(2020) 10 AUGUST SC

(Case Comment)


The latest decision of the Supreme Court on the right of Hindu daughters to ancestral property corrects an obvious anomaly in the interpretation of a crucial 2005 amendment to the Hindu Succession Act, 1956. The verdict settles the question whether the coparcenary right of daughters comes into effect only if the father through whom they claim that right was alive on the day the amendment came into force. The apex court has now categorically ruled that the daughters’ right flows from their birth and not by any other factor such as the existence of their fathers. In other words, it has rejected the common misinterpretation that only daughters of coparceners who were alive on that day could get an equal share in property. The court has rightly recognised that the amendment conferred equal status as a coparcener on daughters in Hindu families governed by Mitakshara law, and this right accrued by birth. The change came into effect from September 9, 2005, but with a provision that partitions or testamentary disposition that had taken place prior to December 20, 2004 the date on which the amendment Bill was introduced in the Rajya Sabha will remain valid and unaffected by the change. This led to the interpretation that the daughters’ coparcenary rights, being prospective, would not come into effect unless both the coparcener father and his daughter were alive on September 9, 2005. This position was crystallised in a 2015 judgment of the Supreme Court in Prakash and Others vs. Phulavati. This judgment now stands overruled.
The court’s reasoning is unexceptionable. First, it locates the origin of the coparcenary right in one’s birth. Second, it finds that there is no necessity for a predecessor coparcener to be alive for one to acquire that status, as what is relevant is birth within the degrees of succession to which it extends. In that sense, the legislation, even though it comes into effect on a prescribed date, is retroactive in its application as it is linked to birth, an antecedent event. It also underscores that the legislation makes it clear that the daughter’s rights are the same “as that of a son,” and “as if she had been a son at the time of birth”. The coparcenary status given to daughters has been a subject of reform in many States, particularly in south India, long before the UPA regime brought in the amendment for the whole country. Kerala had introduced legislation in 1975, Andhra Pradesh in 1986, Tamil Nadu in 1989 and Maharashtra and Karnataka in 1994. The legislative aim was that a flagrant discrimination between sons and daughters in entitlement to an equal share in coparcenary property, that is property inherited from one’s father, grandfather or great-grandfather, should be done away with. It is indeed welcome that the apex court has sought to give full effect to this intent by setting at rest doubts arising from varying interpretations.
Substitution of new section for section 6.- For section 6 of the principal Act, the following section shall be substituted, namely:-‘ 6. Devolution of interest in coparcenary property.- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 , in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall:-
By birth become a coparcener in her own right in the same manner as the son.
Have the same rights in the coparcenary property as she would have had if she had been a son.
Be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 .

Facts of the Case:
The facts of the case is By the expression used in the amended section 6, the daughter becomes coparcener by birth. The retrospective effect is not intended to be given to the provisions of section 6. Though equality has been brought in, w.e.f. 2005, the incidence of birth of a daughter before 2005 is of no consequence and not to reopen the past transactions.
The oral partition and family settlement are not intended to be reopened by section 6(1) and 6(5). If the daughter is treated as coparcener at any point of time in the past before the amendment, the same will bring in enormous uncertainty in the working of the law. It can be stated that the Parliament has not intended to scramble the unscrambled egg or to resurrect the past. Challenges to partition had always come when any member of a coparcenary, including an adopted son, stood deprived of the entitlement to succeed to the joint family property. The scheme of section 6 is future and forwardlooking, and it has to be interpreted in such a manner that its relevance is not diluted. Now the rights of a coparcener have been enlarged, and the provision has disabled it from defeating the right of a daughter from being treated equally. The legislative history of section 6 throws light in understanding the provision before the Act of 1956 was enacted. Women were not having any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Hindu Succession Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, the women did not become a coparcener, but they could inherit the property.

Issues Raised:

Whether daughters to have equal property rights even if they are born prior to Hindu Succession (Amendment) Act, 2005 or not?

Case Judgement:
(i) The daughters have been given the right of a coparcener, to bring equality with sons, and the exclusion of daughter from coparcenary was discriminatory and led to oppression and negation of fundamental rights. The Amendment Act, 2005, is not retrospective but retroactive in operation since it enables the daughters to exercise their coparcenary rights on the commencement of the Amendment Act. Even though the right of a coparcener accrued to the daughter by birth, coparcenary is a birthright.
(ii) The conferment of coparcenary status on daughters would not affect any partition that may have occurred before 20.12.2004 when the Bill was tabled before Rajya Sabha as contained in the proviso to section 6(1). Hence, the conferment of right on the daughter did not disturb the rights which got crystallised by partition before 20.12.2004.
(iii) Unamended Section 6 provided that if a male coparcener had left behind on death a female relative specified in Class I of the Schedule or male relative claiming through such female relative, the daughter was entitled to limited share in the coparcenary interest of her father not share as a coparcener in her rights. They were unable to inherit the ancestral property like sons/male counterparts. The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender but was oppressive and negated the fundamental right of equality guaranteed by the Constitution of India.
(iv) With effect from 9.9.2005, the date of enforcement of Amendment Act, the daughters became coparceners by birth, in their own right with the same liability in the coparcenary property as if she had been a son.
(v) The Explanation contained under Section 6(1) concerning conferral of rights as coparcener, daughter as coparcener, shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20.12.2004.
(vi) After substitution of the provisions of section 6, the devolution of coparcenary by survivorship has been abrogated. Now in case of death of coparcener, male/female, the coparcenary interest would not devolve by survivorship but by intestate succession under the provisions of the Hindu Succession Act or based on testamentary succession.


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Manish Tiwari


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