notbecome
refer toathe
coparcener’
time of the birth, but is indicative of the
time of her inclusion into the coparcenary

Thus, the legislative intent is

Clause (a) is prospective but clauses (b) and (c ) are retroactive
 Therefore, the court held that
• Amended section 6 is retroactive in
i. operation

• Section 6 (1)(a) is prospective in operation

ii.
• Section 6(1)(b), (c) and section 6(2) are
iii retroactive in operation
.
 Further….
• Amended Act applies to daughters born
both prior to as well as after 09-09-2005
provided they were alive on this date as
iv. well; and

• The decision of the Court in Vaishali S

Ganorkar is per incurium.
v.
 CONDITION OF A FATHER
BEING ALIVE

“On and from the commencement of the Hindu Succession Act, 2005, a
daughter of a coparcener shall by birth becomes a
coparcener in her own right in the same manner as the son.”
 The judicial evolution
Daughter no
Daughters
entitlement if
rights are
the father is
dead absolute

Vineeta Sharma v
.
Rakesh Sharma
AIR 2020 SC 371
7
Management v. T
B G.Koteshwaramm
Raju (2018) 15 SC a
C
662 v. Chakri Yanadi
AIR 2012 SC 169

Prakash v. Phulw Dhanamma

ati @Suman Gurpur
(2016) 2SCC 36 v.
Amar (2018) 3 SC
C
343
 Prakash v. Phulwati
• The Apex Court introduced two basic qualifications for implementation and
application of the amendment to 2005 to daughters.

1. One, it incorporated in section as a general principle, that a daughter

remains incapable to re-open a partition that took place prior to 20-December-
2004 and

2. Second, that though the statute confers coparcenary rights in her favour
from 9-September-2005, only when her father is alive on this date.

• While the first is a legislative provision and the second does not find any
place in the legislation directly, and thereby is visualized as a principle laid
down by the Apex Court for the first time.
 Vineeta Sharma v. Rakesh Sharma
The Apex Court If a father dies, the
specifically held daughter does not So, how can she be
Prakash v. Phulwati cease to be a ousted from
as incorrect and member of his joint coparcenary?
noted… family

The daughters cannot To hold otherwise

be deprived of the Therefore, this was
would mean adding
right to equality arbitrary and non-
conferred on them to the text of the
est in law.
under section 6. provision
INCLUSION OF DAUGHTER AS A
COPARCENER DURING THE
PENDENCY OF LITIGATION
 Another important issue that arose was… if she became a coparcener
during the pendency of a partition suit filed in relation to the joint family
property even when the preliminary decree was passed

Whether
Partition During
daughter
pendency of the
suit filed pre suit 2005 Act is
receives a share
2005 on partition or
passed
not..??
INCLUSION OF DAUGHTER AS A COPARCENER DURING THE
PENDENCY OF LITIGATION
During the pendency
Prema v. Nanje A suit for partition of litigation, in 1990,
was filed in 1989 the Hindu Succession
Gowda AIR and a preliminary (Karnataka)
2011 SC 2077 decree was passed Amendment was
passed
Pratibha Rani
Tripathy v. Before partition could
A suit for partition
Binod Bihari was filed…
be effected the 2005
Tripathy 2014 Act came into force
Orissa

Vineeta Sharma Suit was filed in

During this time
2002 and decree
v. Rakesh was passed in
daughter became a
Sharma coparcener
2007
In all three cases cited above

Daughter
After suit for filed for her
partition was inclusion
filed

She joined the

suit later on

Her rights were

acknowledged and upheld
by the Courts
 Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721

A Hindu male died in the year 2001 leaving behind his

two daughters, D1 and D2, two sons, S1 and S2, and a
widow, W, a grandson SS and property that comprised of
house, shops, machinery and movables.
 The main plea and journey of this case

• The Trial Court in 2007 held that since the daughters D1 and D2 were
born prior to 1956 and were not coparceners, they were not entitled to
any share. Although SD1 and SD2 will get shares along with their
brother SS and Widowed mother W.

• The High Court upheld this in 2012.

• In 2013, an appeal was presented to the Apex Court by the D1 and D2.
 The issue for adjudication before the Apex Court was:
• Whether the daughters could be denied the share on the ground that
they were born prior to the enactment of the Act, and therefore,
1. cannot be treated as coparceners?

• An alternative question was framed: Whether with the passing of the

HSAA, 2005, the daughters would become coparceners in their own
right and would therefore, be entitled to an equal share as that of the
2. son?

• What is the material date to decide their entitlement: is it the date of

3. death of the intestate or their date of birth?

 1.

