DATE:- 05.04.2016
DAUGHTERS RIGHT TO SHARE IN ANCESTRAL PROPERTY (HINDU SUCCESSION ACT 1956)
OLD HINDU LAW BEFORE HINDU SUCCESSION ACT
Daughters was not having right to seek share in the parents property prior to 1956. After 1956 to till 2005 amendment daughters were having right to residence in the ancestral house and also would succeed to the personal share of their father in the ancestral property. In the notional partition though father of daughters died used to be given a share in the ancestral property and his sons and in the share of the father the daughters were given share along with sons and mother.
Example:- If Hindu male had died leaving behind him three sons and two daughters and wife. Sons and father and mother were given a share allotting three sons 1/5th, father 1/5th and mother 1/5th share. In the fathers 1/5th share three sons and two daughters and mother will be allotted 1/30th Share.
There are contradictory Judgments of different High Courts and supreme court but three judge bench judgment as held in Gurupadappa Khandappa Magdum case is holding the ground and it is not set aside till this day.
Law after the 2005 amendment to section 6
The new section 6 of Hindu Succession Act 1956 Inserted in place of old section.
The new section declares that the daughters are coparceners by birth, they are placed on part by sons. They will be given equal shares along with the sons. It also states that the alienation made before the December 2004 are not affected and daughters will not get right in them.
Partition has been defined as registered partition deed and decree means final decree in order to avoid any false partitions springing up.
But the law is yet to develop and settle. There are judgments on the rights of the daughters but they are differing on the following points.
1. Daughter born after 09-09-2005 on which date amendment act came into force are coparceners.
2. Daughters born from 17 June 1956 on which date Hindu Succession Act came into force are coparceners basing on principle that in case of insertion the old section scored out by pen and ink and new inserted and its insertion takes back and referred as if existing since the date of original act which is 1956. But the word existing in the new section 6 on and from the date of commencement of 2005 act is leading to different interpretations.
3. Daughters either born before or after the 1956 act all are coparceners. This is based on the provisions in the amended section 6 and object of the act is already southern states Hindu Succession Act giving equal rights to daughters. Which means further strengthening means only unmarried daughters are given the coparcenary right in south indian states but the centre extended to all and to dating back to act the original act 1956.
4. Only daughters who are alive on 09-09-2005 on which date amendment act came into are entitled for benefit of new section 6 as coparceners. This view is based on the principle that on the date of death the old act was applicable and her rights are to be decided as on her date of death.
5. If father died before the 2005 act came into force i.e. 09-09-2005 then the daughters are not entitled to get the benefits of 2005 act and will not be a coparceners. This is based on the principle that once vested and cannot be divested. The rights of the male dying before the 2005 are crystalized and succession opened and vesting and divesting takes place as per the old act.
6. If father died before 1956 act daughters are not entitled for the benefits of 2005 act and not get equal shares as sons. This is because there are number of rulings that the 1956 act is prospective and not retrospective and to the death before 1956 then old Hindu Law are applicable.
Important
judgements after 2005 act.
GANDURI
KOTESHWARAMMA VS. CHAKIRI YANADI AIR(SC)-2012-0-169 wherein the suit for partition was
filed and preliminary decree was passed before the 2005 amendment act. The
daughters filed application after 2005 amendment to section 6 of Hindu
succession act 1956 to allot them equal share along with sons. The trail court
allowed it. The high court reversed but the supreme court held that the order
of trail court is correct. The order of high court is against the S. Sireddy
case and Phoolchand case. The amendments brought are to be considered by the
courts as held in S.Saireddy case. So daughters born before 2005 act are given
share in the coparcenary property. But it is not clear that whether they were
born prior to the 1956 act or not.
Bombay high
court full bench held
That the
daughters by birth either born before or after 1956 are coparceners if they are
alive on the date of 2005 act i.e.9-9-2005. The court also held that if the
daughters had died before the 2005 act came into existence on 9-9-2005, new law
is not applicable to them.
Karnataka high
court two judgments of division bench held two different views. M PRITHVIRAJ
VS. LEELAMMA N case the division bench held that the partition had opened in
the year 1969 so the amended provisions of the 2005 act are not attracted. The
latter judgement of N. Pushpalata held that, daughters born after 1956 are
coparceners and irrespective of succession opened either before or after 2005
act the daughters are given equal share as per the inference drawn from the
section to show that the parliament wanted to extend the facility to the
daughters born before the amendment act 2005. Now matter is referred to full
bench but the full bench has deferred to give judgement on reference since the
N.Pushpalata case is pending before the apex court.
The law as on
today is not settled. The Apex court will while dealing with the N.Pushpalata
case will have to ponder over the points discussed in detail and the laws and
interpretation and principles of interpretation of the statue on mischief
theory and come to the just conclusion and view expressed by the full bench of
the Bombay high court even oral partition will be dealt. Till then there is no
end to the contrary views and discussions.
