What this Article is about:
The object of this article is to examine the scope of impact of female
coparcenership on Hindu law, both traditional and statutory, in so far as it
affects right to property, including inheritance and partition.
Historic perspective – common law of Hindus:
The origin of the application of traditional concepts of Hindu law is traceable
to the advent of British Rule of this country. In different Presidencies
[Madras, Bombay & Calcutta], where British courts were established, British
Judges administered Hindu law as under stood by them, by relying upon the
Sanskrit texts of yore and evidence of custom, if any adduced in the case.
enactments regulating the functioning of Civil Courts, prevailing in different
parts of British India, known as Civil Courts Act, specifically mentioned that
the personal laws should be applied while dealing with parties governed by
certain religion. Thus, the traditional Hindu Law, developed by judicial
decisions, came into existence. Taking cue from how law developed in Britain
case by case, and came to be known as common law of England, one can say that
traditional Hindu law is common law of Hindus in this country.
Two schools of Hindu Law:
Hindu Law was classified into two main schools of law, Mitakshara and Dayabhaga.
Main feature of Mitakshara law lies in classifying the property as ancestral and
separate property of a Hindu. This School recognises right by birth in ancestral
property. Hence it permits the son to claim partition from the father in regard
to ancestral property. In Dayabhaga school, the concept of property right by
birth and claiming partition from father during his life time are absent.
Dayabhaga school is confined to Bengal region. Mitakshara, with variant
sub-schools, has been in force in the rest of British India.
The above distinction would be necessary to be borne in mind for appreciating
the application of different provisions of Hindu Succession Act of 1956 with its
Hindu concept of ownership of property:
Hindu system of property is distinct from British system of ownership. A learned
author has pithily stated thus, about how separate property would become joint
family property: A Hindu may start with nothing and make a self-acquired
fortune by dint of his own ability and exertions; and he is the absolute owner
of the estate.
But in a couple of generations his offspring would have ramified
into a joint family, exactly like a banian tree which started as a single shoot.
Absolute, unrestricted ownership, such as enables the owner to do anything he
likes with his property, is the exception. The father is restrained by his sons,
the brother by his brothers, the woman by her successors. If property is free in
the hands of its acquirer, it will become fettered in the hands of his heirs.
Individual property is the rule in the West; corporate property is the rule in
Few settled elementary aspects of traditional Hindu law stated:
A few first principles of Mitakshara Hindu law, well settled should be now
stated as part of the historic perspective. They are:
- The joint and undivided family is the normal condition of Hindu society.
An undivided Hindu family is ordinarily joint not only in estate but in food
- There is no presumption that a family, because it is joint, possesses
- Hindu coparcenary is a much narrower body. A Hindu joint family
consists of males and females; daughters born in the family are member of it
till their marriage and women married into the family are equally members of the
joint family. The whole body of such family, consisting of males and females,
constitutes a sort of corporation, some of the members of which are coparceners,
that is person who on partition would be entitled to demand a share while others
are only entitled to maintenance.
- Under traditional Mitakshara Hindu law, when male dies his share
devolves upon his son or sons by the rule of survivorship. If partition takes
place then rights get crystallised. Female members of the family are not
coparceners under this traditional law.
- Property obtained by a coparcener at a partition is ancestral property
in the hands of that person as regards his male issue.
A neat summary of traditional concept of Hindu law is found thus stated
by Supreme Court:
According to the Mitakshara School of Hindu Law all the property of a Hindu
joint family is held in collective ownership by all the coparceners in a
quasi-corporate capacity. The textual authority of the Mitakshara lays down in
express terms that the joint family property is held in trust for the joint
family members then living and thereafter to be born (See Mitakshara, Ch.
The incidents of co-parcenership under the Mitakshara law are:
- first, the lineal male descendants of a person up to the third
generation, acquire on birth ownership in the ancestral properties of such
- secondly, that such descendants can at any time work out their rights by
asking for partition;
- thirdly, that till partition each member has got ownership extending
over the entire property, conjointly with the rest;
- fourthly, that as a result of such co-ownership the possession and
enjoyment of the properties is common;
- fifthly, that no alienation of the property is possible unless it be for
necessity, without the concurrence of the coparceners, and
- sixthly, that the interest of a deceased member lapses on his death to
A coparcenary under the
Mitakshara School is a creature of law and cannot arise by act of parties except
in so far that on adoption the adopted son becomes a coparcener with his
adoptive father as regards the ancestral properties of the latter.
In Sundarsanam Maistri v. Narasimhulu Maistri and Anr
,(1902) ILR 25 Mad 149 at
p.154 Mr. Justice Bhashyam Ayyangar stated the legal position thus:- "The
Mitakshara doctrine of joint family property is founded upon the existence of an
undivided family, as a corporate body [Gan Savant Bal Savant v. Narayan Dhond
,(1883) ILR 7 Bom 467 and Mayne's Hindu Law and Usage
, 6th Edition,
paragraph 270] and the possession of property by such corporate body.
requisite therefore is the family unit; and the possession by it of property is
the second requisite. For the present purpose, female members of the family may
be left out of consideration and the conception of a Hindu family is a common
male ancestor with his lineal descendants in the male line, and so long as that
family is in its normal condition viz., the undivided state--it forms a
corporate body. Such corporate body, with its heritage, is purely a creature of
law and cannot be created by act of parties, save in so far that, by adoption, a
stranger may be affiliated as a member of that corporate family".
