In a landmark judgement pronounced on 11.08.2020, the Hon’ble Supreme Court of India held that daughters would have equal coparcenery rights in Hindu Undivided Family properties even if they were born before the 2005 amendment to the Hindu Succession Act, 1956 and regardless of whether their father coparcener had died before the said amendment.
Therefore, in effect, the Hon’ble Supreme Court held that the 2005 amendment to the Hindu Succession Act, 1956 (referred to as “Act” hereinafter) would have retroactive effect in conferring rights on daughters who were alive at the time of the amendment, even if they were born prior to it.
Under the 2005 amendment to the Hindu Succession Act, 1956, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son.
The judgement was pronounced in respect of appeals raising the issue of whether the 2005 amendment to the Act granting equal rights to daughters to inherit ancestral property would have retrospective effect.
Arguing on behalf of Union of India, Tushar Mishra, and Solicitor General of India submitted that the exclusion of daughters from coparcenery was discriminatory and negated their fundamental rights. He further argued that the Mitakshara coparcenery law not only contributed to discrimination on the ground of gender but was oppressive and violated the fundamental right of equality guaranteed by the Constitution of India.
The Solicitor General further added that the daughter of a coparcener under Section 6 of the Hindu Succession Act 1956 does not imply daughter of a living coparcener or father, as the death of the coparcener/ father does not automatically lead to the end of coparcenery, which may continue with other coparceners alive. Therefore, the coparcener from whom the daughter is inheriting need not be alive as on the commencement of the Amendment of 2005.
On the other hand, R. Venkataramani, learned senior counsel/amicus curiae submitted that the daughter is treated as a coparcener under the amendment Act and not because of the daughter’s birth prior to the amendment. Referring to the case of Bireswar Mookerji & Ors. Vs Shib Chunder Roy, 19 IA 101, the Senior Counsel added that the adoption at the relevant time was only of male and not of a female with respect to the custom related to succession to the property.
Recognizing the importance of conferring equal rights on daughters and sons, the three judge bench comprising of Justices Arun Mishra, S Abdul Nazeer and M.R. Shah stressed on the fact that the coparcenery rights were acquired by a daughter at birth regardless of whether the daughter was born before or after the amendment to the Act was effected. Also, by virtue of acquiring the said right at birth, it was not necessary for the father coparcener to have been alive at the time of the 2005 amendment.
Therefore, the following was held by the Hon’ble Apex Court:
- 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.
- 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.
- Since the right in coparcenery is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
The Court further held that the statutory fiction of partition that was created in the proviso to Section 6 of the pre-amendment Act was only for the purpose ascertaining the share of the deceased coparcener.
As regards oral partition of property, the Apex Court said that the plea for oral partition cannot be accepted as a statutorily recognised mode of partition given effect to by a duly registered document.
“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.
