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org/doc/476979/

Daddo Atmaram Patil And Ors. vs Raghunath Atmaram Patil (Savant) ... on 14 February, 1978
Equivalent citations: AIR 1979 Bom 176, (1980) 82 BOMLR 130 2. The facts are few and also simple. One Atmaram Patil died on September 8, 1960, leaving behind him, his widow Tanubai, defendant No. 3, his two sons Dadoo and Yashwant, defendants Nos. 1 and 2 respectively and his daughter Hirabai, defendant No. 4, Plaintiff No. 3 Krishnabai claimed herself to be also the lawfully wedded wife of the said Atmaram and plaintiffs Nos. 1 and 2 Raghunath and Shivaji respectively claimed to be the legitimate sons of Atmaram, being born of the aforesaid Krishnabai, plaintiff No. 3, and plaintiff No. 4 claimed to be the granddaughter of Atmaram being the daughter of the predeceased legitimate daughter of Atmaram through Krishnabai, plaintiff No. 3. On the ground that they were entitled to a half share in the suit properties, the plaintiffs filed the present suit mainly against defendants Nos. 1 to 4 for partition and possession of their said share. Defendants Nos. 5, 6 and 7 were made parties to this suit on the ground that they were co-sharers in the suit agricultural lands. The suit claim was admitted by these co-sharers, defendants Nos. 5 to further supplemented by three other well-settled principles viz : "1. The illegitimate son does not acquire by birth any interest in his father's estate and he cannot therefore demand partition against his father during the latter's lifetime. 2. On his father's death, the illegitimate son succeeds as a coparcener to the separate estate of the father along with the legitimate son(s) with a right of survivorship and is entitled to enforce partition against the legitimate son(s). 3. On a partition between a legitimate and an illegitimate son, the illegitimate son takes only one-half of what he would have taken if he was a legitimate son." This legal position was further reiterated by the Supreme Court in Singhai Ajit Kumar v. Ujayar Singh, 9. Coming then to the relevant provisions of the Act, one finds, vide Section 2 thereof, that it applies to Hindus, Buddhists, Jains and Sikhs including their children, legitimate and illegitimate,. The Act, therefore, would clearly apply to the plaintiffs herein. Turning next to Section 4, one finds that it gives overriding effect to the provisions of the Act abrogating, save as otherwise expressly provided therein, any text, rule or interpretation of Hindu law or any custom, usage as part of that law in force immediately before the commencement of the Act as also abrogating any other law in force immediately before the commencement of the Act in so far as it is inconsistent with any of the provisions contained in the Act. The consolidated effect of the aforesaid is that any part of Hindu

Law, not expressly saved by any of the provisions of the Act, ceases to operate. And when one turns to the other provisions of the Act, one finds that there is no express provision saving that part of Hindu law under which an illegitimate Shudra could succeed to the estate of his putative father. The result, therefore, is that his right of succession, if the said succession opened after the Act came into force, would be governed by the provisions of the Act itself and no longer by the law prior thereto. with an equally important proviso therebelow as follows: "Provided that illegitimate children shall be deemed to he related to then mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly." 15. In a Full Bench decision, the Madras High Court in Narayani Ammal v. Govindaswami, (FB), has, no doubt, held that the term "daughter" included an illegitimate daughter and that a legitimate son cannot exclude an illegitimate daughter. That, however, was a decision^ under the old Hindu law and with reference to succession to the stridhana property of a female Hindu which is distinct and different from succession to the property of a male Hindu dying intestate after the coming into force of the Hindu Succession Act as in the present case. Moreover, the transmission of succession to the stridhana of a female Hindu vis-a-vis her stridhana heirs is different and based on different incidents and principles than the mode of succession to the property of a male Hindu dying intestate. The said ruling is, therefore, clearly distinguishable and cannot apply to the impugned intestate succession in the present case.

