Daughters cannot inherit ancestral property if father died before 09.09. 2005

Ownership of a property plays a key role in upholding the strength of an individual giving them an opportunity to maintain themselves and their families. Keeping the importance of land as valuable and critical resource in consideration, Hindu Succession Act, 1956, an enabling statute was enacted with the sole purpose of codifying the law related to the succession of property in Joint Hindu Family. It is restricted to interstate and unwilled deaths in Hindus, Sikhs, Jains and Budh families which are governed by Mitakshara and Dayabhaga Law. Originally, this act was a toothless tiger in the domain of women succession rights. Prior to the amendments in this act, a woman belonging to a Joint Hindu Family could not demand for a share in the ancestral property which was alienated or partitioned. The utmost provision for women was limited to sustenance only.

Undeniably, there is an acknowledgement of the fact that women’s land rights lead to positive outcomes for their well being and for imbibing gender equality rights in the patriarchal system. To reiterate the same, the Supreme Court in the year 2005, explicitly ensured equal inheritance rights for women by passing a landmark judgment which laid the foundation of the Hindu Succession (Amendment) Act, 2005. In the wake of increasing disputes where women were demanding equal property rights as men, this amendment was believed as a social legislation which was enacted on 9th September 2005. After the amendment, every daughter regardless of her marital status is considered a member of her father’s Hindu Undivided Family who can be appointed as manager (Karta) of the same. Exhaustively, it statutory grants the same rights, duties and liabilities to the daughters at the same par with the son by revising rules on co-parcenary rights and rules on Section 4, Section 6, Section 23, Section 24 and Section 30 of the Hindu Succession Act, 1956. This amendment promoted a cascading effect on property matters because; the 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 a recent judicial development a small restriction is added in the year 2016 in the case of Prakash v. Phoolwati (2016) 2 SCC 36, wherein Justice Anil R. Dave and Adarsh K. Goel passed a judgment on 16th October 2015 with regard to the Joint Hindu Family governed by Mitakshara Law for devolution of interest in coparcenary property. It was held that the date of daughter becoming a coparcener is on and from the date of the commencement of Hindu Succession Amendment Act, 2005 which is 9.09.2005.

OVERVIEW OF THE JUDGMENT:

• Phoolwati claimed partition suit and separate possession of her 1/7th (one-seventh) share in her father’s properties (passed away on 18.02.1988) who acquired the property by his adoptive mother by amending her plaint according to the Hindu Succession Amendment Act,2005.
• Originally, the Karnataka High Court entertained this partition suit wherein the court allowed it in favour of Phoolwati upholding that an amendment will be retrospective in nature
• This order was challenged in Supreme Court

ISSUE RAISED IN THIS JUDGMENT:

Whether or not the Hindu Succession Act, 1956 Amendment Act is applicable retrospectively?

APPLICABILITY OF THIS JUDGMENT:

• It is applicable only in case of ancestral property, hence not applicable for the self-acquired property.
• Not applicable on testamentary/willed death.
• Not applicable on sons/wives/daughter-in law/ grand-daughter.
• Only for families governed by Mitakshara law.

EFFECTS OF THIS JUDGMENT:

• The High Court order was set aside by holding that the amendment act would not be applicable retrospectively.
• According to the judgment:
• Hence, no inheritance of ancestral properties owned by the person who died before 09.09.2005.

CONCLUSION:

This judicial progress in the arena of inheritance of ancestral property has engendered a downfall of women succession rights. The new judgment has evolved itself as a letdown for numerous women across the country whose father died before 2005. The Supreme Court has rejected various High Court opinions on this matter and has finally laid down a standard for the applicability of the Amendment Act by making retrospective effect illegal and invalid in eyes of law. Nonetheless, it was long awaited clarity which has cleared the air that all that is required that the daughter and father both should be alive on and before the date of the enactment date of the amendment act i.e. 09.09.2005 else the inheritance of ancestral property by a daughter would be unsanctioned and unwarranted by law.