The text of the amendment itself shows that the right conferred by the amendment is on a “Daughter of a coparcener who is a member of the coparcenary and alive on the date of the commencement of the Act. The aforesaid observation of the Hon’ble Supreme Court in Phulavati1 is debatable. Under the amended provision of Sec.6 of the Hindu Succession Act, a daughter becomes a coparcener in her own right as that of a son with all the rights in the coparcenary property as that of a son. The original Sec.6 is in respect of the devolution of interest in the coparcenary property of a deceased male Hindu. The original Sec.6 does not speak about any right of a coparcener. The various State amendments (except Karnataka) made decades ago have all been incorporated as Sec.29-A. Under Sec.29-A, a daughter of a co-parcerner has been conferred the right if she is not married on the date of the amendment. Unamended Sec.6 is in respect of the devolution of interest in the coparcenary of a male Hindu who dies after the commencement of the Hindu Succession Act 1956. Whereas the State amendment under Sec.29-A is not in respect of the devolution of interest of a deceased male Hindu but conferred an independent right on a daughter provided she is unmarried on the date of the amendment effected by various state acts. The amendment to Sec.6 is now incorporated as Sec.6(1) to (5). Sec.6(1) of the Act confers a right of a daughter by birth and it speaks about the “daughter of a coparcener”. However, with a slight modification of the existing provision, original Sec.6 was incorporated as Sec.6(3). Under original Sec.6 if a male Hindu dies after the commencement of the Act, his interest in the property shall devolve by survivorship but if he left a surviving female relative in Class I of the schedule or male relative claiming through such female relative, the interest of a deceased coparcener shall devolve either by testamentary or intestate succession as the case may be. If a coparcener dies intestate after the commencement of the Act leaving behind female relative then Sec.8 will come into play. Original Sec.6 is now incorporated as Sec.6(3) with a slight modification namely instead of male Hindu dies, it says “where a Hindu dies”. This amendment is necessitated by the fact that the daughter becomes a coparcener and if she becomes a coparcener, the right of a female coparcener on her death shall devolve under Sec.15 of the Hindu Succession Act. 3. The controversy in the Amended Act can be discussed as follows: a) Devolution of interest b) Rights of a daughter of a coparcener c) Coparcenary not disrupted by the death of a coparcener a) DEVOLUTION OF INTEREST: Under original Sec.6, the headnote reads devolution of interest of the coparcenary property. Unamended Section 6 speaks only about the devolution of interest of a deceased male Hindu and it does not speak about the right by birth. However when new Sec.6 was incorporated the headnote was retained inadvertently. The headnote is relevant only in respect of Sec.6(3) and not in respect of new Sec.6(1). The difference is obvious. Sec.6(1) of the amended Act speaks about the right of a daughter by birth and whereas new Sec.6(3) is about the devolution of a right of a deceased Hindu. A reading of Sec.6(1) and 6(3) would show that both of them operate in a different field. The devolution of interest in the coparcenary property was discussed by the full bench of the Bombay High Court in Badrinarayanan Shekar Bandari3. It discussed threadbare about the amended act and came to a conclusion that the decision of the very same High Court in Vaishali4 that Sec.6(1) speaks about the devolution and therefore the right of a daughter is only upon the death of her father is not a good law. In other words, the right of the daughter by birth has nothing to do with the succession to the interest of the father. The decision of the Bombay High Court in Vaishali4 took into account the headnote namely the devolution of interest. The obvious mistake by the legislature in retaining the headnote which was correct when original Sec.6 was incorporated and not happily worded after the amendment is evident. This was clarified in Badrinarayanan Shekar Bandari3. The headnote cannot be used as a tool to interpret the statue if the wording in the section is very clear and conveys the intention of the legislature. The headnote appearing in Sec.6 should have appeared only for Sec.6(3). Succession need not open for the daughter to claim her share in the coparcenary as her right by birth is independent and not by devolution. b) DAUGHTER OF A COPARCENER Sec.6(1) of the amended act speaks about the daughter of a coparcener. This has been interpreted by the Hon’ble Apex Court in Phulavati1 “ as living daughter of a living co-parcerner”. The words introduced by the Hon’ble Apex Court does not find