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Daughters as coparcener: Danamma v. Amar

The Hindu Succession Act is majorly derived from the mitakshara Hindu law which is patriarchal and patrilineal. This is in contrast with the fundamental values such as equality and equal protection of law provided by the Indian Constitution. Thus the amendment Act of 2005 to the Hindu Succession act 1956 helps eliminates this inequality and prejudice against women. The amendment made female heirs in the joint families coparcener by birth. However, the position of law was not crystal clear and without ambiguities and this was changed in various cases.

The case of Danamma v. Amar deals with a hotly debated question of law i.e. what category of daughters will be entitled to right to coparcenary under the amendment act of 2005. This case furthers the legislative intent behind the provision, which is to eliminate the discrepancy between the genders. However, the court in this case does not present a clear position of law as it do not overturn the precedent set by the prior judgement. Hence, putting the lower courts under the dilemma as to which one is the good law and which precedent is to be applied in which case.

The first part of the article will analyse the reasoning given the Hon'ble court in the present case and the second part shall try to address the ambiguities and problems arising out of this judgement.

Danamma Alias Suman Surpur And Another Versus Amar And Another (2018) 3 Scc 343

The case at hand is an appeal from the judgement given by the high court, which upheld the decision given by the trial court and refused to give coparcenary rights to the appellants as they were born prior to enactment of the act.

The brief facts of the case are that Mr. Gurulingappa Savadi, the propositus of a hindu undivided family died in year 2001 leaving behind his widow and four children. Two sons namely Vijay and Arunkumar and two daughters, Danamma and Mahananda. In the year 2002, Amar, the son of Arun kumar filed for partition deed and separate possession of the joint family property. However he denied any share to be given to the daughters as they were born prior to the enactment of the act and also they had received dowry at the time of their marriages and hence relinquished any share in the property.

The trial court held that daughters are not coparceners in this case as they were born before the enactment of the Hindu succession act and also rejected the argument that they had received their share at the time of marriage as dowry because they did not had any share in the property. The high court also upheld the same. The trial court delivered its judgement in year 2007 and during the pendency of the suit 2005 amendment to the section 6 of HS Act had been enacted which crystallised the right of daughters as coparceners. However neither did the trial court nor the high court which delivered its judgement in 2012 considered this contention by appellants.

The issues framed by the Supreme Court in the present case are as follows: first, (i) Can daughters be denied their share on the ground that they were born before the enactment of the Hindu Succession Act and thereby cannot be treated as coparceners? Second, (ii) will the amendment (2005) make coparceners by birth in the like manner as sons.[1]

(i) Can Daughters Be Denied Their Share On The Ground That They Were Born Prior To The Enactment Of The Act And Thereby Cannot Be Treated As Coparceners?
One of the question which arose regarding section 6 of the Hindu Succession Act was in the case of Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari[2] in the Bombay high court was whether daughters born prior to enactment of the Hindu Succession Act 1956 will be able benefit from this amendment act of 2005 or only daughters born after its commencement will be benefitted.

The Hon'ble court in its verdict interpreted the section 6 taking in consideration the object behind the amendment of the statute and intent of the legislature which was to make this act more fair and equal as required by the article of the Indian constitution. Thus it pronounced that this amendment act will be applicable to all the daughters whether born prior to the enactment of the Act or after its enactment provided they are alive on the day the enactment of the amended act 2005. This judgement lead to more clear view regarding the section 6 of HS Act and prevent an entire generation of women loosing there coparcenary right.

This confusion of the amendment act of 2005 being retrospective or prospective when arose in the case of Prakash v. Phulavati.[3] The case was filled in 1992 and during the pendency of the suit 2005 amendment act was enacted, which crystallised the daughter's right as coparceners. However the question of law was whether this act will be applied retrospectively or prospectively.

The high court of Karnataka held that the amendment act will be applicable to the pending suits and this was challenged in the Supreme Court. Supreme Court pronounced that any amendment to the substantive provision is in itself prospective unless otherwise is intended by the statute either expressed or implied. The Supreme Court on literal interpretation of the Section 6 (1)[4] of Hindu succession Act which states that daughters will have coparcenary rights in the joint family property on and from the commencement of this act.

The Hon'ble court did its literal interpretation, that both father and daughter should be alive on the day of the enactment of the amendment act 2005. This case however did provide a little clarity upon the implication the statute. However it did not really look into the intent of the legislature while interpreting the same. The legislative intent behind the amendment act was to protect the coparcenary rights of the female heirs and this judgement really does not answer in their favour.

Another important question which needs to be answered in order to reach the solution is whether daughters will lose their right to coparcenary merely because a preliminary decree has been passed by the court and the amendment act of 2005 will not be applicable to them because the suit was filed prior to the enactment to amendment act.

