Anushka Thakur[1]
CITATION: AIR 2018 SUPREME COURT 721
BENCH: Justice A.K. Sikri and Justice Ashok Bhushan
JUDGEMENT: 01 February 2018
INTRODUCTION.
Amid all the social taboo prevailing in our society, in the landmark judgement delivered by the Hon’ble Supreme Court of India, daughters were given equal rights as that of the son through the amended Hindu Succession Act in 2005. The main aim of this amendment was to uproot the deep seated and deep rooted prevailing patriarchy which has been present since ages by the Mitakshara Coparcenary. This judgement supported gender equality not only on the family sphere but also on the social sphere too. Due to the amendment of the HSA act, even married daughters could take part in the inheritance rights of the Hindu joint family property as a coparcenor. Previously, the legislation created a classification between the marital status of the daughter as unmarried ones could have a right in the ancestral property while married ones couldn’t as it is the belief of the people that on the completion of saptapadi(a ceremony of Hindu Marriage, the married daughters belong to the husband’s family thereby severing all rights from her parental property. The amendment created and supported the gender neutral stance by quashing the said classification by the marital status of the daughter, and simply made it ‘daughter’ without any additional address.
BACKGROUND AND FACTS OF THE CASE.
In this case, there is one Gurulingappa Savadi, propositus of a Hindu Joint Family. He has two sons, namely, Arunkumar and Vijay, and two daughters, namely, Danamma and Mahadanda who are the appellants. Gurulingappa Savadi died in the year 2001 leaving behind the aforesaid two daughters, two sons, and his widow, Sumitra. After his death, Amar(plaintiff & grandson), son of Arunkumar filed the suit for partition on July 01, 2002 and a separate possession of the property, stating that the two sons and widow were in joint possession of the aforesaid properties as coparceners, claiming 1/15th of the share. He further mentioned that the appellants herein were not the coparcenors in the said joint family as they were prior to the enactment of Hindu Succession Act, 1856. He 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.
PROCEDURAL HISTORY.
Trial Court: While decreeing the suit on August 09, 2007, it held that the appellants were not entitled to any share as they were prior to the enactment of the HSA act and, hence, couldn’t be considered as coparceners and that the suit schedule properties were joint family properties except CTS No. 774 (one of the house properties in plaint C schedule).The Trial Court also rejected the alternate contention that the appellants had acquired share in the said properties, in any case, after the amendment of the Act of 2005.
High Court: The view of the Trial Court was upheld by the High Court in the impugned judgement dated January 25, 2012 and dismissed the appeal. Thereafter, on March 04, 2012, the defendants filed a review petition bearing no. 1533 of 2012, which met the same fate.
Supreme Court: Allowed the appeal, decreed that decree of partition shall be drawn by the Trial Court.
ISSUES BEFORE THE COURT.
- Whether the appellants, daughters of Gurulingappa Savadi, could be denied their share on the ground that they were born prior to the enactment of the HSA act and, therefore, cannot be treated as coparceners?
- Whether with the passing of Hindu Succession (Amendment) Act, 2005, the appellants would become coparceners “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?
ARGUMENTS OF THE PARTIES.
Appellant’s Assertions:
- The appellants herein contested the suit by claiming that they were also entitled to share in the joint family properties, being daughters of Gurulingappa Savadi and for the reason that he had died after coming into force the Act of 1950.
- Filed an appeal before the High Court seeking equal share as that of the sons of the propositus.
Defendant’s Assertions:
- Filed suit claiming 1/15th share from the partition and a separate possession of the suit property described at Schedule B to E in the plaint stating that the two sons and widow were in joint possession of the aforesaid properties as coparceners and properties mentioned in Schedule B was acquired out of the joint family nucleus in the name of Gurulingappa Savadi. Case set up by him was that the appellants herein were not the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act, 1956.[2]
- 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.
JUDGEMENT OF THE COURT.
The Supreme Court quoted, “We are of the view that amendment to the aforesaid Section vide Amendment Act, 2005 clinches the issue, beyond any pale of doubt, in favour of the appellants. 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 the same rights and liabilities in the coparcener properties as she would have had if it had been son”.
The Court stated that in the present case, no doubt, a suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the HSA 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. In fact, there is no dispute that the property which was the subject matter of partition suit belongs to the joint family and Gurulingappa Savadi was propositus of the said joint family property. In view of the aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since Savadi died leaving behind two sons, two daughters and a widow, both the appellants were entitled to 1/5th share each in the said property.
The appeals were allowed in the aforesaid terms and decree of partition was ordered to be drawn by the trial court accordingly. No order as to the costs were given.
RATIO DECIDENDI: THE REASONING OF THE COURT.
The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward by the growing need to maintain gender neutral stance. The section 6 of the amended act 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 which can be used and disposed of at her will. These changes have been sought to reach the base of equality, thus seeking to uproot 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, “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 the need of change.”
