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Smt. Bagirathi v. S.

Manivanan
2018 (2) CGLJ 449

Muhammed Sayyid Midhhath


18010126057
Division A

ANALYSIS OF THE DECISION OF THE COURT


Facts of the Case:

1. Appadurai and Doraisamy were brothers who leased the property in dispute.

2. Doraisamy expired leaving behind his widow. Appadurai had two sons, one of them

being Sundarajan (Defendant) and one daughter.

3. Appadurai and Doraisamy built a superstructure upon the leased land. Further, this leased

land was bought outright by Sundarajan and one of his sons together.

4. After the death of Sundarajan, his six daughters from his first marriage filed a suit for

partition demanding for an equal share in the disputed property.

5. Their plea for equal share was dismissed by the Trial Court declaring that since the

property was self-acquired, they would only be given shares to the extent their father had.

6. The present appeal stems from this aforesaid judgement of the Trial Court by the

daughters citing grave injustice and misreading of the Hindu Succession Laws.

Issue:

Whether the daughters (Appellant) are entitled to an equal share in the disputed property

vis-à-vis their brother (Defendant)?

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Relevant Rules:

Hindu Succession Act, 1956

Section 6: Devolution of interest in coparcenary property:

Section 8: General rules of succession in the case of males:

The property of a male Hindu dying intestate shall devolve according to the provisions of this

Chapter: ―

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule.

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in

class

II of the Schedule.

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased.

and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

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Analysis of Case:

Whether the property in dispute was an ancestral property?

The property in dispute relates back to the time of Appadurai and Doraisamy, the great

grandfather of the parties. Appadurai and Doraisamy leased the said land and built a

superstructure on top of it. After the death of Doraisamy, his widow settled her one-half share in

the said property to Sundarajan. Sundarajan along with his eldest son purchased the said leased

property vide Sale Deed dated 4.9.1972.

The Court based on these facts concluded that the said property therefore was not ancestral in

nature and was self-acquired. Therefore, the daughters would not be coparceners and their share

would be restricted to Sundarajan’s share in the said property.

Rejecting the contentions of Appellant’s primarily based on the assumption of the property being

ancestral, the Court relied upon Section 8 of the Hindu Succession Act, 1956.

Whether the daughters were entitled to an equal share w.r.t their brothers in the said

property?

The Court held that since the property is self-acquired, it would be divulged as per Section 8 of

the Hindu Succession Act, 1956. Therefore, the six daughters received a total of 1/4 th share in the

property and the sons received 3/4th shares in the said property.

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This is in alignment with Hindu Succession Act’s Section 8 as Class II heirs get property not

simultaneously but by their rank unlike Class I where they receive the property simultaneously.

Therefore, since the father had only one-half share in the property to begin with, they would only

get shares in respect of that.

JUDICIAL APPROACH

In the case of Krishna Gupta And Anr. vs M/S Rajinder Nath & Co Huf And Ors, Delhi

High Court held that in case of self-acquired property, succession is determined as per Section 8

of Hindu Succession Act, 1956.

In the case of Smt Pramila Pradhan vs Sumanta Sekhar Pradhan & Others, Orissa High

Court held that in case of self-acquired property, the share is to the extent of the share of the

interstate.

In the case of A.Kanchana vs A.Vanaja, Madras High Court ruled that in cases of self-acquired

property the right devolves upon the heirs of Class I and then Class II in absence of Class I.

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In the case of Prakash vs Phulavati, the Supreme Court held that self-acquired property would

divulge as per the rules of Section 8 for a Hindu male dying interstate. It would not become a

part of HUF and neither would the sons/daughters become coparceners.

LEGISLATURE

The Hindu Succession Act, 1956, is a law that was passed by the ‘Parliament of India’. The

preamble of the Act signifies that an Act to amend and codify the law relating to intestate

succession among Hindus. The Act lays down a uniform and comprehensive system of

succession whereas attempt has been made to ensure equality inheritance rights between sons

and daughters. It applies to all Hindus including Buddhists Jains and Sikhs.

The Hindu Succession Act, 1956 preserves the dual mode of devolution of property under the

Mitakshara School. The joint family still devolves by Survivorship with this important exception

that if a Mitakshara Coparcener dies leaving behind mother, widow, daughter, daughter’s

daughter, son’s daughter, son’s son’s daughter, son’s widow, son’s son’s widow, or daughter’s

son his interest in the joint family property will devolve by succession.

Heirs of a Hindu Male

The heirs of Hindu male fall under the following categories:-

1) Class I heirs,

2) Class II heirs,

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3) Agnates,

4) Cognates, and

5) Government.

Class I heirs:-

The property of a Hindu Male dying intestate would be given first to heirs within Class I. They

are:

i. Mother,

ii. Widow,

iii. Daughter,

iv. Son,

v. Widow of a predeceased son,

vi. Son of a predeceased son,

vii. Daughter of a predeceased son,

viii. Widow of a predeceased son of a predeceased son,

ix. Daughter of a predeceased son of a predeceased son,

x. Son of a predeceased son of a predeceased son,

xi. Daughter of a predeceased daughter, and

xii. Son of a predeceased daughter.