This question was raised the case of Ganduri Koteshwaramma v. Chakiri yanadi[5] in the Supreme Court. The Supreme Court held that daughters will not lose their right to coparcenary merely because a preliminary decree has been passed by the court. The finality of the partition deed is only decided upon the final decree by the court. Also the preliminary decrees should be amended to accommodate the variation the law made by the amendment Act of 2005.

The supreme taking all these precedents into account answered the issue raised in the Danamma v. Amar[6] by first upholding the ratio of the Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari[7] that the language of the statute on its literal interpretation makes it clear that Section 6 (1) will be prospective in application whereas other sub sections and sub clauses will be retrospective in its application.

This was also done by stating that provision has to be interpreted taking into consideration the text and the context of the provision.[8] And to give rational meaning to the provision and in this present case harmonious interpretation of the provision in order draw a coherence between the intent of the legislature,[9] which in this case is to foster equality among genders as advanced by Article 14 of the Indian Constitution.[10]

Since during the pendency of the present suit, the amendment act of 2005 was enacted. The ratio of Ganduri Koteshwaramma v. Chakiri Yanadi was applied and the right of daughters did not lapse merely because a preliminary decree was passed by the court. Hence, amendment act of 2005 is applicable in case since the finality of the partition deed is decided by the final decree of the court. Which was given in 2007.

Finally upholding the authoritative precedent set by the Supreme Court in the Prakash v. Phulavati case[11] the court decreed that daughters will be given their share in property as they were alive after the enactment of the amendment act of 2005.

(ii) Will The Amendment (2005) Make Coparceners By Birth In The Like Manner As Sons?
The second issue posed to answer by this judgement was answered by doing literal interpretation upon plain reading of the provision. Which states that the daughter of coparcener shall by birth become a coparcener in her own right in the same manner as sons. This amended provision aimed to provide the female heirs in the Hindu mitakshara law same rights as given to the sons.

Hindu mitakshara law as it is very evident is patriarchal and patrilineal. Thus the law commission of India in its 174th addressed this problem and came up with recommendation. The law commission's report points out the various problematic sections in the Hindu succession act.

The main focus of the report was to eliminate the present unequal status of females in the Hindu Mitakshara law and advance the right to equality protected by the article 14 of the constitution. Therefore, it recommended giving the status of coparcenary by birth to the daughter.[12] Thus the Hon'ble court by stating the incidents of coparceneryship from SBI v. Ghamandi Ram[13] made it crystal clear that coparcenary is by the virtue of birth. Thus since the daughters have now acquired the status of coparcener, it is coparcener by birth in the like manner as sons.

Ambiguities Created By This Judgement

One of the major flaws of this judgement is that judgement is that it lacks logical coherence. The judgement upholds the ratio given in the Phulavati's case[14] which is that in order for a daughter to be a coparcener in Hindu joint family, both daughter and father should be alive on 9th September 2005 i.e. the enactment of the amendment act. Para 23 of the judgement states that the amended act is applicable to the living daughters of the living coparceners as on 9-9-05.[15]

In the present case the father of the appellant died in year 2001 i.e. prior to enactment of the amendment act, even then the court provides daughters with their shares in the joint property according to the amendment act. However the court in its verdict has not provided any rationale as to why exception have been carved out in this particular case?

This has further blurred the line of distinction between who can and who cannot be considered a coparcener. This confusion was set to rest by the Supreme Court in Phulavati's Case. That only daughters of coparceners who were alive on the date of the enactment of the act can claim their right to coparcenary. Thus both the coparcener and his daughter have to be alive on the said date in order to be benefitted from this provision. However the court in Danamma v. Amar[16] by providing the daughters with their share in the property and also upholding the phulavati's ratio has created confusion in many aspects.

Even though there is clarity upon that if both father and daughter are alive on the date of the enactment of amendment act, the daughter will be considered coparcener and be entitled to her share in the property. However if the father had died before the enactment of the amendment act and a suit is pending in a court by a male coparcener, the daughter will be entitled to right to coparcenary and have a share in the property according the precedent set in Danamma v. Amar case. In contrast, if the father had died before the enactment of the amendment act and no suit is pending in the court, the daughter in this case will not be entitled to right to coparcenary and will have no share in the property as per the amended provision because the precedent from Phulavati's case still applies.[17]

There is also no clarity with regard to which precedent will be held good when the father had died prior to the enactment of the amendment act and suit is filed by a male coparcener after 2005's amendment? Because if considered closely Danamma's precedent should be applied and given her share and also female coparcener cannot be entitled to file for partition by the virtue of Phulavati's judgement.

