This article is written by Arya Senapati. It attempts to cover the legal principles outlined in the case of Ganduri Koteshwaramma & Anr vs Chakiri Yanadi & Anr (2011) through a detailed analysis of its facts, issues and judgement. It shall also cover all important legal provisions and aspects involved in the case dealing with the Hindu Succession (Amendment) Act, 2005.

Introduction

The Hindu joint family is a unique institution in India. It owns and disposes of properties for the benefit of all its members. Owing to the multiple rights and interests of various members of a family that jointly owns a property, property disputes are common in most Indian families. From the greatest epic, “Mahabharata”, to the most landmark cases in the current times, property disputes have always been a topic of discussion in India. The devolution of interests in a Hindu joint family is ideally done through the Mitakshara system of succession. The Mitakshara system creates the concept of coparcenary, which governs the mode of succession for gaining an interest in a property. Coparcenary is obtained by birth into the joint family in an ideal situation. If a Hindu person dies without making a will, he is referred to an intestate. Intestate succession is governed by the Hindu Succession Act, 1956, which follows the Mitakshara system of devolution of interests through survivorship, which basically means that the survivors who survive the intestate’s life are the ones who shall receive interest in his property. The law also consolidated many different legal principles and practices of devolution of interest. 

Through the folds of history, women did not gain any interest in the coparcenary property and were not considered absolute coparceners. A daughter did not have any right over their intestate father’s property like a son did. This also gave birth to the system of dowry, which led to many problems and posed a threat to gender equality and the independence of women. As society developed and feminist movements demanded equal treatment of women, the legislature understood the importance of women having rights over coparcenary property equal to their male counterparts. This led to the Hindu Succession (Amendment) Act, 2005, which stated that women would have the same rights and liabilities with respect to coparcenary property as men. They shall get equal shares in the property as their male counterparts do. They shall also attain the status of a coparcener by birth. This revolutionary move solidified the claim of women to the coparcenary property. This led to conflict as most cases related to partition were already pending in courts. The question which irked the courts was whether the amendment modified the outcome of the cases pending decision while the amendment was passed. This led to many landmark judgements, one of which is the case of Ganduri Koteshwaramma & Anr vs Chakiri Yanadi & Anr (2011). Such cases also dealt with the question of the possibility of a retrospective application of the amendment and the consequences it poses in the outcomes of various property disputes as women started filing applications claiming shares in coparcenary property in pending partition suits of immovable properties. Therefore, it was necessary for the judiciary to lay down a proper interpretation of the amended provisions and clarify the effect it has on such cases to protect and propagate the objects of the amendment act properly. 

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Details of the case

  1. Appellant: Ganduri Koteshwaramma and Ors
  2. Respondent: Chakiri Yanidi and Ors
  3. Court: Supreme Court of India
  4. Type: Special Leave Petition
  5. Bench: Justice Jagdish Singh Khehar, Justice R.M. Lodha
  6. Date: 12.10.2011
  7. Citation: AIR 2012 SC 169
  8. Provisions involved: Section 6 of Hindu Succession Act, 1956, Section 97 of Civil Procedure Code, 1908

Facts of the case

The case arises from a special leave petition to the Supreme Court. The appellants and the respondents are the sons and daughters of one Chakiri Venkata Swamy. They are siblings in relation. The 1st respondent (originally the plaintiff) had filed a suit for invoking partition. This suit was filed in the Court of Senior Civil Judge, Ongole, and it impleaded his father, Chakiri Venkata Swamy (1st defendant), his brother Chakiri Anji Babu (2nd defendant) and his two sisters (the appellants in this case) as the 3rd and 4th defendant, originally. 

The case was filed with respect to scheduled properties A, C, and D, which were coparcenary properties. The plaintiff alleged that he, the 1st defendant and the 2nd defendant have 1/3rd share each in the property. There’s another property called “B”, which belonged to their mother, and he claims that all the parties to this case have an equal share of 1/5th of the property belonging to their mother. During the pendency of the suit, the 1st defendant died in 1993. 

