Backdrop of the Case
The present case is an appeal from the judgment of the High Court who while
upholding the decision of the Trial Court, refused to hold the appellants as
Coparceners due to being born before the date of the enactment of the Act. The
appellants being the two daughters of Mr. Gurulingappa Savadi.
The other parties are two sons and wife, namely Arun, Vijay and Sumitra
respectively. The suit of partition was filed by Amar (Arun’s son) on July 01,
2002. The appellants were not treated as Coparceners due to the two major
reasons as stated in the plaint.
- Firstly, due to them being born prior to the enactment of Hindu
Succession Act, 1956[i] and
- Secondly, them being married as a consequence have relinquished their
right to inherit their property as their share has already been given to
them as their dowry.
The major contentions of the appellants consisted that they should be given
share in the property due to the fact that the Mr. Gurulingappa Savadi had died
after the enactment of the Act of 1950. During the pendency of the partition
suit the Hindu Succession (Amendment) Act, 2005[ii] came into force which
secured the rights of the appellants. Both the Trial Court and High Court ruled
against the appellants therefore they approached the Supreme Court under Article
136 of the Constitution [iii].
The main issue before the Hon’ble Court comprised if after the successful
enactment of Hindu Succession (Amendment) Act, 2005[iv] whether the Appellants
would be entitled as Coparceners By birth at par with the sons and
therefore be entitled to equal share as the sons do.
The Hon’ble Court analyzed the affect of Section 6 both pre and post amendment
of the year 2005 as brought to the Hindu Succession Act, 1956[v]. It set aside
the findings as propounded by the High Court and further stated that the
amendments brought to the Section 6 of the Hindu Succession Act, 1956[vi] were
undoubtedly in the favor of Appellant.
The amendment gave the daughters an inherent right and the status of coparcener
since birth at par with their male counterparts. The Court categorically stated
that the Amended Act applies to living daughters of living coparceners with
respect to the date of the Act coming into the force.
Analysis of the decision of the court
In the present case, after the death of the original coparcener in 2001 and
thereafter the partition proceedings were initiated in the year 2002. No share
was given to the appellants due to the fact that their father passed away before
the enforcement of the Hindu Succession (Amendment) Act, 2005[vii].
The decision by the Trial Court and High Court was given on the lines of
precedent laid down in the latest landmark judgment of Prakash v. Phulavati and
thus the appellants were not granted share in the coparcenary property.
[viii] The Apex Court while dealing with the present case though upheld the
decision as propounded by the Supreme Court but successfully granted the
appellants their share in the property. [ix]
The Section 6 of the HSA, 1956[x] as before the amendment stipulated that if any
coparcener dies leaving any female relative as per Class I of Schedule to the
Act, his interest will delve through intestate succession and not by the way of
Furthermore, explanation 1 to the aforementioned section prescribes the
mechanism to ascertain the interest of a deceased coparcener which shall be done
in the manner it would have been done right before his death irrespective of his
capacity to claim partition. During the pendency of the present case, the
amendment of 2005 came into force.
The amended provision categorically stated that on and from the date of the
amendment being coming into force. It gave the daughter the status of coparcener
right from her birth and the right is inherent in them. The Court held that the
amendment was clearly in favor of the appellants, it being conferring the
daughters the status of coparceners at par with the son.
The Court further in order to determine the effect of the Amendment being
retrospective or prospective analyzed its judgment and the text of the Act and
propounded that they both held the amendment to be having a prospective effect.
The Hon’ble Court in order to pronounce its judgment propounded that a partition
is concluded only after the passing of the final decree and not the preliminary
decree and thus stated that despite the suit being instituted in the year 2002
the daughters were entitled to the benefits as given to them by the Amendment to
The court while dealing with the present issue also acknowledged the fact that
the Mitakshara law which inherently deals with law relating to HUF has undergone
unparalleled changes in order to meets the standards of equality as enshrined in
the Constitution of India [xi].
