Karnataka High Court Holds Daughter Must Be Alive in 2005 for Coparcenary Right Under Section 6

The Karnataka High Court set aside a trial court order refusing to reject a partition suit. Justice Lalitha Kanneganti rejected the plaint because the plaintiffs claimed through a mother who had died before substituted Section 6 of the Hindu Succession Act, 1956 came into force.

Defendant Nos. 4 and 5 filed the civil revision against dismissal of their application under Order VII Rule 11 of the Civil Procedure Code. The plaintiffs had sought partition and separate possession of ancestral properties, and declarations that certain sale and release deeds would not bind them.

Senior Advocate Dhyan Chinnappa appeared for the petitioners, and Advocate H. Sunil Kumar for respondent-plaintiffs 2 to 5. The trial court had refused to reject the plaint, holding that entitlement needed evidence and the plea of limitation raised mixed questions of fact and law.

Before the High Court the question was whether children and grandchildren could claim a birth-based coparcenary share where the mother had not survived to the start of the amended provision. The bench said descendants could not claim partition through a statutory coparcenary right that never vested in their predecessor during her lifetime.

The Court traced the earlier divide between Prakash v. Phulavati of 2016, which had required survival of both father and daughter, and Danamma v. Amar of 2018, which had recognised daughters' rights even after the father's death. That divide was settled by the larger Bench in Vineeta Sharma v. Rakesh Sharma in 2020. It removed the condition about the father being alive because the right flowed from birth.

Justice Kanneganti held removal of one condition did not remove the other. Survival of the father and survival of the daughter were distinct requirements. Vineeta Sharma was quoted as saying: "In our opinion, the daughters should be living on 9-9-2005. In substituted Section 6, the expression 'daughter of a living coparcener' has not been used. Right is given under Section 6(1)(a) to the daughter by birth."

Birth did not make provision retrospective

The bench said: "The recognition of coparcenary status by birth does not mean the amendment operated retrospectively to vest a statutory right in a daughter who had died before its commencement. Birth is the foundation of the right, but the substituted Section 6 became operative as on 09.09.2005. The fact that the right is traced to birth cannot be understood as conferring a right under the amendment upon a person who was no longer alive when the provision came into force."

Daughters born before or after the change could claim by birth, but the declaration operated only from its start and a person no longer alive then could not take under it.

Allowing the revision, the Court held the plaintiffs had no legal right to seek partition if their mother was not alive when the amendment came into force.