The Trial Court, in its judgement and preliminary decree dated March 19, 1999, held that the plaintiff was entitled to 1/3rd share in Schedule A, C and D properties and was also entitled to the 1/4th share in the 1/3rd share left by the deceased 1st defendant. As per the scheduled property B, the plaintiff was entitled to only 1/5th of the share as per the Trial Court. 

In the instant appeal before the Supreme Court, the conflict does not relate to the Schedule B property but is limited to the Schedule A, C and D properties. The Trial Court had also ordered a separate enquiry into the mesne profits of the properties. 

The said preliminary decree provided above was amended on September 27, 2003, which declared that the plaintiff was entitled to an equal share as the 2nd, 3rd and 4th defendant in the 1/5th share left by the 1st defendant in the scheduled property B. Furthering the decision given in the preliminary decree dated March 19, 1999, and the amended version of the decree on September 27, 2003, the plaintiff filed two applications before the Trial Court. The first one was to pass a final decree setting out the terms, and the second was to determine the mesne profits. The Trial Court, in furtherance of the applications, appointed a commissioner for the division of the scheduled properties and so far directed the commissioner to submit his report after the enquiry. After completing his enquiry, the commissioner submitted the report. 

While the report submitted by the commissioner was being considered and before the final decree was passed, the Hindu Succession (Amendment) Act, 2005, came into effect on September 9, 2005. By virtue of the said 2005 Amendment Act, Section 6 of the Hindu Succession Act, 1956 was substituted. Concerned with the 2005 Amendment Act, the present appellants of the case before the Supreme Court (who were originally 3rd and 4th defendants) filed an application for passing a preliminary decree in their favour with regards to the partition of the schedule properties A, C and D. They sought the partition of the said properties into four equal shares and the allotment of one share each to each of them by metes and bounds and for the delivery of the possession of the properties. 

The application, which was made by the 3rd and 4th defendants, was challenged by the plaintiff. As regards the 2nd defendant, he accepted that the 3rd and 4th defendants are entitled to the share that they are claiming by virtue of the 2005 Amendment Act, but he also submitted that by virtue of the shares, they should also be liable for the debts burdening the family. 

After hearing the parties and their contentions, the Trial Court passed an order dated June 15, 2009. In the said order, the Trial Court allowed the application of the current appellants (3rd and 4th defendant) and decided that they were entitled to the re-allotment of shares in the preliminary decree and they must receive 1/4th share each as well as separate possession of the scheduled properties A, C and D. 

This order made by the Trial Court was challenged by the plaintiff (current respondent 1) in the Andhra Pradesh High Court through an appeal. A single-judge bench of the High Court allowed the appeal and set aside the order made by the Trial Court by virtue of an order dated August 26, 2009. 

Based on the order of the Andhra Pradesh High Court, defendants 3 and 4 challenged the order through a Special Leave Petition to appeal in the Supreme Court against the order. 

Legal issues involved

  1. Are the appellants entitled to equal shares in the scheduled properties A, C and D?
  2. Are they also entitled to separate possession of their shares in the said properties?
  3. How does the 2005 Amendment influence the division of coparcenary properties for Hindu females?

Contentions of the appellants 

  1. The Hindu Succession Act, 1956, post amendment, substituted Section 6. The said section can take effect retroactively and apply to all the ongoing/ pending lawsuits related to the partition of properties and therefore, should also apply in this case to provide them with their deserved shares. The modified Section 6 of the Hindu Succession Act provides the appellant with an equal share of the coparcenary property, and therefore, the challenge made by the respondent, their brother, is not well founded. 
  2. They argued that the preliminary decree for partition, which was granted in favour of the respondent, is not a final settlement and merely interim. Therefore, the decision given in the preliminary decree can be changed to reflect the substance of the changes brought about by the amendment. The ruling provided in the preliminary decree is merely temporary in nature, and therefore, it must be updated to reflect the real substance of the modification. 