Reopening of Family Settlement

Shri Satya Pal Aggarwal vs Shri Rajinder Kumar And Ors

properties hav e alr eady b een p artitioned and thus the plaintiff is now stopped from raising the plea of partitio n. The co unsel for th e defendants h as finally contended th at since the properties have already been partitio ned between the parties by virtue of family p artition, th e plaintiff is now not entitled to seek the relief of partitio n. 12. The Hon'ble Supr eme Court in case S. Shamugan Pillal Vs. K.S. Shamugan, AIR1972 SC 2069 h as held that if in th e interest of th e family properties or family itself, th e close r elations had settled their dispute amicably this court will be reluctant to disturb the same. The courts generally lean in favour of family arr angements. Further in case reported in Kale and others vs. Dy. Director of and others , AIR 1976 SC 807 the Ho n' ble Supreme Court after analyzing numb er of other judgments observed th at validity of the family s ettlement should be always tried to b e upheld. Th e central idea in the approach taken by the Hon'ble Supreme Court is that if by the consent of the parties th e matt er has been settled, it should not be allowed to be reopened by the p arties to the agreement on frivolous grounds. Therefore, even if ther e is an or al family s ettlement between th e parties and th e defendant, then also the s ame s hould be accepted provi ded, 1.it is with th e cons ent of th e parties and, 2. the family s ettlement must be bonafide and 3. the family sett lement is fair and equitable division of allotment between the various members of t he family and 4. family s ettlement must be voluntary an d should not be induced by fraud, coercion or undue influence. 14. The plaintiff while appearing as PW -1 has deposed that h e is the so n of Rama Nand and his father had two marriages. From the first wife h e and two sisters were born and from the second wif e, six so ns and two daughters were born. He h as further deposed that h e got married at the age of 19 years and thereafter he st arted working w ith

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http://indiankanoon.org/docfragment/1256554 minor reopening of partition

Radhakrishnan Alias Ratheesan vs Damodaran Nair

Narayani Amma. The plaintiff and defendants 7 to 11 are the children of the 5th defendant Sarojini Amma. D12 is the son of the D6. On account of the contention raised subsequently supplemental defendants D13 to D17 had also been impleaded. It is the case of the plaintiff that the A.S. No. 519/99 -2partition executed on 11.6.1973 is unequal and vitiated and further the minors were not represented by their natural guardian and the other members of the family were able to dominate the will of 5th defendant and therefore it requires reopening. On the other hand the contesting defendants would contend that the partition is equally effected, acted upon and even the 5th defendant has recognised the partition and instituted a suit in which her son was examined as witness and therefore the present suit is only filed to harass the contesting defendants and therefore it has to be dismissed. 3. In the trial court PW1 and DW1 were examined . Exts. A1 to 3, B1 to B56 and C1 to C6 were marked. On analysis of the evidence the trial court dismissed the suit and it is against that decision the plaintiff has come

case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition." 4. The learned counsel for the appellant has stressed upon in para 3 that the partition can be reopened whatever be the length of time and that it is the duty of the persons who are supporting the partition to prove that it was fair. So it is really a factual analysis that is necessary in this case. I will straight away refer to Ext. A2 which is the disputed partition deed. It is executed between 13 members of the tavazhy on 11.6.73. The present plaintiffs group are executant Nos. 5,8,9,10,11 and 12. The plaintiff is the 12th executant who was a minor at the time of the execution of the document represented by his mother as the guardian. Items 4,8

and 9 and fractional share over the improvements in item No. 5 of Ext.A2 schedule was set apart to the group of the plaintiffs, his mother and brothers. The estimated value of each share

where as property worth Rs. 3,800/- is seen allotted to their share. The learned counsel would contend the recitals in Ext. A2 cannot be taken as the basis to arrive at a decision regarding the fairness and equitable distribution of the properties. Therefore we have to take into consideration the other aspects namely the total extent of the land value etc. for the purpose of deciding the case. Item Nos. 1 to 8 and 14 are dry lands and Item Nos. 9 to 12 are wet lands. Item Nos. 1 to 7 in Ext. A2 partition deed is a part and parcel of same paramba divided into 7 segments. Item No. 8 is a portion of another paramba and item Nos. 9 to 12 are wet land having a extent of 77 = cents or in other words a total extent of dry land plus the residential compound with dry land comes to 3 acres and 25 cents and that of the wet land is 77 = cents. Out of this the plaintiffs group had been allotted 88 = cents of dry land and 26 < cents of wet land, that is item Nos. 4, 8 and 9 described

