All Hindu Daughters To Have Equal Right, Even If They Were Born Before Enactment Of Hindu Succession Act, Says SC

The Logical Indian Crew

February 5th, 2018 / 6:03 PM

Courtesy: LiveLaw, Bar and Bench Image Credit: Odhisa TV, UNDP

In a landmark decision, the Supreme Court said that the daughters who were born before the 2005 amendment of Hindu Succession Act, 1956 are entitled to equal shares as a son in ancestral property.

The Apex Court stated that the Hindu Succession Act which gives equal rights to daughters on the inherited property would be applied to all women including women born before this date. The decision shall open a Pandora box of sorts as millions of women are likely to take advantage of the new situation.

The judgment was rendered on the appeal filed by two daughters challenging a decree in a partition suit, which excluded them from the partition. The two daughters (appellants) were born to Gurulingappa Savadi, porosities of a Hindu Joint Family.

Apart from these two, Savadi had two sons, Arunkumar and Vijay. After his death, Amar, who is the son of Arunkumar filed a suit for partition of property. The case set up by him was that the appellants were not the coparceners in the said Joint Family as they were born before the enactment of Hindu Succession Act, 1956 (Act). It was also pleaded that they were married daughters and at the time of their marriage they had received gold and money and had, relinquished their share.

The two daughters went to court seeking their part in their father’s property. The trial court decreed the suit holding that the appellants were not entitled to any share as they were born before the enactment of the Act, and thus could not be considered coparceners. The court said that the appellants had acquired a share in the reported properties after the amendment in the Act vide amendment Act of 2005.

Subsequently, the High Court upheld the decree of the trial court. Confusion prevailed as a full Bench of Bombay High Court took the view that daughters born before the date the law was amended will not have any part in father’s property. However, the High Courts of Delhi, Karnataka and Orissa took a different view on this issue holding that daughter born before the amendment, but who are alive on the date when the amendment came into force, will be equally entitled as sons to the share in father’s property.

The two sisters then approached the apex court in 2007. Setting aside the High Court order, the Supreme Court said that the year of birth was not a criterion to decide whether a woman was covered under the amended law.

What the Supreme Court Ruled?

The Supreme Court held that the Courts erred in holding that daughter were entitled to partition because they were born before 1956. It was held that according to Section 6 of the Act, when a coparcener dies leaving behind any female relative specified in the Class I Schedule to the Act (which includes a daughter), his undivided interest in the Mitakshara coparcener property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession. Therefore the attention of the deceased coparcener would devolve by intestate succession on his heirs, which included his daughters.

The Court also held that the daughters were entitled to the benefit of 2005 amendment as well, and on that basis too they were entitled to shares. It was settled in Prakash vs Phulavati(2016) 2 SCC 36 rights under the amendment area available to daughters living on the date of the amendment, irrespective of when they were born.

A bench of Justices AK Sikri and Ashok Bhushan ruled, “The share in ancestral property could not be denied to a woman, on the ground that she was born before the law was passed, and the law was applicable in all property disputes filed before 2005 and pending when the law was framed. The amended provision (Section 6 of Hindu Succession Act) now statutorily recognises the rights of coparceners of daughters as well since birth. It is the very factum in a coparcenary that creates the coparcenary. Therefore the sons and daughters of a coparcener become coparceners by birth.”

The decision is significant in a manner that the 2005 amendment to the Hindu Succession Act did not provide for the retrospective operation of the law. The recent decision has made it a rule that a daughter (living or dead) on the date of the amendment will be entitled to share in father’s property, thus making her children too to claim this right.

What is the Hindu Succession Act?

Earlier, the property rights of sons and daughters were different under the Hindu Succession Act, 1956. While sons had a complete right to their father’s property, daughters enjoyed the right only until they got married, after which she was supposed to become part of her husband’s family.

However, on September 9, 2005, the Hindu Succession Act, 1956 was amended. According to Hindu Succession Amendment Act, 2005 every daughter, whether married or unmarried, was considered a member of her father’s House and could even be appointed as ‘Karta’ (who manages) of is House property. The amendment then granted daughters the same rights, duties, liabilities and disabilities that were earlier limited to sons.


Written by : Muskan Dhingra (Intern)

Edited by : Poorbita Bagchi

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