Rajiv Gandhi National University of Law, Punjab
(Established by Punjab Act No. 12 of 2006) Bhadson Road, Sidhuwal, Punjab
(Accredited ‘A’ Grade by NAAC)
Project Submission of
Family Law -2
for
B.A. LL.B. (Hons.) VIth
Semester
Session 2020-2021
Topic: Coparcenary Right Of Daughter in Hindu coparcenary in the light of Judgement of Supreme
Court of India : An Analysis.
Submitted by: Deepak Kilania
Roll No.: 17048
Group No.: 10
Submitted to : Dr . Kalmalijit Kaur
(assistant professor of law)
1
TABLE OF CONTENT
A.INTRODUCTION
A.1. Overview of Hindu Succession Act ,1956.
A.2. Coparcenary Right.
B.The Hindu Succession (Amendment) Act, 2005:
B.1. The main provisions of the Hindu Succession
(Amendment) 6 Act, 2005.
C.Changing Right Of Daughter In Hindu Coparcenary
(Judicial Decision):-
C.1. SR Batra Vs Taruna Batra (2006)
C.2. Prakash Vs Phulavati
C.3. Danamma Suman Surpur & Another v Amar &
Others .
D. Property rights of a daughter before amendment of the
Hindu Succession Act.
E.Bibliography
2
INTRODUCTION
The primary purpose of coparcenary was spiritual in nature. A coparcener is a person who can
offer funeral cake to his father. This capability to offer spiritual salvation was with the son,
grandson and great-grandson and as a consequence of it they were conferred a right by birth in the
property of the father.1 The system of coparcenary before 2005 amendment consisted of only male
members within a joint family. Under the classical law, coparcenary consisted of the senior most
male called last holder and his lineal male descendants down to the three generations which
includes his son, grandson and great-grandson, these members have a right by birth in the joint
Hindu family property and have a right to ask for partition of the same.
“Women constitute half the world's population, perform nearly two-thirds of its hours, receive one-
tenth of the world's income and less than one hundredth of the property.”2
India is a multi-linguistic, multi-cultural and multi-religious state of more than a billion people, of
which almost half comprise females. The principles of fairness and equity are enshrined in the
Constitution of India, that unequivocally mandates gender equality. Discrimination and violence
against women do not just victimize the individual women, but do indeed hold back whole sections
of society. Guaranteeing rights to women is an investment in making the whole nation stronger
and self-reliant.3
Overview of Hindu Sucession act ,1956
Post-independence the laws relating to intestate succession in Hindus are governed by the Hindu
Succession Act, 1956. This Act was enacted to lay down a uniform system of inheritance and also
to ensure equality between sons and daughters. However, in respect to create gender equality this
act failed miserably. For instance, this Act provided for coparcenary rights only in favour of male
members.Section 6 of the Hindu Succession Act, 1956 states that- “When a Hindu male 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
1
Family Law Lectures Family Law II. Lexis Nexis Butterworths Wadhwa Nagpur, 3rd edition, poonam
pradhan saxena
2 UNDP ‘Convention on equal right to women’,1998
3 Werner Menski, Hindu Law: Beyond Tradition and Modernity (Delhi: Oxford UP: 2003).
3
members of the coparcenary and not in accordance with this Act”.4 Since a woman could not be a
coparcener, she was not entitled to a share in the ancestral property by birth.5 However, there is an
exception to this rule which also serves as another gender bias. The exception is that the interest
of the deceased in the Mitakshara coparcenary shall devolve by intestate succession if the deceased
had left surviving a female relative specified in the Class I of the Schedule or a male relative
specified in that class, who claims through such female relative.6 In order to understand how this
provision operates as gender bias, it is necessary to look at Section 8 of the Hindu Succession Act,
1956 which deals with the general rules of intestate succession. As per Section 8, the property of
a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in
Class I of the Schedule. However, there are only four primary heirs in the Schedule to Class I,
namely, mother, widow, son and daughter.7 The principle of representation goes up to two degrees
in the male line of descent, but in the female line of descent it goes only up to one degree.