# Adverting to the nature of the property owned by such a family the
learned Judge proceeded to state thus:
"As regards the property of such family,
the 'unobstructed heritage' devolving on such family, with its accretions, is,
owned by the family as 'a corporate body and one or more branches of that
family, each forming a corporate body within a larger corporate body, may
possess separate 'unobstructed heritage' which, with its accretions, may be
exclusively owned by such branch as a corporate body".
How statute made inroads:
- The aforesaid basic concepts of traditional Hindu Law would remain
relevant for appreciating the question as to how far the provisions of Hindu
Succession Act altered or abrogated it.
- Hindu Succession Act came into force from 17th June 1956. It touched
upon the field of inheritance and not partition. It proclaims to be an
enactment to amend and codify the law relating to intestate succession
- Section 4 of the said Act contains overriding provision. In effect it
states that any  text  rule or  interpretation of Hindu law or 
any custom or  any usage - as part of that law in force immediately
before the commencement of the said Act, shall cease to have effect.
However this result will take place if provision is contained in the said
Act relating to such matter. So, one has to examine the provision of the H S
Act and then find out whether it is in modification of the traditional law.
For example, when a father dies leaving behind a son and daughter, under old
rule of Hindu law the daughter would not inherit. But sec.8 of H S Act
mentions Class I heirs to inherit in such circumstances. In Class I,
daughter is also covered. Thus, it is apparent that old text or rule of
Hindu law that only son inherits to the estate of father is not tenable
because it is a matter for which provision is made in the Act. Another
example is about the widow's right. Under old rule of Hindu Law,
widow took only life interest. But sec.14 of the Act gives her absolute
estate. Thus the H.S.Act occupies several branches of old text or rule of Hindu
- But when it comes to over-riding the enactments occupying the field
covered by the Act, the pre-existing enactment should be inconsistent with
the provision in H S Act.. In that event Hindu Succession Act would override
such enactment. One easy example is Hindu Women's Right to Property Act of 1937
which conferred only limited interest to the widow who would inherit her
husband's share in the Coparcenary property. But sec.14 of the H S Act gives
absolute right to the woman. This is an instance of inconsistency between the
two statutes and as such the enactment of 1937 would not remain in force.
- After 2005 Amendment to Sec.6 of H S Act the daughter has been elevated
to the position of a coparcener as regards the joint family property. This
is another example of overriding provision from the old text of Hindu law.
- Doing away the concept of pious obligation after the Amendment of 2005
is another example of old text of Hindu Law ceasing to exist.
- Under old rule of Hindu Law the coparcener could not make a will of his
undivided interest in coparcenery property. Sec.30 of H S Act makes provision
enabling coparcener to will away his undivided interest in coparcenary property.
Thus old text of Hindu Law ceases to exist in this field.
- Under old Hindu law the sons who inherit the property from father would
take it as coparceners. Joint tenancy would have applied between them. But
what is inherited after H S Act would devolve on multiple heirs as tenants
in common. Thus sec.19 of H S Act makes the old concept cease to exist.
Concept of joint family property, alternatively known as coparcenary
property, has not been done away with by any new provision of law. Its
ramifications are curtailed. This is evident from old and new sec.6 of H S Act.
What is the current statutory scenario:
- It is worthwhile to examine what was sec.6 of H S Act as it originally
existed. This would be useful to understand the implications of present
sec.6 of H S Act. It may be noted that said section deals with Mitakshara school and not
Dayabhaga school because of the inherent differences between the two as already
adverted to previously.
- Section 6 as originally enacted reads thus:
Devolution of interest in coparcenary property. SEC. 6.
When a male Hindu dies after the commencement of this Act, having at the time of
his death an interest in a Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act: Provided that, if the deceased
had left him surviving a female relative specified in class I of the Schedule or
a male relative specified in that class who claims through such female relative,
the interest of the deceased in the Mitakshara coparcenary property shall
devolve by testamentary or intestate succession, as the case may be, under this
Act and not by survivorship.
Explanation 1-For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would
haw been allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was entitled to claim
partition or not.
Explanation 2.-Nothing contained in the proviso to this section shall be
construed as enabling a person who has separated himself from the coparcenary
before the death of the deceased or any of his heirs to claim on intestacy a
share in the interest referred to therein.
- This section related to inheritance of property known as coparcenary
property, or popularly known as joint family property. The first part of the
section preserved the pristine principle of law of survivorship.
- However, by its proviso, the statute made inroad into this pristine law.
If deceased has left behind any female heir mentioned in Class I or a
male heir of a female relative enumerated there, then the devolution of
property of such deceased person would be under the H S Act, which is
mentioned in sec.8, read with Class I of the Act.
- What would be the share of the deceased to be reckoned for such purpose
of devolution? For this purpose, a fiction of partition immediately before
his death is envisaged in Explanation I.
- In other words, a male coparcener dying intestate or testate, will have
‘x' quantity of share as if he had obtained partition just before his death and
such quantity of share would devolve under sec.8 to all the heirs in existence
covered by Class I, if he leaves behind a female heir contemplated by the Class
- Imagine a family where there is no female heir answering the description
mentioned in Class I, then the old rule of survivorship would apply under
the original sec.6 of H S Act.[To illustrate: F, a Mitakshara father, has
got a wife and two sons; they have got coparcenary property in their hands. The
wife of F dies, leaving behind husband and two sons. In due course F dies. He
has not left behind any female heir mentioned in Class I of H S Act. Therefore
his share would devolve by survivorship to the two sons under sec.6, without
the Proviso coming into operation.
