In R.S.A.No.236/2012-KAR HC- Karnataka HC holds married daughters entitled for equal share in property along with son, says Hindu Succession (Amendment) Act, 2005 gives daughter equal right in ancestral property Justice S. Vishwajith Shetty [08-04-2022]

Read Order: SMT. MARAMMA Vs. SRI MALLEGOWDA 

Mansimran Kaur 

Bangalore, April 13, 2022: The Karnataka High Court has held that the effect of the Hindu Succession (Amendment) Act, 2005 is such that a daughter is considered as a coparcener with effect from the date of amendment and she can claim a share equivalent to the son in the coparcenary property. To enable the daughter as a coparcener in order to claim a share in the coparcenary property, the coparcenary must exist on September 9,2005.

The Bench of Justice Justice  S.Vishwajit Shetty allowed the appeal assailing the impugned judgment of the Addl. District Judge and held the married daughters entitled for equal share in property along with son, in accordance with Section 6 of the Amendment (Hindu Succession) Act, 2005 

The plaintiff had filed an original suit  before the Trial Court seeking partition and separate possession of the suit schedule properties and she claimed 1/4th share in the suit schedule properties. It was the case of the plaintiff that the plaintiff and defendants are the children of one Madegowda and their mother was Madamma. Madegowda and Madamma had another son by name Moogegowda who had expired unmarried prior to the filing of the suit. The suit schedule properties are their ancestral joint family properties and after the death of Madegowda and his wife Madamma, the khatha in respect of the suit schedule properties were transferred in the name of first defendant.

However, the plaintiff and other defendants continued to be in joint possession of the suit schedule properties along with first defendant. Partition was affected in the family after the death of Madegowda, and therefore, the plaintiff had requested the defendants to effect partition on December 12, 2008 and since then the defendants kept on deferring  the same. The plaintiff was constrained to file original suit seeking 1/4th share in the ancestral joint family properties left behind by their father.

Second and third Defendants, who are the sisters of the plaintiff, had filed written statements admitting the case of the plaintiff and they had claimed their share in the suit schedule properties and they also admitted that the suit schedule properties were the joint family properties.

The first Defendant contended that the plaintiff and other defendants are not entitled to any share in the ancestral property as it was his case that the plaintiff and second and third defendants were married daughters of late Madegowda and they are residing separately with their respective husband. It was further contended by first defendant that at the time of marriage of the plaintiff and second & third defendants, a huge amount was spent for the purpose of marriage and also for giving gold and other articles to them at the time of marriage. He had further contended that he had improved the suit schedule properties by investing huge amounts and the suit schedule properties hadbeen partitioned between himself and his children, and therefore, there was no scope for further partition.

The Trial Court after considering the submissions of the rival parties decreed the suit with no costs and held that the plaintiff was entitled to 1/4th of the share in the suit schedule properties. Being aggrieved by the same the first defendant instituted a revision appeal before the Appellate Authority . The Appellate Authority after considering the oral and documentary evidence or record reversed the judgment of the Trial Court and consequently the suit of the plaintiff was dismissed. Pursuant to this, the plaintiff and second & third defendant approached this Court by way of second appeal. The were two question of laws that the present Court dealt with. First was whether  in the light of the explanation to sub-section (5) of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 and the decision of the Apex Court in the case of Ganduri Koteshwaramma Vs. Chakri Yanadi, was the lower Appellate Court  justified in dismissing the suit for declaration, partition and separate possession of joint family properties.

And the next additional substantial question of law that was framed was whether the First Appellate Court was justified in reversing the judgment and decree passed by the Trial Court in original suit and thereby dismissing the suit of the plaintiff on the ground that the plaintiff was born prior to June 17, 1956 and therefore, she was not entitled for partition and share in the plaint schedule property.

The Counsel for the appellants contended vehemently on the aforesaid issues by submitting that the suit schedule properties were the ancestral properties and with respect to amendment to Section 6 of the Hindu Succession Act, 2005, the plaintiff and second and third defendants who are married daughters of the deceased Madegowada were entitled to equal share in the property. Reliance was placed on Vineeta Sharma vs  Rakesh Sharma & Others  to allow the appeal. 

In contrast, the Counsel for the first defendant submitted that he is the sole coparcener after the death of Madegowda and therefore, prior to coming into force the Act of 2005 coming into force. Reliance was on the judgment in Rohit  Chauhan vs Surinder Singh & Others .It was his contention hat since the ancestral properties were in possession of a single person, therefore the properties  in question shall be treated as separate properties.

The Court stated that the partition had come into effect after the Amendment Act, 2005 came into force. Notably the plaintiff and defendants are not parties to the one of the documents of partition, the Court remarked.  It was also observed that the partition document relied upon earlier was not a registered document and therefore it held no relevance in the eyes of law. The Apex Court ruling in the case of Rohit  Chauhan vs Surinder Singh & Others  was referred to wherein it was held that the right of the married daughters as granted under Section 6 is not lost merely because a preliminary decree was passed in a partition suit. 

The Court also referred  to the case of Vineeta sharma’s Case(Supra) wherein the Apex Court held that the amended provisions of Section 6 (1) (a) makes the daughter by birth a coparcener in her own right and in the same manner as that of a son. Though the rights can be claimed with effect from September 9, 2005 , the provisions are of retroactive application, they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener.  The effect of amendment is that a daughter is made coparcener with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcener. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case a living coparcener dies after September 9, 2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3). 

The Bench said, “After the coming into force of the Act of 2005, the daughters have been given equal right and share in the ancestral properties along with the sons. The daughter is treated as a coparcener as a son by birth with the same rights in coparcenary property and liabilities. Under the amended Section 6 of the Hindu Succession Act, a right is given by birth to the daughters along with the sons.”

Considering the above observations and interpretations, this Court observed that the daughters of Madegowda are  entitled to equal share in the suit schedule property along with the first defendant who is their son. The date of birth of a daughter is of no relevance in claiming their rights under the amendment provisions of Section 6 of the Act. The judgment in Vineetha Sharma’s case supra was held to be squarely applicable to the facts of the case and in view of the said judgment, having regard to the fact that the coparcenary had remained intact as on September 9, 2005, the daughters of Madegowda were held to be entitled for equal share in the suit schedule property along with first defendant. Accordingly, the second appeal was allowed and the impugned decree dated December 12, 2011 passed by the IV Addl. District Judge, Mysuru, was set aside, and the judgment and decree dated April 16, 2011  passed by the Civil Judge Nanjangud, was confirmed.