HC Reiterates: Daughters get equal coparcenary rights as sons even if the father died before the 2005 amendment under Hindu Succession Act, Read Judgment

Facts of the case

In the present case, the property pertaining to Khata No.24 of Mouza- Tumulia stood recorded in the name of the father of the petitioner Late Kulamani Patel, who died on 19.03.2005. After the death of the father of the petitioner, her three brothers, namely, Harihar Patel, Dambarudhar Patel, and Durjan Patel got the property mutated in their names under Section 19(1)(c) of the Odisha Land Reforms Act, 1960 which was challenged by the petitioner and her two sisters, namely, Bedamati Patel and Bhagabati Patel, vide Mutation Appeal before the Sub-Collector, Sundargarh.

By an order passed by the Sub-Collector, Sundargarh directed the Tahasildar to record the names of the daughters in the RoR along with the three sons of the late Kulamani Patel. 

Accordingly, a fresh RoR was issued incorporating the names of three daughters and three sons. Thereby, the petitioner, being the daughter of the Late Kulamani Patel, claimed an equal share in the said property. 

Relying on the provisions of Section 6 of the Hindu Succession (Amendment) Act, 2005, and the decision of the apex Court rendered in the case of Danamma @ Suman Surpur and another v. Amar and others, Civil Appeal No. 188-189 of 2018 [SLP (C) No. 10638-10639 of 2013], it was urged before the Claims Commission that the petitioner, being a daughter of a coparcener by her birth in the ancestral property of her father, is entitled to get equal share as that of her brothers irrespective of the date of death of her father Kulamani Patel. But the same was disputed by the private opposite parties stating that in view of the judgments of the apex Court in the cases of Prakash and others v. Phulabati and others, 2015 (II) CLR (SC) 1146 and Mangammal @ Thulasi and another v. T.B. Raju and others, Civil Appeal No. 1933 of 2009, daughters are not entitled to get the benefit of not being the co-sharer. 

As a consequence thereof, the Claims Commission decided the matter against the petitioner, vide order dated 04.01.2020, which is the subject matter of challenge before this Court in the present writ petition, by holding that the amended provision of Section 6 of the Hindu Succession (Amendment) Act, 2005 has no application to the petitioner.

Submission on behalf of petitioner 

Mr. P.K. Mohapatra, learned counsel appearing for the petitioner vehemently contended that the judgment, based upon which the Claims Commission decided the matter, had been referred to the Larger Bench and the Larger Bench decided the same in the case of Vineeta Sharma v. Rakesh Sharma and others, 2020 (II) OLR (SC) 569, which was in favor of the petitioner. Therefore, the decision of the Claims Commission, ignoring the decision of the Larger Bench and deciding the matter in favor of the private opposite parties, cannot be sustained in the eye of law. Consequently, quashing of the order of the Claims Commission was sought. 

Submission on behalf of opposite party

Mr. A. Mishra, learned counsel appearing for opposite party no.1 vehemently contended that since the parties approached the Claims Commission for adjudication of the matter and the same was decided on the basis of the law applicable at the relevant point of time, the relief sought in the present writ petition cannot be granted to the petitioner. Consequently, dismissal of the writ petition was sought. 

Mr. A. Khandal, learned counsel appearing for opposite parties no.4 to 6 contended that the daughters cannot be treated as co-sharers and, as such, the Claims Commission is well justified in passing the order impugned, which does not require any interference of this Court. Accordingly, he sought dismissal of the writ petition.

Courts Observation 

The court at the very outset observed, "According to Mitakshara School, as propounded by Vijnanesvara in his running commentary on the Yajnavalkya Smriti, all those members of the joint family who get interest by birth in the joint family property are the members of the coparcenary. Mitakshara entitles a son to a right equal to his father in the joint family property by birth. Under the Hindu law the word “son” has a technical meaning. Son includes the son, the son’s son, and the son’s son’s son. In other words, all the male descendants of a Hindu in the male line up to the fourth degree of generation are his sons."

The bench further noted that the daughter is not given a right by birth in the joint family property. But in the States of Andhra Pradesh, Tamil Nadu, and Maharashtra, the law is amended by inserting Sections 29-A, 29-B, and 29-C and in Karnataka by inserting Section 6-A in the Hindu Succession Act, 1956. The Parliament, being inspired by the line of these four States, passed The Hindu Succession (Amendment) Act, 2005 for the whole of India.

Moreover, the amendment is that even in a joint family governed by the Mitakshara law the daughter of a coparcener is made as good a coparcener as a son. She has the same rights in the coparcenary property as she would have had if she had been a son.

The bench observed, "Taking into account the aforesaid provision in Prakash and Mangammal (supra), the finding of the apex Court that daughters are not entitled to get the benefit of the equal share being co-sharers in the ancestral property, no more remains res integra in view of the Larger Bench judgment of the Apex Court in the case of Vineeta Sharma v. Rakesh Sharma and others, 2020 (II) OLR (SC) 569 : (2020) 9 SCC 1 wherein Subsection (1) of Section-6 of the Hindu Succession (Amendment) Act, 2005 was under consideration and consequentially a question was framed “does the Hindu Succession (Amendment) Act, 2005, which gave equal right to daughters in ancestral property, have a retrospective effect”.

The Court held, “As such, the coparceners have the right to alienate for consideration, to demand partition, to joint possession and usufruct, to maintenance, to make Will of one’s interest, to restrain unauthorized disposal, to surrender one’s interest and to survivorship. Similarly, every coparcener is liable to repay the loans which were raised for the family”.

The court observed that the Claims Commission made an error by denying coparcenary rights to the petitioner and her sisters. However, it was also considered that the commission's decision was taken before the Vineeta Sharma judgment. Hence, the court held that women would have equal rights by birth in their father’s property.

Judgment

The bench taking note of the same allowed the writ petition.

Case Title: Yagnaseni Patel v. General Manager, Mahanadi Coalfields Ltd. & Ors.

Citation.: W.P.(C) No. 28534 of 2020

Coram: Justice Bidyut Ranjan Sarangi and Justice Murahari Sri Raman

Counsel for the Petitioner: M/s P.K. Mohapatra, S.K. Jethy, S. Mohanty and A. Mohapatra, Advocate

Counsel for the Respondents: M/s D. Mohanty, A. Mishra, B.P. Panda and D. Behera, Advocates; Mr. A. Khandal, Advocate; Mr. S.K. Mishra, Advocate

 Read Judgment @Latestlaws.com

Picture Source :