a place in Sec.6(1). It speaks about the daughter of a co-parcerner and therefore daughter must be alive to get interest by birth. The wordings a daughter of a coparcener find a place in the State amendments under Sec.29(A), but until today that has not been interpreted as the living daughter of a living coparcener. Under the state amendments the daughter of a coparcener will be entitled to a share in the coparcenary property if she is unmarried on the date of the State amendment. The daughter of a coparcener has been incorporated in Sec.6(1) as well as in Sec.29(A) of the State amendment to distinguish the wording female relative in the then existing Sec.6. The original Sec.6 speaks about a female relative in CLASS I and obviously, a female relative includes a daughter, a wife and a whole lot of others. Under notional partition theory when a male Hindu dies leaving behind a female relative in CLASS I then his interest in the property will devolve under Sec.8 of the Act. If the wording female relative in CLASS I of the schedule is incorporated in Sec.6(1) then, not only the daughter but a wife, mother and whole lot female relatives would claim right by birth as CLASS I heir. The legislature has conferred the right of a coparcener only on the daughter and nobody else in class I. It is only to make such a distinction the wording daughter of a coparcener is used in Sec.6(1). The Hon’ble Apex Court in Phulavati1 did not discuss the language used in Sec.6(1) as well as Sec.29(A) about the right of the daughter of a coparcener juxtaposing with the wording female relative in CLASS I of the act. The decision that a living daughter of a living father alone is entitled to succeed requires a reconsideration. C) COPARCENARY NOT DISRUPTED BY THE DEATH OF A COPARCENER The settled position of law is that on the demise of a coparcener, coparcenary can continue and even if it is reduced to a single unit, the coparcenary does not come to an end. However, coparcenary springs into life the moment either by birth or by operation of law a coparcener comes into existence. This settled position was succinctly brought out by the Division Bench of the Hon’ble Delhi High Court in Swaran Lata9. In that case, after reviewing some of the decisions, the Hon’ble High Court came to a conclusion that on the demise of a coparcener the rights of other coparceners will not be crystallized. Only by the legal fiction of notional partition the rights of a deceased Hindu shall go under Sec.6 and for all other practical purposes, the coparcenary will continue. The decision in Phulavati1 came under the scanner in Danamma6. In Danamma6 the Hon’ble Supreme Court after referring to Sheela Devi8 came to a conclusion that even though father died in the year 2001, the daughter is entitled to her share in her own right by birth. The Hon’ble Supreme Court made a subtle distinction between the right of a daughter as a coparcener by birth and devolution of interest. It was held that the daughter is entitled to a share by birth and devolution will take place thereafter. In Danamma6 the Hon’ble Apex Court reiterated that the decision in Phulavati1 settled the issue about the interpretation of Section 6 but made a discernible departure namely even if the father died before the amendment, the daughter is entitled to a share. This view that the right conferred upon a daughter by birth is irrespective of the date of the death of the father can also be traced to the decision of the Apex Court in Ganduri Koteshwaramma2. In that case, the Hon’ble Apex Court upheld the right of a daughter of a coparcener notwithstanding the fact that the father died in the year 1993. Now there are two lines of decision Ganduri Koteshewaramma2 and Danamma6 both held that the right of a daughter is independent of the death or right of the father. The second line of decisions in Phulavati1 and Mangammal7 the court held that the father must be alive. In Mangammal7 quite curiously the Court came to a conclusion that by implication father must be alive and upheld the decision in Phulavati1 that living daughter of a living father alone is entitled to a right by birth and has stated that the decision in Danamma6 must be confined to the facts of the case. However, a perusal of the decision in Danamma6 would show that the decision to confer the right of the daughter even if the father is not alive on the date of the advent of the Amended Act is purely on a legal interpretation. In para 24 of the judgment, it is stated as follows: “It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage and a consequence of the death of a coparcener”. The court went on to concur with the decision in Ganduri Koteshwaramma2 as well. The apparent predicament seems to have emanated by the incorporation of the right of the daughter of a coparcener under Sec.6 along with the devolution