Daughter as a Coparcener

Rough Draft
Subject: Interpretation of Statutes
Submitted By: Deepashikha Godbole
Roll No: A029
Class: B.B.A.LL.B (Hons.) III Year

Introduction
A joint family w.r.t a joint Hindu Undivided Family consists of all persons lineally descended from a
common ancestor and includes their wives, widows and unmarried daughters. 1However, while the same
does not apply to the sons in the family; upon marriage, the daughter ceases to be a member of her
fathers family and becomes a member of her husbands family. A Hindu joint family is a natural
association. It is based on the sapinda relationship or on the principle of kinship. 2 Therefore a Hindu joint
family cannot be described as a partnership or a corporation. It is a separate entity by itself. This has also
been recognised by the tax statutes and for all practical purposes, it is a distinct entity in itself. 3A joint
family is a normal unit of the Hindu society.4This system is so prevalent that law presumes that every
Hindu family is a joint family unless the contrary is proved.5
The concept of Daughters as Coparceners emerged from the Constitution of India, as the COI gives the
Right to Equality6 Hindu Women's Right to Property act was the first enactment that gave a limited
interest only to the widow of the coparcener, i.e. interest for her lifetime, however in the event of a
partition the widow was to be given equal rights as her sons. This was followed by the Hindu Succession
Act, 1956 which gave birth to the concept of notional partition, which preceded the rights of daughters. 7
Further, the Section 14 of the Hindu Succession Act, 1956 mandated that the right of the widow would be
absolute. The amendment adding Section 29A for Maharashtra first introduced the status of a daughter as
a coparcener provided that the daughter is unmarried.
The membership of a joint family can easily be divided into two classes: coparceners and ordinary
members. Coparcenary is a narrower body than joint family. It consists of only those members of the joint
family whose interest in the joint family property is in nature of ownership.8The law of Hindu joint family
is a part of the Hindu law of property. Through this project, the researcher attempts to analyse how the
1 Commissioner of Income Tax v Lakshmi Narayanan 37 Bom LR 692.
2 Sunil Kumar v Ram Parkash (1988) 2 SCC 77.
3 ITO v Ram Prasad (1973) 3 SCC 25.
4 State of Maharashtra v Naryana Rao (1985) 2 SCC 321.
5 Addagada Raghavamma And Anr vs Addagada Chenchamma And Anr, 1964 AIR 136
6 Article 15 of COI
7 Section 8 of Hindu Succession Act, 1956

concept of Daughters as Coparceners of a Hindu joint family has evolved and its relevance in present
times; the researcher will attempt to test the hypothesis by analysing it w.r.t. case laws and the
interpretation of the law by judges in those cases. The researcher has also analysed how the concept of a
Hindu Joint Family has undergone a change by analysing the changing law with respect to Hindu Joint
Family property.
Concept of Ancestral & Self-acquired Property
A property is ancestral when acquired through inheritance from ancestors, this property is always shared
by members of a coparcenary equally. On the other hand, property is self-acquired if it is earned by an
individual's earnings, learning or other human endeavour. However, this property has to be bought by the
funds of an individual only, and not using the funds of an HUF. In the latter the person acquiring is the
sole owner and nobody exercises any right on the same during his lifetime; unless otherwise so specified.
A question which arises by the logical train of thought is, how can the coparcenary interest be determined
at the time of her marriage. In fact, it would pose no problem because the male members of a coparcenary
can determine the coparcenary interest at any time at their will, so why should there be any difficulty in
case of the daughters, who have now been held to have equal rights in the property of ancestors. 9
Therefore the marriage of the daughter may or may not have any impact on the proprietary interest rather
it will depend on upon the will of the female herself. The division of the property will therefore largely
depend on the nature of the property, i.e. whether it is ancestral or self-acquired.
Tentative Chapterization
Chapter 1: Introduction
Chapter 2: Critical Analysis of Traditional laws being practised in India
This chapter will attempt to analyse the traditional laws being practised in India, however, it will
concentrate on only on Dayabhaga and Mitakshara.10 The following aspects will be dealt with in detail in
this chapter
a. Basis for Coparcenary rights arising
b. Nature of interest created by coparcenary rights
c. Expansion or Alteration of Coparcenary Rights
d. Alinees right to ask for Partition and Circumstances thereof
e. Subjects to Partition
Whether they were designed to achieve gender parity and whether they now prove to be indolent and
archaic in nature will be dealt with in the conclusion to the chapter and the research paper.
8 Shiv Ratan v Kanhaiyalal (1992) I HLR 80 (MP); Sk. Sandu Sk. Nathu vs Pirjade Iqbaluddin Ziauddin, (1985) 87 BOMLR
86.
9 4 NLR 2008-2009
10 "InclusionOfDaughterInMitaksharaCoparcenary:ARadicalChange".TheClarion5Number1(2016):n.pag.Print.

Chapter 3: Prakash & Ors v Phoolwati & Ors Forwarding The Cause Of Equitable Justice
this chapter will analyse the facts, conventional clashes, issues, and judgments of the case and the rules of
interpretation which have been applied in order to achieve at the decision.
Briefly the supreme court in Prakash & Ors v Phoolwati & Ors (hereafter referred to as only the case)
held that,

The law, which gave equal right to daughters in ancestral property under the Hindu

Succession Act, is prospectively enforceable and not with retrospective effect (as held by some High
Courts in the country), the Supreme Court declared in its recent verdict.11
Facts
The judgement was impugned as the principle of retrospectivity was upheld in favour of the respondents,
which aggrieved the appellants. 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 as mentioned in detail
in the judgment of the trial court, thus granting part relief to the appellant. According to the plaintiff, the
suit properties were acquired by the plaintiff's late father, Yeshwanth Chandrakant Upadhye by inheriting
it from his adoptive mother Smt. Sunanda Bai. After the death of the plaintiff's father on 18th February
1988, the plaintiff acquired the share in the property as claimed. This inturn led to an appeal in the apex
court. The suit was contested mainly with the plea that the plaintiff could claim share only in the selfacquired property of her deceased father and not in the entire property. During the pendency of the suit,
the plaintiff amended the plaint to now lay a claim on her shares as per the Amended Act 39 of 2005. 12

