All daugh­ters can’t claim equal in­her­i­tance rights

Ben­e­fits of Hindu Suc­ces­sion (Amend­ment) Act, 2005, are only avail­able to daugh­ters of the fam­ily prospec­tively

HT Estates - - HTESTATES - Su­nil Tyagi

In per­sonal laws of Hin­dus, in­her­i­tance rights in Mi­tak­shara Coparce­nary property had for long been tilted in favour of males. Till 2005, only male mem­bers of the fam­ily were recog­nised as co­parceners. Due to the ex­clu­sion of fe­males from Mi­tak­shara Coparce­nary, fe­male mem­bers could not in­herit an­ces­tral property like male co­parceners. With the en­act­ment of the Hindu Suc­ces­sion (Amend­ment) Act, 2005, sig­nif­i­cant changes have been made in Hindu in­her­i­tance laws. Daugh­ters have now been recog­nised as co­parceners in Mi­tak­shara Coparce­nary and placed on equal foot­ing with sons. As per the Amend­ment (which came in force on Septem­ber 9, 2005), in a joint hindu fam­ily gov­erned by Mi­tak­shara law, the daugh­ter of a co­parcener shall by birth be­come a co­parcener in her own right in the same man­ner as the son and have the same rights in the coparce­nary property as she would have had, if she had been a son. In­her­i­tance rights of both daugh­ters and sons are now at par in Mi­tak­shara Coparce­nary property. .

How­ever, af­ter the Amend­ment in 2005, a lot of cases were in­sti­tuted in courts where a daugh­ter be­long­ing to a joint hindu fam­ily prayed for equal rights in the in­her­i­tance of the HUF property/Mi­tak­shara Coparce­nary property. In sev­eral cases the daugh­ters claimed ben­e­fit of the Amend­ment with ret­ro­spec­tive ef­fect. Thus a ques­tion arose be­fore var­i­ous courts re­gard­ing the ret­ro­spec­tive ap­pli­ca­bil­ity of the Amend­ment in 2005 as to whether the ben­e­fit of equal share given to daugh­ters would ap­ply (i) only prospec­tively af­ter the Amend­ment com­ing to force, or (ii) would also ap­ply with ret­ro­spec­tive ef­fect.

The Supreme Court in the case of Prakash and Oth­ers vs. Phulavati and Oth­ers, which was de­cided on Oc­to­ber 16, 2015, clubbed to­gether var­i­ous cases in­volv­ing sim­i­lar is­sues and sorted out the ques­tion of ret­ro­spec­tive ap­pli­ca­bil­ity of the Amend­ment.

The facts of the case dealt with by the apex court were that the fa­ther of the plain­tiff (daugh­ter) died on Fe­bru­ary 18, 1988, prior to the com­mence­ment of the Hindu Suc­ces­sion (Amend­ment) Act, 2005. There­after the plain­tiff filed a suit in the trial court for par­ti­tion, claim­ing a share in her fa­ther’s prop­er­ties. The trial court de­creed the suit in favour of the plain­tiff (daugh­ter) to the ex­tent of cer­tain shares in the fa­ther’s self ac­quired prop­er­ties. The trial court did not de­cree in favour of the plain­tiff,’s share in her fa­ther’s en­tire property as a co­parcener. Not sat­is­fied with the or­der of the trial court, the plain­tiff ap­proached the high court with the griev­ance that she had be­come a co­parcener by virtue of the Amend­ment in 2005 and there­fore she was en­ti­tled to coparce­nary property equal to her broth­ers. The high court ob­served that the pro­vi­sions of the Amend­ment were prospec­tive, but since the pro­ceed­ings in the present case, re­gard­ing par­ti­tion were pend­ing in the court, the pro­vi­sions of the Amend­ment would cer­tainly ap­ply and de­creed the suit in favour of the plain­tiff and af­firmed that the plain­tiff had right in coparce­nary property equal to that of the sons.

Ag­grieved by the or­der of the high court, the de­fen­dant filed an ap­peal be­fore the Supreme Court. Af­ter hear­ing the ar­gu­ments of the plain­tiff and de­fen­dants the Supreme Court ob­served “that the text of the Amend­ment it­self clearly pro­vided that the right con­ferred on a ‘daugh­ter of a co­parcener’ was ‘on and from the com­mence­ment of the Hindu Suc­ces­sion (Amend­ment) Act, 2005’. In view of plain lan­guage of the statute, there was no scope for a dif­fer­ent in­ter­pre­ta­tion.”

The Supreme Court also re­jected the con­tention of the plain­tiff that the Amend­ment in 2005 should be read as ret­ro­spec­tive since it was a piece of so­cial leg­is­la­tion. It stated that even if it was a so­cial leg­is­la­tion, it could still not be given ret­ro­spec­tive ef­fect un­less it was ex­pressly pro­vided by the leg­is­la­ture in the Amend­ment.

Af­ter con­sid­er­ing all the above points and ar­gu­ments by both the plain­tiff and the de­fen­dant, the Supreme Court held that “the rights un­der the Amend­ment are ap­pli­ca­ble to liv­ing daugh­ters of liv­ing cor­parceners as on 9th Septem­ber 2005, ir­re­spec­tive of when such daugh­ters are born. Dis­po­si­tions or alien­ations in­clud­ing par­ti­tions that have taken place prior to 20th De­cem­ber 2004 as per the law ap­pli­ca­ble prior to such date will re­main un­af­fected.”

T h u s b e n e f i t o f Hi n d u Suc­ces­sion (Amend­ment) Act, 2005 was avail­able to daugh­ters of the fam­ily prospec­tively and not ret­ro­spec­tively.

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