ground to hold that partition in the year 1973 was unequal. It is true that when a property of the minor is involved in a litigation necessarily there is a burden caused to establish that it has been fair and equitable. Further it has to be stated that there is no quarrel between the plaintiff and his mother D5 who was heading the family in the year 1973. She had instituted a suit against the 6th defendant in this case as O.S. 637/1986 before the Munsiff Court, Kozhikode. In the said suit said Sarojini Amma claimed right over the property by virtue of Ext. A2 partition deed which is under challenge. One of the son of the said Sarojini Amma who is arrayed as D7 in this case is examined as PW1 in that case. So D5 as well as D7 had acknowledged about the partition deed in the year 1986. It cannot be held that there are materials available before the court to show that partition has been unequal and therefore it requires reopening.

Reopening of partition

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Kumaraswami Mudaliar And Ors. vs Rajamanikkam Udayar And Ors.

In support of the first point it was urged by the appellants' advocate that the suit is not maintainable without seeking to reopen Exts. B-3 and A-4 which can be done only on the ground of mistake or fraud. In support of his contention the learned advocate relied on the following passages from Mulla's Principles of Hindu Law, 12th Edition, page 514, paragraphs 337 and 338: "337. Fraud -- A partition may be reopened, if any coparcener has obtained an unfair advantage in the division of the property by fraud upon the other coparceners. 338. Mistake -- Where, after a partition has been made, it is discovered that property allotted to one of the coparceners did not belong to the family, but to a stranger, or that it was subject to a mortgage, the coparcener to whom such property has been allotted is entitled to compensation out of the shares of the other coparceners, and the partition may, if necessary, be reopenedfor readjustment of the shares." 8. We do not think that above passages have any relevancy to this case. 9. On the dates of Ext. B-3 and A-4 the plaint properties were not available for partition as they were alienated under Ext. B-5. Under Hindu Law it is well established that where an; item of joint family property was left out in the partition by mistake, fraud or accident it is not necessary toreopen the partition and that the right of the coparceners in the excluded property will not be lost by the partition entered into and can be enforced by a fresh partition of that property. So long as there is no infirmity attached to the partition deed in respect of the properties included therein, no question of reopening the same arises. If it is fount that the property allotted to a sharer is charged for the benefit of a stranger, or if it is discovered that it does not really belong to the joint family and the sharer is subsequently dispossessed thereof or that a fraud has been practised by one of the coparceners at the time of the partition to gain an unfair advantage for himself the partition is liable to be reopened Duncan M. Derrett in his Introduction to Modern Hindu Law, page 294, paragraph 475, observed: " 'After-born' coparceners cannot sue to set aside alienations made before their conception Or adoption, as the case may be. But overlapping of lives may give this very right to them. If at the time of his conception there existed an unexpired right amongst the coparcenery body to challenge the same alienation, the joint family property in which he acquired a birthright includes the 'invisible' asset, the property whose alienation could be effectively challenged, an asset which, like an equity of redemption, may turn out to be of great value. The rule is not open to abuse because, although a succession of minors might otherwise extend the period of challenge over a long space of time, it is settled (fortunately but not very convincingly) that the period of limitation will in no circumstances be extended by this 'overlapping'." Subba Rao, J., in Guramma Bhratar v. Mallappa Chanbasappa AIR 1964 SC 510 at p. 515 stated the relevant principles thus: "A coparcener, whether he is natural born or adopted into the family, acquires an interest by birth or adoption, as the case

Minor coparcener

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Meenambal And Ors. vs Chockalinga Chettiar And Ors.

