The Hindu Succession Act is majorly derived from the mitakshara Hindu law
which is patriarchal and patrilineal. This is in contrast with the fundamental
values such as equality and equal protection of law provided by the Indian
Constitution. Thus the amendment Act of 2005 to the Hindu Succession act 1956
helps eliminates this inequality and prejudice against women. The amendment made
female heirs in the joint families coparcener by birth. However, the position of
law was not crystal clear and without ambiguities and this was changed in
The case of Danamma v. Amar deals with a hotly debated question of law i.e. what
category of daughters will be entitled to right to coparcenary under the
amendment act of 2005. This case furthers the legislative intent behind the
provision, which is to eliminate the discrepancy between the genders. However,
the court in this case does not present a clear position of law as it do not
overturn the precedent set by the prior judgement. Hence, putting the lower
courts under the dilemma as to which one is the good law and which precedent is
to be applied in which case.
The first part of the article will analyse the reasoning given the Hon'ble court
in the present case and the second part shall try to address the ambiguities and
problems arising out of this judgement.
Danamma Alias Suman Surpur And Another Versus Amar And Another
The case at hand is an appeal from the judgement given by the high court, which
upheld the decision given by the trial court and refused to give coparcenary
rights to the appellants as they were born prior to enactment of the act.
The brief facts of the case are that Mr. Gurulingappa Savadi, the propositus of
a hindu undivided family died in year 2001 leaving behind his widow and four
children. Two sons namely Vijay and Arunkumar and two daughters, Danamma and
Mahananda. In the year 2002, Amar, the son of Arun kumar filed for partition
deed and separate possession of the joint family property. However he denied any
share to be given to the daughters as they were born prior to the enactment of
the act and also they had received dowry at the time of their marriages and
hence relinquished any share in the property.
The trial court held that daughters are not coparceners in this case as they
were born before the enactment of the Hindu succession act and also rejected the
argument that they had received their share at the time of marriage as dowry
because they did not had any share in the property. The high court also upheld
the same. The trial court delivered its judgement in year 2007 and during the
pendency of the suit 2005 amendment to the section 6 of HS Act had been enacted
which crystallised the right of daughters as coparceners. However neither did
the trial court nor the high court which delivered its judgement in 2012
considered this contention by appellants.
The issues framed by the Supreme Court in the present case are as follows:
first, (i) Can daughters be denied their share on the ground that they were born
before the enactment of the Hindu Succession Act and thereby cannot be treated
as coparceners? Second, (ii) will the amendment (2005) make coparceners by
birth in the like manner as sons.
(i) Can Daughters Be Denied Their Share On The Ground That They Were Born
Prior To The Enactment Of The Act And Thereby Cannot Be Treated As Coparceners?
One of the question which arose regarding section 6 of the Hindu Succession Act
was in the case of Badrinarayan Shankar Bhandari v. Omprakash Shankar
 in the Bombay high court was whether daughters born prior to
enactment of the Hindu Succession Act 1956 will be able benefit from this
amendment act of 2005 or only daughters born after its commencement will be
The Hon'ble court in its verdict interpreted the section 6 taking in
consideration the object behind the amendment of the statute and intent of the
legislature which was to make this act more fair and equal as required by the
article of the Indian constitution. Thus it pronounced that this amendment act
will be applicable to all the daughters whether born prior to the enactment of
the Act or after its enactment provided they are alive on the day the enactment
of the amended act 2005. This judgement lead to more clear view regarding the
section 6 of HS Act and prevent an entire generation of women loosing there
This confusion of the amendment act of 2005 being retrospective or prospective
when arose in the case of Prakash v. Phulavati. The case was filled in 1992
and during the pendency of the suit 2005 amendment act was enacted, which
crystallised the daughter's right as coparceners. However the question of law
was whether this act will be applied retrospectively or prospectively.
The high court of Karnataka held that the amendment act will be applicable to
the pending suits and this was challenged in the Supreme Court. Supreme Court
pronounced that any amendment to the substantive provision is in itself
prospective unless otherwise is intended by the statute either expressed or
implied. The Supreme Court on literal interpretation of the Section 6 (1) of
Hindu succession Act which states that daughters will have coparcenary rights in
the joint family property on and from the commencement of this act
The Hon'ble court did its literal interpretation, that both father and daughter
should be alive on the day of the enactment of the amendment act 2005. This case
however did provide a little clarity upon the implication the statute. However
it did not really look into the intent of the legislature while interpreting the
same. The legislative intent behind the amendment act was to protect the
coparcenary rights of the female heirs and this judgement really does not answer
in their favour.
Another important question which needs to be answered in order to reach the
solution is whether daughters will lose their right to coparcenary merely
because a preliminary decree has been passed by the court and the amendment act
of 2005 will not be applicable to them because the suit was filed prior to the
enactment to amendment act.
