Hindu daughters right to share in ancestral property

Old Hindu law before Hindu succession act 1956

Daughter was not having right to seek share in the parents property prior to 1956. After 1956 till 2005 amendment daughters were having right to residence in the ancestral house and also would succeed to the personal share of their father in the ancestral property. In the notional partition though father of daughters died used to be given a share in the ancestral property and his sons and in the share of the father the daughters were given share along with the sons and mother.

Example if a Hindu male had died leaving behind him three sons and two daughters and wife. Sons and father and mother were given a share allotting three sons 1/5th , father  1/5th and mother 1/5th share. In the father ‘s 1/5th share three sons and two daughters and mother will be allotted 1/30th share.

There are contradictory judgements of different high courts and supreme court but three judge bench judgement as held in gurupadappa khandapppa magdum case is holding the ground and it is not set aside till this day.

Law after After the 2005 amendment to Section 6

The new section 6 of Hindu succession act 1956 inserted in place of old section.

The new section declares that the daughters are coparceners by birth, they are placed on part with the sons. They will be given equal share along with the sons. It also states that the alienation made before the December 2004 are protected and partition effected prior to the appointed date December 2004 are not affected and daughters will not get right in them.

Partition has been defined as registered partition deed and decree means final decree in order to avoid any false partitions springing up.

But the law is yet to develop and settle. There are judgments on the rights of the daughters but they are differing on the following points

1. Daughters born after 9-9-2005 on which date amendment act came into force are coparceners.

2.  Daughters born from 17 June 1956 on which date Hindu succession act came into force are coparceners basing on principle that in case of insertion the old section is scored out by pen and ink and new inserted and its insertion takes back and referred as if existing since the date of original act which is 1956. But the word existing in the new section 6 on and from the date of commencement of 2005 act is leading to different interpretations.

3. Daughters either born before or after the 1956 act all are coparceners. This is based on the provisions in the amended section 6 and object of the act is already southern states have brought amendments to the Hindu succession act giving equal right to daughters. Which means further strengthening means only unmarried daughters are given coparcenary right is south Indian states but the center extended to all and to dating back to act the original act 1956.

4. Only daughters who are alive on 9-9-2005 on which date amendment act came into are entitled for benefit of new section 6 as coparceners. This view is based on the principle that on the date of death the old act was applicable and her rights are to be decided as on the date of her death.

5. if Father died before the 2005 act came into force i.e. 9-9-2005 are not get the benefit of the 2005 act and will not be coparceners. This is based on the principle that once vested and cannot be divested.  The rights of the male dying before the 2005 are crystalized and succession opened and vesting and divesting takes place as per the old act.

6. If father died before the 1956 act daughters are not entitled for the benefit of 2005 act and not get equal share as sons. This is because there are number of rulings that the 1956 act is prospective and not restrospective and the death before 1956 the old Hindu law are applicable.

Important judgements after 2005 act.

GANDURI KOTESHWARAMMA VS. CHAKIRI YANADI  AIR(SC)-2012-0-169 wherein the suit for partition was filed and preliminary decree was passed before the 2005 amendment act. The daughters filed application after 2005 amendment to section 6 of Hindu succession act 1956 to allot them equal share along with sons. The trail court allowed it. The high court reversed but the supreme court held that the order of trail court is correct. The order of high court is against the S. Sireddy case and Phoolchand case. The amendments brought are to be considered by the courts as held in S.Saireddy case. So daughters born before 2005 act are given share in the coparcenary property. But it is not clear that whether they were born prior to the 1956 act or not.

Bombay high court full bench held

That the daughters by birth either born before or after 1956 are coparceners if they are alive on the date of 2005 act i.e.9-9-2005. The court also held that if the daughters had died before the 2005 act came into existence on 9-9-2005, new law is not applicable to them.

Karnataka high court two judgments of division bench held two different views. M PRITHVIRAJ VS. LEELAMMA N case the division bench held that the partition had opened in the year 1969 so the amended provisions of the 2005 act are not attracted. The latter judgement of N. Pushpalata held that, daughters born after 1956 are coparceners and irrespective of succession opened either before or after 2005 act the daughters are given equal share as per the inference drawn from the section to show that the parliament wanted to extend the facility to the daughters born before the amendment act 2005. Now matter is referred to full bench but the full bench has deferred to give judgement on reference since the N.Pushpalata case is pending before the apex court.

The law as on today is not settled. The Apex court will while dealing with the N.Pushpalata case will have to ponder over the points discussed in detail and the laws and interpretation and principles of interpretation of the statue on mischief theory and come to the just conclusion and view expressed by the full bench of the Bombay high court even oral partition will be dealt. Till then there is no end to the contrary views and discussions.

As per the IN Shamarao V. Parulekar v. District Magistrate, Thana, Bombay9, a Constitution Bench of the Supreme Court had laid down that an amendment Act must be read as if the words of amendment had been written into the Act (except where that would lead to an inconsistency) with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. (See also Yadlapati Venkateswarlu v. State of Andhra Pradesh10, and State of Maharashtra v. Vithalrao Ganpatrao Warhade11). So once inserted the section 6 of the hindu succession act should be treated as existing from 1956 itself. If this is accepted then the daughters born after 1956 are coparceners.

New section 6 of Hindu succession act is as under.

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 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 in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary 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.

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the dt. 20.12.2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-sec. (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the dt. 20.12.2004.

Explanation. For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

Hindu Succession (Amendment) Act, 2005 makes the law applicable from 9-9-2015

But clause 1 of section 6 daughters by birth become a coparcener in her own right in the same manner as the son. Full bench of bombay high court view is by birth either born before or after the act. Where as N.Pushpalata case as held in the apex court judgements retrospective effect cannot be given prior to the act and it can be given only under the act from 1956.

But the section 6 of the general clauses act and its interpretation it is made out that wide powers are their to the legislation that the act can be made retrospective even prior to the act itself. So the words which are used in the section by birth must refer to their birth and not birth after the amendment act or 1956 act.

The words in the section (b) of section “ have the same rights in the coparcenary property as she would have had if she had been a son; for all purpose she is treated on par with son. So differentiation cannot be drawn on the basis of the gender discrimination is against the constitution provisions.

The words in section 6

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the dt. 20.12.2004.

Alienations made prior to the amendment act are saved as the purchaser will not be aware of the future laws and if made applicable they will be deprived off their right in the purchased property and it will be without notice to them. The testamentary disposition must be referred to the interest of the Hindu male in the coparcenary and not referred to property reiceved by him on partition. His interest better understood as held in Gurupadappa khandappa case.

Caluse 3 of the new section is replica of the old section 6 itself as per the Gurupadappa khandappa case his interest means arrived at by notional partition between him and coparceners i.e. sons and now daughters. The calculation is necessary as there is one more female who is entitled to succeed under schedule I wife/widow.

From the above we can make out daughters are placed on par as son.

Expect there may be disagreements.