“Accordingly, the son’s son’s son and son’s son’s daughter gets a share but a daughter’s daughter’s
son and daughter’s daughter’s daughter do not get anything. A further infirmity is that widows of
a pre deceased son and grandson are Class I heirs, but the husbands of a deceased daughter or
granddaughter are not heirs”.8
Coparcenary Rights
Within the joint family there is a narrower body called the Coparcenary.This includes the eldest
male member + 3 generations. For eg : Son – Father – Grandfather – Great Grandfather. This
special group of people are called coparcenors and have a definitive right in ancestral property
right since the moment of their conception. Earlier only a Son/Son’s son/Son’s son’s son were
coparcenors – now daughters are equally coparcenors after 2005. They can get their share culled
out by filing a suit for partition at any time. A coparcenor’s interest is not fixed it fluctuates by
birth and deaths in the family.
4
Hindu Succession Act, 1956
5
174th Report on “Property Rights of Women: Proposed Reforms under the Hindu Law”, Law Commission of
India, May 2000
6
Section 6, Hindu Succession Act, 1956
7
Schedule I, Hindu Succession Act, 1956
8
174th Report on “Property Rights of Women: Proposed Reforms under the Hindu Law”, Law Commission of
India, May 2000
4
The Hindu Succession (Amendment) Act, 2005:
The Hindu Succession (Amendment) Act, 2005 was passed to remove gender discriminatory
provisions in the Hindu Succession Act, 1956 and to give equal rights to daughters in Hindu
Mitakshara coparcenary property as the sons have. The Act aimed at making two major
amendments in the Hindu Succession Act, 1956. Firstly it amended the provision which
excluded the right of the daughters form the coparcenary property and secondly it omitted
Section 23 of Act which dis entitled a female heir to ask for partition in respect of a dwelling
house, wholly occupied by a joint family, until the male heirs choose to divide their respective
shares therein.
The main provisions of the Hindu Succession (Amendment) Act, 2005 are:9
• In a Hindu Joint Family governed by Mitakshara law, the daughter by birth shall become a
coparcener in her own right in the same manner as a son.
• She would have the same rights in the coparcenary property as that of a son.
• She shall be subject to same liabilities in respect of the said coparcenary property as that of a
son.
• Any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener.
• Any disposition or alienation including any partition or testamentary disposition of property
which had taken place before the 20th day of December, 2004 shall not be affected or
invalidated by reason of the amendment of Section 6 of the Act.
• Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be
held by her with the incidents of coparcenary ownership and could be disposed of by her by
testamentary disposition.10
• Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
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
9
https://evaw-global-database.unwomen.org/fr/countries/asia/india/2005/the-hindu-succession-amendment-act-
2005
10
"Section 6 in The Hindu Succession Act, 1956"
5
not by survivorship, and the coparcenary property shall be deemed to have been divided as if
a partition had taken place.
• In case of notional partition:
1. The daughter is allotted the same share as is allotted to a son;
2. The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the
surviving child of such pre-deceased son or of such pre-deceased daughter;
3. The share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, shall
be allotted to the child of such pre-deceased child of the pre-deceased so or a pre-deceased
daughter, as the case may be.
• 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.11
• After the commencement of the Amendment Act, there shall be no obligation on the 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.
• Nothing contained in amended Section shall apply to a partition, which has been effected
before the 20th day of December 2004.
Changing Right Of Daughter In Hindu Coparcenary (Judicial Decision):-
1. SR Batra Vs Taruna Batra (2006)12
Ms. Taruna Batra married Amit Batra on April 14, 2000, who is the son of the two appellants
Mr. and Mrs. S.R. Batra. After the marriage, Taruna and her husband started residing together as
husband and wife on the second floor of B-135, Ashok Vihar, Phase-I, Delhi, while S.R. Batra
and his wife resided separately on the ground floor of the same property. The entire property was
exclusively owned by Taruna Batra’s mother-in-law, Mrs. S.R. Batra.