Section 6, 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 coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcener that creates the coparcener, 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.
Hence, it is clear that the right to partition has not been abolished. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener. The Court in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr.[3] held that the rights of daughters in coparcenary property as per the 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 a situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.
The case of State Bank of India v. Ghamandi Ram[4] was referenced as it’s essential to understand the incidents of coparceneryship as was always inherited in a Hindu Mitakshara coparcenary.
The effect of the amendment has been the subject matter of pronouncements by various High Courts, in particular, the issue as to whether the right would be conferred only upon the daughters who are born after September 9, 2005 when Act came into force or even to those daughters who were born earlier. Bombay High Court in Vaishali Satish Gonarkar v. Satish Keshorao Gonarkar[5] had taken the view that the provision cannot be made applicable to all daughters born even prior to the amendment, when the Legislature itself specified the posterior date from which the Act would come into force. This view was contrary to the view taken by the same High Court in Sadashiv Sakharam Patil v. Chandrakant Gopal Desale.[6] The matter was referred to the Full Bench and the judgment of the Full Bench is reported as Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari.[7] The Full Bench held that clause (a) of sub-section (1) of Section 6 would be prospective in operation whereas clause (b) and (c) and other parts of sub-section (1) as well as sub-section (2) would be retroactive in operation. It held that amended Section 6 applied to daughters born prior to June 17, 1956 (the date on which Hindu Succession Act came into force) or thereafter (between June 17, 1956 and September 8, 2005) provided they are alive on September 9, 2005 i.e. on the date when Amended Act, 2005 came into force. Orissa, Karnataka and Delhi High Court have also held to the same effect in various cases.
The controversy now stands settled with the authoritative pronouncement in the case of Prakash & Ors. v. Phulavati & Ors[8]. which has approved the view taken by the aforesaid High Courts as well as Full Bench of the Bombay High Court.
CRITICAL ANALYSIS.
After the death of the original coparcener, his grandson, Amar filed a suit claiming his share in the property citing that only the two sons and the surviving widow of the original coparcener can claim the share. He debarred the two daughters’ citing that they were married and given enough at the time of their marriage and further cited that they were born before the enactment of the Hindu Succession Act, 1956, and hence the daughters are not the coparcenors of the said property. The decrees issued by the Trial Court and the High Court were supported by the lines of precedent laid down in the then latest landmark judgement of Prakash v. Phulavati, and thus the appellants were not granted their share in the said property. No share was given to the appellants also on the basis that their father passed away before the enforcement of the Hindu Succession (Amendment) Act, 2005.
The Supreme Court, however, held that Section 6 of the Act contains a retrospective effect on the devolution of coparcenary property. Daughters are coparceners, no matter whether the father died before or after the 2005 Amendment. Ultimately, the contended property was divided in five equal shares given in the name of the two daughters, the two sons, and the widower wife of the original coparcener.
The major strength of the judgement was that it gave the equal voice to the reigning gender disparity in the society. Hence, this case established the retrospective effect of the Act on the coparcenarship of girls with regards to the father’s date of death.
IMPACT ON FUTURE CASES: This case is the landmark authority to determine the rights of the coparceners be it the male or females heirs of the said property. The right of female heirs was strengthened via the judgement and the legislature amendment and application.
CONCLUSION.
The Danamma @ Suman Surpur v. Amar case consolidates and clarifies the rights and participation of the coparceners in the disputed property be it a male or female coparcener. It reaffirms that women have the right to be a part of the said ancestral property and have the power to dispose of it at their own will.
In Old Age in India, women had rights in the estate, be it with their status as a wife or as a daughter. Later, due to the change in the era and dynasties and the changing social norms, the voice of women were suppressed and their participation in the social ambit and even in the family sphere decreased bit by bit.
Now with the advent of the modern era, women participation in the social arena has increased if not drastically then gradually. They have become aware of the rights and powers bestowed on to them by the virtue of the Constitution. The judgement also clarifies the fact that female coparceners can be debarred of their rights just by claiming the year of the enactment or the amendment of the Act. The legislature has given power to the women to consolidate their position in the ancestral property regardless of the year of the Act.
This landmark judgement solidified the standing of women in the right to participate in the shared ancestral property and not be disputed or questioned.
This case comment is written by Anushka Thakur, a first-year undergraduate law student at the University of Allahabad.
References
[1] B.A. LL.B.(Hons.) Second Year, Faculty of Law, University of Allahabad.
[2] AIR 2018 SUPREME COURT 721(7)
[3] (2011) 9 SCC 788
[4] AIR 1969 SC 1330
[5] AIR 2012 Bom 110
[6] AIR 2011 (5) Bom CR 726
[7] AIR 2014 Bom 151
[8] (2016) 2 SCC 36