- In the same illustration, if there is any one female heir, such as a
daughter to F, surviving F, or for that matter if F died survived by wife,
then it is as if F died by deemed partition with his two sons, thus having
one-third share when he died. That one-third would devolve under Class I
of H S Act to the two sons and to the daughter [ or wife as the case may be]
equally as tenants in common, in view of sec.19 of the Act. The sons in such
case would have their inherent 1/3rd right each as coparceners and each
would obtain 1/9th [1/3rd of F, divided by three heirs] and the daughter
would get 1/9th of the whole estate.]
Explanation II of old Sec.6 kept intact the old concept that a divided
coparcener [son] would not inherit when father dies.
Change brought about in 2005 may be now considered:
In 2005 the entire section 6 was completely changed. It is quoted below for
convenience of reference:
Devolution of interest in coparcenary property:
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005
(39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the
daughter of a coparcener shall-
- by birth become a coparcener in her own right in the same manner as the
- have the same rights in the coparcenary property as she would have had if
she had been a son;
- 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 coparcener
shall be deemed to include a reference to a daughter of a coparcener: Provided
that nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition of
property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of
sub-section (1) shall be held by her with the incidents of coparcenary ownership
and shall be regarded, notwithstanding anything contained in this Act or any
other law for the time being in force, as property capable of being disposed of
by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint
Hindu family governed by the Mitakshara law, shall devolve by testamentary or
intestate succession, as the case may be, under this Act and not by
survivorship, and the coparcenery property shall be deemed to have been divided
as if a partition had taken place and:
- the daughter is allotted the same share as is allotted to a son;
- the share of the pre-deceased son or a pre-deceased daughter, as they
would have got had they been alive at the time of partition, shall be
allotted to the surviving child of such pre-deceased son or of such
pre-deceased daughter; and
- the share of the pre-deceased child of a pre-deceased son or of a
pre-deceased daughter, as such child would have got had he or she been alive
at the time of the partition, shall be allotted to the child of such
pre-deceased child of the pre-deceased son or a pre-deceased daughter, as
the case may be.
For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would
have been allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was entitled to claim
partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005
(39 of 2005), no court shall recognise any right to proceed against a son,
grandson or great-grandson for the recovery of any debt due from his father,
grandfather or great-grandfather solely on the ground of the pious obligation
under the Hindu law, of such son, grandson or great-grandson to discharge any
such debt: Provided that in the case of any debt contracted before the
commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing
contained in this sub-section shall affect:
- the right of any creditor to proceed against the son, grandson or
great-grandson, as the case may be; or
- any alienation made in respect of or in satisfaction of, any such debt,
and any such right or alienation shall be enforceable under the rule of
pious obligation in the same manner and to the same extent as it would have
been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of
2005) had not been enacted.
: For the purposes of clause (a), the expression son
or great-grandson shall be deemed to refer to the son, grandson or
great-grandson, as the case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005).
(5) Nothing contained in this section shall apply to a partition, which
has been effected before the 20th day of December, 2004.
For the purposes of this section partition means any partition
made by execution of a deed of partition duly registered under the Registration
Act, 1908 (16 of 1908) or partition effected by a decree of a court.
Analysis of the Section:
The analysis of the above section 6 sub-clauses [a], [b] and [c] will show
that the daughter was firstly elevated to become a coparcener by birth.
Consequently, she got equal right like a son in regard to coparcenary property.
Just as daughter acquired right as coparcener, she became subject to its
Any reference to Hindu Mitakshara Coparcener would cover a
daughter also. The proviso safeguards disposition, or alienation which took
place before 20th December 2004. Such disposition or alienation would take
within its fold the partition or will [testamentary disposition]. In other
words, if coparceners had entered into any partition or any coparcener had
willed away his share and expired before 20th Dec 2004, such transaction would
not be disturbed by the elevation of daughter as coparcener. By the Explanation
it is clarified that the partition should be by registered deed or by court
decree, if it has to be saved in this manner.
Legal Impact Explained:
It is submitted that the provision of sec.6, as explained above, clearly
indicates that if there is a Mitakshara joint family in existence, having
coparcenary property, as on the date when the provision of law came into force,
the daughter of such coparcener would become a coparcener. For example, if there
is a father and a son as members of coparcenary, and if they have daughters, all
of them would be coparceners.
[Traditionally, as between father and son they had
half share each as coparceners. Suppose the father has one daughter and a son
and that son has only one daughter, it would be as if there are in all four
coparceners. What was half would become one third between the three coparceners,
namely father son and daughter. The one-third right of the son would be halved
between him and his daughter as coparcener.(For easy understanding of the
concept, one can say that there is statutory sex change of daughter as
The very fact that the proviso protected transactions prior to 20-12-2004, [the
date of introducing the Bill in Parliament] is pointer to show that a daughter
born even before the Amendment Act was intended to be given the said benefit.
That is why certain time-limited transactions are saved from its impact. The
daughter in existence when the Amendment Act came into force, and those who
would be born after the Act, are the beneficiaries of the amended law. Date of
birth and marital status of the daughter is not relevant.