11
"Hindu Succession (Amendment) Act, 2005 comes into force from today
12
S.R. Batra and Anr. vs. Smt. Taruna Batra, (2007)3SCC169
6
Amit Batra filed for divorce, after which Taruna Batra lodged an FIR against her husband,
father-in-law, mother-in-law, and sister-in-law. They were all arrested and granted bail after
three days. As a result of the rising tensions, Taruna Batra shifted to her parent’s residence. Amit
Batra, too, moved out of the residence and into his own flat in Ghaziabad. Later on, Taruna Batra
tried to return to her old home at B-135, Ashok Vihar, Phase-I, Delhi, but found it locked. She
filed a suit seeking mandatory injunction to enable her to enter the house but, before any order
could be passed, she forcibly broke into the residence.
In back-and-forth appeals, a central question arose: Should the second floor of this property be
considered Taruna Batra’s matrimonial home? The issue reached the Supreme Court, and
became a landmark judgment clarifying the legal definition of “shared household.” The Supreme
Court determined that in order for a home to be considered a “shared household”, the husband
must either own the property, he must pay rent on the property, or the house must belong to a
joint family of which the husband is a member. The court therefore ruled that the property in
question does not count as a “shared household.”
2. Prakash Vs Phulavati13
The Apex Court in its recent judgment held that a daughter’s right to equal share in the ancestral
property is prospective and not retrospective the Hindu Succession (Amendment) Act, 2005 No.
39 of 2005.
The brief facts of the case are that suit properties were acquired by plaintiff daughter’s late father
by inheritance from his adoptive mother. After the death of her father in 1988, daughter acquired
the share in the property as claimed. The suit was contested by other coparcenors mainly with the
plea that the daughter could claim share only in the self-acquired property of her deceased father
and not in the entire property. During pendency of the suit, the plaintiff daughter filed a suit to
claim share in the entire property (self-acquired as well as inherited) of her deceased father as per
the Amended Act 39 of 2005. The Trial court partly decreed the suit to the extent of 1/28th share
in certain properties on the basis of notional partition on the death of her father and in some of
the items of property, no share was given, while 1/7th share was given in some other properties.
13
Hindu Succession (Amendment) Act, 2005 No. 39 of 2005- Daughter’s Right to ancestral property-
7
An appeal was filed before the High Court which was dismissed. The daughter approached
Supreme Court with the grievance that she became coparcener under the Amendment Act 39 of
2005 and was entitled to inherit the coparcenary property equal to her brothers, apart from
contentions based on individual claims in certain items of property. Another contention made to
validate this claim was that the amendment being piece of social legislation to remove
discrimination against women in the light of 174th Report of the Law Commission, the
amendment should be read as being retrospective as interpreted by the High Court. Daughters
acquired right by birth and even if her father, who was a coparcener, had died prior to coming
into force of the amendment, the shares of the parties were required to be redefined.
Rejecting the contentions made, the Apex Court observed that the text of the amendment itself
clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the
commencement of Hindu Succession (Amendment) Act, 2005’. Section 6(3) talks of death after
the amendment for its applicability. An amendment of a substantive provision is always
prospective unless either expressly or by necessary intendment it is retrospective. Even a social
legislation cannot be given retrospective effect unless so provided for or so intended by the
legislature.
The Hon’ble Supreme Court by this judgment has removed all doubts and clarified that the rights
under the amendment are applicable to living daughters of living coparceners as on 9th
September, 2005 irrespective of when such daughters are born. It was also held that any
disposition or alienation including partitions which may have taken place before 20th December,
2004 as per law applicable prior to the said date will remain unaffected.
3.Danamma Suman Surpur & Another v Amar & Others14
Gurulingappa Savadi was the head of a Hindu joint (intergenerational) family who died in 2001.
