Right of daughters by birth under Hindu Succession (Amendment) Act, 2005

“The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a
coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition.”

-Observations of Hon’ble Apex Court

 Hindu Succession (Amendment) Act, 2005 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 as she would have had if it had been son.

Whether the right would be conferred only upon the daughters who are born after September 9, 2005, when Act came into force or even to those daughters who were born earlier?

Bombay High Court in Vaishali Satish Gonarkar v. Satish Keshorao Gonarkar (AIR 2012 Bom 110) settled this question. It had taken the view that the provision cannot be made applicable to all daughters born even prior to the amendment when the Legislature itself specified the posterior date from which the Act would come into force.

Prakash & Others. v. Phulavati & Others , (2016) 2 SCC 36

The Apex Court in 2016 made clear the application of the amended provisions and held as foolows-

  • The rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.

In Danamma @ Suman Surpur & another v. Amar & others (decided on 1 February ,2018)

The question of law –

Whether, the appellants, daughters of Gurulingappa Savadi, could be denied their share on the ground that they were born prior to the enactment of the Act and, therefore, cannot
be treated as coparceners? Alternate question is as to whether, with the passing of Hindu Succession (Amendment) Act, 2005, the appellants would become coparcener by birth in their own right in the same manner as the son and are, therefore, entitled to equal share as that of
a son?

The Hon’ble Supreme Court answered the above question as follows –

  • The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should,
    therefore, be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth.
  • Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-sections (1)(a) and (b).

Time and again suits, petitions and appeals are filed regarding the application of the amended provisions of the succession law. The High Courts and the Apex Court have settled that daughters born prior to 2005 have equal rights like sons.

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Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in research and writing on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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