Subsection  is explanatory of the ramification of conferment of Coparcenary
right to a daughter. She holds the property as coparcener- held by her with
the incidents of coparcenary ownership
- makes it clear. Any property to which a
female Hindu becomes entitled by virtue of sub-section (1) shall be held by her
with the incidents of coparcenary ownership. She can will away her right in view
of sec.30 of H S Act already existing and enabling testamentary disposition of
undivided coparcenary interest. Seeking partition is one of the incidents of
such coparcenary ownership, without doubt.
Sub-section (4) does away the traditional concept of pious obligation of son.
However it is made prospective by specifically saving it for debts incurred
before the enactment of the sub-section.
Right to claim partition is ensured:
The very concept of holding property as coparcener gives the daughter a right to
seek partition of the coparcenary property, if there is a property available for
partition. The crucial words, shall be held by her with the incidents of
leave no room to doubt that the intention was to make her
a full-fledged coparcener of the joint family. Coparcener's right to claim
partition is one of the incidents in traditional Hindu Law. That is conferred on
a daughter by the statute.
It has been pointed out earlier in this article that
the overriding of the Act under section 4 of the Act regarding old rules of Mitakshara law is only regarding what is provided in it. Act does not touch
anything about partition of coparcenary property either by male or female
coparcener. It is left to the traditional concept of Hindu law. Hence, it is
submitted that sub-section 1 and 2 of sec.6 bring about revolutionary right to a
daughter by elevating her as coparcener and enable her to claim partition of
Sub-section (3) of sec.6 touches upon the aspect of inheritance of coparcener's
right. It is old sec.6(1) in new format, so as to cover the newly introduced
coparcener's right also. By simply stating that the inheritance is under the H S
Act and quantum of share is after reckoning a partition between such deceased
person and the enumerated relatives including the daughter as coparcener, her
share is enhanced as if she is a son. It is not correct to understand this
sub-section as a source of right to claim partition. Sub-section (3) merely
enacts deemed partition to fix share of the deceased in the coparcenary, in the
light of the upgrading daughter also as a coparcener. Right to claim partition
is clearly covered by su-sec..
Summary of law as amended:
- From the above discussion what emerges is that, if there is in existence coparcenary property, the section 6 as newly substituted not only
enables daughter to become coparcener by birth, but also enables her to claim
partition as an incident of such right. As regards inheritance of a male
coparcener's right in the coparcenary property, the share of such deceased
person by way of deemed partition has to be calculated reckoning the daughter
also as coparcener. The persons to inherit [‘devolution'] would be as mentioned
in sec.8 of the Act.
Loser is mother:
- Incidentally, it may be noted that the law, while giving protection to
daughter, has unwittingly made the mother, another female heir, of Madras & Mysore schools of Mitakshara Hindu Law where the mother does not get share in a
family partition,[see foot note 9 supra], to sacrifice her interest in the
property, which she would have inherited.
To illustrate: Let us take it that a male F and his son S were the
two coparceners in a joint family consisting of F, his wife, W, a daughter D
and a son S. Previously F and S would have half share each. By upgrading D,
now their share becomes 1/3rd each. If F died before the introduction of
such law, under old sec.6, F had half share which devolved upon W, S and D
equally, W would have got 1/3rd of half. That is, 1/6th. Now after upgrading
of daughter, if F dies 1/3rd would devolve equally upon the three, thereby
giving only 1/9th to W. This situation would remain same for mother, even if
she gave birth to only a daughter because the daughter would be upgraded as
a son and get higher right than the inheriting mother.
- The avowed object behind Law Commission recommending the conferment of coparcenary right to a daughter is thus stated in 174th Report:
2.8. The retention of Mitakshara coparcenary without including females in it
meant that females cannot inherit ancestral property as males do. If a joint
family gets divided, each male coparcener takes his share and females get
nothing. Only when one of the coparceners dies, a female gets a share of his
share as an heir to the deceased. Thus the law by excluding the daughters
from participating in coparcenary ownership [merely by reason of their sex]
not only contributed to an inequity against females but has led to
oppression and negation of their right to equality and appears to be a
mockery of fundamental rights guaranteed by the Constitution.
Inequity against another female is unwittingly brought about by the legislation,
enacted in the name of avoiding inequity against female as mentioned above.
- It may be of some interest to note what the Parliamentary Standing
Committee in its 7th report in para 2.16 stated on this aspect:
As far as the basic objective of the Bill to remove gender discriminatory
practices in the property laws of the Hindus, the Committee welcomes the
amendment in section 6 of the Bill, whereby daughters have been given the status
of coparceners in the Mitakshara joint family system.
However, the Committee
feels that the position of other Class I female heirs should not suffer as a
result of this move. In this context, the Committee recommends that Government
should examine this concern and make suitable provisions to ensure that no
injustice is done to the other female heirs, especially the widows.[italics
supplied for emphasis]
Beyond this observation, no other solace to the mother who sacrificed for the
sake of daughter!
What if there was State enactment on same field already in
existence before 2005?