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Some new heirs are added by Hindu Succession (Amendment) Act, 2005. They are:

i. Son of a predeceased daughter of a predeceased daughter,

ii. Daughter of a predeceased daughter of a predeceased daughter,

iii. Daughter of a predeceased son of a predeceased daughter, and

iv. Daughter of a predeceased daughter of a predeceased son.

Class II heirs and their shares:

If there are no heirs in Class I, the property will given to the heirs within Class II. They are

divided into nine categories. The rule is that an heir in an earlier category excludes heirs in later

category. Further all heirs in one category take simultaneously per capita share. They are as

follows:

1] Category I -

a) Father.

2] Category II -

a) Son’s daughter’s son.

b) Son’s daughter’s daughter.

c) Brother.

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d) Sister.

3] Category III -

a) Daughter’s son’s son.

b) Daughter’s son’s daughter.

c) Daughter’s daughter’s son.

d) Daughter’s daughter’s daughter.

4] Category IV -

a) Brother’s son.

b) Brother’s daughter.

c) Sister’s son.

d) Sister’s daughter.

5] Category V -

a) Father’s father.

b) Father’s mother.

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6] Category VI -

a) Father’s widow. [Step mother].

b) Brother’s widow.

7] Category VII -

a) Father’s brother.

b) Father’s sister.

8] Category VIII -

a) Mother’s father.

b) Mother’s mother.

9] Category IX –

a) Mother’s brother.

b) Mother’s sister.

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If , and the heirs are both male and female, the female heir is not allowed to request partition

until the male heir chooses to divide their respective shares. If this female heir is a daughter, she

has the right to reside in the home if she is unmarried, divorced or widowed.

After the Hindu Succession (Amendment) Act, 2005; Section 6, the difference between the

female and male inheritor has been abolished . Now even female inheritor [daughter] can also

claim partition of the ancestral property.

Further any person who commits murder is disqualified from receiving any form of inheritance

from the victim.

If a relative converts from Hinduism, he or she is still eligible for inheritance.

The Hindu Succession (Amendment) Act, 2005, amended Section 6 of the Hindu Succession

Act, 1956, allowing daughters of the deceased equal rights with sons. In the case of coparcenary

property, or a case in which two people inherit property equally between them, the daughter and

son are subject to the same liabilities and disabilities. The amendment essentially furthers equal

rights between males and females in the legal system.

SUGGESTIONS

Until the Hindu Succession Act, 1956, was amended in 2005, the property rights of sons and

daughters were different. While sons had complete right over their father's property, daughters

enjoyed this right only until they got married. After marriage, a daughter was supposed to

become part of her husband's family.

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Under the Hindu law, a Hindu Undivided Family (HUF) is a group comprising more than one

person, all lineal descendants of a common ancestor. A HUF can be formed by people of Hindu,

Jain, Sikh or Buddhist faith.

Earlier, once a daughter was married, she ceased to be part of her father's HUF. Many saw this as

curtailing women's property rights. But on September 9, 2005, the Hindu Succession Act, 1956,

which governs the devolution of property among Hindus, was amended. According to Hindu

Succession Amendment Act, 2005, every daughter, whether married or unmarried, is considered

a member of her father's HUF and can even be appointed as 'karta' (who manages) of his HUF

property. The amendment now grants daughters the same rights, duties, liabilities and disabilities

that were earlier limited to sons.

Earlier, according to the ruling, a daughter can avail of the benefits granted by the amendment

only if her father passed away after September 9, 2005. and the daughter is eligible to be a co-

sharer only if the father and the daughter were alive on September 9, 2005. However, on

February 2, 2018, Supreme Court has made it a general rule that a daughter, living or dead, on

the date of amendment will be entitled to share in father’s property, thus making her children too

to claim this right.

A coparcenary comprises the eldest member and three generations of a family. It could earlier

comprise, for instance, a son, a father, a grandfather, and a great grandfather. Now, women of the

family can also be a coparcener.

 Under the coparcenary, the coparceners acquire a right over the coparcenary property by

birth. The coparceners' interest and share in the property keep on fluctuating on the basis

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of the number of members according to the birth and death of the members in the

coparcenary.

 Both ancestral and self-acquired property can be a coparcenary property. While in case of

ancestral property, it is equally shared by all members of the coparcenary, in case of self-

acquired, the person is free to manage the property according to his own will.

 A member of the coparcenary can also sell his or her share in the coparcenary to a third

party. However, such a sale is subject to the Right of Pre-emption of the remaining

members of the coparcenary. The remaining members, however, have the “right of first

refusal” over the property, to stop the entry of an outsider.

 A coparcener (not any member) can file a suit demanding partition of the coparcenary

property but not a member. Thus, the daughter, as a coparcener, can now demand the

partition of her father's property.

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