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Daughter’s equal right to ancestral property — here’s what landmark SC judgment says

SC Tuesday held that daughters will have equal rights in ancestral property as sons even if their father died before the Hindu Succession (Amendment) Act 2005 came into force.

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New Delhi: In a landmark judgment Tuesday, the Supreme Court held that daughters will have equal coparcenary rights in Hindu Undivided Family properties, irrespective of whether the father was alive or not on 9 September 2005, when an amendment came into force.

Asserting that this right under Section 6 of the Hindu Succession Act, 1956, is acquired by birth, the bench, comprising Justices Arun Mishra, S. Abdul Nazeer and M.R. Shah, observed, “The provisions contained in substituted section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.”

The court was dealing with an interpretation of Section 6 of the Hindu Succession Act, 1956, after it was amended in 2005. The amendment gave equal rights to daughters in ancestral property.

ThePrint explains what coparcenary means, what did the 2005 amendment say and what the Supreme Court said in its judgment.

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What is coparcenary 

A joint Hindu family means all people lineally descending from a common ancestor, including wives and unmarried daughters.

But a Hindu coparcenary is a much narrower group. It consists of the ‘propositus’ (the person from whom a line of descent is traced) and three of his descendants.

Coparcenary property is the one which is inherited by a Hindu man from his father, grandfather, or great grandfather. The property in coparcenary is held as joint owners, and only a coparcener has a right to demand a partition of this property.

Before 2005, the coparceners included only sons, grandsons, and great grandsons who are holders of a joint property.

But the 2005 amendment to Section 6 of the Hindu Succession Act essentially gave equal rights to daughters in ancestral property. So the amendment allowed daughters to be recognised as coparceners by birth in the family, similar to sons.

Conflicting judgments earlier 

The need for a three-judge bench to hear this matter arose because of conflicting judgments passed by two-judge benches of the Supreme Court earlier.

In a 2015 judgment in the Prakash v. Phulavati case, a two-judge bench had held that if the coparcener (father) had passed away prior to 9 September 2005 (date on which the amendment came into effect), his daughter would have no right to the coparcenary property.

However, in the Danamma v. Amar case in 2018, another two-judge bench had held that the two daughters in this matter would get a share in the property, even if their father had passed away in 2001.

A three-judge bench headed by Justice A.K. Sikri had taken note of these conflicting judgments in November 2018 and decided that a three-judge bench should settle the law.

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‘Unobstructed heritage’

The Supreme Court Tuesday noted that Section 6 of the Hindu Succession Act gives an “unobstructed heritage” (i.e. a right by birth) to the daughter, noting that a coparcener’s father need not be alive on 9 September 2005.

“Coparcener’s right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage,” the court explained.

However, it clarified that the daughter born before 9 September 2005 can only claim her rights with effect from the date of the amendment, and any transaction relating to the property before 20 December 2004, when the Bill was tabled before Rajya Sabha, will not be disturbed. This is according to the amended Section 6(1) of the Act.

Oral partition not acceptable

Before the amendment in 2005, an oral partition was permissible, with the burden of proof on the person who claims there was an verbal division. But the amended Section 6 (5) of the Hindu Succession Act says a “partition” can be effected by any registered deed or a court decree.

It was argued in the top court that the need for a registered partition deed was not mandatory. But the court noted that section 6 intends to ensure daughters are not deprived of their rights of obtaining their share on becoming a coparcener.

“The court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on an unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognised under section 6(5),” it observed.

The court, therefore, ruled that a plea of oral partition cannot be legally accepted. However, it may be accepted in exceptional circumstances if it is supported by public documents.

‘Statutory fiction of partition’

The earlier section 6 also created what is called a “statutory fiction of partition” — a complex mechanism to ascertain the rights of a man’s surviving family members if he died leaving behind a female relative in Class I of the Schedule (for example, a daughter, widow, mother etc).

In such a case, the earlier law said property share had to be calculated by imagining that a partition took place immediately before a man’s death. This was done because women did not have a share in the coparcenary property but were entitled to a share of the interest of the dead coparcener (for example, a father or husband) in the property.

The court has now held that this “statutory fiction of partition” did not bring about an actual partition. Irrespective of any such statutory fiction of partition having taken place before the amendment, the new provision will have to be implemented in any pending proceedings or appeal.

Pending cases to be decided in 6 months

The Supreme Court also noted that several suits and appeals across the country were pending before high courts and subordinate courts because it was looking at the issue.

“The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by section 6,” the court noted.

It also requested these courts to decide all pending matters, as far as possible, within six months.

