The Hindu Succession Act, 1956, governs the succession and inheritance laws for Hindus, along with Buddhists, Jains and Sikhs. The Act makes no distinction between movable and immovable property. It only applies to intestate succession (where there is no will) who converts to Hinduism. It has no application in case of testamentary succession (where there is a will).
Section 6 of the Hindu Succession Act, 1956, was amended in 2005 to end discrimination against women. As a result of this amendment, a daughter has an equal right to ancestral property as a son and her share in it accrues by birth. Before 2005, only sons had a share in such property. So, a father cannot will such property to anyone he wants to, or deprive a daughter of her share in it. If the father dies intestate, all legal heirs have an equal right to the property. Class I heirs have the first right and these include the widow, daughters and sons, among others.
In a Landmark Judgment, the Supreme Court has held that a daughter will have a share after Hindu Succession (Amendment) Act, 2005, irrespective of whether she or her father was alive or not at the time of the amendment.
Justice Arun Mishra today pronounced the judgment in a batch of appeals that raised an important legal issue whether the Hindu Succession (Amendment) Act, 2005, which gave equal right to daughters in ancestral property, has a retrospective effect?
“Daughters must be given equal rights as sons, Daughter remains a loving daughter throughout life. The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not”
Justice Arun Mishra
The bench also comprising of Justices S. Abdul Nazeer and MR Shah, overruled the contrary observations made in Prakash v. Phulavati and Mangammal v. T.B. Raju.
Background
Section 6 provides that, on and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall,
(a) by birth become a coparcener in her own right the same manner as the son
(b) have the same rights in the coparcenery property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.
The proviso to Section 6 clarifies that it shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
In Prakash v. Phulavati the Supreme Court bench comprising Justices Anil R. Dave and A.K. Goel had held that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005, irrespective of when such daughters are born. It was held that, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. This position was reiterated by the bench of Justices R.K. Agrawal and A.M. Sapre in Mangammal v. T.B. Raju.
In Danamma v. Amar, the Supreme Court had held that the 2005 amendment confers upon the daughter the status of a coparcener in her own right in the same manner as the son. Thus, it confers equal rights and liabilities in the coparcener properties to daughters and sons.
In November 2018, a three-Judge Bench headed by Justice AK Sikri had noted that the matter needed to be heard by a three-Judge Bench.
Today, the Court held that the appellant would have had coparcenery rights in the property even though her father had passed before the enactment of the amendment.
