Law Giving Daughters Equal Right In Paternal Property Retrospective, Says Supreme Court

The Supreme Court ruled that the 2005 law granting daughters an equal right in paternal property will be applicable retrospectively.

The judgment settles the issue of whether a daughter is entitled to property rights only if the father was alive on Sept. 9, 2005, the day amendment to the Hindu Succession Act, 1956 became a law. Two earlier judgments had given conflicting rulings on the matter.

The central government had taken the view that the father being dead or alive on the date of the amendment doesn't have any impact on the rights of the daughter.

"The daughter of a coparcener in Section 6 does not imply the daughter of a living coparcener or father, as the death of the coparcener/father does not automatically lead to the end of coparcenary, which may continue with other coparceners alive,’’ Solicitor General Tushar Mehta argued during the hearing. "The coparcener, from whom the daughter is inheriting by her being coparcener, need not to be alive as on the commencement of the amendment act of 2005.’’

Coparcener is a legal term used to define those who have a hereditary right in a property and can demand partition. The test of copacenery is whether the individual has the right to demand partition. In Hindu law, such right can be accrued by either birth or adoption.

The position that benefits of the 2005 amendments will go to the daughter only if the father was alive would have decried many daughters of their entitlement under the new law, Senior Advocate Indira Jaising said in an emailed response to BloombergQuint. "To that extent, the judgment displays a rare sensitivity to the rights of women and in particular daughters.’’

Calling it "undoubtedly a great advance for gender justice", Jaising said, ‘’The judgement puts to rest a long-standing controversy in many states that had made amendment. It also overrules an earlier judgment of the Supreme Court itself which had held that the new law would apply only to those cases where the father was alive in 2005, an illogical position given how coparcenery rights are crafted."

Rishabh Shroff, partner at Cyril Amarchand Mangaldas, said, "The intent and spirit of the 2005 amendment was always to equalise the rights of daughters and sons. So this judgment corrects the confusion that was caused by earlier judgments which only made it prospective after a certain date."

In 2005, the Parliament had amended Section 6 of the Hindu Succession Act and granted equal rights to daughters on their father’s property. The amendment recognised daughters as having same rights in the coparcenary property as a son.

The amendment did not affect any disposition or alienation (including partition) of the property that had taken place before the amendment bill was moved in the Rajya Sabha on Dec. 20, 2004.

Two separate division benches of the Supreme Court, however, interpreted the amended Section differently.

In Prakash Vs. Phulavati, the top court held that Section 6 is not retrospective and it applies when both coparcener (father in this case) and his daughter were alive on the date when the amendment became a law.

In Danamma Vs. Amar, the court held that the amended provisions of Section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. In this case, the father had died four years before the amendment had come into effect.

The issue was then referred to a three-judge bench headed by Justice Arun Mishra. It held:

• The amendment confers status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.
• Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on Sept. 9, 2005.
• A plea of oral partition cannot be accepted when determining whether there has been a disposition or alienation of the property. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected out rightly.