Contentions
The main arguments against Phulavati's case were as follows:
1. That Phulavati had a right only to the self-acquired property of her father;
2. Phulavati's father passed away on 18 February 1988, i.e. prior to the commencement of the
Amendment Act. Therefore Phulavati could not be considered to be a coparcener at the time of
commencement of the Amendment Act; and
3. The Amendment Act would not be applicable in the instant case. Section 6 of the HSA as it stood
prior to the commencement of the Amendment Act would apply, which did not recognise
daughters' rights in coparcenary property.
11 "LawOnEqualRightForDaughtersOverPropertyIsProspective:SC".LiveLaw.N.p.,2015.Web.2Aug.2016.
12 Hindu Succession (Amendment) Act, 2005.

Judgment
The Karnataka High Court Held that daughters would be entitled to equal share even if a father had died
prior to September 9, 2005, provided that litigation over partition was pending in courts. The HC Order
was set aside by the SC. The matter was remanded back to the Karnataka High Court for a fresh decision
based on the principle of prospective application of the Amendment Act laid down by the SC.
In its judgment, the Supreme Court held that a plain reading of the Hindu Succession (Amendment) Act,
2005 itself suggests that a daughter has a right to coparcenary property, which arises on and from the
commencement of the Amendment Act. The Supreme Court held that 'An amendment of a substantive
provision is always prospective unless either expressly or by necessary intendment it is retrospective'.13 In
this case, there was no express or intended stipulation which would make the Amendment Act
retrospective in its application. Further by virtue of the Amendment Act, right to coparcenary property
would be available only to 'living daughters' of 'living coparceners' on 9 September 2005, i.e. the entitled
daughter and the father, both should be alive on the date of commencement of the amendment. The apex
court also held that We are unable to find any reason to hold that birth of the daughter after the
amendment was a necessary condition for its applicability. All that is required is that daughter should be
alive and her father should also be alive on the date of amendment.
The HC Order was set aside by the SC. The matter was remanded back to the Karnataka High Court for a
fresh decision based on the principle of prospective application of the Amendment Act laid down by the
SC.
Arguments forwarded:
i.

The defendants-appellants then questioned the Judgment and Order of the High Court with the

ii.

contention that the amended provision of Section 6 has no application in the present case.
Father of the plaintiff died on 18th February 1988 and was thus, not a coparcener on the date of

iii.

commencement of the Amendment Act.

The plaintiff could not claim to be the daughter of a coparcener at the time of commencement of

iv.

the Act which was the necessary condition for claiming the benefit.
The amendments of 2005 gave equal right to daughters in coparcener properties by removing the
discrimination that existed in the original enactment, the Hindu Succession Act, 1956 against

v.

Hindu women on rights over ancestral properties.

The Apex Court said that the rights under the Hindu Succession (Amendment) Act, 2005 are
applicable to living daughters of living coparceners (those persons sharing the inheritance of an
undivided property equally with others) as on September 9, 2005 (when amendments came into
force) irrespective of when such daughters were born.

13 (2015) 11 (SCALE) Pg. 643

Analysis
The Supreme Court, through this judgement, has cleared the air on a number of topics and given a muchneeded clarity, deciding the act is prospective in nature, thereby closing all existing claims which did not
fulfil the criterion. That is, with respect to a Hindu family governed by Mitakshara law, a daughter would
have a right in the ancestral property inherited by the father only if both the daughter and the father are
alive at the time of commencement of the Amendment Act. However, no contentions of such properties of
persons who passed away prior to 9 September 2005 can be re-opened or questioned by daughters. For
the sake of clarity, it may be noted that the position with regard to succession to any self-acquired
property (as against coparcenary property) of a Hindu male dying intestate remains unchanged, with the
daughter being entitled to a simultaneous share in such self-acquired property as the son (in the absence
of a will stating anything to the contrary).
In order to arrive at this decision, the supreme court has majorly relied on the HSA. Section 3 of the HSA
throws light on the interest in the property if the karta dies intestate or if the Hindu dies after the
commencement of the Act.
Chapter 4: Vaishali Satish Ganorkar v Satish Keshavrao Ganorkar
This chapter will also deal with a landmark case law, that is, Vaishali Satish Ganorkar v Satish Keshavrao
Ganorkar. The facts, contentions, issues, arguments forwarded, and judgment followed by analysis will be
presented in the Final Project,
Chapter 5: Implications of law in Badri Narayan Bhandari v Om Prakash Bhandari 14
This chapter will also deal with a landmark case law, that is, Vaishali Satish Ganorkar v Satish Keshavrao
Ganorkar. The facts, contentions, issues, arguments forwarded, and judgment followed by analysis will be
presented in the Final Project,
Chapter 6: Conclusion
Chapter 7: Bibliography
References
i.

ii.

Statutes:
a. The Hindu Succession (Amendment) Act, 2005
b. The Constitution of India
c. The Hindu Succession Act, 1956
Articles:
a. Coparcenary Under Hindu Law : Boundaries Redefined by Vijender Kumar
b. "InclusionOfDaughterInMitaksharaCoparcenary:ARadicalChange". TheClarion 5
Number1(2016.

14 2014 (5 Bombay Cases Reporter) 481 Full Bench

c. Prakash&Ors.VsPhulvati&Ors.7217of2013.SCC