This question was raised the case of Ganduri Koteshwaramma v. Chakiri yanadi
in the Supreme Court. The Supreme Court held that daughters will not lose their
right to coparcenary merely because a preliminary decree has been passed by the
court. The finality of the partition deed is only decided upon the final decree
by the court. Also the preliminary decrees should be amended to accommodate the
variation the law made by the amendment Act of 2005.
The supreme taking all these precedents into account answered the issue raised
in the Danamma v. Amar
 by first upholding the ratio of the
Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari
 that the
language of the statute on its literal interpretation makes it clear that
Section 6 (1) will be prospective in application whereas other sub sections and
sub clauses will be retrospective in its application.
This was also done by stating that provision has to be interpreted taking into
consideration the text and the context of the provision. And to give rational
meaning to the provision and in this present case harmonious interpretation of
the provision in order draw a coherence between the intent of the
legislature, which in this case is to foster equality among genders as
advanced by Article 14 of the Indian Constitution.
Since during the pendency of the present suit, the amendment act of 2005 was
enacted. The ratio of Ganduri Koteshwaramma v. Chakiri Yanadi
and the right of daughters did not lapse merely because a preliminary decree was
passed by the court. Hence, amendment act of 2005 is applicable in case since
the finality of the partition deed is decided by the final decree of the court.
Which was given in 2007.
Finally upholding the authoritative precedent set by the Supreme Court in the
Prakash v. Phulavati case the court decreed that daughters will be given
their share in property as they were alive after the enactment of the amendment
act of 2005.
(ii) Will The Amendment (2005) Make Coparceners By Birth In The Like Manner
The second issue posed to answer by this judgement was answered by doing literal
interpretation upon plain reading of the provision. Which states that the
daughter of coparcener shall by birth become a coparcener in her own right in
the same manner as sons. This amended provision aimed to provide the female
heirs in the Hindu mitakshara law same rights as given to the sons.
Hindu mitakshara law as it is very evident is patriarchal and patrilineal. Thus
the law commission of India in its 174th addressed this problem and came up with
recommendation. The law commission's report points out the various problematic
sections in the Hindu succession act.
The main focus of the report was to eliminate the present unequal status of
females in the Hindu Mitakshara law and advance the right to equality protected
by the article 14 of the constitution. Therefore, it recommended giving the
status of coparcenary by birth to the daughter. Thus the Hon'ble court by
stating the incidents of coparceneryship from SBI v. Ghamandi Ram
made it crystal clear that coparcenary is by the virtue of birth. Thus since the
daughters have now acquired the status of coparcener, it is coparcener by birth
in the like manner as sons.
Ambiguities Created By This Judgement
One of the major flaws of this judgement is that judgement is that it lacks
logical coherence. The judgement upholds the ratio given in the Phulavati's
case which is that in order for a daughter to be a coparcener in Hindu joint
family, both daughter and father should be alive on 9th September 2005 i.e. the
enactment of the amendment act. Para 23 of the judgement states that the amended
act is applicable to the living daughters of the living coparceners as on
In the present case the father of the appellant died in year 2001 i.e. prior to
enactment of the amendment act, even then the court provides daughters with
their shares in the joint property according to the amendment act. However the
court in its verdict has not provided any rationale as to why exception have
been carved out in this particular case?
This has further blurred the line of distinction between who can and who cannot
be considered a coparcener. This confusion was set to rest by the Supreme Court
in Phulavati's Case. That only daughters of coparceners who were alive on the
date of the enactment of the act can claim their right to coparcenary. Thus both
the coparcener and his daughter have to be alive on the said date in order to be
benefitted from this provision. However the court in Danamma v. Amar
by providing the daughters with their share in the property and also upholding
the phulavati's ratio has created confusion in many aspects.
Even though there is clarity upon that if both father and daughter are alive on
the date of the enactment of amendment act, the daughter will be considered
coparcener and be entitled to her share in the property. However if the father
had died before the enactment of the amendment act and a suit is pending in a
court by a male coparcener, the daughter will be entitled to right to
coparcenary and have a share in the property according the precedent set in
Danamma v. Amar case.
In contrast, if the father had died before the
enactment of the amendment act and no suit is pending in the court, the daughter
in this case will not be entitled to right to coparcenary and will have no share
in the property as per the amended provision because the precedent from
Phulavati's case still applies.
