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Daughters born before 2005 have right in their fathersí property, says Supreme Court

Every daughter will now be entitled for her share in her father’s property. In a landmark decision, the Supreme Court has held that the 2005 law that made daughters equal to sons in claiming right in father’s property will apply even to those girls born prior to this date. This will open a Pandora box of sorts as millions of women are likely to come forward to take advantage of the new situation.

This decision is significant since the 2005 amendment to the Hindu Succession Act did not provide for retrospective operation of the law. Although a judgment of the Supreme Court in Prakash vs Phulwati (2016) held the amendment to be retrospective as regards daughters who are living as on the date of amendment (September 9, 2005), the recent decision has made it a general rule that a daughter (living or dead) on the date of amendment will be entitled to share in father’s property, thus making her children too to claim this right.

A Bench of Justices AK Sikri and Ashok Bhushan ruled, “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 of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth.”

The case before the court came up in an appeal from Karnataka High Court which refused to recognise daughters born prior to the 2005 amendment as coparceners in father’s ancestral property. One Gurulingappa Savadi died and left behind his two sons, two daughters and a widow.

The sons and daughters got married. In the year 2001, Savadi died. A year later, his grandson filed a suit to partition the family property equally among his grandmother, his father and uncle, leaving out his two aunts.

The aunts went to court seeking their share in father’s property. The trial court decision came on August 9, 2007, almost two years after the amendment was introduced by Parliament to Section 6 of the Hindu Succession Act 1958. The apex court said that the change introduced by Parliament was made on the touchstone of equality, seeking to remove the “perceived disability and prejudice” to which a daughter was subjected.

Confusion prevailed on this subject in the past as a Full Bench of Bombay High Court took the view that daughters born prior to 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 daughters born prior to the amendment, but who are alive on the date when amendment came into force, will be equally entitled as sons to the share in father’s property. 

 

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