New Delhi: Deciding the case of a brother and sister who were battling it out in court for their father’s property, the Madras High Court has ruled that daughters are entitled to half of the ancestral property under the Hindu Succession Act (HSA) of 1956, amended in 2005.
By way of a 29-page ruling passed last month, the bench of Justice R. Sakthivel dismissed the brother’s argument that his sister could not claim her share in the family property, or ancestral property, because their father had passed away by the time the 2005 amendment was done.
Essentially, Section 6 of the HSA in 2005 made daughters co-parceners or joint property owners at birth, meaning they were granted the same rights and liabilities as sons in joint family property.
The court passed the ruling while acting on a plea filed by a woman called Sellammal, who was embroiled in litigation with her brother, Palanisamy, after their parents had passed away. While their father, Muthusamy Gounder, passed away intestate or without making a will in 1968, the mother also passed away intestate in 2012.
After their mother’s death, the brother of the petitioner sold off the disputed land to a third party, while saying that his sister had been ousted long ago, in 1962, when she had married against her parent’s wishes. He also told the court that she had not even attended her parent’s funeral.
The high court, however, noted that with the objective of “defrauding” the petitioner, the brother had executed a sale deed in favour of a third party, selling off the said property for a sum of Rs 8.5 lakh. This sale deed was executed without the sister’s consent, who was the lawful heir of half the property.
After knowing about the sale, the petitioner tried to attempt partition of the property, so that she could at least take half of her share, while the other half remained with the new buyer, but the brother did not agree to this.
This is what led the petitioner to send a legal notice to her brother in December 2012, to which he didn’t respond and the matter ultimately reached the high court.
Also Read: Bhagavad Gita is moral science, not a religious text, rules Madras High Court in FCRA case
Trial court upheld brother’s claim
The litigation began in a Namakkal court in 2013, which in 2017 upheld the brother’s claim, saying that although the property in question was ancestral, the father should have been alive on 9 September, 2005, when the amended HSA came into effect, for the daughter to enforce her coparcenary right.
In 2016, the Supreme Court had ruled that daughters cannot claim coparcenary rights if their father had died before September 2005, when the amendment was enacted. Then, in February 2018, another top court ruling asserted that daughters’ rights to family property were a birthright, regardless of when their father died. The latter position is what prevailed in this case too.
Despite the change in the HSA, women have often questioned what difference it makes if their father is dead or alive when it comes to their rightful share in family property–which they are entitled to under the 2005 amendment. This situation is further complicated by the fact that there have been conflicting rulings on the subject.
In the present case, the high court dismissed the 2017 ruling of the trial court and rejected as “erroneous” the view that the father should be alive on 9 September, 2005, for the daughter to be able to enforce her coparcenary right.
High court view
In the present case, the brother had claimed that decades ago, when their father was alive, the ancestral family property was partially sold in order to meet agricultural expenses as agriculture was their main source of income. The brother thus claimed that the present property in question was bought after selling off the main agricultural property so it could not be termed as “ancestral property” which his sister would have claim to.
The high court, however, agreed that it was ancestral property. The court also rejected the brother’s claim that his sister had been ousted from claiming the family property due to her strained relationship with their parents. In doing so, it went on to define the concept of ousting and said: “An ouster is the wrongful dispossession or exclusion from real property of a party entitled to the possession thereof.”
According to Black’s Law Dictionary, ousting happens when the wrong-doer gains actual occupation of the land and compels the rightful owner to seek his legal remedy in order to gain possession, the court noted.
Relying on the 1995 Vidya Devi case, the court culled out three main ingredients for establishing the plea of the sister as being ousted.
“Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owners,” the court said, adding that the brother had failed to successfully establish the case for his sister’s ouster.
Finally, the court upheld the daughter’s claim while pointing to Supreme Court judgements like the one in the 2020 Vineeta Sharma case, which dealt with the interpretation of the amended Section 6 of the HSA, and said “the plaintiff (daughter) is a co-parcener by and from birth, but the enforcement of her coparcenary rights are with effect from 9 September, 2005”.
Since the present case was filed in 2013, the high court reiterated the position in the Vineeta Sharma ruling and said the SC had earlier clearly held that the father need not be alive as on September 9, 2005, for the enforcement of the daughter’s coparcenary rights.
(Edited by Nida Fatima Siddiqui)
Also Read: Why does Tamil Nadu have Adi Dravidar welfare dept instead of SC welfare dept? Debate reaches HC