The Madras High Court has clarified that daughters born before or after the 2005 amendment to the Hindu Succession Act are entitled to coparcenary rights in ancestral property, even in partition suits pending final decree, provided no testamentary disposition or alienation occurred before 20.12.2004. This judgment reaffirms the retroactive yet conditional application of the amendment and reinforces the principle that a preliminary decree does not freeze rights under evolving statutory law.
Background & Facts
The Dispute
The plaintiff, Kasthuri, filed Original Suit No.165 of 1999 seeking partition and separate possession of her share in ancestral and self-acquired properties belonging to her late father, Angusamy, and mother, Andalammal. She claimed a one-third share in all suit properties, asserting her rights as a daughter under the Hindu Succession Act. The defendants, including her brother A. Munusamy and sister Kausalya, contested her claim, asserting that Angusamy had executed a valid Will in 1986 bequeathing his share to Munusamy, and that all properties of Andalammal had been sold during her lifetime.
Key Facts
- Angusamy and Andalammal had three children: Kasthuri (plaintiff), Kausalya (first defendant), and A. Munusamy (second defendant)
- Item No.1 of the suit schedule comprised ancestral properties (Sl.Nos.1 to 12)
- Item No.2 comprised self-acquired properties of Andalammal (Sl.Nos.1 to 3)
- Angusamy died on 02.03.1986; Andalammal died during trial
- Angusamy executed a Will dated 18.01.1986 (Ex.B13) bequeathing his undivided half-share in Sl.Nos.1 to 7 of Item No.1 to Munusamy
- The Will was attested by DW2, who testified before the trial court
- Munusamy sold several properties prior to the suit’s institution in 1999
- Kausalya remained ex parte throughout the proceedings
- The plaintiff did not file a reply denying the Will’s authenticity or challenge its signature
- The plaintiff did not produce any encumbrance certificates or array purchasers of sold properties as defendants
- The Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) came into force on 09.09.2005
Procedural History
- 1999: Original Suit No.165 of 1999 filed before Subordinate Judge, Poonamallee
- 30.10.2006: Trial Court decreed plaintiff’s claim to 1/6th share in Sl.Nos.1,2,3,6,7,11,12 of Item No.1 and 1/3rd share in Sl.Nos.1 and 2 of Item No.2
- 19.10.2009: First Appellate Court (Additional District Judge, FTC-II) reversed the trial decree
- Held Will (Ex.B13) was duly proved
- Held Item No.2 properties were sold by Andalammal
- Dismissed plaintiff’s appeal (A.S.No.83 of 2007)
- Allowed defendant’s appeal (A.S.No.34 of 2007)
- 28.03.2023: Second Appeals (SA Nos.886 & 887 of 2010) filed before Madras High Court
- 29.06.2021: Respondents 3 to 7 brought on record as legal representatives of deceased A. Munusamy
- 19.01.2022: Kausalya declared ex parte
- 08.04.2026: Judgment pronounced by Justice Sunder Mohan
The Parties' Positions
For the Appellant (Plaintiff)
- Argued that the Will was not proved, citing discrepancies in signatures and lack of corroboration
- Contended that the first appellate court erred in ignoring the 2005 Amendment, which granted daughters equal coparcenary rights
- Asserted that the suit was pending final decree and therefore the amendment applied
- Claimed that the trial court’s findings on the Will’s invalidity should have been upheld
- Argued that the burden of proving the Will’s authenticity was not discharged
For the Respondents (Legal Heirs of A. Munusamy)
- Contended that the Will was duly proved by the attestor DW2
- Argued that the plaintiff failed to challenge the Will’s execution or signature
- Asserted that the suit was barred by limitation under Article 110 of the Limitation Act
- Claimed that all properties in Item No.2 were sold during Andalammal’s lifetime
- Argued that the plaintiff’s claim was stale and lacked evidence of continued ownership
Relief Sought
The plaintiff sought:
- Declaration of her one-third share in all suit properties
- Partition and separate possession of her share
- Setting aside of the first appellate court’s judgment
- Restoration of the trial court’s decree
The Legal Issue
The central questions were: (1) Whether the 2005 amendment to the Hindu Succession Act grants a daughter coparcenary rights in ancestral property in a partition suit pending final decree, even if the suit was filed before the amendment; and (2) Whether a Will executed in 1986, if proved, can defeat a daughter’s claim to her father’s share under the amended law.
