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August 11, 2020

Daughters to have Equal Property Rights even if they are born prior to Hindu Succession Act, 2005 says SC

by Rubina Dsouza in Legal Court Judgement

Daughters to have Equal Property Rights even if they are born prior to Hindu Succession (Amendment) Act, 2005 says SC


The Supreme Court on 11th August, 2020 said that a daughter is entitled to equal property rights under the amended Hindu Succession Act. A woman can claim equal share in family property as a daughter, the Supreme Court reiterated today as it stressed that the Hindu Succession Act, that was amended in 2005 to give women equal inheritance rights has a retrospective effect.

What was the Hindu Succession (Amendment) Act, 2005?

The Hindu Succession (Amendment) Act, 2005, an amendment to the Hindu Succession Act, 1956, received the assent from President of India on 5 September 2005 and was given effect from 9 September 2005. It was essentially meant for removing gender discriminatory provisions regarding property rights in the Hindu Succession Act, 1956.

The daughter could now have the same rights in the coparcenary property (ancestral property of the Hindu undivided family) as a son. This amendment also repealed Section 23 of the Hindu Succession Act which disentitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares.

Section 24 of the Act which denied rights of a widow to inherit her husband’s property upon her re-marriage were repealed. This Act has brought about a central amendment which was applicable to all the state governments.

What do you mean by a co-parcener?

The word coparcener has been used very widely in relation to the Hindu law and the HUF. In relation to HUF property, a coparcener is a person who acquires a right in the ancestral property by birth and a person who has a right to demand partition in the HUF property.

Prior to the amendments made by the Hindu Succession (Amendment) Act,2005, only male members of a family had a right to the Ancestral property by birth and they were only entitled to demand partition in the HUF Property and thus only male members were called coparceners.

Was the Hindu Succession (Amendment) Act Retrospective in nature?

In 2005, the amendment did not provide a retrospective operation. The amendment stated that sons and daughters of a coparcener become coparceners by virtue of birth. 

A three judge bench that pronounced a judgment on 11th August, 2020 in a batch of appeals that raised an important legal issue of the Hindu Succession (Amendment).

The apex court in its ruling added that daughters will have the right over parental property even if the co-parcener had died prior to the coming into force of the Hindu Succession (Amendment) Act, 2005, thus making the Act retrospective in nature.

The three-judge bench, said, “Once a daughter, always a daughter… a son is a son till he is married. The daughter shall remain a coparcener (one who shares equally with others in inheritance of an undivided joint family property) throughout life, irrespective of whether her father is alive or not.”

In 2018, the Supreme Court has re-affirmed that a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son.

The Supreme Court held that daughters would have equal coparcenery rights in Hindu Undivided Family (HUF) properties even if they were not alive at the time of the 2005 amendment to the Hindu Succession Act, 1956 – (Vineeta Sharma v. Rakesh Sharma).

History of contradictory judgements

In 2018, in a landmark judgment, the Supreme Court held that the 2005 law that made the daughters equal to the sons in claiming right in their father’s property will have retrospective effect in case of daughters born prior to the law coming into force on September 9, 2005.

The 2005 amendment to the Hindu Succession Act did not provide its retrospective operation. A Bench of Justices A K Sikri and Ashok Bhushan ruled that “sons and daughters of a coparcener become coparceners by virtue of birth” and as such the amendment gives all Hindu women, irrespective of birth date, share in father’s property.

The case relates to one Gurulingappa Savadi, who died in 2001, leaving behind his two sons, two daughters and a widow. A year later, his grandson filed a suit for partition of the family property, leaving out his two aunts, i.e. daughters of late Savadi.

The aunts went to court seeking their share in father’s property. The trial court’s decision came on August 9, 2007, almost two years after the Hindu Succession Act, 1958, was amended.

However, confusion prevailed on this subject as in the past, a full Bench of the Bombay High Court held that the daughters born prior to the date when the law was amended will not have any part in their father’s property. The High Courts of Delhi, Orissa and Karnataka took a different view, holding that daughter born prior to the amendment but who are alive on the date when the amendment came into force will be equally entitled as sons to the share in father’s property.

In Prakash v. Phulavati, the Supreme Court had held that “the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born.” In other words, if the coparcener (father) had passed away prior to September 9, 2005 (date on which the amendment came into effect), the living daughter of the coparcener would have no right to coparcenary property.

In Danamma v. Amar, the Supreme Court had held that the 2005 amendment confers upon the daughter the status of a coparcener in her own right in the same manner as the son. Thus, it confers equal rights and liabilities in the coparcener properties to daughters and sons.

Keeping all confusions at bay, today, the Court held that the appellant would have had coparcenery rights in the property even though her father had passed before the enactment of the amendment.

The court today said a woman will have an equal share in undivided family property regardless of whether her father was alive when the law was amended in 2005 or not, stressing that the law has a retrospective effect. Basically, the Court ruled that the 2005 amendment would have retrospective effect in conferring rights on daughters who were alive at the time of the amendment, even if they were born prior to it.

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