Contentions of the respondent

  1. The respondent contended that the amendment to the Hindu Succession Act, 1956, cannot be applied retrospectively. The claim was that the preliminary decision for partition was final and, therefore, couldn’t be changed to reflect the revisions made by the amendment. 
  2. The respondent claimed that retrospective application would lead to ambiguity and multiplicity of the litigation and, therefore, it should not be allowed. As per the respondents’ contentions, the preliminary decree was conclusive and irrevocable. 

High Court’s decision 

  1. The High Court observed that In the recent past, the parliament’s amendment to Section 6 confers upon the daughters the status of a coparcener equal to that of a son. Based upon the claim of the daughters, respondents 1 and 2, i.e. defendants 3 and 4, filed an application under Order XX Rule 18 of the Civil Procedure Code, 1908, which applies only to the preparation of a final decree. It must be emphasised that a final decree must always be in conformity with the preliminary decree. If a party wishes to alter or change a preliminary decree, the only course open to him is to file an appeal and seek other remedies. As long as the preliminary decree subsists, the allotment of shares cannot be done in a manner different from what is mentioned. Therefore, the amendment cannot have any effect on the allotment of shares mentioned in the previous preliminary decree, even when the final decree is yet to be passed. 

Supreme Court’s decision in Ganduri Koteshwaramma & Anr vs. Chakiri Yanadi & Anr (2011)

The Supreme Court laid down the following opinion on the law and the facts of this instant appeal:

