The subject of partition of the ancestral properties is always in limelight. 60% of the litigation in our country is flooded with the court cases filed by family members against each other for getting his/her share in the ancestral property. Several times the relations become bitter with the taste of dispute and court has to come into picture to intervene and pass appropriate orders for declaration of shares to the legal hairs of a person.

After independence four important legislation have been passed to encompass the canvas of Hindu community and taking all their affairs within the ambits of law recognized under our constitution. These four legislations were

  1. Hindu marriage and divorce act
  2. Hindu succession act
  3. Hindu minority and guardianship act
  4. Hindu adoption and maintenance act

These four piece of legislations are in fact codification of Hindu code bill. Affairs of the Hidu family had been governing under these laws since post independent era. Here we will take into consideration the Hindu succession act in the light of above title. Hindu succession act has been codified for the purpose of partition of  property in Hindu families.  The act has given the right and share to the daughters in the self acquired property earned by the father in his lifetime. Thus the Hindu man who is dying and has his self-obtained properties to be divided , the law made it mandatory that these properties shall be divided equally among his widow , son and daughter. The problem has been occurred when it has been declared by the law that daughters cannot claim their rights in the ancestral property of their father. In India it has been considered since ages that daughter is responsibility of her father till her marriage. After her marriage all the ties with her maternal family cuts down and she relinquish all her rights over her father’s family and estate.

Amendment of Hindu Succession Act in 2005

 This situation has been changed in 2005 when the amendment came for Hindu succession act stating daughters can have their respective share in the ancestral properties. The only limitation of this amendment was that women could not ask for a share if the property had been alienated or partitioned on the date the Bill was introduced i.e. before December 20, 2004.

Supreme court ruling in 2015

In the judgment reported in supreme court i.e.

Civil Appellate Jurisdiction

Civil Appeal No.7217 Of 2013

Prakash & Ors.

Versus

Phulavati & Ors.

Citation;(2016)2 SCC36

Dated: – OCTOBER 16, 2015

 it has been ruled by Supreme Court that that the amended provisions of the Hindu Succession (Amendment) Act, 2005, do not have retrospective effect. Daughter’s right to ancestral property do not arise if the father died on or before the amendment to Hindu law, which came into force in 2005. To get the share in the ancestral property the father has to be alive on 9th of September, 2005. If the father is not alive  or died  then the right of daughter to claim her share would be extincted. Before this judgement Bombay high court in it’s series of reported judgement also laid down the condition that daughter must be born after 2005 to apply the amendment of 2005. Although supreme court cleared on this point stating

the Bombay High Court held that the amendment will not apply unless the daughter is born

23 AIR 2014, BOM 151. paras 40-57

24 (1978) 3 SCC 383, paras 6,11 and 13

25 (1994) 6 SCC 342, para 7

26 (2006) 8 SCC 656, paras 10,11

27 AIR 2012, BOM 101, paras 13 to 37Page 25

after the 2005 Amendment, but on this aspect a different view has been taken in the later larger Bench judgment. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment.”

 –Supreme Court in Praksh v/s. Phulwati…

Although in this verdict Supreme Court cleared that the birth time of daughter is not the touchstone to decide whether she can claim her right or not but this judgment was important from the point of view of the applicability of 2005 amendment. The court cited in the judgment that:

“In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective,”

“In the present Amendment Act of 2005, “There is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect.”

Supreme Court in Praksh v/s. Phulwati…

Thus it has been cleared by the court that this amendment will not have any retrospective effect. The coparcener (father) & the daughter who is alive when the amendment was passed is entitle to claim her share in ancestral property.

Present situation after the ruling came out on 3/2/2018

In The Supreme Court Of India

Civil Appellate Jurisdiction

Civil Appeal Nos. 188-189 Of 2018

[@Slp(C) Nos. 10638-10639 Of 2013]

DANAMMA @ SUMAN SURPUR & ANR. …..APPELLANT(S)

VERSUS

AMAR & ORS. …..RESPONDENT(S)

 In above verdict Supreme Court has declared that the coparcener rights are applicable to “living daughters of living coparceners as on September 9, 2005, irrespective of when such daughters are born.”

In this ruling also Court has not altered the status of the coparcener i.e. father. The possible interpretation of this verdict that the one condition is released about the timing of the birth of a daughter. Irrespective of her birth whether in 2005 or before 2005 she can claim the partition but on the date of amendment i.e. in 2005 her father must be living. If father is not living or dead on the date of enforcement of an amendment of 2005 then the right of a daughter will be regarded as extincted right.

-Adv Anjali Zarkar

Please follow and like us:
5