As per the IN
Shamarao V. Parulekar v. District Magistrate, Thana, Bombay9, a Constitution
Bench of the Supreme Court had laid down that an amendment Act must be read as
if the words of amendment had been written into the Act (except where that
would lead to an inconsistency) with pen and ink and the old words scored out
so that thereafter there is no need to refer to the amending Act at all. (See
also Yadlapati Venkateswarlu v. State of Andhra Pradesh10, and State of
Maharashtra v. Vithalrao Ganpatrao Warhade11). So once inserted the section 6
of the hindu succession act should be treated as existing from 1956 itself. If
this is accepted then the daughters born after 1956 are coparceners.
New section 6 of
Hindu succession act is as under.
(1) On and from
the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint
Hindu family governed by the Mitakshara law, the daughter of a coparcener
shall,
(a) by birth
become a coparcener in her own right in the same manner as the son;
(b) have the
same rights in the coparcenary property as she would have had if she had been a
son;
(c) be subject
to the same liabilities in respect of the said coparcenary property as that of
a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to
include a reference to a daughter of a coparcener.
Provided that
nothing contained in this sub-section shall affect or invalidate any disposition
or alienation including any partition or testamentary disposition of property
which had taken place before the dt. 20.12.2004.
(2) Any property
to which a female Hindu becomes entitled by virtue of sub-sec. (1) shall be
held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act, or any other law for the time
being in force, as property capable of being disposed of by her by testamentary
disposition.
(3) Where a
Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005, his interest in the property of a Joint Hindu family governed by the
Mitakshara law, shall devolve by testamentary or intestate succession, as the
case may be, under this Act and not by survivorship, and the coparcenary
property shall be deemed to have been divided as if a partition had taken place
and,
(a) the daughter
is allotted the same share as is allotted to a son;
(b) the share of
the pre-deceased son or a pre-deceased daughter, as they would have got had
they been alive at the time of partition, shall be allotted to the surviving
child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of
the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as
such child would have got had he or she been alive at the time of the
partition, shall be allotted to the child of such pre-deceased child of the
pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation. For the purposes of this
sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to
be the share in the property that would have been allotted to him if a
partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.
(4) After the
commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall
recognise any right to proceed against a son, grandson or great-grandson for
the recovery of any debt due from his father, grandfather or great-grandfather
solely on the ground of the pious obligation under the Hindu law, of such son,
grandson or great-grandson to discharge any such debt:
Provided that in
the case of any debt contracted before the commencement of the Hindu Succession
(Amendment) Act, 2005, nothing contained in this sub-section shall affect
(a) the right of
any creditor to proceed against the son, grandson or great-grandson, as the
case may be; or
(b) any
alienation made in respect of or in satisfaction of, any such debt, and any
such right or alienation shall be enforceable under the rule of pious
obligation in the same manner and to the same extent as it would have been
enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been
enacted.
Explanation. For the purposes of clause
(a), the expression "son", "grandson" or
"great-grandson" shall be deemed to refer to the son, grandson or
great-grandson, as the case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing
contained in this section shall apply to a partition, which has been effected
before the dt. 20.12.2004.
Explanation. For the purposes of this
section "partition" means any partition made by execution of a deed
of partition duly registered under the Registration Act, 1908 (16 of 1908) or
partition effected by a decree of a court.
Hindu Succession
(Amendment) Act, 2005 makes the law applicable from 9-9-2015
But clause 1 of
section 6 daughters by birth become a coparcener in her own right in the same
manner as the son. Full bench of bombay high court view is by birth either born
before or after the act. Where as N.Pushpalata case as held in the apex court
judgements retrospective effect cannot be given prior to the act and it can be
given only under the act from 1956.
But the section
6 of the general clauses act and its interpretation it is made out that wide
powers are their to the legislation that the act can be made retrospective even
prior to the act itself. So the words which are used in the section by birth
must refer to their birth and not birth after the amendment act or 1956 act.
The words in the
section (b) of section “ have the same rights in the coparcenary property as
she would have had if she had been a son; for all purpose she is treated on par
with son. So differentiation cannot be drawn on the basis of the gender
discrimination is against the constitution provisions.
The words in
section 6
Provided that
nothing contained in this sub-section shall affect or invalidate any
disposition or alienation including any partition or testamentary disposition
of property which had taken place before the dt. 20.12.2004.
Alienations made
prior to the amendment act are saved as the purchaser will not be aware of the
future laws and if made applicable they will be deprived off their right in the
purchased property and it will be without notice to them. The testamentary
disposition must be referred to the interest of the Hindu male in the
coparcenary and not referred to property reiceved by him on partition. His
interest better understood as held in Gurupadappa khandappa case.
Caluse 3 of the
new section is replica of the old section 6 itself as per the Gurupadappa
khandappa case his interest means arrived at by notional partition between him
and coparceners i.e. sons and now daughters. The calculation is necessary as
there is one more female who is entitled to succeed under schedule I
wife/widow.
From the above
we can make out daughters are placed on par as son.
Expect there may be disagreements.
