While endorsing the equal share of daughter in parent’s inherited property, the Chhattisgarh High Court in an extremely commendable, cogent, composed and creditworthy judgment titled Smt Sonia Bai vs Bashrath Sahu & Ors in First Appeal No. 95 of 2015 delivered as recently as on 28.02.2022 ruled that under the Hindu Succession Act (amended in 2005), daughters are entitled to get an equal share in their parent’s inherited property. It must be mentioned here that the Bench of Justice Narendra Kumar Vyas relied on Vinita Sharma vs Rakesh Sharma & Ors wherein it was ruled that it is by birth that interest in the property is acquired. It must be noted that in this case, Kachra Bai who is mother of the appellants had self-acquired property and after her death, the plaintiff acquired the property on the strength of a will.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice Narendra Kumar Vyas sets the ball rolling by first and foremost putting forth in para 1 that, “This First Appeal under Section 96 of Civil Procedure Code, has been filed by the appellants/defendants against the judgment and decree dated 18.03.2015 passed by 5th Additional District Judge, Bilaspur District Bilaspur in Civil Suit No. 124-A/2014, whereby learned trial Court has decreed the suit filed by plaintiff/respondent No.1, dismissed the counter claim filed by appellants/defendants No.1 to 3. Learned trial Court in its impugned judgment on the basis of Will executed on 28.10.2010 by testatrix Late Kachra Bai, who was mother of plaintiff and defendants No. 1 to 3 has held that plaintiff /respondent No 1. Dashrath Sahu is the owner of lands bearing khasra Nos. 61/14,291/1, B/2, 291/1, M/2, 291/4 total khasra Nos. 4 area 0.457 hectare and khasra Nos. 291/1, T/3, area 0.101 hectares, 2.31 acre.”
To put things in perspective, the Bench then envisages in para 3 that, “The plaint averments in brief are that defendants Smt. Sonia Bai, Smt. Munni Bai and Smt. Pushpa Bai all are residents of Bilaspur. The suit land already described by this Court in the above paragraph is the self-acquired property of Smt. Kachra Bai, mother of defendants No.1 to 3 and plaintiff. The name of Smt. Kachra Bai was recorded as title holder of the suit land. It has been further pleaded that plaintiff has taken care of his mother till his lifetime, all the last rituals have been performed by him and due to care taken by him Smt. Kachra Bai bequeathed a Will in favour of the plaintiff on 28.10.2010 and since then plaintiff is in possession of the suit land. The defendants are neither in possession nor title holder of the suit land. After death of Smt. Kachra Bai, plaintiff has moved an application for mutation of the suit land in his name being successor per Will dated 28.10.2010 executed by Smt. Kachra Bai. The name of plaintiff has been mutated in the revenue record as the land owner on 10.09.2013. The defendants No. 1 to 3 had preferred an appeal wherein they have raised an objection that the plaintiff is not only successor of Smt. Kachra Bai and they are also the successor of Smt. Kachra Bai, as such their names should also been recorded in the revenue record.”
As we see, the Bench then pointed out in para 4 that, “The defendants No. 1 to 3 are illegally interfering in the title and ownership of the suit land which is owned by the plaintiff, this has necessitated the plaintiff to file present suit for declaration and for grant of permanent injunction.”
Simply stated, the Bench then states in para 5 that, “Defendants Nos. 1 to 3 have filed their written statement denying the averments made in the plaint contending that the Will dated 28.10.2010 is forged one, as such, on the basis of forged document, order of mutation is illegal and against the provisions of law, therefore, order dated 10.09.2013 is not binding upon them. Defendants No. 1 to 3 have not been arrayed as parties in mutation proceedings, the Will is forged one and against the Hindu Succession Act as well as Indian Evidence Act and on the basis of forged Will the plaintiff cannot acquire any right over the property. It has been further averred that the plaintiff has submitted an affidavit before the Revenue authority stating that he is the sole son of his parents and except him no other child was born from the wedlock of his parents and on the basis of the affidavit filed by the plaintiff, his name has been recorded in the revenue record which is illegal and would pray for rejection of the civil suit. The defendants have filed their counter claim, claiming that the plaintiff has no right to succeed in the property as per Mitakshara Branch of Hindu Law, the daughters are also entitled to get share in the property. Defendants No. 1 to 3 have submitted that the suit land is an ancestral property as such they are also coparcener in the suit land, therefore, order passed by the Revenue authority ignoring the provisions of law is illegal and deserves to be set aside by the trial Court.”
