The Supreme Court has held that daughters who were born before the enactment of Hindu Succession Act 1956 are entitled to equal shares as son in ancestral property. The ruling was rendered in an appeal filed by daughters challenging a decree in a partition suit, which excluded them from partition.
The partition suit was filed by the grandson of the deceased propositus of a joint family in 2002. The Trial Court held that daughters were not entitled to share in property, as they were born before 1956, the year of enactment of Hindu Succession Act. The Trail Court also denied them the benefit of 2005 amendment, which conferred equal coparcenary status to daughters as sons. The High Court upheld the decree of the Trial Court.
The Supreme Court held that the Courts below erred in holding that daughters were not entitled to partition because they were born before 1956. It was held that according to Section 6 of the Act ,when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act(which includes a daughter), his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession. Therefore, the interest of the deceased coparcener would devolve by intestate succession on his heirs, which included his daughters.
The Court also held that the daughters were entitled to the benefit of 2005 amendment as well, and on that basis also they were entitled to shares. It was settled in Prakash v. Phulavati (2016) 2 SCC 36 rights under the amendment area available to daughters living on the date of amendment, irrespective of when they were born. In the instant case, the bench comprising Justice A.K Sikri and Justice Ashok Bhushan explained it further, and stated that the amendment declared that a daughter ‘shall by birth’ became coparcener in her own right in the same manner as son. Hence, the daughter will get coparcenary right by virtue of the amendment, ‘since birth’. It was observed as follows :-
Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized.
Also, the fact that the partition suit was filed in 2002 was held to be inconsequential. The Court stated that so far as partition suits are concerned, the partition becomes final only on the passing of a final decree. The decree was passed in 2007. Here, the rights of the daughters got crystallised in 2005, and hence the Trial Court ought to have taken into account that aspect while passing decree in 2007.
The Court also observed that 2005 amendment was brought in on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected.
The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.- the Bench observed.
Hence, it was held that shares will devolve on the daughters as well.