It further stipulated that a daughter would be treated as coparcener since
birth at par with her male counterparts and she is also entitled to dispose
of her coparcenary property. The court also cited the words of Roscoe
Pound while stating the ardent need of the Amendment of 2005.
‘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.’[xii]
The judgment in the present case lead to numerous incongruities in the field of
application of Section 6 of the Hindu Succession (Amendment) Act, 2005.[xiii]
As per the case of Prakash v Phulavati, if the father passes away prior
to the date of amendment and any male coparcener filed a partition suit, their
female counterparts will not be entitled for the same.[xiv] This position has
been changed in the present case and female counterparts were also held to be
entitled for share in the property in such circumstances.
While pertaining to scenarios wherein no such claim for partition is pending the
deciding authority shall be the precedent of Prakash v Phulavati and this
no share could be given to the female coparceners when the father died prior to
the date of enactment of the Amended Act. The other major ambiguity comprised
the fact that the female coparcener could still not file a suit of partition as
has been held in Prakash v Phulavati and was entitled to share only if a
male coparcener files the suit for the partition of coparcenary property as the
act even after the amendment does not give any such right to the female
This leads to a state of irreconcilability. As per the present case, if a suit
for partition has been filed by a male coparcener which is granted by the Court,
the female coparceners shall be entitled for their share irrespective of the
date of death of their father. The amendment was given a strictly prospective
effect depending on the date of the death of father irrespective of the
existence of any suit of partition.[xv]
Judicial approach on the given issue in the previous judgments of the courts
The issue that has been elaborately dealt in the present case pertains to the
rights of women as coparceners has always been a very dynamic aspect of the
Hindu Succession Act, 1956[xvi]. The rights have been changed gradually in a
manner to be gradually recognizing the rights of the female counterparts and
conferring them the status of coparceners and their right to a share in
The Hon’ble Supreme Court of India in the case of V. Tulasamma & Ors. versus
V. Sesha Reddi
stipulated the scope of Sec 14(1) & (2) and her right to
property was identified through her right to be maintained.[xvii]
The landmark judgment of the Commissioner of Wealth Tax v. Chander Sen
with issue pertaining to the status of the share of the property after partition
whether it amounts to coparcenary party or changes to self -acquired
The Court after the co-joint reading of Sections 4,6 and 8 of HSA, 1956 and an
analysis of the given issue held that it amounts to self-acquired property after
the statutory interpretation.[xix] The Supreme Court in the case of Income Tax
v. G. S. Mills dealt with the capability of women being given the position of
Karta in a family and with respect to the issue at hand held that women could be
made the Karta of the family.[xx]
The Apex Court while dealing with the issue in Sheela Devi v. Lal Chand
that the Hindu Succession Act, 1956 would be at a higher pedestal as compared to
the Hindu Law and the former shall prevail in case of any disputes as the Act
was enacted in order to confer right of property to the female heirs.[xxi]
In the case of Anar Devi and others v. Parmeshwari Devi and others
was stipulated that for the determination of the undivided interest of the
coparcener the same shall be dealt by the procedure of succession in the manner
of notional partition.[xxii]
The Court to determine the above decision had relied on the judgment of Gurupad
Khandappa Magdum v. Hirabai Khandappa Magdum
which dealt with the
intricacies of notional partition.[xxiii] The judgment stipulated to assume a
partition to be taking place before the death of the coparcener for the
determination of the undivided interest.
