Hindu Succession Act, 2005 to Apply Retrospectively: Apex Court Rules in favour of Equal Rights for Sons & Daughters

Recently, the Supreme Court extended a Hindu woman’s right as joint legal heir; they can inherit ancestral property on terms equal to male heirs under the Hindu Succession Act.

The bench consisting of Justices Arun Mishra, S. Abdul Nazeer and MR Shah was hearing many appeals that questioned whether there is a retrospective effect to 2005 amendment to Section 6 of the Hindu Succession Act of 1956; which gave daughters equal rights in family property.

The Ruling

A Hindu woman’s right as a joint heir to the ancestral property occurs from birth and does not depend on whether her father was alive or not in 2005. The Hindu Succession (Amendment) Act, 2005 gave Hindu women the right to be coparceners or joint legal heirs in the same way a male heir does.

Also, the bench held that “rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005, irrespective of when such daughters are born”.

The 2005 Amendment to the Hindu Succession Act

There are two main schools of Hindu law, i.e., Mitakshara and Dayabhaga. Mitakshara law applies to most parts of India except Bengal. The Mitakshara law codified as the Hindu Succession Act, 1956 governed succession and inheritance of property but only recognised males as legal heirs. The law applies to ancestral property and to intestate succession in personal property; where succession happens as per law and not through a will.

The law applies to everyone who is not a Muslim, Christian, Parsi or Jew by religion.

A Hindu Undivided Family consists of several legal heirs through generations. Earlier, law considered only male descendants of a common ancestor; along with their mothers, wives and unmarried daughters a joint Hindu family. The legal heirs hold the family property jointly. From 2005, the law recognized women as coparceners or joint legal heirs for partition. The Amendment to Section 6 of the Act considers daughters as coparceners from birth; in their own right in the same manner as sons. Further, it gave the daughter the same rights and liabilities.

The 174th Law Commission Report also recommended this reform in Hindu succession law.

Precedents on the Hindu Succession Act

As the 2005 law granted equal rights to women, it raised questions in multiple cases on whether the law applied retrospectively, and if the rights of women depended on the living status of the father through whom they would inherit. Different benches of the Supreme Court had taken conflicting views on the issue. Different High Courts had also followed different views of the top court as binding precedents.

In Prakash v Phulwati (2015), a two-judge Bench headed by Justice A K Goel held that only “living daughters of living coparceners” could take benefit of the 2005 amendment as on September 9, 2005 (the date when the amendment came into force).

However, in the case of Danamma @ Suman Surpur vs. Amar (2018), the bench comprising Justices A K  Sikri and Ashok Bhushan held that the share of the father who died in 2001 would also devolve upon his two daughters; entitled to share in the property.

These conflicting views of Benches of equal strength led to a reference to a three-judge Bench in the current case. The current ruling now overrules the verdicts from 2015 and April 2018. It expands on the intention of the 2005 legislation; “to remove the discrimination as contained 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”.

The Decision by the Court

The court referred to the rights under the Mitakshara coparcenary. As Section 6 creates an “unobstructed heritage” or a right created by birth for the daughter of the coparcener; the law cannot limit this right to whether the coparcener is alive or dead when the right comes into operation.

“The conferral of a right is since birth, and the rights are given in the same manner with incidents of coparcenary; as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005; the provisions are of retroactive application, they confer benefits based on the antecedent event and the Mitakshara coparcenary shall be deemed to include a reference to a daughter as a coparcener,” the bench said in its judgement.

“Once a daughter always a daughter…son is a son till he is married”

remarked Justice Arun Kumar Mishra, heading the three-judge bench.

“The daughter shall remain a coparcener [one who shares equally with others in inheritance of an undivided joint family property] throughout life, irrespective of whether her father is alive or not. Daughters must be given equal rights as sons; daughter remains a loving daughter throughout life,” Justice Mishra pronounced.

Moreover, the Apex court directed High Courts to dispose of cases involving this issue within six months as they are pending for years.

Solicitor General Tushar Mehta also argued in favour of equal rights for women. He referred to the objects and reasons of the 2005 amendment. “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,” he asserted.

Ishan Harlalka
Ishan Harlalkahttp://lexinsider.com
I am a 3rd year law aspirant pursuing BA LLB. I am deeply interested in learning and am always looking forward to gain knowledge about new subjects. In my leisure time, I try to read books of various genres and by different authors. As people from non-law background may find it difficult to understand legal provisions and jargons, I try to write in a way that my articles are easy to comprehend and after reading them, one can discuss them with others.


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