Daughter's Right to Ancestral Property

A daughter as coparcener by birth under section 6: Prakash v. Phulavati, Danamma and Vineeta Sharma, saved partitions and the other changes of 2005

In one minute

Since 9 September 2005, section 6 of the Hindu Succession Act, 1956 makes the daughter of a coparcener a coparcener by birth. She has the same rights and liabilities as a son. In Vineeta Sharma v. Rakesh Sharma (2020), a three-Judge Bench held that her father need not have been alive on that date.

The right does not reopen a partition made before 20 December 2004 by a registered deed or a court decree. An oral partition is accepted only in exceptional cases.

Exam focus

Frequency: Frequently asked
Usually asked as: Long answer (10 to 15 marks)

Legal provision

Section 6(1): from the commencement of the 2005 Amendment, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener becomes a coparcener by birth in her own right, in the same manner as the son. She has the same rights and the same liabilities.
Proviso to section 6(1): it saves any disposition, alienation, partition or testamentary disposition made before 20 December 2004.
Section 6(2): property she gets under section 6(1) is held with the incidents of coparcenary ownership. She can dispose of it by will.
Section 6(3): on a Hindu's death after the Amendment, his interest devolves by will or intestate succession and not by survivorship. A partition is deemed to have taken place, and the daughter gets the same share as a son.
Section 6(4): no court recognises the pious obligation of a son, grandson or great-grandson to pay an ancestor's debt, for debts contracted after the Amendment.
Section 6(5): the section does not apply to a partition effected before 20 December 2004. "Partition" means a partition by a registered deed or by a court decree.

Meaning and definition

Ancestral property here means Mitakshara coparcenary property held by a joint Hindu family, which gives its members a birthright. A coparcener has a birthright interest in it. Before 2005, only sons were coparceners by birth. Now a daughter is one too, with the same rights and liabilities, and no rule in section 6 excludes a married daughter.

Daughters' right to ancestral propertyHow to read this: the top box is the daughter of a coparcener. The boxes below are the main points on her right.

Daughter of a coparcener (section 6)
- StatusCoparcener by birth, in her own right.
- Rights and liabilitiesSame as a son's.
- Saved transactionsRegistered partition deed or court decree before 20 December 2004.
- DisposalShe can leave her share by will (section 6(2)).

Detailed explanation

Step 1: the position before 2005

Only sons were coparceners by birth. A male coparcener might die leaving a female class I relative. The daughter then got a share only through the assumed partition and succession. She did not get it as a coparcener in her own right. The note on notional partition explains this.

Step 2: state laws before Parliament

Andhra Pradesh gave daughters a birthright by sections 29A to 29C, deemed in force from 5 September 1985. The Hindu Succession Act text also prints Karnataka's sections 6A to 6C and Tamil Nadu's sections 29A to 29C. The note on the Act as amended covers these.

Step 3: Prakash v. Phulavati (2015)

Phulavati sued for partition. Her father died on 18 February 1988. The Court held that the 2005 rights apply to living daughters of living coparceners on 9 September 2005, whenever the daughters were born. Partitions before 20 December 2004 stay unaffected.

Step 4: Danamma @ Suman Surpur v. Amar (2018)

Gurunalingappa died in 2001, leaving two daughters, two sons and a widow. He was not alive when the substituted section 6 came into force. The Division Bench held that the amended section 6 confers full rights on a daughter coparcener. It gave the daughters, sons and widow a 1/5th share each (as recorded in para 9 of Vineeta Sharma).

Step 5: Vineeta Sharma v. Rakesh Sharma (2020)

A three-Judge Bench decided the conflict on 11 August 2020. Its main holdings are these.

A daughter is a coparcener by birth. She claims her rights from 9 September 2005, whether she was born before or after it, and whether or not her father was alive on that date (paras 63-64, 129).
The amendment is retroactive and not retrospective (paras 55-56).
Earlier partitions are saved only if made before 20 December 2004 by a registered deed or a court decree (paras 127-129).
An oral partition may be accepted in exceptional cases. It needs very cogent, impeccable and contemporaneous public documents, or continuous evidence over a long time. A finding must not rest on preponderance of probabilities (paras 127-128).
Prakash v. Phulavati and Mangammal are overruled. Danamma is partly overruled (para 130).
The wife of a coparcener still gets an equal share on partition (para 79).

Step 6: other changes of 2005

Section 23 (dwelling house) and section 24 (certain remarried widows) were omitted. Four more class I heirs were added to the Schedule. Section 6(4) ended the pious obligation for later debts.

