Daughters Born Before 2005 Have

Equal Rights to Ancestral Property:

SC
By Rishabh Shroff on March 8, 2018

The issue of succession equality and rights for women has been extremely
important and perhaps controversial in recent times. However, it is very
heartening to see that our Indian Courts have continued to adopt a pro-
women approach in a number of legal aspects, one of the most important
of which is in relation to ancestral properties.

In a landmark decision, the Supreme Court of India (SC) upheld the right of
a daughter to an equal share as a son in an ancestral property, including
daughters who were born before the Hindu Succession Act, 1956 (HSA)
came into force. The judgement was delivered by Justice A.K. Sikri and
Justice Ashok Bhushan on February 1st, 2018 in the matter of Danamma v.
Amar[1].

The Bench further clarified that the Hindu Succession (Amendment) Act,
2005 (2005 HSA Amendment) to Section 6 of the HSA makes a
daughter a “coparcener” since birth (one who shares equally in the
inheritance of an undivided joint family property, and since 2005 this
applies equally to both sons and daughters). This fact gives her the same
rights and liabilities as a son while asserting that it is applicable in all
property disputes filed before 2005 as well. The marriage of the daughter
makes no difference to this position.

A Hindu Undivided Family (HUF) is a unique concept that exists under

Hindu law. It is a body that has a separate legal personality, comprising of
all lineal descendants of a common ancestor and includes their wives and
daughters. A ‘coparcener’ is a lineal descendant who is within four degrees
from a common ancestor; such a person acquires an undivided interest in
the HUF property immediately at birth.

Prior to the 2005 HSA Amendment, a daughter ceased to be a coparcener

in her father’s HUF upon her marriage. However, as per the amended law,
whilst a married woman becomes a ‘member’ in her husband’s HUF (i.e.
she has very limited rights in the husband’s HUF), she also continues to be
a coparcener in her father’s HUF.
Background

In 2002, a plea was filed in Karnataka by two sisters of the ‘Savadi family’,
seeking a share in their late father Mr. Gurulingappa Savadi’s property. The
trial court dismissed their plea in 2007 and held that the sisters were not
entitled to any share as they were born prior to the enactment of the HSA,
and therefore could not be considered as coparceners. It also rejected the
alternate contention that, in any case, the sisters had acquired a share in
the HUF property after the 2005 HSA Amendment. The view of the trial
court was affirmed by the Karnataka High Court, leading to the appeal in
the SC.

The Issue Before the Supreme Court

The SC considered two questions:

1. Could the daughters of the propositus be denied their share, on the

ground that they were born prior to the 2005 HSA Amendment, and,
therefore, cannot be treated as coparceners?
2. Or, alternatively, with the passing of the 2005 HSA Amendment, do
the appellants become coparceners “by birth” in their “own right in the
same manner as the son” and, therefore, are entitled to an equal
share as that of a son?

Supreme Court’s Verdict

Setting aside the High Court order, the SC held that a daughter’s share in
ancestral property could not be denied on the ground that she was born
before the 2005 HSA Amendment; and the amendment was applicable to
all partition suits filed before 2005 and pending when the amendment was
framed.

The bench added that the law was amended to give daughters equal status
to that of a son in succession related matters. The bench added that:

“These changes have been sought to be made on the touchstone of

equality, thus seeking to remove the perceived disability and prejudice to
which a daughter was subjected.”

The SC correctly took the view that the amendment of Section 6 of the
HSA vide the 2005 HSA Amendment clinches the issue, beyond doubt, in
favour of the appellants and held that:
“This amendment now confers upon the daughter of the coparcener as well
the status of coparcener in her own right in the same manner as the son
and gives same rights and liabilities in the coparcener properties.”

What Difference will this Case Make?

Sixteen years since the partition suit was filed, the Savadi sisters were
finally granted justice. The SC’s decision crystallizes the inheritance rights
of women under Hindu law, irrespective of their marital status. The 2005
HSA Amendment fundamentally altered the status of women, by making
daughters equal coparceners in the same manner as the sons in the HUF
property. However, it did not expressly provide for the retrospective
operation of law.

The SC had the option of taking either a very narrow view of the law, or
choosing to do what they did. They chose wisely. This decision has made it
law that a daughter will be entitled to an equal share as that of a son (i.e.
her brother) in her father’s property. This categorical assertion by the SC
has clarified the law, leaving very little scope for misinterpretation by other
courts.

What Next?

For daughters wanting to claim a share in their ancestral

property, they can now do so regardless of their year of birth.
Even children of a pre-deceased daughter who was living at
the time of the 2005 HSA Amendment, can claim a share in
HUF property to the extent it would have devolved upon
their mother. The SC has, while referring to its earlier
Judgment in the case of Prakash and Ors vs Phulvathi and
Ors(2015)[2] clarified that living daughters of living
coparceners in or after the 2005 HSA Amendment would have
equal rights of inheritance as that of a son. Hence, the SC held
that the rights granted to daughters under the 2005 HSA
Amendment would be applicable to living daughters of “living
coparceners as on 9th September, 2005 irrespective of when
such daughters are born”. In simpler terms, this means that if
either the daughter or the father were not alive on or after
September 9th, 2005, then the daughter would have no legal
right over the coparcenary property of her father.
However, in practice, most daughters do not claim a share in their ancestral
property and relinquish it in favour of their brothers, often for little or no
compensation. Societal and family pressures force women to do so, and
this is unlikely to change in the medium term across India. Even awareness
or knowledge about their personal wealth and the need for succession
planning is very limited or non-existent, let alone awareness of such
nuanced issues on family property. This reflects a very sorry and sad state
of affairs in the Indian male dominated environment.

It is important to note that Section 6 of the HSA applies only to intestate

succession (i.e. default succession under the law), and not to bequests of
personal assets through testamentary instruments (i.e. a Will or Codicil).
Families looking to bequeath their assets to specific persons should do so
by way of a professionally drafted Will, which clearly lays out the manner of
bequest. This helps mitigate the risks posed by the change in law and
ensure that the assets do not get locked up in litigation for many years.

Today, women are playing a pivotal role in the business world, far beyond
just their family businesses. Given the evolving nature of inheritance &
succession law, they must take steps to understand their inheritance rights,
and do something proactive about it. Women, we encourage each of you to
think about your succession and legacy very carefully, and to consider
putting in place your Wills at the earliest.

* The author was assisted by Tanmay Patnaik, Principal Associate –

Designate and Kavya Keshari, Associate.

[1] 2018(1)SCALE657; Civil Appeal Nos. 188-189 of 2018 [SLP (C) Nos.
10638-10639 of
2013] http://sci.gov.in/supremecourt/2013/3186/3186_2013_Judgement_01
-Feb-2018.pdf

[2] 2015(6) Kar L J 177

Tags: 2005 HSA Amendment, Danamma v. Amar, Hindu Succession Act, HUF, Succession, Supreme
Court, Women's Right to Property

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