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  1. A hindu daughter has equal right over father’s property but can an govt employed (with owner of self and husband married property) daughter stay with her govt employee husband at her father’s house ( undivided property and father passed away in 2018) ? Please help.thanks in advance.

  2. Unmarried Daughters may have equal rights in the ancestral or fathers properties.. But not for married daughters.. that too if they are alive. What about the fate of mother?

  3. My father aqure ansatal propaties from his mother whether saon daughter get equal rights members of HUF family

  4. Never vote for Congress. As stupidity done by congress.
    Check if any Testament
    Partion ,allination disposal done before 20dec2004 or 9Sept2005 as retrospect law making provisions are unconstitutional in India. Needs constitutional review.
    Check when Coparsonary is formed & what are circumstances of date of birth & deaths in family. If Girl or boy or Son or daughter has to be coparsonar there should be existence of coparsonary. Neither Son,Grandson can be born coparsonars so as daughters equally . But events of Great grand sons birth before 09052005 make coparsonary complete by 4th member addition so daughter or sons etc. Now Coparsonars. After 2005 amendment act but Review practitioner has to be filled for provisions of oral partion allow as applicable in older day’s by law to bring peace in society. Of Country interest. Constitution wise challenge again. Retrospect tax not apply to MNC company then how for previous deaths this law applied.

  5. In the 3bench supreme court judgement they hv not cleared the sthridhan, in our Hindu religion parents give dowry in form of cash, gold, site etc n they will spend all the expenses incurred for the marriage of daughters but in the judgement they hv not cleared this, because it is loss for sons where is the equality in this.

    • I guess you’re a female as per your name and you’re talking in favor of Son.
      Are you a mother of worthless son, if no then why are you worrying about Dowry? The practice of dowry has been illegal in India since 1961. Still you have a doubt?

  6. let me come to my problem my grand father has 2 acre of land in which we grown up and my grand father had 4 daughters and 1 son , my father took care of the family and he cleared all of their debts and took care of their sons also in the critical times , now my father had 3 daughters and a single son , now i am supporting my father to clear off the debts , with a self owned debts of 4 lakh education loan , and recently in the year of 2016 all my aunts and my grand mother filed the case on our property after my grand father died , now which way should i need go , some how i am not going to get much share in the property so shall i leave my parents as a bad boy and continue on my career or shall i need to take care of them , bcz now the problem became bigger need to pay my education loan , need to take care of my parents , property case , and upon that if i survived luckily by god grace then need to look upon my career , its feels better to be not born as an hindu and not born at all

  7. I understand a married daughter is eligible to claim ancestral property. It means the Son in Law also enjoys the property received through his wife.Assume that a loan is valued more than the ancestral property, will the son in law would accept to share the loan? Moreover after certain period aged persons caring brings more responsibility to the Son physically, mentally and financially. It is not the same sort of sharing sense or responsibility to the daughter, because her life after marriage depends on her husband, Mother in law and Sister in Laws.
    The judgement relates or spoken only about positive things derived from a family. All family does not have property , things like loan, family medical expenses , sentimental practice of a family in village are also there. Would the judge view all those?

    • This is really sad.
      I can understand your situation
      This is just overpowering a gender not equality.

  8. मेरे पापा और 5चाचा के नाम 2001मे property ,हो गयी है अब मेरी बुआ उसमें अपना ,,part claimकर सकती है क्या? मेरे 5चाचा की deathहो चुकी है।

  9. Advocate Siddharth…sir my dad gives some properties by his will..does any of my sisters have rights??its not ancestors gift…the property is bought by dad from my ancestors with liquid cash as per documents

    • Judge Sir,
      My dad gives some Properties by his GPA 1992 and Will 2000 and Gift 2004 Which does any of my Sisters have rights ?? before 5th Sept 2005 Self and Ancentry Properties as for Supreme Court Order 9th Sept 2020.

      • My mother got married in 1985 and his father was died the property belongs to his two brothers .and no share to my mother can we put a case nw

  10. How much time does it take to settle property dispute if the son is abroad and prior to marriage the daughter did everything for the house and cheated by brother in the share.

  11. How much time does it take to settle property dispute if the son is abroad and prior to marriage the daughter did everything for the house and cheated by brother in the share.

  12. In such case agirl should not take dowry during marraige she should also have equal share of debts of family not only wealth we are leaving in a society where there is gender inequality with female dominated society

  13. What about those daughters who are claiming greedily a share now in another property though they have received one property in the form of a gifted deed earlier, before December 20, 2004.

    • Yes if his father has ancestral property then she has right from her birth and even if such property is self acquired then after death of father she is entitle to it .if there is no any will has been made by father which vesting such self acquired property in other person..

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