of a right of a deceased coparcener. So long as Sec.6 and 29(A) wherein different pages there was no confusion whatsoever. The predicament started only when the issue of succession when opens was raised inadvertently. In Sheela Devi8 the Apex Court was considering the opening of succession in the light of notional partition. First, the opening of succession comes into play only in respect of the right of a deceased Hindu under section 6 and not in respect of a right of another coparcener namely son at the earlier point of time. It can now be applied evenly to a son and a daughter under sec6(3). The proviso to section 6 (1) speaks about any disposition or alienation either by a partition or testamentary which has taken place before the 20th day of December 2004. Section 6(5) does not speak about testamentary disposition. Section 6(5) is applicable to entire section 6 and whereas the proviso to section 6 (1) applies to section 6(1). The legislature has deliberately included the word testamentary disposition in the proviso to section 6 (1). It means if a male Hindu dies before the commencement of Act leaving a testamentary disposition, the daughter is not entitled to claim any share in his property. The words testamentary disposition is used deliberately in the proviso, to indicate that in the absence of the same, if the father dies before the amended act, the daughter is entitled to a share. Whereas the partition contemplated under section 6(5) cannot be reopened by a daughter if it has taken place on or before 20th December 2004. The wording testamentary disposition in the proviso to section 6(1) and leaving it out in section 6(5) is a pointer that father need not be alive. Otherwise, it doesn't make sense at all. None of the decisions discussed the reason behind the incorporation of the word testamentary disposition in the proviso to section 6(1) and its omission in section 6(5). Secondly, instead of posing the question when the father died, the question ought to have been posed is whether the coparcenary exists on the date of the advent of the amendment. Assuming a situation, that on the date of death of the father there was no partition between father and his brothers, can we still deprive a daughter of her share by birth. It is a classic case of posing a wrong question leading to a wrong answer. Thirdly, oral family arrangement and partition which are otherwise valid are no longer so, as they have been taken out by the statue in order to prevent fictitious transactions. Nevertheless, oral partition or family arrangement having been acted upon and upheld by courts of law subsequently or amounting to estoppel cannot be reopened. To sum up the legal position; a) the devolution of interest in the coparcenary property of a Hindu has nothing to do with the right conferred on a daughter by birth. b) a daughter irrespective of the date of death of the father is entitled to a right in the coparcenary property by birth as that of a son provided she is alive and coparcenary exists on the date of the advent of the amended act. c) If the father dies before the commencement of the amended Act then his interest alone shall devolve under Sec.8 and if the coparcenary continues after his demise, the daughter shall be entitled to a share in the coparcenary property along with the son after applying the notional partition. d) If the father dies after the commencement of amended Act the daughter is entitled to an independent right over the property and she is entitled to a share along with her father and other coparceners. e) a partition either by way of a deed of registered partition or by decree of a court or a partition oral or otherwise having been acted upon and upheld by a court of law or amounting to estoppel should be saved if it took place before 20th December 2004.
Hopefully, the matter is pending for consideration by a larger bench of the Hon’ble Supreme Court. The interpretation that a daughter can claim only when the father is alive, based on a hypothesis that the death of father will end the coparcenary would exclude the majority of the daughters from getting the benefit, which surely is not the intention of the legislature. A clarification that the date of death of the father is irrelevant and immaterial for the daughter to make a claim would set right the anomaly.
1) Prakash Vs Phulavathi, 2016 (2) SCC 36.
2) Ganduri Koteshwermma Vs Chakiriyanadi, 2011 (9) SCC 788.
3) Badri Narayana Shankar Bhandari Vs Om Prakash Shankar Bhandari, AIR 2014 Bom 151.
4) Vishali Satish Gonarkar Vs Satish Keshorao Gonarkar, AIR 2012 Bom 110.
5) Anar Devi VsParameshwari Devi, 2006 (8) SCC 656.
6) Danamma @ Suman SurpurVs Amar, 2018 (1) Scale 657.
7) Mangammal @ ThulasiVs T.V. Raju, 2018 (15) SCC 662.
8) Sheela Devi Vs Lal Chand, 2006 (8) SCC 581.
9) Swaran Lata Vs Kulbhushan Lal, AIR 2014 Del 86.