  1. The Hindu Succession Act, 1956 was enacted with the intention of codifying the laws relating to intestate succession among Hindus, and this brought about many changes in the settled laws on succession. The changes were made without affecting the special rights given to the members of a Mitakshara Coparcenary. The legislature was of the opinion that the non-inclusion of daughters in the Mitakshara Coparcenary led to severe gender-based discrimination and, therefore, intended to change the law with necessary provisions. Owing to this intention, the 2005 Amendment came into effect. The statement and object of the said amendment mention that the exclusion of females from the Mitakshara coparcenary Property entails that females cannot inherit the ancestral property in the same way as their male counterparts. This law, which excludes daughters from participating in the coparcenary ownership, not only contributes to discrimination on the grounds of gender but also leads to subsequent oppression of the fundamental right to equality guaranteed by the Indian Constitution under Article 14. With regard to rendering social justice to women, it is necessary to include them in the coparcenary property system. 
  2. Keeping the above object in consideration, the parliament, through the amendment, substituted Section 6 of the Hindu Succession Act, 1956 and added a completely new section which stated that from the commencement of the Amendment, the Hindu joint family, which is governed by the Mitakshara law, will include daughters and coparceners. Daughter shall obtain coparcenary the same way as their male counterparts, which is through birth. The daughters shall have the same rights in the coparcenary property as their male counterparts. The daughters shall also have the same liabilities in regard to the coparcenary property as that of a son. 
  3. The provision to Section 6 stated that nothing contained in this provision shall affect or lead to invalidating any disposition, alienation, partition, or testamentary disposition which has taken place before December 20, 2004. 
  4. The provision also stated that once the amendment is in effect, no court shall acknowledge the right to file proceedings against a son, grandson or great-grandson for recovering any debt due from his father, grandfather or great-grandfather merely on the ground of pious obligation mentioned under the Hindu law to discharging such ancestral debt. Any debt contracted before the commencement of the amendment shall not be affected by this provision. 
  5. The provision ultimately states that the law contained in it will not apply to any partition made before December 20, 2004. Partition here refers to any partition made by execution of a deed of partition which has been duly registered under the Registration Act, 1908 or any partition effected by a decree of the court. 
  6. The new Section 6 makes a great case for the parity of rights in the coparcenary property among male and female members of the joint Hindu family on and from September 9, 2005. The parliament has conferred substantive rights on coparcenary property on daughters by virtue of this amendment. The daughter of a coparcener shall now be treated as a coparcener and attain the coparcenary by birth. The declaration under the amended provision that daughters and sons shall have the same rights and liabilities under the Mitakshara coparcenary property is unambiguous and unequivocal. Therefore, from 9th September 2005, a daughter is entitled to a share in ancestral property and is a coparcener as if she had been a son. 
  7. The right given to daughters under the Mitakshara law towards the property of a Hindu joint family is absolute except for the few circumstances mentioned under the proviso appended to subsection 1 of Section 6. The categories that are treated as exceptions to Section 6 render it inapplicable on disposition or alienation, including partition of any property before December 20, 2004, and testamentary disposition of any property before December 20, 2004. 
  8. Based on the definition of partition under this provision, it becomes relevant to find out whether the partition was effectuated by a decree of the court or a deed of partition duly registered under the Registration Act, 1908. The question that stood before the court is whether the preliminary decree passed by the Trial Court on March 19, 1999 and amended on September 27, 2003, deprived the appellants of the benefits conferred by virtue of the 2005 Amendment Act even though the final decree for partition was not obtained. 
  9. The Supreme Court stated that it is a settled legal position that the partition of a joint Hindu family can be effectuated through different modes. In the instant case, the partition was not affected before December 20, 2004, either by a registered instrument of partition or by a decree of the court. Partition has multiple stages, and the decree provided by the court was only at the stage of determination of shares, which was mentioned in the March 1, 1999 decree, which was later amended on September 27, 2003, in addition to the report provided by the commissioner. 
  10. Coming to the law on preliminary decrees, the Supreme Court stated that preliminary decrees determine the rights and interests of parties. It is well established that the suit for partition cannot be disposed of by the application of a preliminary decree; partition can only be effectuated through a final decree which divides the Hindu joint family through metes and bounds. Once the preliminary decree is passed, the suit doesn’t stop. The suit continues till the passage of a final decree. In case of events and supervening circumstances taking place between the preliminary decree and final decree, nothing can impede the courts from amending the preliminary decree or passing another preliminary decree to redetermine the rights and interests of parties as per the changed circumstances. 
  11. The Apex Court referred to a previous three-judge bench decision in the case of Phoolchand and Anr. vs. Gopal Lal (1967),. In this case, the court held that there is nothing in the Code of Civil Procedure, 1908, which prevents the courts from passing one or more decrees of a preliminary nature given the circumstances of the case justify the same, and it becomes completely necessary to do so in partition suits when after the preliminary decree, certain parties die, and shares are therefore augmented. Insofar as partition is concerned, there is no doubt that if an event transpired after the preliminary decree necessitating a change in shares, the court can and must do so without any prohibitions. Because the Code of Civil Procedure doesn’t explicitly contemplate the possibility of issuing a second preliminary decree, it cannot be said that it prohibits the same. It must not be ignored that a case continues up until a final decree is drawn and the court has the jurisdiction to decide all the disputes which may arise after the preliminary decree, especially in the case of a partition suit. 