binding nature of the partition deed and the question of limitation. After analysing the evidence adduced by the parties with reference to the various issues, the court below held on the main question that the partition brought about under Ex. A-8 dated 20-4-1951, between the first defendant, plaintiff and defendants 2 to 4 was unfair, unjust and unequal and is also prejudicial to the interests of the plaintiff who was a minor. It however held on the question of limitation that the suit to set aside the partition deed under Ex. A-8 not having been filed by the plaintiff within 3 years after attaining majority, the claim for setting aside the partition deed is barred by limitation but that the plaintiff's claim to a share in the joint family properties alienated by defendants 2 to 4 subsequent to the partition was not barred by limitation as the suit was well within 12 years of the date of alienation. On its view that the claim for setting aside the partition deed is barred by limitation, the lower court has not chosen to give any relief to the plaintiff for fresh partition as sought event even if such a partition is to be set aside, the limitation has to start only from the date of the knowledge of the unfairness of the partition. The question is how far the above contention can be accepted. 21-22. As already pointed out, the lower court has given a finding that the partition under Ex. A-8 is unfair, unequal and prejudicial to the interests of the minors. This finding which is in favour of the plaintiff has not been challenged by the respondents or by the appellants in A. S. No. 389 of 1969. I have to, therefore, proceed on the basis of the said finding. The learned counsel, in support of his submission, that once the partition deed is found to be unfair and unequal, it can be ignored and no setting aside is necessary, refers to the following decisions: In Lal Bahadur Singh v. Sispal Singh (1892) ILR 14 All 498) certain members of the joint family partitioned the family properties among them in such a way as to give one member of the family who, at the time of the partition was a minor, less than the share to which he was entitled represented in the partition by his uncle who was not a natural guardian. The minor, on attaining majority brought a suit for recovery of the full share to which he was entitled. It was held by a Division Bench that the suit was not one for relief on the ground of fraud or mistake, inasmuch as the partition could not under the circumstance affect in any way the rights of the minor and that therefore the suit was not subject to the limitation of three years prescribed by Articles 95 and 96 of the second Schedule of Act. 15 of 1877. But said ruling is based on the special facts of that case where the minor was not bound by his uncle's act, that the uncle had no authority to barter away the done

in good faith and in bona fide manner keeping into account the interests of the minors, that where, however, a partition effected between the members of the Hindu undivided family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors, the partition can certainly be reopened, whatever the length of time when thepartition took place, But this decision cannot be taken to be an authority for the proposition that wherever the partition is found to be unfair and unequal the same can be set aside without reference to the question of limitation. In the same decision the Supreme Court has pointed out:-"It is true that minors are permitted in law to reopen a partition on proof that the partitionhas been unfair and unjust to them. Even so, so long as there is no fraud unfair dealing or overreaching by one member as against another, Hindu law requires that a bona fide partitionmade on the basis of the common consent of coparceners must be respected and is irrevocable." In this case, in the partition under Exhibit A-8, the plaintiff was represented by his mother

Illegitimate son

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Nathamuni Mudali And Ors. vs Parthasaradhi Mudali And Ors.

decision of the District Munsif of Poonamallee in a suit brought by an illegitimate son against the legitimate sons of his father, making the father also a defendant, claiming a share of the family property on partition. The lower Appellate Court has given him a decree on the footing that the father tacitly consented to his having a share and that therefore he is entitled to a half share with his legitimate brothers. The legitimate sons appealed to this Court relying on the fact, which has not been disputed before us, that a prior suit had been instituted by one of the legitimate sons to which the present claimant was not made a party and in which the plaintiff sought for partitionagainst his father, that in that suit the father pleaded that he had other legitimate sons of whom the present plaintiff was one, and that therefore they were necessary parties to the suit. It appears that that suit was compromised and partition made, in which the claimant was given no share. 2. Mr, Muthukrishna Aiyar on their behalf now contends that whatever are the rights of anillegitimate son against his father and whatever they are against father's legitimate sons after his father's death, once there has been a partition there remained no right to him to claim a share against the sons. We have been taken through a long series of authorities beginning with Krishnayyan v. Muthusami (1883) I.L.R. 7 M. 407 which have decided the true position of illegitimate sudra by a permanently kept concubine under Hindu Law. The broad result of these cases is that an illegitimate son, can under the text in the Mitakshara take a share equal to that of a legitimate son at his father's choice, and after his father's death can demand of the legitimate sonsa share equal to half of that of a legitimate son. This power of the father and right of the illegitimite son is treated by the eminent Judges who have considered these cases as being an exception to the strict rule of Hindu Law under which no person other than a co-parcener is entitled to a shire. It is explained in some of the cases as being really only a sort of capitalised maintenance and that this is the true view of it whether the share is given by the father at his choice or whether under the later text it is claimed against the legitimate sons after the father's death. We do not think it necessary to discuss the principle behind this right. It is sufficient for us that it is, definitely and clearly laid down in the Mitakshara and has been fully recognised by eminent Judges like the late Mr. Justice Muthusami Aiyar. We take it, therefore, that where a father and his sons are in possession of family property and there are no other co-parceners of the same degree with the father then, as to that joint family property, the right to a full share or possibly less can be given by the father. And it seems to us to follow from this that where the father