There is also no clarity with regard to which precedent will be held good when
the father had died prior to the enactment of the amendment act and suit is
filed by a male coparcener after 2005's amendment? Because if considered closely
Danamma's precedent should be applied and given her share and also female
coparcener cannot be entitled to file for partition by the virtue of Phulavati's
Thus a female cannot file a fresh suit for partition when her father died prior
to the amendment according to the Phulavati's precedent but if a male coparcener
files a suit whether prior to 9-9-05 or post it for partition deed when father
had died prior to the enactment of the amendment act she can use the precedent
of Danamma and claim her share. This judgement has made things very
The only focus in Danamma's judgement have been on providing daughters inherent
right to property by birth which is in itself a great step towards gender
equality. However, if this logic has to be followed then the death of the father
should not be a concern and Phulavati's case should be overturned. Thus,
Phulavati's judgement provides more logical coherence and clarity. It also
provides a specified date after which the daughters will be entitled to
coparcenary right. Danamma's case created more confusion and ambiguity then to
help end the confusion.
What needed is more clarity. Undoubtedly Danamma's judgement is more in logical
coherence with the legislative intent of the provision. It adheres to the
principles that law commission's report kept in mind while framing
recommendations. Therefore, Danamma's judgement should not be only limited to
the pending suits and be made good law overturning the Phulavati's Judgement.
The unequal setting in which we are living in India we need more just and equal
laws in every field. The 174th law commission report brought forth various
problematic and patriarchal norms which were made laws as a part of customary
practices. It also suggested reforms in the existing Hindu succession law making
it more just and equal. The amendment made to section 6 of the act was one such
reform and a milestone in protecting equal rights of women with regard to
succession law. Making women coparcener in Hindu joint families is a step
forward in making them economically free.
It empowers them socially as they will now have a share in the property and thus
higher say in family's property matters. It also removes the stigma that a son
is must needed in order to continue the inheritance and will help reduce female
foeticide to an extent. However, even after the legislation not many female
heirs ask for their share due to lack of awareness. Therefore, along with sound
legislation more legal literacy is also needed.
Along with that the ambiguities in the position of law as in this case where two
contrasting precedents are in place it only makes the position of the vulnerable
classes worse. The courts will differ in their reasoning from case to case and
this will forfeit the purpose of the legislation, which is to foster equality in
Phulavati's judgement is whereas more clear as in terms of position of law but
Danamma's judgement if without restrictions applied will be benefitting a wider
group of women. Phulavati's judgement eliminate the right of coparcenary to a
generation of women whose fathers have died prior to the enactment of the
amendment whereas Danamma's judgement is confusing and only restricts itself to
the cases which are already pending with the courts. Therefore, there is need
for a clearer and authoritative position of law.
- SBI v. Ghamandi ram (1969) 2 SCC 33
- RBI v. peerless general finance and investment co. ltd. (1985) 1 SCC 591
- Kehar Singh v. State (UT of Delhi) (1988) 3 SCC 424
- District Mining officer v. TISCO (2001) 7SCC 358
- Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788
- Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari AIR 2014 BOM
- Prakash v. Phulavati (2016) 2 SCC 36
- The Hindu Succession Act, 1956.
- The Hindu Succession (Amendment) Act, 2005.
- Jain M., the Constitution of India, 1950.
- Chinnappa D., ‘bar and bench' Continuance of confusion: Section 6 of
the Hindu Succession Act 26 Mach 2018 accessed on 11 April 2020
- Khan U., ipleaders devolution of interest in coparcenary property: scope
and interpretation post amendment 23 october 2019 accessed on 13 April 2020
- Law commission of India, 174th report on property rights of women:
proposed reforms under the Hindu law (May 2000).
- (2018) 3 SCC 343
- Shri Badrinarayan Shankar Bhandari & Ors. Vs. Omprakash Shankar Bhandari
AIR (2014) BOM 151
- (2016) 2 SCC 36
- Hindu Succession Act 1956, s 6.
- Ganduri Koteshwaramma & anr. V. Chakiri Yanadi & Anr. (2011) 9 SCC 788
- ibid n1
- Ibid n2
- RBI v. Peerless General Finance & Investment co. ltd. (1987) 1 SCC 424
- Kehar Singh v. State (delhi admn) (1988) 3 SCC 609, District mining
officer v. TISCO (2001)7 SCC 358
- Constitution of India, article 14
- Ibid n3
- 174Th Law Commission Report: Property Rights of Women: Proposed Reforms
Under the Hindu Law, 2000
- SBI v. Ghamandi Ram (1969) 2 SCC 33
- Ibid n3
- Ibid n1
- Ibid n1
- Dhyan Chinnappa, ‘bar and bench' Continuance of confusion: Section 6 of
the Hindu Succession Act 26 Mach 2018
accessed on 11 April 2020
- Uzair Ahmad Khan, ‘ipleaders' devolution of interest in coparcenary
property: scope and interpretation post amendment 23 october 2019
accessed on 13 April 2020