Daughters right in ancestral property

The first question after the Supreme Court recent ruling in Prakash & Ors v. Phulavati & Ors, rendered on 16 October 2015 comes to everyone’s mind is whether the Supreme Court is right in giving the ruling or not, but what matters now is not whether the Supreme Court is right or not, but whether the daughters who have been waiting to get their right, can still get their right in the ancestral property if their father have expired before the date of the 2005 Amendment Act. The answer to it is a straight NO. Now let me throw some light on what are the rights of the daughters in co-parcenary property before and after the 2005 amendment.

A co-parcenary is a group of male members either by birth or adoption and now (after 2005 Amendment Act, the daughters are also considered as co-parcenars) and coparcenary property is the property which has been inherited intestate by the male member after the death of his father (no matter whether the same property was self acquired or ancestral by the father of the male inheriting, that particular property becomes ancestral to the person inheriting and would be taken as ancestral for their future generation). The Hindu Succession (Amendment) Act, 2005 brought the change in the law creating the right of the daughters (which was not earlier provided to the daughters, as they were not considered as co-parcenars) in the ancestral property and it is only after 9th September 2005 their right have  been created and the sole purpose of the amendment was primarily gender justice i.e. equality of women in the matters of succession and associated property rights and after 2005 Amendment Act section 6(1) of the Hindu Succession Act, 1956 has declared a daughter to be a co-parcenar as a son as the birth right in her own right.

Now the real controversy arose because of the fact that those daughters who were sleeping over their rights in claiming partition under an idea that after the 2005 amendment act there right exist even if their father had expired before 2005 Amendment Act and they can claim partition as and when they feel to claim the share in the property, but the Hon’ble Supreme Court in Prakash & Ors v. Phulavati & Ors, held that a plain reading of the statute (Amendment Act) itself suggests that a daughter has a right in coparcenary property on and from the commencement of the Amendment Act. The SC held that 'An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective'. In the instant case there was no express or intended stipulation which would make the Amendment Act retrospective in its application and by virtue of the Amendment Act, right to coparcenary property would be available only to 'living daughters' of 'living coparceners' on 9 September 2005.

This present ruling is applicable only in the cases of ancestral property, therefore the daughters can still claim the share in their predeceased father’s property if the same was self acquired (self acquired will include a property acquired qua a Gift or a Will).  

Kapil Chandna Advocate

Practicing in the Supreme Court of India

Advocate.kapilc@gmail.com