- With the State of Andhra Pradesh leading the way in 1989, there have
been enactments in the States of Tamilnadu, Karnataka and Maharashtra, during
subsequent years, conferring coparcenership on daughters in respect of joint
family property. In all these enactments it was clearly stated that as on the
date of the enactment if the daughter was unmarried, such daughter would get the
- There is no much difference in the wordings of State Amendments and
later Central law. The main difference is doing away with the classification
of married and unmarried daughters. As between a Central Legislation and a
State legislation in the same field, if there is any conflict, the Central
legislation will prevail. The Central legislation does not distinguish
between married and unmarried daughter to become coparcener. Therefore the
Central enactment will remain in the field.
How judiciary interpreted the law:
- In Sheela Devi case the Supreme Court considered impact of
Amendment of 2005 to find out if the daughter [that is sister of plaintiff]
would get equal share or not. On facts it was found that the father, Babu
Lal, had expired in 1989 and hence the Amendment Act would not be
applicable. The succession having opened in 1989, evidently, the
provisions of Amendment Act, 2005 would have no application. The Court pointed out that when Babu Lal died old section 6
operated. Daughter could not and did not get equal right in that case. She could
get only such share as devolved from her father's half share to all the heirs
- It may be noted that the Supreme Court had occasion to consider impact
of Amendment Act of 2005 bringing about the omission of sec.23 of Hindu
Succession Act relating to dwelling house. On the facts of that case, even
though the father died in 1996 and succession had opened at that time, the
property was self acquired property of the father and as such the Supreme
Court held that the daughters could seek partition of dwelling house because
in the Amendment of 2005, the bar of sec.23 had been removed during pendency of the
suit for partition.
The Amendment was applied on the ground that the bar under
sec.23 was not a vested right. However, after noticing that the vested right
is not taken away the Court observed that [n]either the 1956 Act nor the 2005
Act seeks to reopen vesting of a right where succession had already been
Continuing, the Court observed thus regarding the Amendment of 2005:
23. The operation of the said statute is no doubt prospective in nature. As
regards impact of removal of sec.23 the Court observed thus: What should have
been was that although it is not retrospective in nature, its application is
- The principle stated in the aforesaid Sheela Devi case was applied by
Division Bench of Karnataka High Court to a case where the propositus died
in 1991, having half share along with this son. The claim of daughters for equal
right was not accepted because succession opened in 1991 and as such, the law as
it then stood was applied.
- However, the Karnataka High Court in two of its rulings applied the
amended law to the claim of daughters for partition, even though succession
opened when old section 6 was in force, by holding that the Central
enactment prevails over the previous State law which had excluded married
daughters from coparcenary right. It has been held that daughters born after coming into
force of Hindu Succession Act on 17-06-1956 would be covered by the Amended
provision irrespective marital status.
- Even in the case of Phulavathi v.Prakash, AIR 2011 Kar 78, the Amended
law had been applied by Karnataka High Court to a case of inheritance prior to
coming into force of Amended law. But this has been reversed in Supreme Court as
mentioned below in this article.
- Orissa High Court had accepted the plea of equal right of daughters in a
case where the property was held to be joint family property and the sons
continued joint even though father died in 1991. The sisters were given same
quantity of share like the brothers by applying the Amended law to the case of
partition pending in appeal before the said High Court.
- The Full Bench of Bombay High Court has held that the Amendment Act is
retroactive and would enable even married daughter to claim partition in
joint family property. All daughters living on the date of enforcement of
Amendment Act would get the benefit is the view, differing from that of
Karnataka High Court restricting to daughters born after the commencement of
H S Act.
Latest Rulings of the Supreme Court:
- In Gunduri Koteshshwaramma & Anr v. Chakiri Yanadi & anr, the
Supreme Court had to consider the impact of Amended sec.6 of H S Act to a claim
of daughters as against their brothers. Facts disclose that the father was alive
when the suit for partition was filed by the son. The father had 2 sons and 2
daughters. Father died in 1993 during pendency of the suit. During final decree
proceeding the two daughters claimed for modified preliminary decree to give
them higher quantum of share, same like that of the sons in the joint family
Trial court had allowed it. But on appeal High Court had reversed it
stating that after preliminary decree such alteration is not possible. Facts
disclose that one of the brothers admitted the claim of the sisters. Only the
plaintiff-brother disputed the said claim and he challenged it in High Court.
The Supreme Court did not examine the effect of death of father before the
coming into force of the Amendment of 2005.
The Supreme Court held that on and
from September 9, 2005, the daughter is entitled to a share in the ancestral
property and is a coparcener as if she had been a son.[at page 172, para 14].
On this basis the Court held that supplemental preliminary decree granting
higher share to the daughters could be passed because the suit for partition
would not come to end until passing a final decree. It may noted that in this
decision the Court did not so much consider the pros and cons of applying the
The High Court had reversed the trial court's order holding that
the preliminary decree, which was not challenged by filing appeal, could not be
altered by trial court during final decree proceeding. It looked as if during
arguments before Supreme Court the applicability of law was taken for granted,
though the concentration was on the question as to whether preliminary decree
could be modified by the same court which passed the decree earlier.
- The aforesaid AIR 2011 Kar 78 decision was taken up in appeal to
Supreme Court. The decision given by Supreme Court is the next important
ruling on this aspect of Amended law. Several cases involving similar question
of law were taken up by Supreme Court to decide the question of retrospectivity
of Amended law of 2005. The facts of the case disclose that the propositus-father
had expired in 1988.