The rights under the amendment are applicable to living daughters

of coparceners as on 09-09-2005 irrespective of when such
daughters are born. Alienations including partitions which may
have taken place before 20-12-2004 as per law applicable prior to
the said date will remain unaffected. Any transaction of partition
effected thereafter will be governed by the Explanation.
 2.
Section 6 as amended, stipulates that on and from the commencement of the
Amendment Act, 2005, the daughter of a coparcener shall by birth become a
coparcener in her own right in the same manned as the son. It is apparent that
the status conferred upon sons under the old section was to treat them as
coparceners since birth. The new section now statutorily recognizes the rights
of coparceners of daughters as well since birth. The section uses the words in
the same manner as the son. It should be apparent that both the sons and
daughters of a coparcener have been conferred the right by birth. It is the very
factum of birth in a coparcenary that creates the coparcenary. Devolution of
coparcenary property is a later stage of and a consequence of death of a
coparcener.
 3.
• One of the incidents of coparcenary is the right of a coparcener to seek a
severance of status. Hence, the rights of coparceners flow from birth (now
including daughters) as is evident from sub-sections (1)(a) and (b).

• Hence, it is clear that 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.
 4.

In the present case, the suit for partition was filed in the year 2002, but during
the pendency of this suit, section 6 was amended. As the decree was passed by
the trial court only in the year 2007, thus the rights of D1 and D2 got
crystallized in the year 2005 and this event should have been kept in mind by
the Trial Court as well the High Court.
 5.
The Apex Court also quoted Ganduri Koteshwaramma v. Chakiri Yanadi,
wherein it was held the rights of daughters in coparcenary property as per
amended section 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.
 6.

The property which was the subject matter of partition suit and belonged to
joint family and in the partition suit; share will devolve upon the sisters as
well. Since, H died leaving behind two sons, two daughters and a widow, both
D1 and D2 would be entitled to 1/5th share each in the said property. The share
of S1 would be divided into five shares on partition, i.e., between S1, S1W, SDI,
SD2 and SS. In this manner, SS would be entitled to 1/25 th share in the
property.
The judgment advances women’s property rights

• The decision unequivocally clarifies the legal position rooted in the 2005

amendments, that daughters now have the same rights as sons with respect to

coparcenary property partitioned after the amendment to the Act, regardless

of when they were born.

 The difference between Phulwati and
Dhanamma judgments
Prakash v. Phulwati Dhanamma

• If the father passes away prior • During the pendency of the

to the date of amendment and partition suit if the father
during any pendency of a passes away then the female
partition suit, their female counterparts will be entitled to
counterparts will not be entitled it.
for the same.
 Vineeta
Sharma v.
Danamma
Rakesh
v. Amar
Prakash v. Sharma
Phulwati
 Vineeta Sharma v. Rakesh Sharma

The composition of the bench: Arun Mishra, M.R. Shah and S.

Abdul Nazeer, JJ. (unlike Division Bench in Phulwati and
Dhanamma)
 Arguments supporting Phulwati and Danamma
Right is • It was inserted and introduced for the 1st
introduced in the time and this legal fiction cannot be
Amendment in stretched beyond the purpose for which
the fiction has been created.
2005
• The expression “shall have” is
“shall have the indicative of a prospective
same rights” scenario.
• This expression indicates “daughter of a
“Daughter of a living person and has the status of a
coparcener” coparcener on the date of the
commencement of the Act.”
 Submissions of the Amicus Curiae
• There was no conflict between the
decisions of Phulwati and Danamma as
both held Section 6 was prospective in
1. application.

• The scheme of Section 6 was future and

forward looking.
2.
Submissions of the Union of India
Exclusion of a daughter from
coparcenary was
discriminatory and led to
negation of Fundamental rights

The Explanation to Conferment of rights on

section 6(5) was daughters does not
inserted to avoid disturb settled rights
any bogus or sham which got crystallized
transactions. before 20-12-2004

The decision in
Phulvati failed to
realize that the
coparcenary rights
are accrued at birth
 Observations and Decision of the Court

Mitakshara Coparcenary and

Legislative in-roads
The rights in a coparcenary accrued at birth. Prior to the HSA,
women did not have any interest in the coparcenary properties,
and on the demise of a coparcenary, doctrine of survivorship
applied. The Act made inroads in the system by introducing
Notional Partition and included women in a limited and
indirect sense into the coparcenary.
The 174th Report of the Law Commission of India: A
Precursor

Recommended the adoption of the Kerala model

Amendments effected in Andhra Pradesh, Karnataka and several other
states giving coparcenary rights to daughters

The HSAA 2005: Statement of Objects and

Reasons
“It is proposed to remove the discrimination as contained in section 6 of the
HSA, 1956 by giving equal rights to daughters in the Hindu Mitakshara
coparcenary property as the sons have.”
Essential Condition for conferring status of coparcener

• Provides parity of rights in coparcenary

property among male and female
Section 6 members of a Joint Hindu Family on
and from September 9, 2005.