With respect to the Hindu Succession (Amendment) Act, 2005 the High Court of
Bombay in the case of Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar
that the amended act shall apply only to daughters born after the year of the
amendment i.e. 2005.[xxiv]
The same was overruled by a larger bench further stating that the condition to
be fulfilled for the application of the amended act is that both daughter and
father should necessarily be alive on the date of the amendment coming into
In the case of Badrinarayan Shankar Bhandari v. Om Prakash Shankar Bhandari
it has been categorically stated that the Clause (a) of sub-section (1) of
Section 6 would have prospective effect and on the other hand other parts of
sub-section (1) and sub-section (2) of Sec 6 would have retrospective
The Court in the present case while dealing with the issue whether daughters
born before September 9, 2005 were also entitled to the benefits and rights
being propounded by the Hindu Succession (Amendment) Act, 2005 analyzed various
Furthermore, the court stated that the amended Section applies to daughters born
prior to June 17, 1956 or ones alive on the date of the enactment of the amended
act of 2005. The above dictum has also been upheld by the High Courts of Orissa,
Karnataka and Delhi. The above controversy was settled by the Hon’ble Supreme
Court in the case of Prakash and Ors. v. Phulavati and Ors
In Prakash’s case
the Hon’ble Supreme Court referred to the Act itself which
clearly stipulated that all the rights that have been conferred by the said
amendment on the female coparceners have been done on and from the commencement
of the Hindu Succession (Amendment) Act, 2005. Moreover, the court stated that
the language used by the statute leave no scope for interpretation as they are
It has been held by the Supreme Court in the case of Shyam Sunder v. Ram
that any amendment brought to the Substantive provision of any act, it
always has a prospective effect unless explicitly stated or by necessary
implication otherwise. [xxviii] In the present case, no such provisions as to
giving the amendment retrospective affect has been given and thus it will
clearly have prospective effect only and the court held the findings of the High
Court to be untenable.
Furthermore, while dealing with the major principle which was relied upon to
pass the judgment in favor of the appellants, the court relied on the case of
Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr.
In this case, it was held that a preliminary decree cannot abrogate the rights
of daughters in the coparcenary property as the finality of a partition is
achieved only by a final decree.
Approach of the legislature on the issue
Despite the Constitution of India being enshrined with the Right to Equality as
a Fundamental Right, the Laws governing India for a very long time have suffered
gross biasness on numerous grounds like gender, caste etc. The arena of right to
property has been greatly effected by this biasness, this can be concluded after
referring to the authoritative treatise of Mulla:
The law of inheritance was of later growth and, in general, applied only to
property held in absolute severalty as distinguished from property held by the
joint family. The fundamental conception of the Hindu joint family is a common
male ancestor with his lineal descendants in the male line. Even under early
Hindu law, the rights of sons were recognized and they acquired equal interest
with the father in the ancestral property as coparceners.[xxx]
The evil of gender disparity is deep rooted especially in the property rights as
the traditional inheritance Laws have been derived from ancient doctrines of Dayabhaga and Mitakshara.[xxxi] A
lot of provisions have been carrying forward this biasness for example the
system of Mitakshara Coparcenary wherein only males were considered to be
coparceners. The Coparcenary had been restricted to patrilineal regime and
consequently no share was given to the female members of the family.[xxxii]
Pandit Jawaharlal Nehru (then Prime Minister), stated his commitment to the
reformation in the favor of rights of the females and subsequently led to the
enactment of Hindu Succession Act, 1956.[xxxiii] This Act was further amended in
the year 2005 to further grant rights to female coparceners. The amendment was
made applicable on and from the date of the amendment coming into force. The
same has been stated in the amended act without the scope of any kind of
The National Commission for Women in the month of July 2001 also made numerous
suggestions with regards to the amendment of the said act and its
requirement.[xxxiv]The arena of social justice demanded clear equality in the
treatment of women in numerous and varied sphere of life. The
Law Commission of India in its 174th Report recognized this disparity and made a
study of the amended State acts of Andhra Pradesh, Maharashtra, Karnataka, Tamil
Nadu, Kerala wherein the doctrine of equality had been inculcated in the
It made an in-depth study in the rights of women originating from the ancient
Laws till the present date and highlighted the points of ambiguity and
disparity. The Commission suggested changes in the Hindu Succession Act, 1956 in
favor of the female heirs. Furthermore, the Law Commission of India in its
204th Report gave suggestions as to changes to be brought to the Eighth Schedule
in order to abrogate redundancy in the provisions.[xxxvi]
The rules and provisions as laid down in the Act by the legislature requires
various rules of interpretations. As a general rule, the provision is
interpreted depending on the language and text of the provision. [xxxvii] In
situations where any kind of ambiguity arises, the provision has to be given a
The interpretation of various provisions also leads to conflicting conclusions,
in situations like these the harmonious rule of interpretation needs to be
adopted [xxxix] wherein both the language and intention of the legislature needs
to be given importance to further the intention of the legislature.[xl] These
rules of interpretation were also applied in the present case in order to
interpret the language of the amended Act and determine its prospective effect.
