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Home / India News / Hindu daughter has equal right in property, says SC

Hindu daughter has equal right in property, says SC

A three-judge bench headed by justice Arun Mishra ruled that the 2005 law, which amended the Hindu Succession Act, 1956, to say a daughter would have the same rights as the son, would also apply irrespective of whether she was born before or after the amendment.

india Updated: Aug 12, 2020 00:51 IST
Abraham Thomas
Abraham Thomas
Hindustan Times, New Delhi
Tuesday’s ruling makes the 2005 amendment retrospective.
Tuesday’s ruling makes the 2005 amendment retrospective. (Biplov Bhuyan/HT PHOTO)

The Supreme Court, on Tuesday, gave Hindu daughters their rightful due of their father’s property by extending the scope of a beneficial legislation introduced in 2005 to cases where the father was not alive on the date when the law was introduced.

A three-judge bench headed by justice Arun Mishra ruled that the 2005 law, which amended the Hindu Succession Act, 1956, to say a daughter would have the same rights as the son, would also apply irrespective of whether she was born before or after the amendment. Further, it ruled that she could not be denied her share on the ground that her father died before the law came into effect.

Tuesday’s ruling makes the 2005 amendment retrospective.

“The provisions contained in substituted section 6 of the Hindu Succession Act confer status of coparcener (equal shareholders while inheriting properties) on the daughter born before or after amendment in the same manner as son with same rights and liabilities. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005 (the date when the law came into force),” the bench, which also comprised justices S Abdul Nazeer and MR Shah, ruled.

To ensure that this decision does not lead to reopening of earlier family settlements or partition suits already decided on, the three-judge bench held that a registered settlement or partition suit decreed prior to December 20, 2004 (the date when the amendment Bill was tabled in Rajya Sabha), will not be reopened.

The bench said: “Daughters cannot be deprived of their right of equality conferred upon them by Section 6 of the Amendment Act.” The court fixed six months as an outer limit for courts where related suits are pending to pronounce the final decree.

The Hindu Succession (Amendment) Act of 2005 made daughters coparceners in Hindu undivided family by birth, giving them the same right as sons. Section 6(1)(a) in the Act said that coparcenary benefit will apply “on and from the commencement of the Amendment Act of 2005 with effect from September 9, 2005.” Many daughters approached high courts claiming benefit under this law but were denied on the ground that their fathers were not alive as on September 9, 2005. This interpretation became the law of the land in 2016 when the Supreme Court held in the Prakash v Phulwati case that father must be alive for daughters to claim succession rights.

Overruling this decision, a three-judge bench of the apex court on Tuesday said, “Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005.” It further made the law applicable to even daughters born prior to the commencement of the Act. By stating so, the Court upheld a 2018 ruling of the apex court in Danamma v Amar which extended benefit to a daughter whose father expired prior to 2005.

Speaking to HT, senior advocate R Venkatramani, who assisted the court as amicus curiae in this matter, said, “This judgment has put the law on a proper footing . But what happens in those cases where the son of the coparcener father has alienated or sold or transferred the rights in the property long time ago. He cannot be asked to pay to his sister the share in that property. To avoid chaos, there cannot be reopening of an old partition deed or settlement.”

The central government opposed the idea of giving retrospective operation to the 2005 law since a coparcener in Hindu family law has a right to seek partition. For this reason, the law fixed a cut-off date of December 20, 2004, to avoid reopening of any settlement or partition decree prior to this date.

The court accepted the December 20, 2004, date as cut-off but emphasised that if a daughter seeks partition or a share, the same cannot be denied on the basis of an oral family settlement but on a final decree of a court or a registered family settlement. If oral settlement is to be presented, the bench held, it has to be supported “ by public documents.”

Advocate Sridhar Potaraju, one of the lawyers who argued in this case said: “The judgment is a reassertion of the constitutional value of equality to women in personal law without any preconditions. The judgment factors all aspects.”

But there is a flip side too, he added. “Daughters as coparceners include married daughters. Coparcenary right is an undefined liability and any liability of father including family debt will be extended to daughters as well. It remains to be seen if the husband of the married daughter will be open to bear this burden.”

Prior to the 2005 Act, several states, including Andhra Pradesh, Tamil Nadu, Kerala, Karnataka, and Maharashtra, introduced state amendments in the Hindu Succession Act of 1956 extending equal rights to daughters in Hindu Mitakshara coparcenary property.

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