Essential • The coparcenary must be in existence on the date

Condition for of coming into force of the Act in 2005. if the
coparcenary was disrupted by the act of parties
conferring or by the death of parties, the daughter could not
status of get the status of a coparcener in a coparcenary
property.
coparcener
 The right is subject to….

• Any disposition or alienation or partition which had

taken place before 20 December 2004.

• The status conferred cannot affect the past transactions

of alienation, disposition, partition- oral or written.
 The right is not retrospective but retroactive
• It is a right by birth. Hence it is not to
resurrect the past, but to recognize an
Right by Birth antecedent event for conferral of rights
prospectively.

‘Prospective’- • A ‘prospective’ statute operates from the date of its

enactment conferring new rights.
‘Retrospective • A ‘retrospective’ statute operates backwards and takes
away or impairs vested rights. Acquired under existing
’ laws.

• A ‘retroactive’ statute is the one that does not

operate retrospectively, it operates in futuro.
‘Retroactive’ • However, its operation is based upon the
character or status that arose earlier.
 Therefore…

The provisions of section 6 are retroactive in

nature and not retrospective as even though the
right of a coparcener accrued to the daughter by
birth, it could be claimed only from the date of
the 2005 Amendment.
 ‘Unobstructed Heritage’
• Unobstructed Heritage takes place by
Unobstructed birth while obstructed heritage takes
Heritage place after the death of the owner.

• Under Section 6, rights are given by

birth, which is unobstructed heritage.
Section 6 • This is independent of the owner’s
death.
• The coparcener’s father need not be alive of the date
of substitution of section 6 i.e. 9.9.2005.
Thus, • The daughter would step into the coparcenary as that
of the son by taking birth before or after the Act.
 So….
‘a
daughter Has a and can
right by claim right
born after birth from birth
‘a
9-9-2005’
daughter Has a But can
born prior right by claim from
to 9-9- birth 9-9-2005.
2005’
 Legal Fiction to be given full effect

Just like Was effective in

And carry the
legal fiction to a
Notional ascertaining
logical
shares
Partition conclusion

Similarly, Notwithstanding
that a preliminary
the …is required to
be given full
decree has been
substituted effect to..
passed the
daughter is to be
Section 6 given a share.
 The Court on Partition Proceedings
Partition a • Mere filing of a suit for partition does not
bring about partition. In fact, any subsequent
serious change in law from the time of filing the suit,
could also be taken into consideration before
affair passing the final decree.

• Though,
Explanatio the Explanation Section
contemplates partition only by virtue of
6(5)

registered partition deed, the Courts could

n Section recognize oral partition in exceptional cases
based upon long standing evidences in the form
6(5) of contemporaneous public documents.
 While distinguishing Phulwati, the court
observed:
“A finding has been recorded in Prakash v. Phulwati that the rights under the
substituted Section 6 accrue to living daughters or living coparceners as on 9.9.2005
irrespective of when such daughters are born. We find that the attention of this Court
was not drawn to the aspect as to how a coparcenary is created. It is not necessary to
form a coparcenary or to become a coparcener that a predecessor coparcener should
be alive; relevant is birth within degrees of coparcenary to which it extends.
Survivorship is the mode of succession, not that of the formation of a coparcenary.
Hence, we respectfully find ourselves unable to agree with the concept of “living
coparcener” as laid down in Prakash v. Phulwati…The proviisons of section 6(1)
leave no room to entertain the proposition that coparcener should be living on
9.9.2005 through whom the daughter is claiming…”
 On Danamma, which was partly overruled, it
was noted:
“In Danamma…Daughters were given equal rights by this Court. We agree with
certain observations made in paras 23 and 25 to 27 but find ourselves unable to
agree with the earlier part approving the decision in Prakash v. Phulwati and the
discussion with respect to the effect of the statutory partition. As a matter of fact, in
substance, there is a divergence of opinion in Prakash v. Phulwati and Danamma
with respect to the aspect of living daughter of a living coparcener. In the latter
case, the proposition of the living daughter of a living coparcener was not dealt with
specifically. However, the effect of reasons given in para 23 had been carried out to
logical end by giving an equal share to the daughter.”
 The Supreme Court in this case…

In view of the delay caused due to these conflicting

decisions, the Supreme Court has directed all High
Courts and subordinate courts to dispose off cases
involving this issue, as far as possible, within six months.
So, what does THE Vineeta
Sharma judgment
convey….???
 It corrected an
obvious anomaly
in the
interpretation of
2005
amendment

The court also

It also clarifies
distinguished
the intent behind
between
introducing a
retrospective
special definition
and retroactive
of “partition”…
laws

..which was to protect

Oral Partitions could the interests of
not be considered under
exceptional
daughters from sham
circumstances and high transactions which
burden of proof could be set up to show