Arguments Presented
For the Appellant
The appellant relied on Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1 to argue that the 2005 amendment confers coparcenary status on daughters by birth, irrespective of whether the father was alive on 09.09.2005. She contended that since the suit was pending final decree, the amendment applied retroactively to her claim. She cited S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC 647 and Prema v. Nanje Gowda (2011) 5 SCC 1 to argue that statutory amendments altering rights during pendency of partition suits must be given effect in final decree proceedings. She emphasized that the Will was not proved due to signature discrepancies and lack of corroboration, and that the first appellate court erred in relying solely on the attestor’s testimony.
For the Respondent
The respondents argued that the Will was validly proved under Section 68 of the Indian Evidence Act, as the attestor DW2 was examined and no suggestion of forgery was made during cross-examination. They relied on Daulat Ram v. Sodha (2004) 5 CTC 790 to assert that the burden of proving fraud or forgery lay with the plaintiff, who failed to discharge it. They contended that the testamentary disposition made by Angusamy in 1986 was protected under Section 6(1) of the 2005 Amendment, which saves dispositions made before 20.12.2004. They further argued that the properties in Item No.2 were sold during Andalammal’s lifetime and no evidence was adduced to prove their continued existence.
The Court's Analysis
The Court undertook a detailed analysis of the 2005 amendment and its interaction with pending partition suits. It emphasized that the amendment does not merely confer a new right but alters the very structure of coparcenary by including daughters as coparceners by birth, with rights equal to sons. The Court relied on Vineeta Sharma to hold that the right arises by birth and does not depend on the father’s survival on 09.09.2005.
"The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener... The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal."
The Court held that the trial court’s preliminary decree did not extinguish the plaintiff’s right to claim an equal share under the amended law. Since the suit was pending final decree, the amendment applied, and the plaintiff was entitled to a share in the coparcenary property.
However, the Court also examined the validity of the Will. It found that the Will (Ex.B13) was duly proved: the attestor DW2 was examined, no suggestion of forgery was raised, and the signature variation noted by the trial court was deemed minor and insufficient to invalidate the document. The Court applied Daulat Ram to hold that once the propounder discharges the initial burden, the onus shifts to the challenger to prove fraud or undue influence - which the plaintiff failed to do.
The Court then applied Section 6(1) of the 2005 Amendment, which saves testamentary dispositions made before 20.12.2004. Since Angusamy’s Will was executed on 18.01.1986, it was protected. The Court held that the plaintiff could not claim any share in the 50% share bequeathed to Munusamy under the Will.
Regarding Item No.2 properties, the Court found that the defendants produced sale deeds (Ex.B4 and Ex.B5) proving sale of Sl.Nos.2 and 3, and the plaintiff adduced no evidence to rebut the claim regarding Sl.No.1. The Court held that in the absence of evidence, the plaintiff could not claim any share.
The Court concluded that the plaintiff was entitled to a 1/6th share in Sl.Nos.1 to 7 of Item No.1 (being 1/3rd of the 50% share not disposed of by Will), and a 1/3rd share in Sl.Nos.11 and 12 (which were not covered by the Will and had no evidence of alienation before 20.12.2004). The trial court was directed to determine which properties remained available for partition as of 20.12.2004.
The Verdict
The second appeals were partly allowed. The plaintiff is entitled to a 1/6th share in Sl.Nos.1 to 7 of Item No.1 of the suit schedule properties and a 1/3rd share in Sl.Nos.11 and 12 of Item No.1, subject to any alienation by the second defendant prior to 20.12.2004. The trial court shall determine the properties available for partition as of that date and pass a final decree accordingly. The plaintiff is not entitled to any share in Sl.Nos.8, 9, and 10 of Item No.1, or in any property under Item No.2. No costs are awarded.
What This Means For Similar Cases
Coparcenary Rights Apply to Pending Partition Suits
- Practitioners must now argue that daughters are entitled to coparcenary shares in ancestral property even if the suit was filed before 09.09.2005, provided the final decree has not been passed
- A preliminary decree does not freeze rights; statutory amendments altering inheritance rights must be applied in final decree proceedings
- Courts are duty-bound to adjust shares in light of the 2005 Amendment, even if the suit has been pending for decades
Testamentary Dispositions Before 20.12.2004 Are Protected
- A valid Will executed by a father before 20.12.2004 defeats a daughter’s claim to his share in ancestral property, even under the 2005 Amendment
- The burden remains on the challenger to prove forgery or undue influence - mere signature variation is insufficient
- Practitioners must verify the date of execution of any Will in ancestral property disputes and cross-check against the 20.12.2004 cutoff
Evidence in Partition Suits Must Be Concrete
- Plaintiffs must produce encumbrance certificates and array purchasers of sold properties as defendants to preserve claims
- Oral testimony alone cannot establish continued ownership of property claimed for partition
- Failure to rebut documentary evidence of sale (e.g., sale deeds) results in dismissal of claims over those properties