and his sons have separated there is no longer the material on which this claim can operate and that therefore the son's share of the property after partition cannot be made liable to this claim. For this latter proposition there is direct authority of the High Court of Calcutta in a case reported in Bam Saran Gerain v. Tekchand Gerain (1900) I.L.R. 28 C. 191 and we can only say that judging the matter in the light of what we regard as the true inferences to be drawn from the decisions of this Court, we entirely agree with the view taken by the High Court of Calcutta. 3. For the respondents three points have been taken, First

In Commissioner of Income Tax v. Indian Bank LimitedMANU/SC/0145/1964 : AIR 1965 SC 1473, the Supreme Court reiterated: In our opinion, in construing the Act, we must adhere closely to the language of the Act. If there is ambiguity in the terms of a provision, recourse must naturally be had to well established principles of construction, but it is not permissible first to create an artificial ambiguity and then try to resolve the ambiguity by resort to some general principles 15.3. The principles are so succinctly stated in American Jurisprudence (2ndEdition, Vol. 73, page 434, PT.366), quoted with approval in S.R. Bommai v. Union of India AIR 1994 SC 1980. While it has been held that it is duty of the courts to interpret as statute as they find it without reference to whether its provisions are expedient or inexpedient. It has also been recognized that where a statute is ambiguous and subject to more than one interpretation, the expediency of one construction or the other is properly considered. Indeed, where the arguments are nicely balanced, expediency may trip the scales in favour of a particular construction. It is not the function of a court in the interpretation of statutes, to vindicate the wisdom of the law. The mere fact that the statute leads to unwise results is not sufficient to justify the Court in rejecting the plain meaning of unambiguous words or in giving to a statute a meaning of which its language is not susceptible, or in restricting the scope of a statute. By the same token an omission or failure to prove for contingencies, which it may seem wise to have provided for specifically, does not justify any judicial addition to the language of the statute. To the contrary, it is the duty of the Courts to interpret a statute as they find it without reference to whether its provisions are wise or unwise, necessary or unnecessary, appropriate or inappropriate, or well or ill-conceived. 15.4. Rule of interpretation are meant to ascertain the true intent and purpose of the enactment and set right any anomaly, inconsistency or ambiguity, while giving effect to it The several rules of interpretation when juxtaposition may give an impression that they are inconsistent with each other. Further, the same provision, when interpreted with reference to different Rules of interpretation may lead to different results. This is because the Rules of interpretation are meant to set right different types of defects. It is not possible to apply all rules of interpretation together, to a provision of law. An appropriate rule of interpretation should he chosen as a tool depending upon the nature of the defect in drafting which has to be set right. The Rules of interpretation are to be applied in interpreting the statutes, only if there is ambiguity, inconsistency, absurdity or redundancy. Where the words are clear the unambiguous, there is little need to open the tool kit of Interpretation. 46. Keeping in mind these principles, the substituted Section 6 is to be interpreted. Section 6 reads as under: Section 6. Devolution of interest in coparcenary property.- (1) On and from the commencement of the Hindu Succession (Amendment) Act 2005, in a Joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of Sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be under this Act and not by survivorship, and. the coparcenary property shall be deemed to have been divided as if a partition had taken place and,(a) the daughter is allotted the same share as is allotted to a son; (b) the shore of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter; and (c) the share of the predeceased child of a pre-deceased son or a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a. partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grand-father solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt; Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 nothing contained in this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson of great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule or pious obligation in the same manner and to the same excent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.- For the purposes of Clause (a), the expression "son", "grandson" or "great- grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.- For the purposes of this Section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 (16 of 1908) or partition effected by a decree of a court. 47. The heading of the Section, "devolution of interest in coparcenary property" is retained. There is no change. The word "coparcenary" and "Joint Hindu Family" was used in all schools of Hindu Law, though the rights of coparcenars and members of the Joint family differed. The un-amended Section 6 dealt with interest of a male Hindu in a Mitakshara coparcenary property, as a female Hindu was not recognized as a coparcener at all The parliament intended to change the existing law and create and confer such right on a daughter of a coparcener also. Therefore, they chose to make a declaration signaling the change in the Jaw, as it existed till then and heralding a new era. The intention behind the amendment is to confer such coparcenary right on the daughter of a coparcener, which was hitherto not recognized both under the Shastric Hindu Law and the Act. The discrimination sought to be removed was not existing in all Schools of Hindu Law. It was existing only in Mitakshara School. Therefore, amended section makes it clear that the declaration made is confined only to "a Joint Family governed by the Mitakshara law". The equality to be restored was between son and daughter only and not between male and female Hindu. Therefore, the Parliament consciously used the phrase "the daughter of a coparcener" is the person on whom they are conferring the right and not on any other female relative, who may be a member of Joint Hindu Family. This intention can be gathered from the fact that in the unamended Section, the proviso conferred rights on a "female relative" and not only on a "daughter of a coparcener". 48. Then the next question, is What is the right that is created and conferred? Two rights are conferred. (a) The daughter of a coparcener by birth become a coparcener in her own right in the same manner as the son. Equality in Status: (b) The daughter of a coparcener would have the same rights in the coparcenary property, as she would have had, if she had been a son. Equal rights in coparcenary property.

