Daughters have right over parental property even if father died prior to amended 2005 Act: SC


AUGUST 11, 2020

Daughters are entitled to equal property rights under the amended Hindu Succession Act, ruled the Supreme Court in a landmark judgement on Tuesday

Giving its verdict on the disputed question of law that is more than a decade old, a three-judge bench headed by Justice Arun Mishra held that daughters will have the right over parental property even if the coparcener had died prior to the coming into force of the Hindu Succession (Amendment) Act, 2005.

The term coparcener refers to the one who shares equally with others in inheritance of an undivided joint family property

This clarification is important since it sets aside a clutch of previous decisions by the top court that she would have the coparcenary right only if both the father and the daughter were alive as on September 9, 2005 when the amendment was notified.

The top court, in its order today, held that a daughter, living or dead, as on the date of the amendment, shall be entitled to a share in her father’s property. This means that even if the daughter was not alive on the date of the amendment, her children could claim their rightful portion.

“Once a daughter, always a daughter… a son is a son till he is married. The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not,” teh court observed.

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. It was a revolutionary step in the field of Indian legislation regarding rights of women in India.

Until 2005 only Hindu males could rightfully hold a share in family property.

Now daughters are entitled to a share in ancestral family property after their father’s death under section 6 of the Hindu Succession Act, 1956 (Act).

Prior to 2005 the Act did not apply to any law related to fragmentation of agricultural land, fixation of land ceilings and devolution of tenancy rights in agricultural land.

The 2005 Amendment repealed this provision in section 4(2) of the Act with the aim of encouraging women’s rights to agricultural land.

In 2008, the Supreme Court had ruled that the law has retrospective effect, and for the daughter to become a co-sharer with her male siblings, the father would have had to be alive on 9 September 2005. The Supreme Court also ruled that the amendment was applicable to all partition suits filed before 2005 and pending when the amendment was framed.

In 2018, the court had re-affirmed that a daughter “by birth become a coparcener in her own right in the same manner as the son.”

Following the recommendations of the Law Commission regarding reform of the Hindu Law on property rights of women, the then UPA government in December 2004 introduced a legislation in the Rajya Sabha to amend the Hindu Succession Act providing for equal rights to daughters with regard to ancestral property.

The Bill, introduced by then Law Minister HR Bhardwaj, proposed to remove the discrimination in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the “Hindu Mitakshara Coparcenary Property” as the sons have.

Courtesy/Source: The Statesman