Be it noted, the Bench then enunciates in para 24 that, “The present defendants have also filed counter claim before the trial Court for their share being coparcener in the property inherited by their mother late Kachra Bai. Learned trial Court has held that the will is valid and negated the counter claim of the defendants. Since this Court after appreciating the evidence has held that Will has not been proved in accordance with the law, this Court is also examining the counter claim filed by the defendants. It is pertinent to mention here that the defendants have also challenged rejection of counter claim by way of amendment made on 12.11.2021.”
Be it also noted, the Bench then also states in para 26 that, “Since the plaintiff and defendants are coparcener of the joint Hindu family property, as per Hindu Succession Act as amended in 2005, the daughters are also entitled for getting equal share in the property inherited by their parents. The suit land is inherited by deceased Kachra Bai, as such defendants and plaintiff are entitled to get equal share in the property as per Section 6 of the Hindu Succession Act as amended in 2005.”
Most remarkably, the Bench then lays bare in para 27 that, “The Hon’ble Supreme Court in the case of Vinita Sharma v. Rakesh Sharma and others 2020 (9) SCC 1 Hon’ble Supreme Court has held in paras 60, 68, 69, 73, 75 and 80 as under:-- The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right.Section 6(1) (a) makes daughter by birth a coparcener “in her own right” and “in the same manner as the son.” Section 6(1) (a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section6(1) (b) confers the same rights in the coparcenary property “as she would have had if she had been a son”. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.
- Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of section 6(1)(a) and 6(1). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).
- The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3).
- It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise.
- It was argued that in case Parliament intended that the incident of birth prior to 2005 would be sufficient to confer the status of a coparcener, Parliament would need not have enacted the proviso to section 6(1). When we read the provisions conjointly, when right is given to the daughter of a coparcener in the same manner as a son by birth, it became necessary to save the dispositions or alienations, including any partition or testamentary succession, which had taken place before 20.12.2004. A daughter can assert the right on and from 9.9.2005, and the proviso saves from invalidation above transactions.
- A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living coparcener”, as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted section 6, the expression ‘daughter of a living coparcener’ has not been used. Right is given under section 6(1) (a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6 (1) (b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1) (c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.
In view of above stated legal position the plaintiff and defendants are entitled to get ¼ shares in the suit property.”
As a corollary, the Bench then holds in para 29 that, “Considering the facts and law on the subject counter claim filed by the defendants is allowed and it is held that defendant No.1 to 3 Smt. Sonia Bai, Smt. Munni Bai, Smt. Pushpa Bai and plaintiff Dashrath Sahu are entitled to get equal share in the property as per Hindu Succession Act, as amended in 2005. Accordingly, the appeal filed by the defendants is allowed and the judgment and decree dated 18.03.2015 passed by the trial court is set aside.”
Finally, the Bench then holds in para 30 that, “A decree be drawn-up accordingly.”
In a nutshell, it is most refreshing to note that the single Judge Bench of Justice Narendra Kumar Vyas of the Chhattisgarh High Court has been quite vocal in ruling most decisively that daughters are entitled to get equal share in parents inherited property. It is a most progressive judgment which must put the spirit of women and girls on a high note. Of course, all the courts must always strive to follow the worthy example set in this leading case. Justice Narendra Kumar Vyas has remarkably cited relevant judgments also of the Apex Court as discussed hereinabove. No denying it in anyway! Sanjeev Sirohi
