A bench of Justices Arun Mishra, S Abdul Nazeer and M R Shah ironed out the confusion arising from the apex court’s conflicting interpretations of the amended Section 6 of Hindu Succession Act, which came into force from September 9, 2005. The bench said whether the father was alive or not, daughters born before September 9, 2005, too could claim equal right in inheritance.
“The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956, confer status of coparcener (equal rights in inheritance) on the daughter born before or after amendment in the same manner as son with same rights and liabilities. The rights can be claimed by the daughter born earlier with effect from September 9, 2005,” Justice Mishra said in the 121-page judgment.
However, daughters, while claiming coparcenary rights, will not be able to question disposal or alienation of ancestral properties by the existing coparceners prior to December 20, 2004, as provided in the amended Section 6. The court also asked other coparceners in a Hindu joint family not to be alarmed by the judgment.
“It is only a case of enlargement of the rights of daughters. The rights of other relatives remain unaffected as prevailed in the proviso to Section 6 as it stood before the amendment,” the SC said.
The three-judge bench also examined the retrospective application of Section 6 and ruled that daughters would get the rights from 1956 when the law came into being. However, it clarified that the newly-conferred rights through the judicial interpretations would not be available to reopen alienation of ancestral property done so earlier through existing coparceners.
Coparcenary property is one which is inherited by a Hindu from his/her father, grandfather or great-grandfather. Only a coparcener has the right to demand partition of property. Share in a property increases or decreases by death or birth in a family.
Analysing the Mitakshara system applicable in various forms to property owned by Hindu families, Justice Mishra quoted a common saying noted in a 1996 judgment of the SC to sum up the bench’s view towards daughters, “A son is a son until he gets a wife. A daughter is a daughter throughout her life.”
The Centre, through solicitor general Tushar Mehta, had unequivocally conveyed that coparcenary was a birthright of daughters. Justice Mishra elaborated on it and said if daughters had a birthright, it would be incongruous to constrain it with the condition that to enjoy that right, her father must be alive. “As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener, whose daughter is conferred with the rights, is alive or not,” the bench said.
Terming the 2005 amendment granting equal coparcenary right to daughters as belated, the bench said, “The goal of gender justice, as constitutionally envisaged, is achieved, though belatedly, and the discrimination made is taken care by substituting the provision of Section 6 by the 2005 amendment Act. The classic Shastric Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution.”