The Ministry while amending the section 6 of HAS, 1956 stated that straight away
abolishing the Hindu Mitakshara Coparcenary will prove to be very detrimental to
the traditional Hindu beliefs and value systems as it forms an integral part of
their religious sentiments.
On the point of expanding the scope of rights to women, the Ministry stated
despite it being unacceptable to a certain class of people it is necessary to
ensure the equal treatment being given to women and for furthering the ideals as
enshrined in the Preamble to the Constitution of India. In order to counter the
major argument as to the dowry given to the daughter, the Ministry held that it
is quite unreasonable to deem dowry as the daughter’s share in the family
property as it does not comprise of immovable property as a general practiced
and is very low when compared to the share that they actually deserve.[xli]
Thus, the amendment brought to the Hindu Succession Act, 1956 and the judgment
that has been pronounced by the Supreme Court of India in the present case both
clearly are in line with the intention of the legislature behind the enactment
and amending of the Act. The Court in the present case though following the
precedents laid propounded the object behind the enactment of the Amendment and
gave the daughters their share of the property despite the suit being instituted
prior to the date of enforcement of the Amendment. The court in the present
case, delved into the reasoning behind the amendment and upheld the rights of
the daughter by relying on the simplistic logic of the date of the passing of
Suggestions for the improvement of the current issue
The present case is a landmark authority for the determination of the rights of
coparceners in cases where the amendment to the Hindu Succession Act, 1956
during the pendency of the suit. The precedents and the text of the Act clearly
state the prospective application of the Act. The court this delved into the
technicalities of the case and its procedures and found a unique approach to the
issue at hand and granted the inheritance right to the coparceners in
furtherance of the ulterior motive behind the enactment of the Succession Act
and amendments brought thereto.
The rights of female heirs though have been recognized by both the legislature
and the Courts still need to go a long way to be implemented in its actual
sense. There still is high level of lack of awareness among the people of India
owing majorly to Lack of education and spread of awareness due to numerous
reasons like the present economic condition of our country. People still are not
aware of the rights and duties they have been enshrined and thus also fail to
A lot of awareness programs and other methodologies need to be adopted to spread
the word in every nook and corner of the Country. Moreover, there is greater
tendency in the people of India to restrict themselves to their age-old belief
systems and the status of daughters as paraya dhan
is still practiced
There is a need to rationalize the mindset of the people and make them realize
the detrimental impact it is having on them. It has also been reported in
the Economic Survey of 2017-18[xlii] that making women inherit the property at
par with men has led to a greater rate of female feticide further showing how
much essential it becomes for the concerned authorities to make people realize
the importance of these Acts and Amendments and the greater need to be adapting
to changes with the changing times.
The Courts or Legislature cannot on its own improvise the situation if the
general people fail to accept and practice it, especially in a democratic
country like India where every individual has the power to practice or do
whatever he or she likes to a greater extent.
The other major drawback associated with the issue of rights of women to inherit
their property is the suppression of the voice and will of the woman as the
individual as a whole. Their opinion and willingness to take share in their
coparcenary property is still not given enough importance. Numerous cases have
been reported as to how brutally there are tortured and ill-treated by their
husbands and in-laws in order to force them to get their share from the party of
their fathers. [xliii]
She remains a mere tool to transfer the property from her father to her husband
and still is unable to enjoy any benefits or rights emanating from that property
and continue to remain in their state of vulnerability. This issue needs to
addressed by the concerned authorities and such rules shall be enacted which
gives the women the actual rights over the property.
[i] Hindu Succession Act, 1956.
[ii] The Hindu Succession (Amendment) Act, 2005.