Thus a female cannot file a fresh suit for partition when her father died prior to the amendment according to the Phulavati's precedent but if a male coparcener files a suit whether prior to 9-9-05 or post it for partition deed when father had died prior to the enactment of the amendment act she can use the precedent of Danamma and claim her share. This judgement has made things very ambiguous.[18]

The only focus in Danamma's judgement have been on providing daughters inherent right to property by birth which is in itself a great step towards gender equality. However, if this logic has to be followed then the death of the father should not be a concern and Phulavati's case should be overturned. Thus, Phulavati's judgement provides more logical coherence and clarity. It also provides a specified date after which the daughters will be entitled to coparcenary right. Danamma's case created more confusion and ambiguity then to help end the confusion.

What needed is more clarity. Undoubtedly Danamma's judgement is more in logical coherence with the legislative intent of the provision. It adheres to the principles that law commission's report kept in mind while framing recommendations. Therefore, Danamma's judgement should not be only limited to the pending suits and be made good law overturning the Phulavati's Judgement.

Conclusion

The unequal setting in which we are living in India we need more just and equal laws in every field. The 174th law commission report brought forth various problematic and patriarchal norms which were made laws as a part of customary practices. It also suggested reforms in the existing Hindu succession law making it more just and equal. The amendment made to section 6 of the act was one such reform and a milestone in protecting equal rights of women with regard to succession law. Making women coparcener in Hindu joint families is a step forward in making them economically free.

It empowers them socially as they will now have a share in the property and thus higher say in family's property matters. It also removes the stigma that a son is must needed in order to continue the inheritance and will help reduce female foeticide to an extent. However, even after the legislation not many female heirs ask for their share due to lack of awareness. Therefore, along with sound legislation more legal literacy is also needed.

Along with that the ambiguities in the position of law as in this case where two contrasting precedents are in place it only makes the position of the vulnerable classes worse. The courts will differ in their reasoning from case to case and this will forfeit the purpose of the legislation, which is to foster equality in the society.

Phulavati's judgement is whereas more clear as in terms of position of law but Danamma's judgement if without restrictions applied will be benefitting a wider group of women. Phulavati's judgement eliminate the right of coparcenary to a generation of women whose fathers have died prior to the enactment of the amendment whereas Danamma's judgement is confusing and only restricts itself to the cases which are already pending with the courts. Therefore, there is need for a clearer and authoritative position of law.

Bibliography
Cases
  • SBI v. Ghamandi ram (1969) 2 SCC 33
  • RBI v. peerless general finance and investment co. ltd. (1985) 1 SCC 591
  • Kehar Singh v. State (UT of Delhi) (1988) 3 SCC 424
  • District Mining officer v. TISCO (2001) 7SCC 358
  • Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788
  • Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari AIR 2014 BOM 151
  • Prakash v. Phulavati (2016) 2 SCC 36

Statutes
  • The Hindu Succession Act, 1956.
  • The Hindu Succession (Amendment) Act, 2005.
  • Jain M., the Constitution of India, 1950.

Articles
  • Chinnappa D., ‘bar and bench' Continuance of confusion: Section 6 of the Hindu Succession Act 26 Mach 2018 accessed on 11 April 2020
  • Khan U., ipleaders devolution of interest in coparcenary property: scope and interpretation post amendment 23 october 2019 accessed on 13 April 2020
     
Reports
  • Law commission of India, 174th report on property rights of women: proposed reforms under the Hindu law (May 2000).

End-Notes:
  1. (2018) 3 SCC 343
  2. Shri Badrinarayan Shankar Bhandari & Ors. Vs. Omprakash Shankar Bhandari AIR (2014) BOM 151
  3. (2016) 2 SCC 36
  4. Hindu Succession Act 1956, s 6.
  5. Ganduri Koteshwaramma & anr. V. Chakiri Yanadi & Anr. (2011) 9 SCC 788
  6. ibid n1
  7. Ibid n2
  8. RBI v. Peerless General Finance & Investment co. ltd. (1987) 1 SCC 424
  9. Kehar Singh v. State (delhi admn) (1988) 3 SCC 609, District mining officer v. TISCO (2001)7 SCC 358
  10. Constitution of India, article 14
  11. Ibid n3
  12. 174Th Law Commission Report: Property Rights of Women: Proposed Reforms Under the Hindu Law, 2000
  13. SBI v. Ghamandi Ram (1969) 2 SCC 33
  14. Ibid n3
  15. Ibid n1
  16. Ibid n1
  17. Dhyan Chinnappa, ‘bar and bench' Continuance of confusion: Section 6 of the Hindu Succession Act 26 Mach 2018 accessed on 11 April 2020
  18. Uzair Ahmad Khan, ‘ipleaders' devolution of interest in coparcenary property: scope and interpretation post amendment 23 october 2019 accessed on 13 April 2020

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