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Daughter to have full parental property rights under the amended Hindu Succession Act, SC decrees



Holding that daughters cannot be stripped of their equality rights, the Supreme Court ruled on Tuesday that they will have equal rights to inherit traditional Hindu family property as sons, adding that the amended Hindu Succession Act which came into force in 2005 would have retrospective effect.

"A daughter is a caring daughter forever. A son is a son before he acquires a child. A daughter is a daughter throughout her life, "observed the top court in a major judgment thus upholding a daughter's rights even though the parent died before the Hindu Succession (Amendment) Act, 2005 was passed. A Bench of Justices Arun Mishra, S Nazeer and M R Shah said that the provisions found in substituted Section 6 of the Hindu Succession Act, 1956, confer on a daughter born before or after the amendment the status of coparcener in the same manner as a child with the same rights and obligations.

Justice Mishra added that daughters must have equal rights as a son, and that a daughter should remain a coparcener throughout her life, regardless of whether or not her father is alive. A daughter is a precious daughter for ever.


Coparcener is a term used only by birth for a person who claims a lawful right in parental land.


The decision made it clear that the 1956 amendment to the Hindu Succession Act, giving equitable rights to inherit inherited property to daughters would have retrospective effect.


The top court overruled its earlier 2015 ruling in which it initially held that the protections under the amendment extend as of September 9, 2005 to living daughters of living coparcenes, irrespective of when these daughters are born.


The decision on a series of appeals against the 2015 judgement came to the issue that the 1956 amendment to the Hindu Succession Act, giving equitable rights to inherit inherited property to daughters should have retrospective effect.


"The rights can be claimed by the daughter born earlier with effect from September 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 December 20, 2004. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005" it said.

The judgment further claimed that partitioning based on oral proof alone is not permissible under the provisions of the Act. A plea for oral partitioning is not a formal form of partitioning and should be recognised as bot, except in rare cases where a plea for oral partition is backed by public records and partitioning is ultimately presented in the same way as being influenced by a court order. This should be taken for granted.

“We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months,” said the Court.

The supreme court said the petitions on the matter were pending before various high courts and lower courts and the proceedings were already postponed due to legal imbroglio triggered by contradictory judgments.


"The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months," the bench said.

Solicitor General Tushar Mehta, speaking on behalf of Union of India, argued that daughters were given a coparcener's right to carry equality with sons, and the omission of daughters from the coparcenary was oppressive and resulting in the humiliation and deprivation 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 birth right," Mehta had said.



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