In 2002, his grandson brought a suit to partition the family property, alleging that only Mr. Savadi’s
widow and two sons were co-owners of the property upon Mr. Savadi’s death. The suit asserted
14
Danamma Suman Surpur & Another v Amar & Others, Civil Appeal Nos. 188-189 of 2018
8
that Mr. Savadi’s two married daughters were not entitled to any share of the property, since they
were born prior to the Hindu Succession Act (codified customary/personal law), and therefore
could not be treated as coparceners (persons who share jointly with others in an inheritance). The
trial court agreed that the daughters had no right to a portion of the family property. The trial court
also rejected the alternate contention that with the passage of the Hindu Succession (Amendment)
Act, 2005, daughters are entitled to equal shares of property. The daughters appealed until the case
reached the Supreme Court.15
On 1 February 2018, the Supreme Court reversed the lower court ruling, in particular holding that
the 2005 legislative amendment decisively settled the matter in favor of the appellants. The
amendment states that any daughter of a coparcener by birth becomes a coparcener and is entitled
to the same rights and liabilities with respect to the property as a son. In the present case, suit for
partition was filed in the year 2002. However, during the pendency of this suit, the aforementioned
amendment came into force, as the partition decree was awarded by the trial court only in the year
2007. Thus, the rights of the appellants became crystallised in the year 2005, and this should have
been considered by the lower courts. Though Mr. Savadi died in 2001 and the amendment is not
retroactive, it applies to the present case because the partition became final only when the decree
was issued from the lower court. The amendment was passed in the interest of gender equality
under the law, and daughters now have the same rights as sons with respect to commonly owned
property partitioned after the amendment to the Act, regardless of when they were born. The Court
noted that the law relating to a joint Hindu family has undergone unprecedented changes. It further
elaborated that “[T]he said changes have been brought forward to address the growing need to
merit equal treatment to the nearest female relatives, namely daughters of a coparcener…These
changes have been sought to be made on the touchstone of equality, thus seeking to remove the
perceived disability and prejudice to which a daughter was subjected.”
As Mr. Savadi left behind a widow, two sons, and two daughters, the Court held that each of the
daughters who appealed the decision is entitled to one-fifth of the family property.
15
https://indiankanoon.org/doc/88759498/
9
Property rights of a daughter before amendment of the Hindu Succession Act
2005.16
The Hindu property act recognises the concept of HUF, which means a family of persons who are
lineally descended from a common ancestor and related with each other by birth or marriage. The
people who are so descended from commons ancestors, were divided in two parts. In the first
category are coparceners. Only males were recognised as coparceners of the HUF and all the
females were called members. All the coparceners are members but vice-versa is not true.
The rights of coparceners and members in the property of the HUF, are different. Coparceners
have the right to ask for partition of the property and to get the shares. Members of the HUF, like
daughters and mothers, had the right of maintenance from HUF property, as well as to get a share
in the property of the HUF as and when partition of the HUF took place.17 Upon marriage, the
daughter would cease to be a member of the HUF of the father and would thus, no longer be
entitled to the right of maintenance as well as to get a share in the property of the HUF, if the
property were partitioned after her marriage. As only a coparcener was entitled to become the
Karta of the HUF, the female members were not entitled to become a Karta of the HUF and manage
its affairs.
16
https://m.economictimes.com/familybusinessforum/insights/daughters-born-before-2005-have-equal-rights-to-
ancestral-property-sc/articleshow/63516453.cms
17
https://www.livemint.com/money/ask-mint-money/daughter-will-not-have-rights-over-ancestral-property-if-
father-died-before-9-sept-2005-11575961729279.html
10
BIBLIOGRAPHY
1. Family Law Lectures Family Law II. Lexis Nexis Butterworths Wadhwa Nagpur,
3rd edition, poonam pradhan saxena
2. UNDP ‘Convention on equal right to women’,1998
3. Werner Menski, Hindu Law: Beyond Tradition and Modernity (Delhi: Oxford UP: 2003).
4. Danamma Suman Surpur & Another v Amar & Others, Civil Appeal Nos. 188-189 of
2018.
5. https://indiankanoon.org/doc/88759498/
6. Hindu Succession (Amendment) Act, 2005 comes into force from
today". www.pib.nic.in. Retrieved 5 July 2018.
7. "Section 6 in The Hindu Succession Act, 1956". Retrieved 5 July 2018.
8. "Daughters Born Before 2005 Have Equal Rights To Ancestral Property: SC". The
Economic Times. 28 March 2018. Retrieved 21 December 2018.
9. "Effect of the Hindu Succession (Amendment) Act 2005". www.papers.ssrn.com.
Retrieved 5 July 2018.
11