The daughter of a deceased propositus-father filed suit for
partition in respect of joint family property. She would be entitled to
1/28th share in father's share which devolved under the H S Act as it existed
before the Amendment. As regards joint family property the daughter put forward
higher right of 1/7th share as a coparcener by amending her claim basing on
Amendment Act of 2005. The High court had upheld her claim by applying amended
law. Aggrieved son filed appeal to Supreme Court.
The argument of appellant
before Supreme Court was that the father having died in 1988, the right of
inheritance got crystallised when old section 6 was in force and as such the
Amended law could not be applied so as to take away vested right. The
Supreme Court held that the text of amended provision of law clearly
indicated its prospective application. The phrase ‘on and from the
commencement of Hindu Succession Act, 2005' gave such indication. Even a
social legislation cannot be given retrospective effect unless so provided
for or so intended by legislature.
The Court held that the daughter, living as on the date when
Amendment Act came into force, would be entitled for coparcenary right
irrespective of her past date of birth. The Supreme Court approved the reasoning
of Karnataka High Court in the case of Prithviraj, ILR 2009 Kar 2612. The
Supreme Court allowed the appeal and remanded the case for fresh disposal by
High Court. In other words, granting coparcenary share to daughter in a case
where the father died prior to Amendment of 2005 was not accepted.
- In another case, again arising from the judgement of Karnataka High
Court, the Supreme Court reiterated the views expressed in Prakash v.Phulavathi
Ruling. Daughter, having been upgraded as coparcener, has got right to seek
partition as an incident of coparcenary right is what is also stated. In
this latest Ruling, though the Supreme Court had followed the principle laid
down in Prakash v. Phulavathi Ruling, while finally granting the relief, the
court granted equal share to the sons and daughters.
The facts disclose that the
succession opened in 2001 when the propositus-father, Gurulingappa Savadi, had
expired, leaving behind wife, 2 sons and 2 daughters. Going by what was actually
decided in Phulavathi Ruling, the Court ought to have held that the succession
opened when old section 6 was in force and as such the daughters would not be
entitled to claim share as coparceners. However in this case the Supreme Court
granted equal share to the sons and daughters as seen from para 28 at page 730
of the law report.
- Incidentally it is submitted that the Karnataka High Court has struck
down the Proviso of sec.6 of Amended Act on the ground that it is violative
of Art.14 and 16 of the Constitution of India.
Upshot of the Rulings and the provision itself is summarised:In the light of the discussion made above the effect of section 6 as introduced
may be summarised thus:
- Concept of coparcenary of male is well settled and hence needed no
mention of it, unlike old sec.6 which reiterated the rule of survivorship of
coparceners. Therefore, under amended sec.6, the legislature has taken
opportunity to upgrade a daughter as coparcener in regard to Hindu Mitakshara
joint family. Once that is done sons and daughters would become equal partners
in the coparcenary.
- Such exercise is confined to conferring prospective right, because
creating retrospectivity will result in more complications than what would
happen by making it prospective. Thus under subsection  female coparcener is
brought into existence in regard to a joint family of Mitakshara system ‘on and
from the commencement of the Amendment Act', though by birth.
- If there is no such joint family in existence with coparcenary property,
section 6 itself will not be attracted. Inheritance under sec.8 relating to self
acquired property has been equal between all heirs irrespective of sex.
- Once coparcenership is conferred, its consequence of giving rights and
liabilities is ensured by sub-section . Incidents of coparcenership are
conferred on the daughter. She becomes full-fledged coparcener. Hence female
coparcener can seek partition during life time of father. If she turns out to be
senior most of the family, she would be a karta also. That is one of the
incidents of coparcenary.
- In effect sub-sections  and  would clothe the daughter to assert
like her brother with regard to joint family property. Whether she is
married or not would not have relevance.
- Sub-section  deals with situation of death of a coparcener. Under old
sec.6, when death occurs, if coparcener has left behind female relatives of
Class I, the rule of survivorship, which is the pristine law of coparcenership,
would not apply for such inheritance. For devolution of rights, an imaginary
partition was envisaged so as to fix the quantum of share to be inherited in
such manner under the Act, vide the Explanation I of old sec.6. A provision
similar to it should be put in place after introducing female coparcenership
Hence sub-section  and its Explanation are provided. The deemed
partition would ensure equal share to a daughter just as a son would get. The
sub-section  is not meant to confer right to partition to a daughter. It is
meant to ensure her equal right just as a son would get in the coparcenary, when
inheritance takes place. Right to claim partition springs from sub-section 
itself as an incident of coparcenership.
- To protect the coparcenership from exposure to pious obligation and
thereby defeat the right, sub-section  is enacted, which is meant to benefit
both sexes of coparceners. However the very fact that it is operative from
future date is also indicative of the fact that the right conferred on daughter
is not retrospective.
- Pre-existing partitions either by registered deed or by court partition
and alienations, all prior to 20-12-2004[date of Bill] are saved. It is also
another pointer to show that the right conferred is prospective.
How much share daughter would get is what it boils down to:
- In ultimate analysis, the existence of joint family property is crucial
for invoking sec.6 by a daughter.
- For self acquired property, in view of sec.8, her right to inherit
equally with the son right from inception of the Hindu Succession Act was
already guaranteed, unlike pristine pure Mitakashara law, which did not
recognise her as an heir even for self acquired property, because of application
of coparcenary right so that it used to devolve by survivorship.