Exceptions and special rules

Saved partitions: only a registered deed or a court decree before 20 December 2004 (section 6(5)).
Oral partition: accepted only in exceptional cases, on very strong proof (paras 127-128).
Old debts: debts contracted before the Amendment remain enforceable under the pious obligation (proviso to section 6(4)).
Interest by will: a daughter can dispose of her coparcenary share by will (section 6(2)).

Don't confuse: Prakash, Danamma and Vineeta Sharma

Case	Question	Result
Prakash v. Phulavati (2015)	Must the father be alive on 9.9.2005?	Held that the rights apply to living daughters of living coparceners. Overruled in this part by Vineeta Sharma
Danamma v. Amar (2018)	Father died in 2001. Can the daughters claim?	Gave daughters, sons and widow 1/5th each. Partly overruled by Vineeta Sharma
Vineeta Sharma v. Rakesh Sharma (2020)	Settling the conflict	Daughter is a coparcener by birth. The father need not be alive

Inside the concept. Meena, born in 1985, is the daughter of a Hindu coparcener who died in 1998. No registered partition took place. After Vineeta Sharma, she claims a coparcener's share.

Just outside it. In 1999 the family signed a registered partition deed and divided the land. The deed is before 20 December 2004, so section 6(5) saves it.

Common mistakes

Saying that the amendment is retrospective. The Court calls it retroactive (paras 55-56).
Saying that the father must be alive on 9 September 2005. That was Prakash, which Vineeta Sharma overruled.
Saying that an oral partition always defeats the daughter. It is accepted only in exceptional cases.
Saying that a married daughter is excluded. Section 6 has no such exclusion. The Andhra Pradesh clause (iv) had one for 1986.

Apply it

Problem

Meena was born in 1985. Her father, a Mitakshara coparcener, died in 1998. In 2022 her uncles refuse her a share in the family land and say that an oral partition took place in 1990. They have no registered deed or decree.

Issue

Is Meena a coparcener, and does the alleged oral partition defeat her?

Rule

Section 6(1) makes the daughter a coparcener by birth, and the father need not be alive on 9 September 2005 (Vineeta Sharma). Section 6(5) saves only a registered deed or a court decree before 20 December 2004. An oral partition counts only in exceptional cases.

Application

Meena is the daughter of a coparcener. There is no registered deed or decree. The uncles must prove an oral partition by very cogent public documents or continuous evidence.

Conclusion

Meena is a coparcener unless the uncles meet that heavy proof.

Leading case laws

Vineeta Sharma v. Rakesh Sharma
Facts. Two Supreme Court benches gave conflicting views on amended section 6. A three-Judge Bench heard the reference with connected matters and decided on 11 August 2020.

Principle. A daughter is a coparcener by birth. She claims her rights from 9 September 2005 whether born before or after it, and whether or not her father was alive. Saved partitions are only those made before 20 December 2004 by a registered deed or a court decree.

Why it matters. It is the leading authority on the daughter's coparcenary right.
Prakash v. Phulavati
Facts. Phulavati sued for partition. Her father died on 18 February 1988. The Karnataka High Court applied the 2005 Amendment to her claim.

Principle. The 2005 rights apply to living daughters of living coparceners on 9 September 2005, whenever the daughters were born.

Why it matters. Overruled in this part by Vineeta Sharma.
Danamma @ Suman Surpur v. Amar, (2018) 3 SCC 343
Facts. Gurunalingappa died in 2001, leaving two daughters, two sons and a widow.

Principle. The amended section 6 confers full rights on a daughter coparcener. Each of the daughters, sons and widow got a 1/5th share (as recorded in Vineeta Sharma, para 9).

Why it matters. It differed from Prakash and was partly overruled by Vineeta Sharma (para 130).

How to write this answer in the exam

5-mark answer

Section 6(1): daughter as coparcener by birth.
Prakash, Danamma: the conflict.
Vineeta Sharma: the holding.
Saved partitions: section 6(5).

10-mark answer

Position before 2005 and the State laws.
Section 6(1) to (5).
Prakash v. Phulavati.
Danamma v. Amar.
Vineeta Sharma: holdings with paragraph numbers.
Other 2005 changes and present position.

Key points to remember

Section 6(1): the daughter of a coparcener is a coparcener by birth, with the same rights and liabilities as a son.
Vineeta Sharma (2020): the father need not be alive on 9 September 2005.
The amendment is retroactive, not retrospective (paras 55-56).
Saved partitions: registered deed or court decree before 20 December 2004. Oral partition only in exceptional cases.
Prakash and Mangammal are overruled; Danamma is partly overruled.

Quick self-test

1. Is a daughter a coparcener by birth?

Yes, under section 6(1), from 9 September 2005.

2. Must her father be alive on 9 September 2005?

No (Vineeta Sharma).

3. Which partitions are saved?

Those made before 20 December 2004 by a registered deed or a court decree.