Daughter Property: Rights Under Hindu Succession Act

Property rights of a Hindu woman can be divided into two distinct time phases — before and after 2005. This guide will help you understand what the property rights of a Hindu daughter were before 2005 and after this year.

Background of the Case

In India after the Independence, the lawmakers introduced the Hindu Code Bill which would consolidate and codify the Hindu Personal Laws. After the lot protest around the country, the Hindu Code Bill became a law and 4 legislations were enacted i.e. The Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act.

The purpose of Hindu Succession Act was to dilute the Mitakshara Coparcenary; however, it failed to do so by including the concept of survivorship. In the year 2005, the Amendment Act was passed by which under Section 6 of the Hindu Succession Act, 1956 i.e. devolution of the interest in the coparcenary property, daughters were made coparceners. The date of enactment of the Act was 9th September 2005.

After the introduction of the Amendment Act a lot of issues and legal discrepancy started arising, to name the few, whether the status of coparcener conferred by the law will be effective from 9th September 2005 only? What kind of effect does this Amendment will have i.e. retrospective or prospective? Whether it applies to living daughter and living propositus only? In order to resolve these issues various cases has been filed before the Apex Court but the view was not clear until the present case.

The two important cases wherein the Apex Court had the different view; are as follows:

1) Prakash v. Phulavati (2016) 2 SCC 36

In this case, the Supreme Court of India held that the Amendment has the prospective effect and applies to living daughter and living coparcener. In other words, the Apex Court meant that at the date of Amendment both father and daughter must be alive.

2) Danamma@ Suman Surpur & Anr. V. Amar & Ors (2018) 3 SCC 343

In this case, the partition of the property was initiated in the year 2002 i.e. before the Amendment Act, the appellant was not granted the share by virtue of Prakash v. Phulvati’s judgment. However, the Court allowed the appellant’s petition and held that she is entitle to share in the property but at the same time it upheld the Prakash v. Phulvati’s judgment.

The decision of the Court in Danamma’s case again created confusion regarding the issues which were earlier put to rest by the Prakash v. Phulvati’s case. In order to finally decide the

issues regarding interpretation of Section 6 of the Hindu Succession Act, the present case was referred to the larger bench.

Bench

Justice Arun Mishra, Justice M. R. Shah and Justice S. Abdul Nazeer

Issues

1) Whether the effect of the Amendment Act, 2005 is prospective or retrospective?

2) Whether the coparceners should be living at the date of partition or not?

Held

The Hon’ble Court regarding the effect of the Amendment Act of 2005 held that it is retroactive and neither retrospective nor prospective. Secondly, the Court discredited its earlier ruling and held that it is not mandatory whether the coparcener should be living or not at the date of Amendment Act, the important finding is that the Amendment will apply to all the transactions from the date of Amendment irrespective of it being pending.

Analysis

In India, the concept of joint family is prevalent since ages. Joint Family system is basically the system of lineal descendants from the common ancestor, in other words male descendants, their wives and unmarried daughters. Coparcenary is a small unit of joint family system. The coparcenary is formed when there is male descendant i.e. “propositus” followed by immediate three male descendants i.e. sons, grandsons and great-grandson. This coparcenary system was governed by the Mitakshara School but it was diluted by Hindu Code Bill and further by the Amendment Act of 2005.

The Section 6 of the Hindu Succession Act, 1956 is regarding devolution of interest in coparcenary property. Prior to the Amendment Act of 2005, the devolution of the interest in the coparcenary property was according to survivorship and not succession. The doctrine of survivorship meant that when a person dies intestate his interest in the property would devolve upon the remaining male descendants of the family up to the three generation; daughters were not included as the coparceners. After the 2005 Amendment Act, the daughters were also conferred the status of coparcener and devolution of property started as per succession i.e. Class-I heirs, Class-II heirs, agnates and cognates. The battle of daughters to get an interest in father’s property didn’t end here, as lot of issues regarding effect of the Amendment Act arose, which eventually affected the transactions of the partition.

The Supreme Court of India finally put an end to all the legal issues regarding 15 year old Amendment Act in the year 2020. The Court laid down following points-

1) “The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

2) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

3) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

4) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female.”

In other words, the Courts held that the Amendment Act will have the retroactive effect; which means in the context of statue is the application of new rule of law to a transaction, which has been completed before the rule was promulgated. The daughters will be considered as coparceners from the birth irrespective of the fact they were born before or after the amendment date. Also, it is not important that father coparcener shall be living on 9th September 2005. Furthermore, the Act will also apply to the notional partition of the property before the amendment date but it will not apply to the any kind of transaction related to property completed before 20th December, 2004.

Finally, the Supreme Court of India laid to rest all the legal queries regarding 15 years old Amendment Act and conferred the status of equality upon the daughters in relation to the share in their father’s property.