Family Law Case: Sukum Thapa v. Pitamber Thapa, NKP 2076 B.S., Vol.61, D.No.10346
Case: Writ of Certiorari and Mandamus
Petitioners: Sukum Thapa et al.
Respondents: Pitambar Thapa et al.
Decision Number: 10346
This case is related to equal inheritance rights of married daughters, partition of ancestral property, the effect of a will (Shesh Pachhiko Bakaspatra) over undivided joint family property, and gender equality under the Constitution of Nepal.
Facts of the Case:
The dispute arose within the Thapa family over the partition of their ancestral property. Pitambar Thapa was the son of Nandamaya Thapa. He had several wives, including Chitrakumari Thapa (his first wife), Sukum Thapa (his second wife), and Raksha Thapa (his later wife). Manisha Thapa and Nisha Thapa were Pitambar Thapa’s daughters.
In 2052 B.S., Chitrakumari Thapa and Sukum Thapa filed a partition case after they were forced to leave the family home. On 2065/01/25, the Supreme Court decided that they and their daughters, Manisha and Nisha, were legally entitled to receive a share in the ancestral property.
When the family property was later being divided according to that judgment, a new dispute arose. Pitambar Thapa claimed that his mother, Nandamaya Thapa, had given her share of the property only to him through a Shesh Pachhiko Bakaspatra (will) dated 2068/06/26. Later, Raksha Thapa produced another, much earlier will dated 2053/05/31, claiming that the same property had actually been gifted to her by the same woman, who was referred to as Rankumari Thapa. However Rankumari and Nandamaya was not same person, they both are separate person. Raksha Thapa has produced the will with illicit/bad intention.
At the same time, Pitambar Thapa argued that his daughters, Manisha Thapa and Nisha Thapa, should not receive any share because they had already married in 2070 B.S. As the family disagreed over who was entitled to Nandamaya’s share of the property and whether married daughters could still inherit ancestral property, the petitioners challenged the matter before the Supreme Court through the present writ petition.
Legal Issues:
- Whether property received through a Shesh Pachhiko Bakaspatra before partition is subject to partition among all coparceners.
- Whether married daughters can be denied their share in ancestral property on the basis of marriage.
- Whether the High Court’s order recognizing Raksha Thapa’s claim under the earlier will was legally valid.
- Whether the High Court’s order violated the constitutional right to equality and equal inheritance.
Decision of the Courts:
Rupandehi District Court:
The District Court refused to recognize the will allegedly executed by Runkumari (claimed to be Nandamaya) in favour of Raksha Thapa and held that Nandamaya’s share should not be transferred exclusively to Raksha. It directed that the property be partitioned according to the Supreme Court’s earlier partition judgment.
High Court Tulsipur, Butwal Bench:
The High Court reversed the District Court’s order. It held that the earlier registered will in favour of Raksha Thapa was valid and excluded the married daughters, Manisha Thapa and Nisha Thapa, from the list of coparceners, directing the partition to proceed accordingly.
Supreme Court:
The Supreme Court set aside the High Court’s order. It held that property received by a coparcener through a will while the family remained joint must be shared among all coparceners, and that married daughters cannot be excluded from inheritance merely because of their marriage. Accordingly, it ordered that Nandamaya’s share be included in the joint family property and partitioned equally among all coparceners.
Principle Established:
Property received by a coparcener through a will while the family remains joint continues to be part of the joint family property and must be shared among all coparceners. The case also established that married daughters cannot be excluded from ancestral property merely because of their marital status, as they enjoy equal inheritance rights under the Constitution and the law.
Relevancy of the Case:
This case is a landmark precedent in Nepalese family and inheritance law. It clarifies that property received through a will by a coparcener while the family remains joint must be shared among all coparceners and that married daughters cannot be denied inheritance solely because of their marital status. It also reinforces the constitutional guarantee of equal inheritance rights and prohibits gender-based discrimination in ancestral property.
