DAUGHTER'S RIGHT ON HINDU PROPERTY

DAUGHTER'S RIGHT ON HINDU PROPERTY

BACKGROUND

The Hindu Succession Act, 1956 (Act of 1956) was enacted to amend and codify laws concerning intestate succession among Hindus and caused changes with reference to succession and also conferred on women certain rights which until then wasn't alive. Further, the Act of 1956 also acknowledged, under Section 6, the special right of male coparceners of a Hindu Coparcenary to inherit by birth over the coparcenary property and laid down rules for succession among the coparceners. This, however, was discriminatory in terms of gender and also the negation of the constitutional right of equality, thus far because the daughter of a coparcener was concerned. so as to try to away with discrimination, the Parliament passed the Hindu Succession (Amendment) Act of 2005 (Act of 2005), which came into effect from 09.09.2005, whereby Section 6 of the Act of 1956 was substituted and recognized the daughter of a coparcener to get on par thereupon of a son, and conferred on her rights by birth on the coparcenary property, however, with a proviso that conferment of such right a daughter shall not affect or invalidate any disposition or alienation, partition or testamentary disposition of property happened before 20.12.2004. After the amendment Act of 2005 -

1. Prakash & Others Vs. Phulavati & Others, (2016) 2 SCC 36 - Division bench = The Act of 2005 is prospective in nature which rights conferred on daughter, under Section 6 of the Act of 2005, is on the living daughter of a living coparcener, requiring the coparcener to be alive as on 09.09.2005 so on enable the daughter to say rights over the coparcenary property. within the said case, the coparcener had died before the 2005 amendment and hence, it had been held that the daughter isn't entitled to a share within the coparcenary property as she isn't the daughter of a living coparcener. 

2. Danamma @ Suman Surpur & Another Vs. Amar & Others, (2018) 3 SCC 343 - Division bench = The Court didn't specifically affect the concept of living daughter of a living coparcener, the Court took a contradicting view from that of the decision in the Phulavati case and held that daughters have equal rights within the coparcenary property as that of a son, albeit the coparcener had died before the amendment of 2005. 

 

  Appeal 

 

 

                                    

 

         

Vineeta Sharma v. Rakesh Sharma & Others

The Hon’ble Supreme Court referred to the issues of the above mentioned two decisions, i.e., the Phulavati case and Danamma case, to a larger bench of three judges. 

Issues & Reasoning - 

  1. Whether the amended Section 6 of the Act of 2005 requires the coparcener to be alive as of 09.09.2020, for the daughter to claim rights in the coparcenary property? = The Larger Bench of the Supreme Court, held that the coparcener father need not be alive as 09.09.2005 in order for a daughter to inherit rights over the coparcenary of the property, as per the Amended Section 6.
  2. Whether the amended Section 6 of the Act of 2005 is prospective, retrospective, or retroactive? = As such, the Hon’ble Supreme Court did not consider the decision in the Phulavati case to be a good decision in so far as this aspect is concerned.  As regards the applicability of the amended section 6 to be retrospective or prospective, the Hon’ble Supreme Court held that the amended Section 6 is retroactive in nature. Explaining the concepts of prospectively, retrospectively and retroactivity, the Hon’ble Supreme Court held that the operation of retroactive statute operates based on a characteristic or event which happened in the past or requisites which had been drawn from antecedent event. The Court further opined that Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth and since the right is given by birth, that is an antecedent event, and provisions operate on and from the date of the Amendment Act, making it retroactive. The Court also added that the provision contained in Section 6(4) makes it clear that the provisions of Section 6 are not retrospective. 

 

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