  12. The Apex Court then referred to its own previous decision in the case of S. Sai Reddy vs. S. Narayan Reddy and Ors. (1990), wherein the court was presented with a case which involved a question similar to the one presented in front of the court in this appeal. The case related to a pendency of proceedings in a suit for partition before the Trial Court and prior to the passing of a final decree, the 1956 Act was amended by the State Legislature of Andhra Pradesh, which consequently declared unmarried daughters entitled to the share in the joint family property. The unmarried daughters, who were respondents in the case, made an application to the Trial Court claiming their shares in the joint family property after the state amendment. The Trial Court, in its judgement, rejected the application on the ground that a preliminary decree was already passed and specific shares were declared, and therefore, it was not open to unmarried daughters to claim a share in the property by virtue of the state amendment. The unmarried daughters, as a consequence of this decision, preferred revision before the High Court of Andhra Pradesh, which set aside the order of the Trial Court and declared that the unmarried daughters were, in fact, entitled to shares in joint family property. The High Court further directed that the Trial Court must determine the shares of the unmarried daughters as per the amendment. The appellant challenged the order of the High Court in the Supreme Court, which gave the view that a partition can be affected by various modes. When a suit for partition is filed in court, the preliminary decree determines the shares of the party, followed by the final decree, which allows the specific properties and directs the partition by metes and bounds. Till the time a final decree is passed allotting the allottees the possession of the immovable property, the partition is not complete. The preliminary decree allotting shares doesn’t complete the partition process but is merely one stage of the overall process. During the pendency of the final order, the shares are liable for variation with regard to supervening circumstances. In this case, it is clear that only a preliminary decree was passed and the final decree was yet to be passed. The final decree could be passed by virtue of the provisions amended by the state amendment. The intervening event here is the amendment made by the state, which has the effect of varying the shares of the respondents just like any other supervening development. Considering that the legislation is beneficial and has the objective of empowering women who are a vulnerable part of society, it is necessary to attach a liberal construction to the provision. For this said reason, the courts cannot equate the concept of partition that the legislative has kept in mind in the current case with a mere severance of the status of a joint family, which is affected by an expression of desire by a member of the joint family. The partition that the legislature assumes is undoubtedly a partition that is complete in all respects and irreversible. A preliminary decree can merely declare the shares, but the partition is effected through metes and bounds prescribed in the final decree. The daughters, therefore, cannot be deprived of the benefits conferred by the amended provisions, and any other contradictory view will result in depriving them of fair benefits of gender equality. 
  13. Based on the above decision, the Supreme Court stated that the principle laid out is completely applicable to the current appeal. It surprised the Supreme Court that the High Court did not consider the points of the ruling provided in the above case while making the order. 
  14. As per the Supreme Court, the High Court was clearly erroneous in not appreciating the substance of Order 20 Rule 18 of the Civil Procedure Code. The Apex Court held that in a suit that governs the partition of an immovable property if such a property is not assessed for the revenue payment made to the government, the passing of a preliminary decree is necessary to declare the share of the parties. In such a case, the court would then prepare for passing the final decree. In the Phoolchand case, the law is clear that the Civil Procedure Code provides no prohibition on passing more than one preliminary decree, and even after one preliminary decree is passed and the final decree is pending, the shares allocated can be revised if any supervening circumstances arise. The court holds the power to revise the previously passed preliminary decree or pass a new preliminary decree altogether based on the changed circumstances like state or central amendments to the law. A suit which deals with the partition of an immovable property runs till the passing of a final decree and extinguishes once the final decree is passed. It is not founded in law that once a preliminary decree is passed, it cannot be modified. This idea is a wrong interpretation of the law. A court is empowered to make variations to a preliminary decree till a final one is passed. It is to be emphasised that the rights of parties to partition suit must be finally decided in that suit alone and no other proceeding. 
  15. Section 97 of the Civil Procedure Code provides that whenever a party is aggrieved by a preliminary decree passed by a court and does not prefer an appeal to such a decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. It is to be noted that this law does not, however, prevent the courts from modifying, amending or altering the preliminary decree in case of changes in events and other supervening circumstances, even when no appeal is preferred. 
  16. Based on these principles, the Supreme Court allowed the appeal and set aside the impugned decision of the High Court as it was against the settled law of Phoolchand and S. Sai Reddy established by the Apex Court. The Supreme Court further ordered the Trial Court to start preparing the final decree as per the order of the Supreme Court, keeping in mind the amendments made to the Hindu Succession Act, 1956. 