49. Thus, Gender discrimination between the son and daughter is removed, and bringing the law in conformity with the Article 14 and 15 of the Constitution which are fundamental rights. 50. The parliament took care to see that the daughter who is conferred rights in the coparcenary property on par with the son, is also saddled with the liabilities in respect of the said coparcenary property as that of a son, making it clear that the right in property conferred on her is not free from all encumbrances on the said property. The rights and liabilities are to be shared equally by the son and daughter, thus giving effect to the equality clause in letter and spirit. 51. With the change in the law, the legal concept of coparcenary underwent a radical change. The coparcenary hitherto the monopoly of male lineal descendants, and consisting of only male member of a Joint Hindu Family now has to accommodate a daughter, a female also. Therefore, a declaration is made to the effect that any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. The exclusive club of males "a Hindu Mitakshara coparcenary" is now thrown open to the daughters also. 52. This declaration and conferment of right in coparcenary property, a salient and distinguishing feature of a coparcenary property in Mitakshara, is the right by birth. Once daughter is conferred the right of a coparcener, it follows that, she would get a right by birth in the coparcenary property. When the amending act came into force in 2005, naturally the question and a doubt would arise, as to when the daughter would get that right. The parliament realised this problem and did not want to leave any one in doubt about its intention. It is expressly stated in the section itself that this "right is by birth", leaving no scope for interpretation. This amendment is introduced by way of substitution. The result is, this amended provision is there in the statute on the day it came into force i.e., 17-6-1956. From that day till the amendment Act came into force on 9-9-2005, the daughter of the coparcener was not a coparcener and she became a coparcener only from 9-9-2005. Though her status was so declared on 99-2005, she has been given right in the coparcenery property from the date of her birth. It would result in absurdity. Therefore, what the parliament did was to use the phrase, "on and from the commencement of the Hindu Succession (Amendment) Act. 2005", as the opening words of the Section, thus removing the absurdity. 53. If the aforesaid opening words were not there in the amended section and it is inserted by way of substitution, when the right is given to a daughter by birth, such a right would have accrued to her prior to the date of the passing of the Act in 1956 itself. The intention of the Parliament was hot to give her rights in a coparcenary property prior to the date of the Act as she had only a limited right in the property, whether ancestral or self acquired property of the father. Therefore, on a proper interpretation it follows that when the status of a co-parcenar is conferred on the daughter on and from the date of the commencement of the Amendment Act, as the right is given to her by birth, she must have born after 17.6.1956, the day on which the Act came into force. It is only under the Act, her limited estate blossomed into an absolute estate, and got equal rights with the son in the property of her father and mother.

Savita Samvedi v. Union of India reported in 1996 SCC (L & S) 521, held as under: A common saying, is worth pressing into service. A son is a son until he gets a wife. A daughter is a daughter throughout her life. The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), so as to claim the benefit. Otherwise, it would be unfair, gender-biased and unreasonable and liable to be struck down under Article 14 of the Constitution. It suffers from twin vices of gender discrimination inter se among the women on account of marriage and between a married daughter and a married son.