In a significant judgement, the Supreme Court on Tuesday ruled that a daughter has coparcener (equal) right to ancestral property by birth even if the father dies before the coming into existence of in the Hindu Succession (Amendment) Act in 2005.
The three-judge bench held that rights under the amendment are applicable to living daughters of living coparceners as on 9 September 2005, irrespective of when such daughters are born.
Pronouncing the judgement, Justice Arun Mishra says, "Daughters must be given equal rights as sons, daughter remains a loving daughter throughout life. The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not."
The bench of justice Mishra, justice Abdul Nazeer and justice MR Shah was hearing a batch of appeals that raised an important legal issue whether the Hindu Succession (Amendment) Act, 2005, which gave equal right to daughters in ancestral property, has a retrospective effect.
The Act was amended in 2005. However, post this, different courts interpreted section 6 of the Hindu Succession Act, 1956 as amended by the Hindu Succession (Amendment) Act of 2005.
In one case, the Delhi High Court followed a judgement in Pravash Vs Phulavati (2016 2 SCC36) and ruled that the amendments in 2005 do not benefit the plaintiff as her father had passed away in December 1999 or before the amendments.
The changes introduced by Section 6 of the Amendment Act states that both sons and daughters have equal rights and as such, they are both coparceners by birth irrespective of gender. The daughter of a coparcener has the same rights bestowed on the son of a coparcener and just as rights are equal, so also, the liabilities. The Mitakshara coparcenary's liabilities as is applicable to the son are also applicable to the daughter, as per the amendment.
As per a report from LiveLaw.in
, in the case of Prakash V. Phulavati (2015), the Supreme Court bench comprising justices Anil R Dave and AK Goel had held that the rights under the amendment are applicable to living daughters of living coparceners as on 9 September 2005, irrespective of when such daughters are born.
In this case, it was held that, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. This position was reiterated by the bench of justices RK Agrawal and AM Sapre in Mangammal vs. TB Raju (2018) case.
In the case of Danamma @ Suman Surpur vs. Amar (2018), the SC bench comprising Justices AK Sikri and Ashok Bhushan had held that the share of the father, who died in 2001, would also devolve upon his two daughters, who would be entitled to share in the property.
"The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized", the SC bench had observed in its judgment in the Danamma @ Suman Surpur vs. Amar case.
Commenting on the SC judgement, Rishabh Shroff, partner at Cyril Amarchand Mangaldas says, "This is a very progressive and much needed judgement. The intent and spirit of the 2005 amendment was always to equalise the rights of daughters and sons - so this judgement corrects the confusion that was caused by earlier judgements, which only made it prospective after a certain date."
"It will now make families and daughters think about their succession and ancestral rights deeply and either amend existing succession plans, or create new ones. It will be interesting to see if any old settlements created under the previous approach will be reopened or questioned now," he added.