- Even as regards the coparcenary property, the scope of controversy is
limited to the quantum of share. If she was not coparcener she would get smaller
share from out of her father's coparcenary share. But after 2005 amendment, she
too would get equal share like a son, both by birth and by inheritance, if the
property is of the coparcenary.
What is the expectation in future:
The law, therefore, insofar as it applies to joint family property governed by
the Mitakshara School, prior to the amendment of 2005, could therefore be
summarized as follows:
- How far the concept of coparcenary property would be still available to
enable a daughter to claim partition like a son? This should be examined in the
light of another collateral principle evolved by Supreme Court since the 1980's.
It is held that once succession takes place under proviso of old sec.6  read
with sec.8 and 19 of the H S Act regarding coparcenary property, whereby any
female heir succeeds upon such inheritance, what remains in the hands of
successors is not joint family property.
- Hindu Succession Act came into force from 17th June 1956. By the time
the Amendment Act of 2005 came into force, little more than 48 years have
elapsed. In a joint family governed by Mitakshara law of inheritance death would
have definitely taken place, leaving at least one female heir of Class I,
thereby attracting the proviso of sec.6 as it originally existed. In such an
event by deemed partition the share of such deceased person would have devolved
not only on male heirs, but also on female heir or heirs, thereby introducing
sharers not contemplated by Mitakshara coparcenary.
- It is held by several rulings of the Supreme Court, including the latest
one being a case from Madhya Pradesh, [Uttam v. Saubhag Singh] that
the concept of joint family property would not survive after the consequence of
such inheritance. In view of this position of law, unless the same is reversed
to hold that such effect did not take place and the coparcenary continued
notwithstanding inheritance of property by female sharers by virtue of sec.8 of
the Act, the daughter who is upgraded as coparcener would not be entitled to
exercise such right because there is no coparcenary property in existence for
her to take the benefit. In rare cases where no such consequence might have
taken place during the long period of 48 years, the daughter would be lucky to
use the law.
- In the above said ruling of Uttam v. Saubhag Singh, the following
propositions have been laid down after examining provisions of H S Act and
the case law on the subject:-
- When a male Hindu dies after the commencement of the Hindu Succession
Act, 1956, having at the time of his death an interest in Mitakshara coparcenary
property, his interest in the property will devolve by survivorship upon the
surviving members of the coparcenary (vide Section 6).
- To proposition (i), an exception is contained in Section 30 Explanation
of the Act, making it clear that notwithstanding anything contained in the
Act, the interest of a male Hindu in Mitakshara coparcenary property is
property that can be disposed of by him by will or other testamentary
- A second exception engrafted on proposition (i) is contained in the
proviso to Section 6, which states that if such a male Hindu had died
leaving behind a female relative specified in Class I of the Schedule or a
male relative specified in that Class who claims through such female
relative surviving him, then the interest of the deceased in the coparcenary
property would devolve by testamentary or intestate succession, and not by
- In order to determine the share of the Hindu male coparcener who is
governed by Section 6 proviso, a partition is effected by operation of law
immediately before his death. In this partition, all the coparceners and the
male Hindu's widow get a share in the joint family property.
- On the application of Section 8 of the Act, either by reason of the
death of a male Hindu leaving self-acquired property or by the application
of Section 6 proviso, such property would devolve only by intestacy and not
- On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint
family property has been distributed in accordance with section 8 on
principles of intestacy, the joint family property ceases to be joint family
property in the hands of the various persons who have succeeded to it as
they hold the property as tenants in common and not as joint tenants. [bold
- The facts of the said case are summarized thus at the end of the Ruling:
Applying the law to the facts of this case, it is clear that on the death
of Jagannath Singh in 1973, the joint family property which was ancestral property
in the hands of Jagannath Singh and the other coparceners, devolved by
succession under Section 8 of the Act.
This being the case, the ancestral
property ceased to be joint family property on the date of death of Jagannath
Singh, and the other coparceners and his widow held the property as tenants in
common and not as joint tenants. This being the case, on the date of the birth
of the appellant in 1977 the said ancestral property, not being joint family
property, the suit for partition of such property would not be maintainable.
- What happened to male coparcener would be equally good and applicable to
female coparcener also, if situation of joint family is as explained above
when Amendment came into force in 2005.
In the light of sec.6(3) of Amended Sec.6, if inheritance takes place under
that section, read with sec.8 and 19, the daughter or son of female coparcener,
who gets share declared by deemed partition, cannot claim to become coparceners
because there would not remain a joint family property, on parity of reasoning
of the above cited ruling.
# In the light of the above result, whether the Supreme Court should
reconsider its view on impact of sec.6, 8 and 19 is for the future.
# In the commentary by Mulla on Hindu Law the view expressed was that the
deemed disruption was only for the purpose of calculation of share devolving by
inheritance and not for all other purposes because sec.4 overrides the
traditional law only to the extent it is provided in the Act. This view has
to be restored by reversing the decision of Uttam v. Saubhag Singh and other
rulings taking the same view, if female coparcener should really get the benefit
of sec.6 as Amended.
Written By: M V Shanker Bhat, Advocate, B.A.B.L. Mangaluru
- 16. Law administered by Courts to natives:
Where, in any suit or proceeding, it is necessary for any Court under this
Act to decide any question regarding succession, inheritance, marriage, or
caste, or any religious usage or institution-
(a) the Muhammadan law in cases where the parties are Muhammadans and the
Hindu law in cases where the parties are Hindus, or
(b) any custom (if such there be ) having the force of law and governing the
parties or property concerned, shall from the rule of decision unless such
law or custom has, be legislative enactment, been altered or abolished.