[iii] Article 136, Constitution of India, 1950.
[iv] The Hindu Succession (Amendment) Act, 2005.
[v] Hindu Succession Act, 1956.
[vi] Section 6, Hindu Succession Act, 1956.
[vii] Hindu Succession (Amendment) Act, 2005.
[viii] Prakash v Phulavati,(2016) 2 SCC 36.
[ix] Danamma @Suman Surpur V Amar Singh, (2018)3SCC 343.
[x] Section 6, Hindu Succession Act, 1956.
[xi] Constitution of India, 1950.
[xii] Danamma @Suman Surpur V Amar Singh, (2018)3SCC 343.
[xiii] Section 6, Hindu Succession (Amendment) Act, 2005.
[xiv] Prakash v Phulavati, (2016) 2 SCC 36.
[xv] Prakash v Phulavati, (2016) 2 SCC 36.
[xvi] Hindu Succession Act, 1956.
[xvii] V. Tulasamma & Ors. versus V. Sesha Reddi, (1977) 3 SCC 99.
[xviii] Commissioner of Wealth Tax v. Chander Sen, AIR 1986 SC 1753.
[xix] K. Pattabhi Rama Rao, LATEST TRENDS IN SUCCESSION AMONGST HINDUS, (17
January, 2020 5:00 pm) https://districts.ecourts.gov.in/sites/default/files/Article%20-%20Succession%20-%20%20SCJ%20-%20PDPL%20%20.pdf.
[xx] Income Tax v. G. S. Mills,(1982) 30 CTR All 27.
[xxi] Sheela Devi v Lal Chand, (2006) 8 SCC 581.
[xxii] Anar Devi and others v. Parmeshwari Devi and others, AIR 2006 SC 3332.
[xxiii] Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR 1978 SC 1239.
[xxiv] Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar, AIR 2012, Bom 101.
[xxv] Sadashiv Sakharam Patil v. Chandrakant Gopal Desale, 2011 (5) Bom CR 726.
[xxvi] Badrinarayan Shankar Bhandari v. Om Prakash Shankar Bhandari, AIR 2014
[xxvii] Prakash and Ors. v. Phulavati and Ors, (2016) 2 SCC 36.
[xxviii] Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24.
[xxix] Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr, (2011) 9 SCC
[xxx] Satyajeet A. Desai, Mulla: Principles of Hindu Law, by (Vol II), , pg 277
[xxxi]Report of the Standing Committe of Parliament on Law and Justice,
Sudarsana Natchiappan, https://hrln.org/admin/issue/subpdf/Report_of_the_Parliamentary_Standing_Committee_05May.pdf.
[xxxii] Supra, note 31.
[xxxiii] Report No. 174, Property Rights of Women: Proposed Reforms Under the
Hindu Law, Law Commission of India 92017.
[xxxiv] Supra, note 31.
[xxxv] Report No. 174, Property Rights of Women: Proposed Reforms Under the
Hindu Law, Law Commission of India 92017.
[xxxvi] Report No. 204, Proposal to Amend the Hindu Succession Act, 1956 as
amended by Act 39 of 2005, Law Commission of India.
[xxxvii]RBI v. Peerless General Finance & Investment Co. Ltd, (1987) 1 SCC 424,
p. 450, para 33.
[xxxviii] Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609: 1988 SCC (Cri)
[xxxix]S.Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591.
[xl] District Mining Officer v. Tisco, (2001) 7 SCC 358.
[xli]Report of the Standing Committe of Parliament on Law and Justice,
Sudarsana Natchiappan, https://hrln.org/admin/issue/subpdf/Report_of_the_Parliamentary_Standing_Committee_05May.pdf.
[xlii] Sonia Ballotra, WOMEN’S INHERITANCE RIGHTS AND SON PREFERENCE, Tata
Centre for Development at Ochicago.
[xliii]Shital Prakash Kharat, EFFECT OF THE HINDU SUCESSION (AMENDMENT) ACT 2005
– JUDICIAL RESPONSE, , SSRN-id2912662.