In a significant judgment on Tuesday, the Supreme Court of India ruled that a daughter will have a share in her ancestral property after the Hindu Succession (Amendment) Act, 2005 irrespective of the fact whether her father was alive or not at the time of the amendment.
The judgment was delivered by Justice Arun Mishra who marked the judgment in a bunch of appeals that upraised such an important legal issue raising questions whether the Hindu Succession Amendment Act, 2005, which gave equal rights to daughters in ancestral property intends to have a retrospective effect.
The bench also comprised of learned Justices S. Abdul Nazeer and MR Shah and the three-judge bench collectively, overruled the contrary observations made in earlier cases like Prakash vs. Phulavati and Mangammal vs T.B. Raju.
The three-judge bench had the following considerations and rulings as a matter of adjudication-
1. The legal provisions contained in substituted section 6 of the Hindu Succession Act, 1956 confer rights for a daughter, in the status of coparcener on the daughter born before or after amendment in the same manner to that of a son with similar rights and liabilities.
2. Such rights could be demanded by the daughter born earlier with effect from 9.09.2005 with savings as provided under section 6(1) as to application or alienation, partition, or testamentary disposition which had taken place before 20.12.2004.
3. Since the rights in coparcenary arise by birth, it shall not be necessary that a father coparcener should be living as on 9.09.2005.
4.The constitutional narrative created by proviso to section 6 of the Hindu Succession Act 1956 as originally sanctioned did not affect any actual partition or disruption of the coparcenary. It was created to determine the share of deceased coparcener where he was survived by only a female heir of first-class or the male relative of such female.
Thus, the provisions of the substituted section 6 are needed to be applied with a fuller effect.
Notwithstanding that, a preliminary decree has been pending of a son in stay, passed the daughters are to be given a share in coparcenary equal to that of a son in pending proceedings for final decree or appeal.
5. In view of the right of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutorily recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.
6. But, where a plea of the oral partition of property is backed through public documents, finally evidenced in the same manner as a decree of a court, it may be allowed. Otherwise, a plea of partition based on oral evidence only cannot be accepted and to be rejected out immediately.
Facts of the Case-
Provisions of Indian Succession Act-
Section 6 of the Hindu Succession Act 2005 provides that-
On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family shall be governed by the Mitakshara law.
Accordingly, the daughter of a coparcener shall-
(a) By reason of her birth, eligible to become a coparcener in her own right in a similar manner as the son;
(b) Shall hold the same rights in the coparcenary property as she would possess had if she had been a son;
(c)Shall be subject to the same rights and liabilities in respect of the said coparcenary property as that of a son, and any mention of a Hindu Mitakshara coparcener shall be assumed to comprise a reference to that of the son and the daughter of a coparcener at the same time;
Likewise, the proviso to Section 6 explains that it shall not affect or overturn any disposition or alienation including any partition or testamentary disposition of property already taken place before the 20th Dec 2004.
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