(c ) in cases where no specific rule exists, the Court shall act according
to justice, equity and good conscience.
[example - culled out from Madras Civil Courts Act of 1873, still in force].
- Page 512, Mayne's Hindu Law & Usage, 12th Edition.
- Ibid, pages 525, 526 & 527.
- Ibid page 529.
- Shyam Narayan Prasad v. Krishna Prasad & Ors., (2018) 7 SCC 646.
- State Bank of India vs. Ghamandi Ram, AIR 1969 SC 1330, at pages 1333 &
- Over-riding effect of Act. 4. (1) Save as otherwise expressly provided
in this Act,- (a) any text, rule or interpretation of Hindu law or any
custom or usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with respect to any
matter for which provision is made in this Act; (b) any other law in force
immediately before the commencement of this Act shall cease to apply to
Hindus in so far as it is inconsistent with any of the provisions contained
in this Act. (2) For the removal of doubts it is hereby declared that
nothing contained in this Act shall be deemed to affect the provisions of
any law for the time being in force providing for the prevention of
fragmentation of agricultural holdings or for the fixation of ceilings or
for the devolution of tenancy rights in respect of such holdings.[sub-sec
omitted w.e.f 9/9/05].
- Class I: Son; daughter; widow; mother; son of a pre-deceased son;
daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of
a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased
son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased
son; widow of a pre-deceased son of a pre-deceased son 1 [son of a
predeceased daughter of a pre-deceased daughter; daughter of a pre-deceased
daughter of a pre-deceased daughter; daughter of a pre-deceased son of a
pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased
- Traditional mode of partition in Madras and Mysore area is without
giving share to wife/mother; but in Bombay school of Mitakshara law,
wife/mother would also get a share. This is a well established difference.
- For an illustration of how this Explanation is worked out between
father, son and 2 daughters, upon death of the father, see the decision of
Supreme Court in the case of Anar Devi V. Parameshwari Devi AIR 2006 SC
- For example, a father/karta can sell entire property including interest
of his coparcener-son; same liability daughter would suffer.
- In Pushpalata vs. Padma, AIR 2010 Kar 124 at page 163 the High Court has
observed that the mother has to make such sacrifice in favour of a daughter!
- For an example the Karnataka section is quoted. Similar were the
wordings of other State enactments also. "6-A. Equal rights to daughter in
coparcenary property.- Notwithstanding anything contained in Section 6 of
this Act: (a) in a Joint Hindu Family governed by Mitakshara Law, the
daughter of a coparcener shall by birth become a coparcener in her own right
in the same manner as the son and have the same rights in the coparcenary
property as she would have had if she had been a son, inclusive of the right
to claim by survivorship and shall be subject to the same liabilities and
disabilities in respect thereto as the son; (b) at a partition in such a
Joint Hindu Family the coparcenary property shall be so divided as to allot
to a daughter the same share as is allottable to a son: Provided that the
share which a predeceased son or a predeceased daughter would have got at
the partition if he or she had been alive at the time of the partition,
shall be allotted to the surviving child of such predeceased son or of such
predeceased daughter: Provided further that the share allottable to the
predeceased child of a predeceased son or of a predeceased daughter, if such
child had been alive at the time of the partition, shall be allotted to the
child of such predeceased child of the predeceased son or of such
predeceased daughter, as the case may be; (c) any property to which a female
Hindu becomes entitled by virtue of the provisions of clause (a) shall be
held by her with the incidents of coparcenary ownership and shall be
regarded, notwithstanding anything contained in this Act or any other law
for the time being in force, as property capable of being disposed of by her
by Will or other testamentary disposition; (d) nothing in clause (b) shall
apply to a daughter married prior to or to a partition which had been
effected before the commencement of Hindu Succession (Karnataka Amendment)
Act, 1990". Sec 6B provided for devolution of female-coparcener's right upon
- Sugalabai vs. Gundappa A Maradi & ors, ILR 2007 Kar 4790 and Pushpalatha
v.Padma, AIR 2010 Kar 124, para 90.
- Sheela Devi & ors vs. Lal Chand & anr, (2006) 7 SCC 581 at p.590, para
- G.Sekar v.Geetha, AIR 2009 SC 2649.
- Ibid page 2654.
- M.Prithviraj v. Neelamma, ILR 2009 Kar 3612.
- See foot note 14 supra for reference of the two rulings. See also
Hanumakka vs.Sharadamma, 2012 (3) K.L.J.1.
- Pravat Chandra Pattnaik vs. Sarat Chandra Pattnaik, AIR 2008 Orissa 133.
- Badrinarayan Shankar Bhandari vs.Omprakash Shankar Bhandari, AIR 2014
- AIR 2012 SC 168.
- Prakash vPhulavathi, AIR 2016 SC 769.
- Danamma v.Amar, AIR 2018 SC721
- ibid, para 26 at page 730.
- R.Kantha v. Union of India, 2009(6) AIR K R 218.
- Uttam v. Saubhag Singh, AIR 2016 SC 1169.
- ibid at pages1177 &1178.
- Anar Devi V.Parameshwari Devi AIR 2006 SC 3332 at pages 3333 & 3334
where the passages are quoted.