The Supreme Court has ruled that daughters born before the enactment of the Hindu Succession Act of 1956 are entitled to equal shares as the son in ancestral property. The verdict was issued in an appeal filed by daughters who challenged a decree in a partition suit that excluded them from the partition.

The Partition suit was filed in 2002 by the grandson of the deceased propositus of a joint family. The court found that daughters were not entitled to share in the property because they were born before 1956, the year the Hindu Succession Act was enacted. In the judgement, the Trial Court also denied them the benefits of the 2005 amendment, which gave daughters the same coparcenary status as sons. The High Court upheld the decree of Trial court.

The Supreme Court ruled that the courts below had made a mistake in the judgement that daughters were not empowered to partition because they were born before 1956. Under Section 6 of the Law, when a coparcener that left behind any female sibling designated in Class I of Schedule to the Law (which also includes a daughter), his undivided interest in Mitakshara Coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession. Therefore, the deceased coparcener interest would devolve by intestate succession on his heirs, including his daughters.

The Court has also held in judgement in favor of the daughters that they were entitled to the benefit of 2005 amendment as well, and that basis also they were designated to shares. It was settled in Prakash v. Phulavati (2016) 2 SCC 36 that right under the amendment area available to the daughters living on the day of the act, regardless of when they were born. In the present case, the bench comprising Justice A.K Sikri and Justice Ashok Bhushan further explained this and stated that the amendment stated that a daughter ‘shall by birth’ would become a coparcener in her own right in an equal way as son. Therefore, the daughter will receive the coparcenary right by virtue of amendment, ‘since birth’. It was observed as follows: –

Section 6, as amended, provides that on and from the initiation of the amendment Act, 2005 the daughter of the coparcener shall by birth become the coparcener in her rights in the same way as the son. It is obvious that the status is given to the sons under the old section and the old Hindu law was to treat them as coparceners since birth. The amended provision now also legally recognizes the rights of coparceners of daughters since birth. The section uses the terms in the same way as the son. It should, therefore, be evident that both the sons and the daughters of a coparcener have been given the right of becoming coparceners from birth. It is the fact of birth in a coparcenary that creates the coparcenary, and therefore the daughters and sons of a coparcener become coparceners by birth. The devolution of coparcenary property is the later stage and an outcome of the death of a coparcener. The first stage of a coparcenary is certainly its creation, as explained above, and as is well recognized.

The fact that the lawsuit was filed in 2002 was also considered irrelevant. The Court stated in the judgement that so far as partition suits are concerned, the partition becomes final until only on the passing of final decree. The decree was issued in 2007. Here the powers of the daughters were established in 2005, and since the Trial Court ought to have taken into account that aspect when adopting the decree in 2007.

The Court also noted and mentioned in the judgement that the 2005 amendment was brought in on the touchstone of equality, thus seeking to remove the perceived disability and prejudice faced by a daughter.

The major changes brought forward about in the Hindu Succession Act of 1956 by changing it in 2005, are perhaps a recognition of Roscoe Pound immortal words, which appear in his famous “The Ideal Element in Law” contracts that “the law must be stable and yet it cannot stand still. Hence all thinking about the law has fought to reconcile the conflicting demands of the need for stability and the need of change.” – the Bench observed.

Therefore, the judgement is in the favor of the daughters and says that shares will devolve on them as well.

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