The Supreme Court amended the act of 1956 in the case of Prakash & Ors. V Phulvati & Ors (2016) and declares that the daughter has the same right as the son does and will be considered a partner irrespective of her marital status.

Table of Content:

• Introduction
• What is a coparcenary?
• Challenge of validity of Section 6 of the Hindu Succession Act, 1956
• Facts of the case
• Issue involved
• Judgment
• Case analysis
• Conclusion

Introduction

A joint Hindu family means a family in which all the people who share a common ancestor live with their spouses and children, but this is limited to three generations. Such kind of families were governed by the Hindu succession act, 1956 before the amendment of 2005, but now the Joint Hindu Family is governed by the law of the Hindu Succession (Amendment) Act, 2005.

What is a coparcenary?

It is a term used to refer to a person who has the capacity to inherit the property which is owned and acquired by their ancestors by birth. Such a property is known as a coparcenary property on hereditary property. Only a coparcener has the right to demand partition of such property as it is jointly owned by all the coparceners. Before 2005, only the male member that was a son, grandson or great-grandson fell under this category.

Challenge of validity of Section 6 of the Hindu Succession Act, 1956

The Supreme Court amended the act of 1956 in the case of Prakash & Ors. V Phulvati & Ors (2016) and declares that the daughter has the same right as the son does and will be considered a partner irrespective of her marital status.

Facts of the case

 In 1992, the respondent-plaintiff filed a suit in the trial court of Belgaum, claiming partition and possession of her share in her father’s property. Her father died on 18th February 1988, and after his death, she wanted to acquire the ancestral property. And the defendant, in this case, contended that the plaintiff could acquire only the property which is self-acquired by their father and not the inherited ones. The trial court of Belgaum finds the pleadings of the respondent- plaintiff irrelevant and decides the matter in favour of the appellant- defendant, and the decision was challenged in the High Court in the year 2007. The High Court decision was overruled by the Supreme Court as in the pendency of the suit when the amendment act of the Hindu Succession act came into existence with effect from 9th September 2005.

Issue Involved

1. a) Whether the amended act was applicable even when the father of the respondent died before 2005?
2. b) Can the amended act be applied to the partition effectuated without the court’s decree?
3. c) Can the amendment act be applied retrospectively?

Judgment

The high court held that as the partition was not effectuated by any court decree, hence the provision under section 6 (5) is not applicable in the present case. But the Supreme Court reversed the decision of the high court, and the three-judge bench headed by Justice Arun Mishra distinguished between the applicability of the amended act by the High court in the present case and the retrospective effect of this act in general.

Case Analysis

The question in front of the High Court of Karnataka is whether the amended act can be applied in the cases pending before the amendment and whether the provision of section 6 (5) under the act of 2005 applied to the notional partition also?

The two-judge bench consisting of Justice D.V. Shylendra and Justice N. Anand of the Karnataka High Court stated that:-

1) In respect of the first issue, the bench referred to the Supreme Court judgment in the case of G. Sekar vs Geetha & ors. In which the apex court held that any amendment made in law would apply to all those cases which are proceeding in the pendency of the amendment in the law. Also, the court in S.L. Srinivasa Jute Twine Mills (P) Ltd. v Union of India explained the difference between the applicability of the amendment and its retrospective effect. Based on these judgments, the High Court held that the present case was pending during the commencement of the proceeding, hence it is applicable to it, but the court didn’t take the difference between the two into consideration.

2) While referring to the second issue, the court states that the answer to this question lies in the act itself as section 6 (5) itself provides that the provision would not be applicable on the partition effectuated before 20th December 2004, but the word ‘Partition’ means a partition which is effectuated before 20th December, 2004 but the word ‘Partition’ means a partition which is effectuated either by a deed registered under the Registration Act, 1908 or by the decree or order made by the court. In the present case, the partition is neither based on a deed nor by any court order nor decree.

Unsatisfied with the High court’s verdict, an appeal was preferred in the apex court. The appellant contended that his father died before the act came into existence, and therefore when we did, and he was no more a coparcener and, accordingly to the respondent, cannot be said as a coparcener under the light of the said provision.

After hearing both parties, the apex court referred to the judgment of Shyam Sunder vs Ram Kumar in which it was held that the statute would apply prospectively until and unless it was expressly mentioned in the provision that it would apply retrospectively. By considering the observation and judgment made by the High court, the apex court stated that a living daughter is a coparcener in a joint Hindu family irrespective of when she is born. The Hon’ble Court stated that the Act will apply to all those daughters whose father was a living coparcener on and from 9th September 2005, but in the present case, the respondent cannot be entitled to partition and possession as her father was not a living coparcener at the pendency of the proceedings.

Further, in the case of Lokmani & ors vs Mahdevamma & Ors [S.L.P. (C) No. 6840 of 2016] the High court clarifies that when a proceeding is pending in a court regarding the status of a daughter as a coparcenary or not, the suit will be decided in the light of the amended act of 2005. By adding this, the court also specifies that an oral partition or an unregistered partnership deed cannot be considered a partition under section 6 (5) of the said act.

In Bal Chandra v. Smt. Poonam & Ors. [SLP [C] No.35994/2015] the question raised is that if a father was not alive at the time the amendment act of 2005 came into force, then the daughter  will be treated as a coparcener. 

In Smt. V.L. Jayalakshmi v. V.L. Balakrishna & Ors. [SLP [C] No. 14353/2019], the suit was filed in 2001, and the trial court granted 1/7th share to all the parties, but later it is modified and daughters have been granted 1/35th share in the property in the light of Prakash vs Phulvati case.

In B.K. Venkatesh v. B.K. Padmavathi [SLP 4 [C] Nos. 1766¬67/2020] the daughters have been granted an equal share in the property. 

Conclusion

The amended act, i.e., the Hindu Succession Act, 2005 grants the daughters the same right as that of the son by updating their legal status and making them a coparcener in a Hindu undivided family. The decision of the Prakash vs Phulvati case was overruled and the apex court stated that as section 6 (1) of the act provides that the daughters are coparceners in a Hindu joint family by birth, and therefore whether the father was alive at the time of the amendment or not is immaterial in the case of Danamma vs Amar (2018). It was held that the benefit of the said Act is also extended to daughters whose father died before 2005. 

Furthermore, it was held that the daughters are also liable for the debt incurred by the father to the same extent as that of her right in the ancestral property. But it is not decided yet whether or not the husband of the daughter (in case the daughter is married) is also responsible for paying off the debt on behalf of his wife. Prior to the amendment act of 2005, certain states like Kerala, Tamil Nadu, etc. gave the equal right to daughters as to that of a son in the coparcener property under Hindu Mitakshara School.