Continuance of confusion: Section 6 of the Hindu Succession Act

Dhyan Chinnappa

The first era of confusion about the proper interpretation of Section 6 of the Hindu Succession (Amendment) Act, 2005 (Amendment Act), which had been set to rest by the Supreme Court in Prakash v. Phulavati (Phulavati’s case), has been reignited by the Supreme Court, albeit unintentionally, in Danamma v Amar (Danamma’s case).

Section 6 of the Amendment Act treated a female coparcener at par with a male coparcener. The Karnataka High Court interpreted the Amendment Act to have retrospective effect from the date of the coming into force of the Hindu Succession Act, 1956, whilst the Full Bench of the Bombay High Court interpreted the Amendment Act to have effect from the date of coming into force of the Amendment Act.

The Supreme Court in Phulavati’s case laid to rest this uncertainty, by holding as follows:

“23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born.”

In other words, if the coparcener (father) had passed away prior to 09.09.2005, the living daughter of the coparcener would have no right to coparcenary property. Whilst the correctness of this view is debatable, it ensured certainty in proceedings before the courts. If a daughter made a claim for partition of joint family property, her father ought to be alive as of 09.09.2005; if not, she was not entitled to any share in the coparcenary property.

Danamma’s case was rather peculiar. The father (male coparcener) in this case passed away in 2001 and thereafter one of the sons initiated proceedings for partition of joint family property in the year 2002. The son claimed that the daughters were not entitled to a share in the joint family as the father had passed away prior to coming into force of the Amendment Act.

The Trial Court and the High Court accepted the contention and concluded that the daughters were not entitled to a share in joint family property. This conclusion was in consonance with Phulavati’s case. The decision was then challenged before the Supreme Court.

The Supreme Court considered Phulavati’s case and agreed with the findings, yet applied a different principle to grant relief to the daughters. The Supreme Court applied the principle that partition is not complete with passing of a preliminary decree and attains finality only with the passing of the final decree. The Supreme Court held that although the suit was filed in the year 2002, the preliminary decree was passed in the year 2007 and therefore, the daughters were entitled to the benefit of the Amendment Act.

Whilst holding so, the Supreme Court relied on Ganduri Koteshwaramma & Anr. v Chakiri Yanadi & Anr, where it was held that the rights of daughters in coparcenary property as per the amended Section 6 of the Hindu Succession Act are not lost merely because a preliminary decree has been passed in a partition suit. In doing so, the Supreme Court lost sight of possibly the most important finding in Phulavati’s case, which is that it is only female coparceners whose father was alive as of 09.09.2005 who are entitled to the benefit of the Amendment Act.

The Supreme Court in Danamma’s case having acknowledged at paragraph 22 of the report that Phulavati’s case is an “authoritative precedent”, failed to apply the law laid down therein and resorted to apply a completely different principle in granting relief to the daughters.

Danamma’s case has created multifarious problems and contradictions in applying Section 6 of the Amendment Act, which are summarized as follows:

If the father passes away after 09.09.2005, whether a suit is pending or not, the daughter is entitled to a share in the joint family property. On this, there is no dispute.

If the father had passed away prior to 09.09.2005 and a prior suit is pending by a male coparcener for partition, the female coparceners (although not entitled in terms of Phulavati’s case) will be entitled to a share in the partition by virtue of Danamma’s case.

If the father had passed away prior to 09.09.2005 and no suit for partition is pending, the daughter will not be entitled to claim partition as she will be covered by Phulavati’s case and therefore will not be entitled to a share.

If the father had passed away prior to 09.09.2005 and a suit is filed by a male coparcener for partition amongst male coparceners thereafter, then by an extended interpretation of Danamma’s case, the female coparceners should be entitled to a share, although the female coparcener cannot file a suit for partition in view of Phulavati’s case.

If a suit for partition is pending as of 09.09.2005 or is filed thereafter by a male coparcener, a daughter, by virtue of Danamma’s case, will be entitled to make a claim for a share in the joint family property, even where the father has passed away prior to 09.09.2005. However, the daughter will not be entitled to initiate proceedings herself as in terms of Phulavati’s case, the daughter has no right in terms of the Amendment Act. If no suit is pending by a male coparcener and if the father has passed away prior to 09.09.2005, a daughter cannot make a claim for partition.

How does one address this irreconcilability?

Phulavati’s dictum has not been overruled. Therefore, no female coparcener can claim a right in joint family property, if the father has passed away prior to 09.09.2005 and therefore cannot initiate proceedings for partition. However, by virtue of Danamma’s case, if a suit is pending by a male coparcener and partition is to be granted by a court on such suit, a female coparcener would be entitled to a share notwithstanding the date on which the father actually passed away. This would apply to suits filed prior to 09.09.2005 and suits filed thereafter.

It is submitted that the Supreme Court could not have created this dichotomy by simply applying the principle that a partition is not final till the date of final partition. That principle in this scenario is not relevant. The principle would have been relevant only if the Supreme Court had held in Phulavati’s case that a daughter is entitled to a share notwithstanding the date on which the father passes away.

By fixing a date i.e., 09.09.2005, the Supreme Court in Phulavati’s case has made the crystallization of the right to a female coparcener prospective and dependent on the date of death of the father. Either the daughter has a right or she does not. If 09.09.2005 is the cut-off date and the male coparcener (father) was not alive as on that date, whether a suit is pending or not, a female coparcener cannot obtain any right in partition of joint family property.

Danamma’s case creates an unnecessary dichotomy in the law which requires urgent resolution. The quicker this contradiction is resolved, the better it is for all Courts throughout the country.

The author is a Senior Advocate of the Karnataka High Court.

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.