The question before the Supreme Court on a point of law concerning the Hindu Succession (Amendment) Act, 2005 was whether the amended Act which gave equal rights to daughters in ancestral property, can have a retrospective effect. Several appeals on the issue were pending before different High Courts and subordinate courts as the ruling concerning the correct reading of the law was pending with the Supreme Court. But with the Supreme Court’s decision all matters concerning the equal rights of daughters under the 2005 amended law will now be cleared within 6 months. The Supreme Court on Tuesday ruled that a daughter can claim equal share in parental property irrespective of when she was born and if her father was alive or not at the time of the 2005 amendment to the Hindu Succession Act.
A three-judge bench of Justices Arun Mishra, S Abdul Nazeer and MR Shah said the amendments can have a retrospective effect. “Once a daughter always a daughter…son is a son till he is married,” Justice Mishra said. “The daughter shall remain a coparcener [one who shares equally with others in inheritance of an undivided joint family property] throughout life, irrespective of whether her father is alive or not. Daughters must be given equal rights as sons, daughter remains a loving daughter throughout life.”
The judgment is significant in that it sets aside a batch of previous decisions by the Supreme Court that held daughters can have coparcenary right only if both the father and the daughter were alive as on September 9, 2005, when the amendment was notified.
The bench said, “the rights can be claimed by the daughter born earlier with effect from September 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 December 20, 2004. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005.”
The verdict finally makes it clear that the amendment to the Hindu Succession Act, 1956 granting equal rights to daughters to inherit ancestral property would have a retrospective effect.
“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.
The reference to the three-judge bench was made in view of two conflicting judgments of the Supreme Court in the matter of Prakash v. Phulavati (2016) and Danamma @Suman Surpur v. Amar (2018). The Court in Vineeta Sharma has overruled Prakash v. Phulavati and partially upheld the Danamma judgment. The judgment comes as reminder of another progressive judgment in the same context – on December 22, 2015, the Delhi High Court ruled that the eldest female member of a Hindu Undivided family can be its karta.
Other issues that are however open and legally debatable are whether the lineal descendant of a daughter can have the same rights as the lineal descendants of the son. Is it time to make an amendment to Section 15 of the Hindu Succession Act, 1956, for changing the present scheme of succession to the effect in case a female dies intestate leaving her self-acquired property with no heirs then an equal right is given to her parental heirs along with her husband heirs to inherit her property?
The ruling is a welcome development but will it open floodgates to other contentious issues now that the effect is retrospective and retroactive?