Critical analysis of the judgement 

The judgement is significant as it clarifies both procedure and substance in relation to provisions regarding the equal status of daughters as coparceners by virtue of the 2005 amendment. It is a progressive judgement that holds that the daughters can claim their shares in a coparcenary property even when a suit of partition is pending during the commencement of the amendment, as the final decree deciding the rights and shares has not yet been passed. It also clarifies on the procedural side that a court can pass multiple preliminary decrees in a partition suit or amend a previous preliminary decree in account of any change in event or supervening circumstances like amendments so as to reflect the intention of the amendment in the final decree. This case cleared up the confusion regarding the rights of a daughter to coparcenary property and the effect of the provisions. It has also served as a guiding authority for many cases which arose after it. The only point of criticism is that it leads to a lot of confusion and ambiguity regarding the prospective or retrospective application of the provisions of the case. These ambiguities were cleared later in the cases discussed below to provide detailed clarity to the legal issues. 

Related landmark case laws

There are many other recent cases that are landmark decisions on the interpretation of Section 6 of the Hindu Succession Act, 1956, which can help in understanding the coparcenary rights of a daughter in a more elucidated manner. They are:

Danamma Alias Suman Surpur and Anr vs. Amar and Ors. (2018)

In this instant case it is an appeal preferred from the decision of the High Court, which upheld the decision of the Trial Court and, in essence, denied to give coparcenary rights to the appellants who were born prior to the commencement of the 2005 amendment act. The brief facts of the case state that Mr. Gurulingappa Savadi, the propositus of a Hindu undivided joint family, passed away in the year 2001 and left behind his widow and four children. Out of the four children, two were sons and two daughters, namely Danamma and Mahananda, who are the appellants of the case. In the year of 2002, Amar, the son of the intestate, filed a suit for a partition deed for the separate possession of the joint family coparcenary property, and he denied any shares to the daughters on the claim that they were born prior to the amendment of the act and they had also received dowry when they got married which can be treated as a relinquishment of any share in the coparcenary property. The Trial Court, in its decision, stated that the daughters were not coparceners as they were born before the commencement of the Hindu Succession Act and also rejected the argument that they had received their share as dowry at the time of their marriage as they did not hold any share in the property. Upon appeal, the High Court upheld the decision of the Trial Court on similar grounds. The High Court made its judgement in 2007, and during the pendency of the suit, the 2005 amendment was passed, which crystallised the rights of daughters as coparceners. 

The issues that arose were: (A) Can daughters be denied their share of the coparcenary property merely on the grounds of their being born before the enactment of the act? and (B) Will the 2005 Amendment make daughters coparceners by birth the same way as sons? 

Based on the issues, the Supreme Court held that Section 6 of the amended Hindu Succession Act, 1956, must be liberally construed or interpreted so as to further the object of the law and the intention of the lawmakers to provide a level ground for women and to establish gender equality. Based on this idea, the amendment act must be applicable to all daughters irrespective of the fact that they were born after or before the enactment of the law. The confusion regarding the retrospective or prospective application of Section 6 first arose in the case of Prakash vs. Phulavati (2015), and the Supreme Court held that any amendment to the substantive provision of law in itself is prospective unless the contrary is intended by the statute either in an implied or express manner. The Supreme Court stuck to the literal interpretation of Section 6 and stated that both the father and daughter should be alive on the day of the enactment of the amendment act. The judgement, however, did not provide any clarity on the implication of the statute and did not look into the intent of the legislature while interpreting the same. 

The Supreme Court took all the previous precedents into consideration and stated that the language of the statute must be literally interpreted, and as a consequence, Section 6(1) shall be prospectively applied, and other subsections will have retrospective application. This is done so as to provide a harmonious interpretation of the provisions and intention of the lawmakers behind the same. Since the amendment was brought during the pendency of the suit, the Apex Court clarified that the rights of the daughter did not lapse merely because a preliminary decree was passed, and the amendment shall be applicable to the final decree of the court. The court held that it did not matter that the daughters were born before the enactment of the act. What matters is they were alive during the Amendment Act of 2005 and, therefore, should have the same rights as sons. The Apex Court also held that daughters will have the same status as coparceners by birth as their male counterparts. 

Vineeta Sharma vs. Rakesh Sharma (2023)

This case is one of the most recent landmark cases dealing with the coparcenary rights of a woman. The previous decisions in Phoolbati and Dannama created a lot of confusion and ambiguities. The Supreme Court established a three-judge bench to resolve the issues, provide an accurate interpretation of the provision, and clear all the confusion around it. The Apex Court relied on various authorities and precedents and held that the joint Hindu family property is an unobstructed heritage. In such a property, the right of partition is absolute and is conferred on a person by virtue of their birth. Contrasting to this, the separate property is an obstructed heritage in which the right to ownership and partition is obstructed by the death of the owner of the separate property. In the case of obstructed heritage, the right is not based on birth but depends on the death of the original owner of the property. Based on these observations, the Apex Court held that the right to partition is created by the birth of a daughter in an unobstructed heritage, and it is immaterial whether the father was alive or dead when the amendment was effected. This decision, therefore, overruled the decision made in Prakash vs. Phulavati (2015), and held that the coparcenary rights pass from a father to a living daughter and not from a living coparcener to a living daughter. The court ruled that the effects of the provisions contained in Section 6 of the Act are neither prospective nor retrospective but retroactive in nature. It means that the equal right of coparcenary will be given to the daughter from 9th November 2005, but is based on the past event, which is the birth of the daughter. The effect is called retroactive because if the daughter hadn’t taken birth in the past, it would have resulted in no creation of rights for the daughter. This approach cleared the confusion and ambiguities laid down in the previous decisions. 

