The amendment to the Hindu Succession Act giving daughters equal rights to ancestral property is applicable even for girls born before the law was changed in 2005, the Bombay High Court has said.
"Section 6 of Hindu Succession Act, 1956 as amended by the Amendment Act of 2005 is retroactive (taking effect from a date in the past) in operation," a full bench stated on Thursday. "In other words, the provisions of the amended section 6(3) do not and cannot impinge upon or curtail or restrict the rights of daughters born prior to 9 September 2005," the judges said.
The amendment
The Hindu Succession Act, 1956, originally didn't give daughters equal rights to ancestral property. This disparity was removed by an amendment that came into force on September 9, 2005.
The issue came up before the bench of chief justice Mohit Shah, judges MS Sanklecha and MS Sonak after conflicting views on the matter expressed separately by a single judge and a division bench.
A division bench had opined that the amendment applied to daughters born on or after September 9, 2005. As regards daughters born before 9 September 2005, the judges held that they would get rights in the property upon the death of their father-coparcener (head of a joint family) on or after September 9, 2005.
Difference in opinion
But a single judge disagreed with the view of the division bench and stated that the amendment was retrospective in operation, that it was applicable from June 17, 1956, the date on which the Hindu Succession Act came into force. It would apply to all daughters of a coparcener who are born either before or after September 9, 2005 as well as daughters born before or after June 17, 1956.
According to the single judge a daughter, by birth, becomes a coparcener in a Hindu coparcenary in her own right in the same manner as a son, having the same rights in the coparcenary property as she would have had if she had been a son, and subject to similar liabilities.
Uday Warunjikar, counsel for one of the petitioners, argued that the amendment was brought into force to remove the inequality between the heirs. "The amendment gives the right to the daughter irrespective of date of birth," Warunjikar argued.
Senior counsels Anil Anturkar and Girish Godbole also argued that the amendment was retrospective in nature.
However, counsels for the respondents argued that section 6 should be read prospectively and it applied only to the daughters born on or after September 9, 2005.
The bench's final word
The full bench disagreed with this and stated that the daughters would have equal share in the ancestral property, irrespective of their date of birth.
"The amended section 6 applies to daughters born prior to June 17, 1956 or thereafter (between June 17, 1956 and September 8, 2005), provided they are alive on September 9, 2005, that is on the date when the amendment act of 2005 came into force," the judges observed in their order, running into 72 pages.
A DAUGHTER'S RIGHTS
Before the enactment of the Hindu Succession Act in 1956, Hindus were covered by shastric and customary laws that varied from region to region.
Under the Mitakshara school of Hindu law, a woman in a joint Hindu family had the right only to maintenance/ sustenance but not to inheritance of property.
Consequently, if a partition took place in the coparcenary (joint family) property, then each male coparcener was entitled to a share. But a daughter did not get a share. The daughter would only get a share as one of the heirs on the death of coparcener.
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