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[Judgment Summary] Rights Of Daughters in ancestral property

Vineeta Sharma .v. Rakesh Sharma & Ors Civil Appeal No.  Diary No.32601 of 2018 


Recently, the Supreme Court has passed a Judgment regarding the retrospective effect of coparcenary rights of Hindu Daughters, specified in Section 6 of the Hindu Succession Act, 2005.

Section 6 of the Hindu Succession Act was contested with the issue of whether a Daughter will have a share of the property, under this Act, irrespective of the fact whether the father was alive at the time of the amendment of the Act. The Hon'ble Arun Mishra .J. had pronounced that the daughters would have equal rights as the same that of a son, and irrespective of father's death, a daughter would remain coparcener throughout the life.



There always arouses a conflict of opinion regarding the interpretation of Section 6. In the cases Prakash.v. Phulavati, and Suman Surpur .v. Aman, this conflict of opinion had arisen and the High Court of Delhi had held in Prakash's case that amendment of 2005 would not benefit the plaintiff as her father had passed away before the amendment came into force.


Section 6 of the Hindu Succession (Amendment) Act 2005 states that on and from the commencement of The Hindu Succession (Amendment) Act, 2005, a daughter of a coparcener shall:

a) By birth becomes a coparcener in he own right the same manner as the son,

b) have the same rights in the coparcenary property as that of a son,

c) be subject to the same liabilities in respect of the said coparcenary property as that of a son.

Further, 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.


The Supreme Court in Prakash's case has held that the rights specified in the amendment are applicable for the living daughters of the living coparcener as on Sept 9, 2005, irrespective of the daughter's time of birth. It was also held that there is neither any express provision for giving the retrospective effect to the amended provision nor necessary intendment to that effect. This position taken by the court was further reiterated in Mangammal .v. T.B. Raju.


In Vineeta Sharma .v. Rakesh Sharma & Ors, The Supreme Court has overruled the views to the contrary expressed in Prakash .v. Phulavati and Mangammal .v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is

contrary to this decision. The Court made it clear that the rights can be claimed by the daughter with effect from Sept 9, 2005, with savings as provided in Section 6(1) as to the disposition, alienation, partition, or testamentary disposition which had taken place before 20th December 2004. It was also said that since the right of coparcenary by birth, father coparcener doesn't need to be living as on September 9, 2005. It was held that the daughter cannot be deprived of the right to equality conferred upon them by Section 6.


By the Amendment of Section 6, gender discrimination was done away with, as at the initial section 6 applied to male coparceners. An amendment of 2005, females also got the right to devolve upon the property, the same as the male successors. in this case, the retrospective effect of the amendment was primarily questioned and it was made clear by the Hon'ble Supreme Court that the retrospective effect can be brought after the Amendment of the Act.

ABOUT THE AUTHOR

Swathi. Ashok. Nair is currently pursuing Law at the School of Legal Studies, CUSAT, Kerala.

They can be contacted at swathiashoknair555@gmail.com

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