Hindu succession (amendment) act, 2005
This act governs property division within the Hindu undivided family. In the year 2005, Parliament amended this act. As per this amendment, daughters were allowed to have equal rights. They were made coparceners in ancestral property. A coparcener is someone who shares equally with others in inheritance. Under the Mitakshara law, only male members could be coparceners.
What was the confusion all of this time- whether this act and this change come into effect just from 9th September 2005 when the amendment was made or does it also apply to cases from before? And here is where the Supreme court has come in.
Prakash v Phulwati case, 2015
In this case, a division bench of the Supreme Court ruled that the 2005 amendment could be granted only to the “living daughters of living coparceners” as per the wordings in the amended section, thus implying that only those daughters whose father were alive after the cut-off date of September 2005, would be entitled to benefits under the amendment.
A 2018 judgment extended the date further to 2001, but the cut-off was soon retroverted to 2005. To explain, while sons could inherit the property regardless of whether their father is ‘living/deceased’, daughters could only do that only if their father was alive after 2005. This was done so that coparcenary cases already settled would not be reopened.
Now, the supreme court in a recent judgment has allowed the amendment to the Hindu succession act, 2005 to be implemented retrospectively. Under the Hindu Succession (Amendment) Act, 2005, the Supreme Court (SC) has expanded the rights of Hindu women to their father’s property, even if they were born before the change or the father was not alive at the time of the amendment. If the woman died before the amendment came into force, her share may be passed on to her children.
- Section 6 of the Hindu succession act confers the status of coparcener on the daughter born on or before the amendment. That means this is for women not just born after 2005 but even before will have rights to their ancestral property like their brothers do.
- The rights can be claimed by daughters for any partition. That means the division of property which has also taken place before December 2004. Now, this is the crucial part because so far the amendment was being interpreted as being valid only after December 2004 and for those cases now that barrier has been removed. This means any case can technically come under this new act and fresh claims can be made. This is the important one because there were cases where this question came up.
- It’s not necessary that the daughter’s father is alive as of 9 September 2005 now. This is very crucial because in one of the cases it was argued that since the father was no longer alive his daughter’s rights also got extinguished. The court has clarified that this is not the case at all.
- The most important of them perhaps is that oral partitions will have to be scrutinized and backed with documentary evidence.
- The oral partition will not necessarily stand up to scrutiny in court. If challenged, they will have to produce documentary evidence to back it. So for example a person cannot go to court and say that my father promised me that this ancestral property will belong to me and not my sister. His sister can challenge it and the burden of proof will fall upon the brother to show that he indeed was given this property by some oral agreement.
- The supreme court also says that all pending litigation on this subject should be wrapped up and addressed in the next six months, if possible.
It is a major push for women lacking economic resources and are often marginalized by male members of the family. The hurdle of guaranteeing that women are actually empowered by this legal provision remains; most progressive legal rights fall by the wayside because women don’t know that they exist. This must be rectified. SC’s judgment gives women a level-playing field in legal property rights and is a game-changer in the wider canvas of gender rights.