Only living daughters of living coparceners have equal rights in ancestral property

Asmita Kuvalekar | Government Law College, Mumbai | 24^th April 2020. 

MANGAMMAL @ THULASI AND ANR VS. T. B RAJU AND ORS (CIVIL APPEAL NO 1933 OF 2009) 

FACTS OF THE CASE: 

The appellants, being sisters, brought this suit against their brother, Respondent no. 1, for equal coparcenary rights in ancestral property left behind by their deceased father. The Court was called upon to cancel the wrongful sale of disputed ancestral property made by Respondent 1 to Respondents 2 and 3. The Hindu Succession (Tamil Nadu) Amendment Act, 1989 (hereinafter referred to as ‘the Act’) guarantees equal coparcenary interests to women in ancestral property, from the moment of their birth. Thereby, special reference was made to Section 29-A of the Act to support the appellants’ claim.

The Respondents argued that Section 29-A of the Act creates certain exceptions for women married before the 1989 Amendment and therefore, the appellants case should be dismissed like it was by the Madras High Court. 

ISSUE: 

1. Whether women are coparceners and have equal right to partition ancestral property as per the Act?

JUDGEMENT: 

The Court promptly examined the contents of Section 29-A of the Act. It held that on a bare perusal it becomes abundantly clear that equal rights provisions as envisioned by the Act and Section 29-A do not apply to women married before 1989. In the present circumstances, both sisters’ marriages were solemnized in 1981and 1984 and this fact was not disputed. Thus, on a plain reading of the law, the appellants had no right to ask for partition and separate possession of the ancestral property of their father. 

Further, it was observed that the wording of Section 29-A, specifically “the daughter of a coparcener” imply that both the coparcener and his daughter have to be alive at the time of the commencement of the Act. The appellants’ father in this case had passed away in 1979. Driving its point home, the Court reiterated its decision in Prakash and Ors v Phulavati and Ors¹ where in an almost identical situation, it was declared that the Amendment is applicable to “living daughters of living coparceners”. 

Moreover, on the question of a seemingly intervening 2018 judgement given in Danamma @ Suman Surpur and Anr v Amar and Ors², the Court clarified that this case did not deal with death of the father affecting a daughter’s coparcenary rights but was limited to determining the question of daughters born before 2005 having equal rights in ancestral property. In that regard, the judgement in Prakash (above) was taken to still hold precedent, not overruled by Danamma. Effectively, the appellants’ claim could not be entertained. 

The Court declared therefore that the two women could not be considered coparceners and did not possess the right to demand a partition or separate possession. At the most, maintenance and marriage expenses could have been given if their situation had so demanded. 

Accordingly, the final share of each of the three siblings was calculated, appellants being entitled to property by succession only. The sale made to Respondents 2 and 3 was deemed valid albeit with directions to compensate the appellants for their rightful share as calculated, which might have been alienated by the sale. 

1. (2016) 2 SCC 36 
2. (2018) 1 SCC 657