The court further stated that notional partition cannot be equated to actual partition. Notional partition is a creature of legal fiction, and it should be used and implied to permissible limits only to fulfil the purpose for which it was created. The court clarified that the shares ascertained in a notional partition are not final and depend upon the birth and death of a coparcener. As a consequence of this principle, a daughter can rightfully claim a share in the joint family property even if the notional partition is done prior to 9th November 2005, as the notional partition is not an actual partition. The oral partition cannot be claimed as a defence to these principles. 

Conclusion

When the makers of the Constitution included Article 14, which is the right to equality under the Indian Constitution as a fundamental right guaranteed to every citizen irrespective of their sex, gender, class, caste, religion, etc., they intended the same virtues to reflect in all the legislations made by the state which had a prospect of treating two classes equally. In the case of succession, the class is gender. The Amendment Act of 2005 to the Hindu Succession Act, of 1956 was a progressive step taken much later to rectify the unjust history of gender discrimination, but the language of the provisions led to much confusion. So much so that even in 2023, almost two decades after the amendment, the judiciary is attempting to clarify the real meaning and interpretation of the provisions. The case of Ganduri Koteshwaramma & Anr vs Chakiri Yanadi & Anr (2011) was a point of initiation of the attempt to interpret the provision, which was settled almost a decade later in Vineeta Sharma v. Rakesh Sharma (2023). Therefore, it is important to understand the progression in the interpretation of the statutory provisions regarding the coparcenary rights of a daughter through the authority of various cases and precedents laid down by the court. 

Frequently asked questions

What is the provision regarding the ownership of separate property of a Hindu female?

Section 14 of the Hindu Succession Act, 1956 states that the separate property of a Hindu female makes her the absolute owner of the said property, which includes her stridhan but does not include any restricted estate. 

Which class of heirs do daughters fall in?

Daughters, just like sons, are treated as class 1 heirs. It basically means that when a Hindu male dies intestate, his properties shall devolve upon the Class 1 heirs first. Class 1 heirs include sons, daughters, widows, children of predeceased sons and daughters and mother. 

How much share is a daughter entitled to?

As per the general rules of succession of the property of a Hindu male under the Hindu Succession Act, 1956, the daughters are entitled to 1 share just like the sons and widows. In case the daughter dies before the intestate, the surviving children of the daughter shall receive the one share that she was entitled to. 

What is the difference between a notional partition and an actual partition?

While the notional partition is a legal fiction, the actual partition finally determines the rights of the party. The notional partition can be affected by the birth of a new coparcener or the death of an existing coparcener, but the actual partition is final in nature. 

Can a court pass more than one preliminary decree in a partition suit?

Yes, there is no provision in the Civil Procedure Code which prevents the court from passing multiple preliminary decrees or amending an existing preliminary decree before a final decree is passed. Whenever a supervening circumstance arises, it is the duty of the court to amend the previous preliminary decree or pass a new one. 

What is the meaning of metes and bounds as mentioned in a final decree of partition? 

The phrase “metes and bounds” basically relates to a surveyor’s description of a parcel of property, which is carefully measured using distances, angles and directions, resulting in a legal description of the land. 

Is it necessary for the father and daughter to be alive for the daughter to claim equal shares in the coparcener property? 

No. The daughter needs to be alive during the commencement of the 2005 Amendment Act but the father being alive is not necessary as daughters attain coparcenary by birth. Coparcenary doesn’t pass from a living father to a living daughter. 

References

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