Daughter's Coparcenary Right, Pre-2005 Partition and Limitation

Under Section 6 of the Hindu Succession Act, as amended in 2005, a daughter of a coparcener becomes a coparcener by birth in the same manner as a son, with the same rights and liabilities. In Vineeta Sharma v. Rakesh Sharma, the Supreme Court held that the daughter's right is by birth and does not depend on whether her father was alive on 9 September 2005. But the amended section also saves a partition effected before 20 December 2004. Section 6(5) says that nothing in the section applies to a partition effected before that date, and a registered partition deed falls within the explanation. The 2003 registered partition between Hari and Ramesh is therefore protected. The daughters cannot reopen it merely because they were not coparceners in 2003, unless they prove that the partition was a sham, collusive or intended to defeat their rights.

If the partition is valid, the ancestral property was divided equally: Hari took 6 bighas and Ramesh took 6 bighas. Hari's 6 bighas became his separate property. On his death in 2012, it devolved under Section 8 on his Class I heirs-Kamla, Ramesh, Suman and Rekha-in equal shares. Each gets one-fourth of 6 bighas, that is, 1.5 bighas. The daughters do not get a share in Ramesh's 6 bighas by birth because the coparcenary was disrupted before the amendment. They get only 1.5 bighas each, not 3 bighas each. Kamla also gets 1.5 bighas. Ramesh retains his 6 bighas plus 1.5 bighas from Hari's share.

If the 2003 partition is proved to be a sham or a collusive arrangement to deprive the daughters, the court may ignore it. In that case, the entire 12 bighas remained joint family property, and the daughters, as coparceners by birth after the 2005 amendment, could claim a share in the whole. But the burden of proving collusion is on the daughters. A registered deed is strong evidence, and mere non-participation of daughters in 2003 is not enough, because under the law then they were not coparceners. The recital that they had no share is not binding on their inheritance rights in Hari's share.

A suit for partition by a coparcener or an heir is not ordinarily governed by the three-year period for a declaration. While the joint status continues, the right to seek partition is a recurring right. But if a party has been openly excluded from possession and the co-ownership has been denied, limitation may run. Article 65 of the Limitation Act gives twelve years from the date of dispossession or discontinuance of possession for a suit for possession based on title. The daughters' right to Hari's share accrued on his death in 2012. Ramesh's mutation in 2015 and his sale of 3 bighas are acts of exclusion, but the suit in 2024 is within twelve years of both 2012 and 2015. Article 58, with its three-year period for declarations, does not apply to a pure partition suit. The suit is therefore not barred by limitation.

The mutation in Ramesh's name is a revenue entry; it does not confer title and does not extinguish the daughters' rights. The sale of 3 bighas in 2015 is more complex. If Ramesh sold joint family property without the consent of the other sharers, the sale is not void but voidable to the extent it affects their shares. A purchaser of coparcenary property takes subject to the shares of the other coparceners unless the sale was for legal necessity or for the benefit of the estate. The daughters can claim their shares from the remaining joint family property; if the sale is not binding on them, they may also proceed against the purchaser for their share, subject to his rights as a bona fide purchaser for value. The court should frame issues on legal necessity, the extent of the property sold, and whether the sale was of Ramesh's own share. If Ramesh sold only from his 6 bighas, the daughters' 4.5 bighas are unaffected. If he sold from the entire 12 bighas, the sale must be examined against their shares.

A custom that excludes married daughters from inheritance must be ancient, certain, reasonable, continuous and not opposed to public policy. The burden of proving such a custom is on the person who asserts it. Ramesh has merely pleaded custom; he has not pleaded its particulars, nor shown that it is binding on this family. Under Section 4 of the Hindu Succession Act, the Act overrides any custom or usage inconsistent with its provisions. Married daughters are Class I heirs under Section 8, and after the 2005 amendment they are also coparceners. A custom cannot be used to defeat the statutory right of inheritance. The plea therefore fails.

Suman's marriage in 1998 and Rekha's marriage in 2006 do not affect their rights. Before the 2005 amendment, a married daughter was already a Class I heir under the unamended Section 8; marriage did not exclude her. After the amendment, marriage is irrelevant to coparcenary status. The only distinction is that Rekha's marriage in 2006 occurred after the amendment, but that does not change her position. Both daughters are entitled to inherit Hari's share. If the 2003 partition is valid, each gets 1.5 bighas; if it is invalid, each may get 3 bighas. The court should also consider Kamla's share; she is the widow and a Class I heir, and her support for the daughters does not prejudice her own right. The final decree should partition Hari's 6 bighas into four equal shares and determine the effect of Ramesh's 2015 sale on those shares.